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ee79756e-750e-499b-ae24-88e632f18f68 | Mohoff v. Northrup King & Co. | 234 Or. 174, 380 P.2d 983 | null | oregon | Oregon Supreme Court | Reversed and remanded April 17, 1963.
*175 James P. Harrang, Eugene, argued the cause for appellants. With him on the briefs were Arthur C. Johnson and Johnson, Johnson & Harrang, Eugene.
Orval N. Thompson, Albany, argued the cause for respondent. On the brief were Weatherford & Thompson, Albany.
Before McALLISTER, Chief Justice, and PERRY, O'CONNELL, DENECKE and LUSK, Justices.
REVERSED AND REMANDED.
O'CONNELL, J.
This is an action for damages for the alleged conversion of grass seed. Plaintiffs appeal from a judgment for defendant.
*176 Plaintiffs are engaged in a farming operation in Linn County, Oregon. Their principal crop is rye grass seed. Plaintiffs delivered to William J. Patapoff, a seed warehouseman, a certain quantity of seed grown by them. This seed was sold by Patapoff to defendant. Plaintiffs contend that the seed was delivered to Patapoff under a contract of bailment. Defendant contends that when the seed was delivered by plaintiffs to Patapoff the agreement was such that title passed to Patapoff and that, therefore, the transaction was a sale rather than a bailment. If defendant's position is correct, Patapoff could resell the seed to defendant. The jury returned a verdict for defendant. Plaintiffs appeal from the judgment entered on the verdict.
The principal assignments of error are based upon the trial court's refusal to give various requested instructions. These instructions informed the jury in substance that the transaction between plantiffs and Patapoff would constitute a bailment if the seed was delivered pursuant to an agreement that plaintiffs had the option to demand the return of seed or the price of the seed and that Patapoff would keep on hand a quantity of seed of the same quality as that delivered sufficient to meet plaintiffs' demand if they elected to call for a return of the seed.[1]
*177 1, 2. Defendant contends that there was no evidence to support such an instruction. The only evidence tending to prove that there was an agreement giving plaintiffs the option to demand seed or money is the testimony of Patapoff. His testimony was ambiguous on this point. The general tenor of his testimony was that the seed delivered by plaintiffs was not to be returned but was to be "replaced," upon plaintiffs' demand. The nature of Patapoff's obligation to "replace" seed is not made clear from his testimony. Some of his testimony quite clearly indicates that he had no obligation to keep on hand a supply of seed sufficient to meet plaintiffs' demand for the return of seed of the same quantity and quality as that delivered by them. If that were the case then no bailment would have been created.[2] Thus Patapoff testified that there were "no restrictions" on his right to dispose of the seed and that his only obligation was "to replace it with a new crop." (Emphasis supplied). If Patapoff's obligation to return seed to plaintiffs could be met by delivering to plaintiffs seed from a source other than the warehouse, there could be no bailment. At one point Patapoff testified as follows:
At another point Patapoff testified that "Mr. Mohoff and I had an understanding that I could get ship his seed or store it there and if I shipped, I was to replace it when he wanted it." This testimony could be interpreted to mean either that Patapoff was given the privilege of shipping the seed and replacing it later, in which case the transaction would be a sale, or that Patapoff was not authorized to ship plaintiffs' seed unless there was on hand sufficient seed to meet plaintiffs' demand for the return of his seed, in which case the transaction would be a bailment.
Patapoff also testified as follows:
Again the testimony is ambiguous. Patapoff's answers do not make it clear whether he was required to keep on hand at all times a sufficient supply of seed to meet plaintiffs' demands or whether his obligation to return seed of the same kind and quality could be met by obtaining seed from a source other than the supply in the warehouse.
*179 Patapoff further testified as follows:
Here Patapoff states that he could ship the seed "if" he could replace it. This could be interpreted to mean that Patapoff could ship the seed only if at the time he made the shipment he had on hand enough seed to satisfy plaintiffs' demand in the event that plaintiff called for the return of the seed. On the other hand, the testimony could be taken to mean that there was no obligation to keep a supply of seed on hand but that when plaintiffs' demanded seed Patapoff would forthwith obtain it either from a supply in the warehouse or from some other source.
Other testimony elicited from Patapoff was equally confusing. He testified as follows:
Then again:
*180 Patapoff gave no explanation as to what was meant by the statement that he was "to buy it if we agreed on a price" or by the statement that he was to replace the seed if "we couldn't buy it at a competitive price." Defendant's counsel explained this aspect of the agreement to mean that if Patapoff was willing to pay the market price at the time Mohoff was willing to sell he would purchase the seed, but if he did not want to pay that price he would return the seed or seed of equal quality. It appears that the market price of rye grass seed fluctuates markedly resulting from competitive bidding between seed dealers. Plaintiffs argue that the statement "I was to either to buy it if we agreed on a price or I was to replace that seed" described a bailment transaction, prohibiting Patapoff from shipping the seed until plaintiffs named the price at which they were willing to sell.
3. It appears, then, that part of Patapoff's testimony is consistent with the theory of a sale, and part is consistent with the theory of a bailment of fungible goods with a privilege in the bailee to sell from the fungible mass if he keeps on hand an amount sufficient to meet the demands of the bailor. The instruction given by the court permitted the jury to find a bailment only if Patapoff had the obligation to return the identical seed which the Mohoffs had delivered. The instruction was as follows:
Plaintiff was entitled to have the jury informed of the theory of bailment of fungible goods which we have just described. Therefore, the cause must be remanded for a new trial.
4. Several other assignments of error present questions which may be raised again upon a retrial of the cause. Plaintiffs assign as error the admission into evidence of a copy of a claim filed by plaintiff in Patapoff's bankruptcy proceeding. It was objected to on the ground that it was irrelevant and prejudicial. Defendant used the exhibit for the purpose of showing that plaintiffs submitted their claim in bankruptcy as a debt founded upon an open account because plaintiffs filled out item No. 8 of the claim form which contained the prefatory statement, "If the debt or liability is founded upon an open account." In another paragraph of the form plantiffs state that the consideration for the "debt" is "rye grass seed valued at $8,906.00 converted by bankrupt." (Emphasis supplied).
It is defendant's theory that after plaintiffs had delivered their seed to Patapoff they elected to treat the transaction as a sale and that the treatment of the obligation as an open account by filling out item No. 8 of the claim form was consistent with this intent to treat the transaction as a sale. In this respect the exhibit would have some relevance, and would be admissible.
5. An exception was taken to the instruction that plaintiffs would be precluded from recovery if they consented to the disposition of the seed either before *182 or after it was delivered to defendant. If the consent were given after the violation of the bailment, there would be presented a question of waiver by consent. Upon retrial, if the issue of waiver is properly raised and proved, defendant will be entitled to an instruction explaining that defense.
6. A question was raised at the trial as to the proper measure of damages to be applied to the present case. Where the goods converted have a fluctuating market price, which is true in the case of rye grass seed, the proper measure of damages is the highest value which the commodity reached in the market within a reasonable time after the plaintiffs discovered or had reason to know of the conversion.[3]
The judgment is reversed and the cause is remanded for a new trial.
[1] The following requested instruction is illustrative:
"You are further instructed that the transaction would also be a bailment and not a sale and that purchase and exercise of dominion and control over the seed by Defendant would constitute a conversion of the seed if you find that Plaintiffs could, at their option, sell the seed to Patapoff at a later date for an agreed price or at any time demand and obtain the return of the same seed or seed of like Blue Tag quality and grade and that Patapoff, under the agreement, was at all times to maintain sufficient seed on hand and in storage to cover the seed of the Plaintiffs if that particular seed was shipped out by Patapoff."
[2] It is conceivable that a bailment could be created where the deliveree is authorized to exhaust the fungible goods on hand, it being agreed that when other goods are acquired by him the title would pass without any further acts of the parties. But it is not contended in the case at bar that this was the nature of the agreement.
[3] This is the rule stated in 4 Restatement, Torts § 927, comment e (1939), which is followed in most states. See cases cited in Oleck, Damages to Persons and Property, p. 366 (rev ed 1961).
The rule for the measurement of damages where the goods have fluctuated in value after the conversion is not clear from our previous cases. In Eldridge v. Hoefer, 45 Or 239, 245, 77 P 874 (1904) it is said that the measure of damages is the value of the property at the time of the conversion "unless, perhaps, the property is of a fluctuating value, when, under some of the authorities, the highest value at any time between the conversion and the trial will be taken as a basis for estimating the damages. See, 2 Sedgwick, Damages, (8 ed.), § 597, et seq.; Field, Damages, § 798, et seq." However, there is other language in the Eldridge case and in Backus v. West, 104 Or 129, 205 P 533 (1922) which indicates that the time of the conversion is the point at which the value of the property is to be taken. See also, Durham v. Commercial Nat. Bank, 45 Or 385, 77 P 902 (1904). | 04d5cb72ded206e7a1f22d30eb6295b12bab8e9cbcdede8e10a5a57161a5d35b | 1963-04-17T00:00:00Z |
57b6ab52-ad89-40c0-9a97-262724706b0d | Highway Commission v. NUNES | 233 Or. 547, 379 P.2d 579 | null | oregon | Oregon Supreme Court | Reargued February 6, 1963.
Reversed and remanded March 13, 1963.
*548 J. Robert Patterson, Assistant Attorney General, Salem, argued the cause for appellant. With him on the brief were Robert Y. Thornton, Attorney General, Salem, and L.I. Lindas, Assistant Attorney General and Chief Counsel for Oregon State Highway Commission, Salem.
Stanley C. Jones, Medford, argued the cause for respondents. Joel B. Reeder, Medford, reargued the *549 cause for respondents. On the brief were Jones, Reeder & Bashaw.
Before McALLISTER, Chief Justice, and ROSSMAN, PERRY, SLOAN, O'CONNELL, GOODWIN and DENECKE, Justices.
REVERSED AND REMANDED.
O'CONNELL, J.
Plaintiff appeals from a judgment of the circuit court of Jackson county in a highway condemnation action to secure a right of way for highway purposes. Defendants had been in the business of selling topsoil, sand, and gravel from the property. The highway necessitated the taking of a part of the land. As a result of the taking plaintiff was deprived of access to a part of his land not taken. Plaintiff alleged that these parts had a value of $7,800. Defendants' amended answer claimed the sum to be $37,250. The jury fixed the value at $24,500 and judgment was entered accordingly.
Plaintiff contends that the trial court erred in over-ruling plaintiff's objection to the direct examination of James Nunes, one of the defendants, concerning the market price of gravel, topsoil, and sand when sold by the yard.[1] Plaintiff acknowledges that in *550 fixing the value of land a witness may take into account the fact that the land contains minerals which enhance its value. But it is plaintiff's position that the witness may not ascertain this enhanced value by multiplying the number of units of the mineral by the market price per unit. Defendants concede that the product of such a multiplication process taken alone may not be used as the value of the land or added to the value of the land aside from the minerals. However, defendants argue that quantity, quality and price per unit of the minerals may be considered as a factor in evaluating mineral land.
Pursuing this theory, defendants elicited from their witnesses testimony as to the quantity, quality and price per unit of the sand, gravel and topsoil, but in each instance the witness testified that the materials were evaluated "in place" and regarded only as a factor in arriving at the value of the land. The trial court adopted the view urged by defendants. Thus, in ruling on plaintiff's objection to the testimony of defendants' witness Nunes as to the then current value of topsoil "in place," the trial court said:
Plaintiff objected to the proferred testimony upon the ground that the estimate of the value of the topsoil, sand and gravel on a cubic yardage basis interjected into the case evidence of the value of items of personal property sold as a commodity and as such not related to the value of the land. Defendants countered with the argument that "It would be impossible for a prospective purchaser or this jury to determine the total value of the land if they didn't know how much the sand and gravel was selling for not for the purpose of making a multiplication procedure but for the purpose of making an evaluation." Defendants' position is supported by one line of authority.[2] The leading case presenting this point of view is United States v. Land in Dry Bed of Rosamond Lake, Cal., *552 143 F Supp 314, 322 (D.C. Cal. 1956). In that case the court said:
We have not passed upon the precise question presented although in State Highway Comm. v. Arnold, 218 Or 43, 341 P2d 1089, 343 P2d 1113 (1959) we disapproved the use of the multiplication method in arriving at the value of the property in that case.
1. The cases elsewhere seem to fall into three categories; (1) cases holding that a witness may not use the multiplication method in arriving at the value of land;[3] (2) cases holding that the multiplication method may be used but that the witness may not, at least on direct examination, testify specifically as to the quantity and price per unit of the materials in the land;[4]*553 and (3) cases holding that the witness may not only use the multiplication method but he may also explain specifically how he used it, i.e., by referring to the quantity and price per unit of the materials in the land.[5] All courts agree that if the multiplication method is used the product arrived at by multiplying the quantity of materials by the unit price cannot be taken as the value of the land but must be used only as a factor in evaluating the land itself.[6]
From the standpoint of the rationale upon which the cases rest they may be divided roughly into (a) those which regard the multiplication method as intrinsically unsound because it is speculative [these are the cases grouped in (1) above], and (b) those which consider the method as unobjectionable if properly applied [these are the cases grouped in (2) and (3) above]. One other difference in rationale may be noted which explains the conflict between the cases in groups (2) and (3) above. Some courts feel that although the multiplication method is unobjectionable when employed by an expert, it should not be exposed to the jury because it is likely to confuse the jury or be used by them as the sole basis of the estimate of value of the land sought to be taken and thus distort the estimate. This appears to be the rationale of the cases in group (2) above. On the other hand, the courts in group (3), which accept the multiplication method as a valid process in arriving at an estimate of value, *554 find no objection in permitting the jury to see specifically how the process was used.
2. We must make a choice between these competing rationales. We shall first consider whether the so-called multiplication method is an acceptable method if properly employed. There could be no objection to the use of the multiplication method in arriving at a figure to be employed as a factor in evaluating the land[7] where the quantity of the material (e.g., sand, gravel, timber) is known and there is a present market for all of the material sought to be taken. The use of the multiplication method presents certain problems where that is not the case. The reasons for rejecting the method are well stated in the quotation from United States v. Indian Creek Marble Co., 40 F Supp 811 (D.C. Tenn 1941) set out in State Highway Comm. v. Arnold, supra at 77.[8] Certainly the use of the multiplication method without making deductions for the cost of production and other operating expenses would not be proper.[9]
The multiplication of unit price times quantity would be a meaningless computation except as a part of a method of arriving at the profits which the sale *555 of the materials as personal property would produce. The presence of the materials in the land would not enhance the value of the land unless the sale of the materials would yield a net profit. This would suggest that in computing the value of land the multiplication method would, in fact, be nothing more than a capitalization of profits.[10] However, those courts which accept the multiplication method apparently do not so regard it but consider the product of such computation as one factor only in arriving at the value of the land.[11]
It is generally held that evidence of profits derived from a business conducted on land is too speculative to be used in ascertaining the market value of land. However, some courts recognize an exception where the profits proceed directly out of the land condemned and where the profits are the entire or chief source of value. Such an exception was noted in State of Oregon v. Cerruti, 188 Or 103, 214 P2d 346, 16 ALR2d 1105 (1950). There it was intimated that in a proper case evidence of profits derived from the use of agricultural lands would be admissible in proving *556 the market value of the land condemned. The same principle, if acceptable, would be equally applicable to the business of selling sand, gravel and topsoil from the land sought to be taken.[12] There are some cases, however, holding that profits from the sale of minerals cannot be shown.[13]
As a matter of theory the cases rejecting evidence of profits as too speculative would seem to have the better of it. There is no doubt that the method calls for the employment of data which is based upon a certain amount of conjecture. But this is true of all estimates of value. The estimate must be made and as a practical matter it is frequently impossible to arrive at the value of land unless the capitalization method is employed in some fashion. Even where there is some evidence of comparable sales of similar land, the differences in land (represented principally by the differences in the quantity of the available materials the sale of which gives the land its principal value) necessitates a consideration of the profits derivable from the sale of the materials.
Plaintiff contends that if the capitalization method is to be used at all it can be used only if there is no evidence of sales of comparable property. It is argued *557 that there was such evidence in the present case. It is not clear from the testimony of the value witnesses whether they were testifying as to the value of comparable land. Apparently the sales referred to were sales of land the price of which was determined on the basis of the value of the land for farm purposes. This would not indicate what gravel land would sell for on the market. However, conceding that the sales compared were of lands having value in the market because they contained saleable topsoil and gravel, the price which would be paid for such lands would be determined by the profit which could be derived from the sale of the soil materials taken from the land. We see no reason why the value witness should not be permitted to use the factors which a well informed buyer himself would use in arriving at the price he would pay for the property.
3. The capitalization of income when properly employed is an acceptable method of arriving at the value of property.[14] There is no reason why it should not be employed with proper safeguards in the valuation *558 of land, the principal value of which is attributable to income produced from the sale of soil materials. This does not mean that the value of the land can be estimated simply by multiplying the quantity of materials times the existing market price per unit. The appraiser must refine the computation by deducting costs of operation, making allowances for variances in the market price of the materials, calculating the extent of the market for such materials in relation to the amount of materials taken, the possible rise and fall of income, and accounting for other factors which expert appraisers take into consideration in applying the capitalization method.[15]
The capitalization method or any other method of evaluation is merely a rough guide in estimating the value of property. It is recognized that the appraisal of property involves a considerable amount of guess-work. And at the litigation stage the uncertainties are compounded because the appraisals frequently reflect the bias of the witnesses.[16] But an estimate must be *559 made and the courts must do the best they can with an imperfect method.
4. Therefore, it is our conclusion that the so-called multiplication method, a form of capitalizing profits as indicated above, may be used by an expert witness as a factor in forming his appraisal of the value of the land. The method may not be used unless the witness takes into consideration all of the ingredients of the method referred to above. The complexities involved in using the capitalization method make it evident that no one but an expert appraiser having knowledge of the intricacies of the capitalization method is competent to employ it.[17] This will mean that the witness will not be qualified to use the method unless he has sufficient knowledge of its intricacies to be able to apply it intelligently.
In the present case defendants' witness Nunes was one of the owners of the property being taken. Although he was engaged in the business of selling the soil materials from the land, it was not shown that he had the requisite knowledge to apply the capitalization method properly. He testified that he had computed the value of the topsoil, sand and gravel "in place." But the computation which he used was based upon the sale of the materials as personal property and not *560 as a part of the land. This is brought out in the following testimony:
5. It is apparent from the record that Nunes' estimate of value which was based upon the sale of the materials by the yard did not include the cost of production and the cost of doing business (except the cost of hauling), nor did it take account of the extent of the market for such materials in relation to the amount of the materials taken or the other factors considered by experts in employing the capitalization method. Even if Nunes had given testimony on these refinements necessary to properly apply the capitalization, he was not qualified to express an opinion in that respect.
While no objection was made to Nunes' qualifications as a witness and is not assigned as error on appeal, nevertheless timely objection was made to the use of the capitalization method itself and since it was not properly applied the case must be remanded for a new trial.
*561 In view of the possibility of a retrial it is advisable that we pass upon the question of whether a witness properly using the multiplication method may disclose to the jury specifically how he arrived at his estimate. We have made reference to the cases holding that the so-called multiplication method may be used but that the specific manner of its use may not be disclosed to the jury by the proponent of the evidence.[18] 1 Orgel, Valuation Under Eminent Domain § 164, p. 667 (2d ed 1953) comments on the "willingness of the courts to admit various types of evidence bearing on income, but not specifying its exact amount." He continues: "Evidently, the tribunal may be allowed to get a taste of the owner's juicy pie, and to look at it from a distance, even though it may not be permitted to become `confused' by a measurement of its enticing dimensions."
The ground for excluding the witness's description of the specific process of computing the capitalized value is not always made clear in the cases. Thus, in Hollister v. Cox, 131 Conn 523, 41 A2d 93, 156 ALR 1412 (1945) the court recognized that the existence of mineral deposits could be considered by the witness in estimating the value of the land, but deemed it important to note that the questions put to the witness relating to the presence of gravel and its marketability were in general terms. The court said: "Neither this question nor the others objected to contained any requests for details as to the number of cubic yards of gravel or similar matters. They were properly framed." (131 Conn at 526, 41 A2d at 95.) No explanation was given by the court for the restriction on the disclosure of the details employed in estimating the value of the land. The basis for this restrictive rule *562 appears more clearly in other cases. In some cases the details of computation are excluded on the ground that such evidence would raise collateral issues.[19] Thus in City of Los Angeles v. Deacon, 119 Cal App 491, 495, 7 P2d 378, 379 (1932) the court said:
In State of Oregon v. Cerruti, 188 Or 103, 214 P2d 346, 16 ALR2d 1105 (1950), where an effort was made to show profits that might be realized if in the future the property were put to a particular use, the court held that the evidence was not admissible because it "introduces collateral issues and is too speculative and too likely to mislead the jury * * * as a factor in determining value." The court was careful to point out, however, that "`it would be unwise to lay down a hard and fast rule applicable to every case, as to what elements properly enter into consideration in determining the market value of property sought to be condemned.'" (188 Or at 113-114, quoting from Chairman of Highway Commission v. Parker, 147 Va 25, 136 SE 496).
The danger of such evidence misleading the jury has been more specifically explained in other cases. In some cases the explanation is in terms of the incompetence of the jury to understand the complexities *563 of the capitalization method of measuring value. As one court has put it: "The gross estimates of common life are all that courts and juries have skill enough to use as a measure of value."[20] 1 Orgel, Valuation Under Eminent Domain § 162, p. 657 (1953) makes the point more specifically:
It may be that some courts exclude detailed evidence of capitalization to minimize the danger of the jury computing the value simply by multiplying the quantity of materials by the unit price and as a consequence returning an excessive verdict.[21]
6. The difficulties and dangers recited above perhaps are real. But weighed against these objections is the advisability of permitting the jury to have all the available data from which to draw its inferences. In other areas of litigation it is well established that the data and reasoning upon which an expert witness relies may be presented to the jury.[22] We see no reason for making an exception in condemnation cases. Therefore, we hold that a witness testifying as to the value of land containing sand, gravel or other merchantable *564 soil materials may be questioned on direct examination as to the details of his computation of capitalized value. However, if the witness testified as to value upon the basis of the capitalization method, the adverse party may insist that the method be employed fully and not simply by showing the quantity of the materials and the unit price for such materials, as was done in the present case. Then, too, the adverse party may cross-examine a witness in detail as to the method employed in capitalizing income.[23]
The range of inquiry will depend in part upon the character of the business being conducted, the period of time during which the business has been conducted, the quantity of materials available, the demand for such materials, price stability, other factors relevant to the stability of the business, and the net profits which it is likely to produce in the future.[24]
The judgment of the lower court is reversed and the cause is remanded for a new trial.
DENECKE, J., dissenting.
The majority holds that the capitalization method, properly applied, may be used by an expert appraiser in determining value. The majority opinion further states that an expert can testify how he used this method in determining value. With this I concur. *565 The majority, however, remanded the case for a new trial on the ground that the capitalization method was here improperly applied. To this I dissent, for the reason that the Commission's objection was not that the capitalization method was being improperly applied, but that the capitalization method could not be used under any circumstances in determining value.
SLOAN, J., dissenting.
I dissent from that part of the opinion in this case which holds that reversible error was committed by the trial court. In addition to the reason stated by Mr. Justice DENECKE, I am of the opinion that any error was cured by instruction of the court to the jury.
[1] The following is illustrative of the testimony of witness Nunes:
"Q. Now, when one is desirous of purchasing topsoil, sand and gravel, by what unit is it purchased?
"A. By the yard cubic yard.
"Q. Does one selling topsoil, sand and gravel ever sell by the acre?
"A. Not if he is informed, he wouldn't.
"Q. Now, do you value the property that is the subject of this inquiry as a unit for topsoil, sand and gravel purposes only?
"A. My place there?
"Q. Yes, your place.
"A. Yes, sand and gravel and topsoil is what it is most valuable for.
"Q. And in order to arrive at your opinion of the fair cash market value of the property in question, have you taken into consideration what the going market was in February of 1961?
"A. Yes, I have.
"Q. For topsoil, sand and gravel.
"A. Yes I have."
[2] Cade v. United States, 213 F2d 138 (4th Cir 1954); 293.080 Acres of Land, Etc. v. United States, 169 F Supp 305 (D.C.W.D. Penn 1959); Foster v. Mississippi State Highway Comm., (Miss) 140 So2d 267 (1962); State v. Noble, 8 Utah2d 405, 335 P2d 831 (1959); State v. Mottman Merc. Co., 51 Wash2d 722, 321 P2d 912 (1958).
[3] United States v. 620.00 Acres of Land, Etc., 101 F Supp 686 (W.D. Ark 1952); United States v. 13.40 Acres of Land in City of Richmond, 56 F Supp 535 (D.C.N.D. Cal. 1944); United States v. Indian Creek Marble Co., 40 F Supp 811 (D.C.E.D. Tenn 1941); Sparkill Realty Corporation v. State, 268 NY 192, 197 NE 192 (1935); Reading & P.R. Co. v. Balthaser, 119 Pa 472, 13 A 294 (1888).
[4] See e.g., Hollister v. Cox, 131 Conn 523, 41 A2d 93, 156 ALR 1412 (1945); Gulf Interstate Gas Co. v. Garvin, 303 SW2d 260 (Ky 1957); State v. Mottman Merc. Co., 51 Wash2d 722, 729, 321 P2d 912, 916 (1958), dissenting opinion Mallery, J.; McSweeney, Evaluation of Mineral Rights, 5 Appraisal and Evaluation Manual of the American Society of Appraisers 153, 159 (1960).
[5] See cases in note 2 supra.
[6] United States v. Indian Creek Marble Co., 40 F Supp 811, 822 (D.C.E.D. Tenn 1941); Nedrow v. Michigan-Wisconsin Pipe Line Co., 245 Iowa 763, 61 NW2d 687, 691-692 (1953); State v. Mottman Merc. Co., 51 Wash2d 722, 321 P2d 912 (1958).
[7] As noted by State v. Mottman Merc. Co., 51 Wash2d 722, 729, 321 P2d 912, 917 at 918 (1958) (Mallery, J., dissenting): "* * * Testimony as to the unit price of gravel is not a criterion of what a willing purchaser would pay, in the absence of a showing that there is a present demand for the entire quantity at the unit price." But see, State v. Noble, 6 Utah2d 40, 305 P2d 495, 501 (1957), quoting contrary language from Reiter v. State Highway Commission, 177 Kan 683, 281 P2d 1080, 1083 (1957).
[8] The evils recited in that case may be summarized as follows: The method assumes the continued existence of a stable demand, a stable price and stable production costs; it eliminates possible competition of better materials or the possible substitution of other materials; it fails to consider the efficiency of management and business judgment as a factor in marketing the materials.
[9] See note 6, supra, and accompanying text.
[10] Occasionally this has been recognized. Thus in United States v. 13.40 Acres of Land in City of Richmond, 56 F Supp 535, 538 (D.C.N.D. Cal 1944) the court said:
"* * * What they really did was to appraise the present value of the anticipated profits from the sale of the rock material and not the market value of the land itself as of the date of the taking."
See also, 1 Orgel, Valuation Under Eminent Domain § 163, p. 663 (2d ed 1953):
"The true significance of a ruling excluding realized or prospective income as direct evidence of value is often obscured by the willingness of the court to permit qualified witnesses to give their opinions on the value of the property, even though it becomes apparent on direct or cross-examination, that this opinion is based very largely on a capitalization of earning power."
[11] See cases cited in note 2 supra.
[12] Cf., State v. Suffield & Thompsonville Bridge Co., 82 Conn 460, 74 A 775 (1909) (profits from toll bridge); Columbia Delaware Bridge Co. v. Geisse, 38 NJL 39 (1875), aff'd. 38 NJL 580 (1876) (profits from ferry); Brainerd v. State, 74 Misc 100, 131 NYS 221 (Ct Claims NY 1911) (profits from retail coal business and dock on canal used together where location was excellent).
[13] 4 Nichols, Eminent Domain 427 (4th ed 1962); Horgan, Mineral Valuation in Eminent Domain Cases, 7 Hastings L J 163 (1955). E.g., City of Los Angeles v. Deacon, 119 Cal App 491, 7 P2d 378 (1932) as qualified by County of Los Angeles v. Faus, 48 Cal2d 672, 312 P2d 680 (1957); Cole v. Ellwood Power Co., 216 Pa 283, 65 A 678 (1907); Buckhannon & Northern Railroad Co. v. Great Scott Coal & Coke Co., 75 W Va 423, 83 SE 1031 (1914).
[14] The capitalization of rentals is not uncommon. State of Oregon v. Cerruti, 188 Or 103, 108-109, 214 P2d 346, 349, 16 ALR2d 1105, 1109 (1950); Gauley & Eastern Railway Co. v. Conley, 84 W Va 489, 100 SE 290, 7 ALR 157 (1919); Winner, Rules of Evidence in Eminent Domain Cases, 13 Ark L Rev 10, note 7 at p. 18 (1958-59). Similarly, capitalization of profits derived from farming is recognized as an acceptable method of establishing the value of farm lands. State of Oregon v. Cerruti, supra at 108-109. See e.g., Alabama Power Co. v. Herzfeld, 216 Ala 671, 114 So 49 (1927); City and County of Denver v. Quick, 108 Colo 111, 113 P2d 999, 134 ALR 1120 (1941); Stolze v. Maintowoc Terminal Co., 100 Wis 208, 75 NW 987 (1898). See also, Public Market Co. v. Portland, 179 Or 367, 170 P2d 586 (1946), cert. denied, 330 US 829, 67 S Ct 861, 91 L Ed 1278 (1947). The reasons which are advanced to support the use of the capitalization method in these cases are applicable to the cases in which the income is derived from minerals or soil materials. See IX Seligman, Encyc of The Social Sciences, Land Valuation, 137 (1948).
[15] See McSweeney, Evaluation of Mineral Rights, 5 Appraisal and Evaluation Manual of the American Society of Appraisers, 153 (1960); Parks, Examination and Valuation of Mineral Property (4th ed 1957) passim; Marston, Winifrey and Hempstead, Engineering Valuation and Depreciation, 364 et seq. (1953); IX Seligman, Encyc of The Social Sciences, Land Valuation, 137 (1948).
[16] "* * * Since the witnesses derive their fees from the one or the other party to the controversy, the trial often amounts to a mere battle of lies. To some extent the exaggerations and prevarications of the witnesses are discounted by the tribunal as a result of the cross examinations. But few juries and judges are equipped to form independent judgments on matters of such a technical nature, and the award is often a meaningless compromise between the values testified to on both sides. There is a crying need in the United States for the use of skilled commissions and specially trained judges in the trial of important valuation cases." XI Seligman, Encyc of The Social Sciences 213-214 (1948).
[17] These complexities are revealed in the texts cited in note 15 above. The formula suggested in the essay on Land Valuation in IX Seligman, Encyclopedia of The Social Sciences, p. 137 (1948) will serve to illustrate the complexity of the subject. There the formula for capitalizing annual income is as follows:
a i
V = _ + (or -) _ 2, where V is the value of the land, a is the
r r
annual income, r is the rate of interest and i is the expected annual increase or decrease.
[18] See note 4, supra.
[19] See 4 Nichols, Eminent Domain § 12.311 [3], p. 93 (1962); 1 Orgel, Valuation Under Eminent Domain § 162, p. 662 citing cases at note 21 (2d ed 1953).
[20] Searle v. The Lackawanna and Bloomsburg Railroad Co., 33 Pa 57, 64 (1859). For cases permitting evidence that profits were made but not the amount of such profits, see 1 Orgel, Valuation Under Eminent Domain § 164, p. 668 (2d ed 1953).
[21] See State Highway Comm. v. Arnold, supra at p. 84 where we alluded to the possible danger of juries returning excessive verdicts in condemnation cases.
[22] Highway Com. v. Morehouse Holding Co., 225 Or 62, 357 P2d 266 (1960).
[23] Cf., City of Los Angeles v. Deacon, 119 Cal App 491, 495, 7 P2d 378, 379 (1932): "* * * A witness who has given an opinion as to market value, may be asked on cross-examination if he knew of the net profit and what importance, if any, he attached to it, but such questions are permitted to test the value of the opinion ventured, and not because the sum involved is to be made use of by the court or jury as a basis for computing market value." The case was overruled by County of Los Angeles v. Faus, 48 Cal2d 672, 312 P2d 680 (1957) on different grounds.
[24] For cases showing this variation, see 1 Orgel, Valuation Under Eminent Domain § 164 (2d ed 1953). | f0a8ec0999e0aa03050656a09e77b74315d1289619c629e6540da9e87a150d88 | 1963-03-13T00:00:00Z |
3f55f8fe-ce8e-452b-bfd4-dc851e6c89e2 | Konen Const. Co. v. US Fid. & Guar. Co. | 234 Or. 554, 380 P.2d 795 | null | oregon | Oregon Supreme Court | Affirmed as modified April 17, 1963.
Petition for rehearing denied, former opinion modified June 19, 1963.
*555 H.H. Hahner, Walla Walla, Washington, argued the cause for appellants and intervening defendants. On the briefs were Hutchinson, Schwab & Burdick, Portland, and Minnick & Hahner, Walla Walla, Washington.
Paul C. Keeton, Lewiston, Idaho, argued the cause for respondent and cross-appellant. With him on the brief were McCarty & Rosacker, Portland.
Before McALLISTER, Chief Justice, and PERRY, O'CONNELL, DENECKE and LUSK, Justices.
AFFIRMED AS MODIFIED.
DENECKE, J.
The plaintiff, J.F. Konen Construction Co., contracted to supply crushed rock to the intervening defendants, hereinafter called Braden, in furtherance of Braden's road contract with the Oregon State Highway Department. The defendant United States Fidelity & Guaranty Company, hereinafter called USF & G, was surety on Braden's construction bond. The primary *556 questions concern the notice of claim required by ORS 279.526.
Plaintiff brought its action against USF & G, only. Braden petitioned to intervene, alleging he would have to pay any judgment against USF & G because of an indemnity agreement. The petition was granted and this action was not assigned as error. Braden filed an answer denying plaintiff's claim and counter-claiming for damages because of plaintiff's allegedly breaching its contract to furnish rock to Braden.
The action was tried before the court without a jury. The plaintiff was awarded damages in the amount of its prayer against USF & G. The court made a conclusion of law that Braden was liable over to USF & G for the amount of the judgment.
1. The first assignment of error is directed to the court's permitting the plaintiff to reopen its case to introduce evidence of the filing of notice and then to amend its complaint by adding an allegation that notice was filed. ORS 279.526 makes the filing of notice of claim a condition to maintaining an action on the bond. No such notice was alleged or proved at the initial trial. After the court indicated that it was finding for the plaintiff, the plaintiff tendered proposed findings of fact. To these defendants objected on the ground, among others, that there was no proof that a notice of claim was filed. The plaintiff moved to reopen the case to present such proof. The court allowed the motion and two months after the initial trial, received evidence of the filing of notice of claim and permitted plaintiff to amend its complaint accordingly.
The parties agree that the reopening of the case to admit additional evidence is a matter of discretion. The defendants contend here that there was an abuse *557 of discretion. The trial court should be the controller of proceedings in its court and only on rare occasions should its orders in this regard be overturned. We hold that the trial court did not abuse its discretion in reopening the case. Arbogast et al v. Pilot Rock Lbr. Co., 215 Or 579, 336 P2d 329, 72 ALR2d 712, and cases cited at 595.
ORS 16.390 permits amending of a pleading "when the amendment does not substantially change the cause of action or defense, by conforming the pleading or proceeding to the facts proved." Contrary to defendant's contention, the amendment, while vital, did not "substantially change the cause of action." Therefore, it was properly allowed.
The defendants urge that, even if properly allowed, the amendment alleging giving of notice was defective in form. The amendment is not an accurate statement of the notice given or prescribed but on appeal the complaint, as amended, does state a cause of action.
2. The defendants contend that the notice of claim filed was ineffective in that it was filed before the acceptance of Braden's contract by the State Highway Department.
ORS 279.526 provides that the notice of claim must be filed, "prior to the expiration of six months immediately following the acceptance of the work by the affirmative action of the public body which let the contract." The initial claim was filed July 22, 1960. Braden's work was accepted September 29, 1960. Is a notice of claim effective which was filed before the "acceptance of the work"?
The defendant relies upon mechanic's lien and other statutory lien precedents. Those cases have held the lien must be filed after completion of the contract. For example, Birkemeier v. Knobel, 149 Or 292, 308, *558 40 P2d 694 (1935). Those cases involved an original contractor and such a person has no right to a lien until his contract is substantially complete. See Mechanics' Liens in Oregon, 29 Or L Rev 308, 338 (1949-1950). Here, the claimant is a subcontractor and his claim might mature long before all of the general contractor's work is completed and accepted by the governmental body. Under the mechanic's lien statute a subcontractor can file his claim of lien within 45 days after he has ceased working, regardless of whether or not the general contractor has completed his entire contract. ORS 87.035.
The statutory language fixing the extent of the period of time within which the notice of claim must be filed does not state or infer that the notice cannot be filed before acceptance. It states acceptance of the work is the time from which the six months is to be determined. The purpose of the time limitation, as stated in School Dist. No. 1 v. A.G. Rushlight & Co., 232 Or 341, 375 P2d 411 (1962), would not lead to the conclusion that the notice must be filed after acceptance to be effective. It is held that the notice of claim, filed before acceptance of the general contractor's work by the governmental body, is in compliance with the statute.
3. The first notice of claim, filed before acceptance, was filed on July 22, 1960. It was in the amount of $11,798.83. On September 29, 1960, the job was accepted. On April 13, 1961, more than six months after acceptance, plaintiff filed an "Amended Supplemental Claim" in the total sum of $23,488.05. The judgment was for $20,977.02. Defendants contend judgment cannot be entered for more than the amount claimed in the initial notice as the second notice was ineffective having been filed too late.
*559 No decisions on this issue under the Oregon statute or similar statutes of other jurisdictions have been found by counsel or the court. Parker v. Everetts, 196 Okla 408, 165 P2d 630 (1946), held that the amount claimed in a mechanic's lien foreclosure could not be raised at trial over that claimed in the notice of claim of lien.
In School Dist. No. 1 v. A.G. Rushlight & Co., supra, it was stated that the purpose of requiring a notice of claim in public contracts is to enable the public body or the contractor to withhold payment from the one owing the claim in the amount stated in the notice. This is for the protection of the surety and in some instances, the contractor, if the claim is for a bill owed by a subcontractor. At the end of the filing period, six months after acceptance, all the parties can examine the claims, total up the amounts and determine whether payment of the claims will require a larger amount than that retained by the public body or the contractor, and, if so, how much.
When a claim is filed all persons who might be secondarily liable for the claim are very interested in knowing whether the amounts retained from the person primarily liable for the claim, or those secondarily liable but in an inferior position, are sufficient to cover the amount of the claim. If the retainages are sufficient and it is believed that no other claims will be filed, little activity is generated by the filing of a claim. However, if the retainages are not sufficient to cover the claim, or it is believed that the filing of one claim foretells more claim filings, the total of which may exceed the retainages, great activity may be triggered.
Those secondarily liable for the claim will be attempting to find security against any contingent liability *560 they might have. Those secondarily liable generally include everyone on the vertical construction chain. For example, if an unpaid claimant supplied metal to a sheet metal contractor, who is a subcontractor of the mechanical contractor, who in turn is a subcontractor of the general contractor, under the usual construction arrangements all would be secondarily liable for the metal supplier's claim in the event it was not paid by the sheet metal contractor; and, generally, each would have recourse over against the one beneath him in the chain; i.e., the general contractor against the mechanical contractor.
At the end of the filing period for claims the amount of claims is determined and action taken accordingly. If the retainages will cover the claims, claims are paid from it and any security released. If the retainages are not sufficient, the amount of the retainage is paid and payment of the balance is made by one or more of those secondarily liable. Security is released, partially released, or realized upon, depending upon the situation.
If the amount of claims, as well as the number of claimants, does not become fixed at the end of the six months period, the purpose for the limitation largely is destroyed. Until the maximum amount of the claims can be finally determined, everything is contingent and, as a result, retainages, capital, equipment and all other assets of everybody in the construction chain can be legally or practically frozen until such amount is determined. If the total amount of claims cannot be finally determined at the end of the period prescribed for the filing of claims, then everything must remain contingent until the statute of limitations for the filing of actions for claims due has expired; i.e., two years after acceptance. That is too long. This *561 would unnecessarily immobilize an important segment of business. In School Dist. No. 1 v. A.G. Rushlight & Co., supra, it was pointed out that Oregon's six months filing period is longer than that of most jurisdictions.
We hold that the amount of a claim filed pursuant to ORS 279.526 cannot be increased after the time for filing claims has expired. The judgment in this case cannot exceed the amount of the claim initially filed, $11,798.83.
The defendant states there is no evidence to support that part of the trial court's findings denying a portion of the counterclaim for Braden's expense in hauling rock a longer distance than the contract with Konen contemplated. It is claimed this was incurred because Konen had not crushed a sufficient quantity at the east end of the job. There is evidence from which the court could find that Konen crushed the quantity at the east end that Mr. Coffey, Graham's project manager, told Konen was sufficient. There was evidence sufficient to support the court's finding on this issue.
4, 5. The court awarded interest from October 18, 1959, on the amount of the judgment. Defendants contend that interest should be allowed only from the date of judgment, or, at the most, from the date of the acceptance of Braden's contract by the state. A surety on a public works bond is liable for interest to unpaid laborers or materialmen from the date their charges become due. City of Pendleton v. Jeffery & Bufton, 95 Or 447, 188 P 176 (1920). Under the retainage provision of Braden's contract with the state, incorporated into his contract with plaintiff, the amount found owing plaintiff by Braden would not be due until acceptance of the work by the state. The judgment should *562 order that interest be paid commencing from the date of acceptance by the state.
The assignments of error concerning waste rock and rental rates have been considered with respect to both Braden and the surety. We have concluded that in neither was the trial court in error.
Plaintiff cross-appeals from the trial court's refusal to allow attorneys fees. Plaintiff asks for attorneys fees only in its second cause of action. By arithmetic it is apparent that plaintiff's second cause of action is the cause barred by reason of no timely notice being filed. The cross-appeal is denied.
Pursuant to amended Art VII, § 3, of the Oregon Constitution, judgment is to be entered for $9,870.24, with interest commencing September 29, 1960, and for costs and disbursements. Judgment is allowed only for $9,870.24 rather than in the amount claimed by the first notice. This is by reason of the same arithmetic referred to above. The first notice of claim was only for the amount claimed in the first cause of action. After the filing of the notice and the amended complaint it was discovered the amount was overstated and it was amended during the trial to $9,870.24.
Judgment is affirmed as modified.
*563 McCarty & Rosacker, Portland, and Paul C. Keeton, Lewiston, Idaho, for the petition.
Hutchinson, Schwab & Burdick, Portland, and Minnick & Hahner, Walla Walla, Washington, contra.
PETITION FOR REHEARING DENIED.
FORMER OPINION MODIFIED.
DENECKE, J.
6. In our previous opinion we modified a judgment for plaintiff's first cause of action against the defendant USF & G. Under the power of this court *564 under Art VII, § 3, of the Oregon Constitution, we reduced the amount of the judgment. We reversed the trial court's entering judgment on the second cause of action against USF & G for the reason that no proper notice of claim had been filed. The trial court entered no judgment against the intervening defendants.
The plaintiff has petitioned for a rehearing, asking either that this court enter judgment on the second cause of action against the intervening defendants, Braden, or that the case be remanded to the trial court to permit it to enter such judgment.
Plaintiff, in its pleadings, consisting only of a complaint, did not ask for judgment against the intervening defendants. The intervening defendants, in their "Amended Complaint in Intervention," answered plaintiff's complaint. However, plaintiff did not file a pleading in response thereto. Plaintiff proposed a conclusion of law that plaintiff have judgment against intervening defendants for both causes of action. All defendants objected to this upon the ground, among others, that the action was not against the intervening defendants. No order was entered upon this proposal or the objections thereto because the plaintiff moved to reopen. Upon the reopening being allowed, plaintiff introduced evidence of notice of claim and amended its pleadings by alleging this notice. The plaintiff filed new proposed conclusions of law which were signed by the trial court. These recited that the intervening defendants were liable to the plaintiff for the amounts claimed in both causes of action and "were obligated to pay plaintiff" the total sum. The final conclusion stated: "Defendant United States Fidelity & Guaranty Company is obligated to plaintiff for the payment of said sum, and joint venturers-intervening defendants are liable over to defendant *565 United States Fidelity & Guaranty Company in the total amount it is required to pay to plaintiff." Judgment was against USF & G, alone.
The trial judge, when passing upon plaintiff's motion to reopen, questioned the correctness of the order permitting Braden to intervene, but went on to state: "Since it was allowed, I went solely into the merits of the case as to the defendants, Cora Graham and Clarence Braden, and more or less completely ignored the case against the United States Fidelity and Guaranty Company. Now, technically I may have been wrong in doing so and I don't recall and didn't follow any particular testimony as to the bonding company."
It is apparent from these proceedings that it clearly was found that the intervening defendants were indebted to plaintiff. On the other hand, the pleadings before this court do not provide any basis for entering a judgment against the intervening defendants. The trial court considered the case as one against intervening defendants, rather than USF & G, yet the trial court did not enter judgment against the intervening defendants. The intervening defendants speculate that plaintiff may have proceeded in this manner in a belief that such a course was necessary in order to secure an award of attorneys fees against USF & G. This may or may not be correct.
Obviously, it is the desire of this court to end litigation without the necessity of other actions being filed. However, it is not the desire of this court to encourage a procedure whereby a party selects one theory upon which to proceed and when that theory is unsuccessful upon appeal, attempts to change to another theory.
Our former opinion is modified to the extent that the judgment on the second cause of action is reversed, *566 but shall now be remanded. The trial court shall proceed in whatever manner is deemed necessary to determine whether or not judgment in the second cause of action shall be entered against the intervening defendants. The trial court's discretion shall be governed by ORS 16.390 and its general discretion to regulate the proceedings in its court.
As to the first cause of action, affirmed as previously modified; as to the second cause of action, reversed and remanded. | 46aaaea98b9584713353d1ce86d436a263170c8b93a107db390553fd91e3b269 | 1963-04-17T00:00:00Z |
9121c7b5-1a6c-4133-8cd7-b013db16306b | Sedillo v. City of Portland | 234 Or. 28, 380 P.2d 115 | null | oregon | Oregon Supreme Court | Affirmed March 28, 1963.
*29 Theodore S. Bloom, Portland, argued the cause for appellant. On the brief were Bloom & Martindale, Portland.
David P. Templeton, Portland, argued the cause for respondents. With him on the brief were Dusenbery, Martin, Beatty & Parks and John C. Beatty, Jr., Portland.
Before McALLISTER, Chief Justice, and PERRY, O'CONNELL, DENECKE and LUSK, Justices.
AFFIRMED.
DENECKE, J.
The plaintiff was injured in a rear-end collision with a car operated by the defendant Selfridge. The jury awarded him $500 for his injuries.
1. The court withdrew from the consideration of the jury an allegation of damages that a pre-existing ulcer was aggravated by the collision. This withdrawal is assigned as error.
*30 Appellant's position is:
To establish the presence or absence of an ulcer requires medical testimony. The jury cannot speculate on this question in the absence of such testimony. This assignment has no merit.
2. The second assignment of error is directed to the court's instruction regarding an ulcer. At the beginning of its instructions, when it was discussing the pleadings, the court instructed the jury that it could not award the plaintiff any damages by reason of aggravation of a pre-existing ulcer. Near the close of the instructions, when it was instructing on the subject of damages, the court instructed the jury as follows:
Plaintiff's complaint about this instruction, as stated in his brief, is as follows:
The instruction was not a simple, easy to understand, statement; but neither was the testimony. The physicians testifying in plaintiff's case made the same distinction the instruction makes plaintiff did not have an aggravated pre-existing ulcer; he had a new ulcer caused by an aggravation of a pre-existing condition. The giving of the instruction was not error.
The last assignment of error was directed toward the form of verdict. The jury was given a plaintiff's verdict form which did not segregate special and general damages. (This, of course, is unobjectionable.) The jury returned a plaintiff's verdict in which there was inserted in the blank for the amount of damages, "$537.85." This was the amount of special damages alleged in the complaint. There was evidence to support *32 this amount. The plaintiff objected to the verdict and the jury was "reinstructed in the law concerning verdicts" and again sent out to deliberate. (Order Correcting Transcript) The jury returned with the same verdict form with the "$537.85" crossed out and "$500.00" inserted. Under this amount was inserted the word, "General." There is a notation on the verdict, "No Specials." The record does not show who made the last notation. However, it appears that it probably was made by the trial court clerk.
3. A verdict for special damages without an award of general damages is an improper verdict.
4. We conclude that the first verdict was not an improper verdict and should have been received. Mullins v. Rowe et ux, 222 Or 519, 353 P2d 861 (1960), presented a stronger case than that which would have been presented if only the first verdict here were to be considered. There, the verdict recited that the amount was for general damages. Here, the amount had no designation. However, in Mullins v. Rowe et ux, supra, as here, the amount of the verdict was the exact amount of the special damages claimed by the plaintiff and for which amount there was supporting proof. This court held that the trial court erred in setting aside the verdict.
In Snyder v. Amermann, Jr., 194 Or 675, 243 P2d 1082 (1952), the amount of the verdict was exactly the amount claimed for special damages and was supported by some evidence. The verdict did not designate whether the amount was for special or general damages. The court said that the amount of the verdict was exactly the "uncontradicted" amount of the proved special damages. The court interpreted the defendant's position to be an acknowledgment that the verdict was one for special damages. The court then *33 found the verdict to be a verdict for special damages only and, therefore, improper. It went on to fix plaintiff's general damages in the amount of $2,500. We have subsequently overruled that part of Snyder v. Amermann, Jr., supra, in which the court took upon itself the duty of determining the general damages. Stein v. Handy, 212 Or 225, 319 P2d 935 (1957).
Snyder v. Amermann, Jr., supra, is further limited to those cases in which the court finds that the amount of the verdict was that amount which the jury would necessarily have had to award as special damages. If the jury could find that items claimed as special damages were not attributable to defendant's fault, were expenses incurred which were not reasonably necessary, or were expenses for which unreasonable charges were incurred, then the Snyder case is not applicable.
5. Here, there was an important question of whether or not much of plaintiff's medical expense was occasioned by the collision. Defendant urged that no ulcer was caused by the collision. The jury might not have awarded plaintiff the amount claimed, $537.85, as special damages. Because the amount of the verdict was the amount of the claimed specials, we could speculate that the verdict was one only for special damages. We could also speculate with as much certainty that the jury did not find that the plaintiff was entitled to recover the entire amount of his claimed special damages but that it was unable to determine just how much of the specials he was entitled to recover. Therefore, the jury awarded plaintiff the verdict of $537.85, intending an undetermined part to be special damages and the remainder to be general damages. This jury was instructed it could consider the amount of special damages only after it determined that the plaintiff was entitled to general damages. The presumption is *34 that juries perform their duties correctly. State v. Reed, 52 Or 377, 389, 97 P 627 (1908).
6. The first verdict should have been received as a valid verdict, as the first verdict was one the jury could properly return. Their return of the second verdict was not misconduct. See Baden v. Sunset Fuel Co., 225 Or 116, 357 P2d 410 (1960).
Amended Art VII, § 3, of the Oregon Constitution, provides that if, "the judgment appealed from should be changed, and the supreme court shall be of opinion that it can determine what judgment should have been entered in the court below, it shall direct such judgment to be entered in the same manner and with like effect as decrees are now entered in equity cases on appeal to the supreme court."
7, 8. Inasmuch as we hold the first verdict was proper, under the above provision we normally would enter judgment in accordance with the first verdict. Forest Products Co. v. Dant & Russell, 117 Or 637, 651, 244 P 531 (1926). However, because the appellant was responsible for the trial court's rejecting the first verdict, he should not profit by its reinstatement.
Judgment affirmed.
McALLISTER, C.J., specially concurring.
I concur in the result of the majority opinion, but disagree with its conclusion concerning the two verdicts returned by the jury. In this case plaintiff filed a second amended complaint in which he alleged that he had incurred "medical and hospital expenses in the sum of $ ____," and also alleged that he had sustained loss of wages. The court in its instructions advised the jury that plaintiff alleged in his second amended complaint that he had incurred medical and *35 hospital expenses in the sum of $517.85. The court also said:
The jury was instructed that if it found that plaintiff was entitled to general damages it should then determine the amount of special damages, if any, sustained by plaintiff. Unfortunately the jury was furnished a form of verdict which did not provide for the segregation of the general and special damages. The jury returned a verdict for the plaintiff in the sum of $537.85, which was the exact total of the two sums of $517.85 and $20.00, both written in the complaint by the court.
The plaintiff objected to the verdict on the ground that the jury had found only special damages without any award for general damages. The objection was sustained by the trial judge, who refused to receive the verdict and gave the jury further instructions concerning the verdict. The jury then returned and after further deliberation returned a verdict awarding plaintiff $500 general damages. The plaintiff objected to the second verdict, but the objection was overruled, the verdict received, and judgment entered thereon.
In my opinion the trial court did not abuse its discretion in refusing to receive the first verdict, which obviously was an award of the special damages claimed *36 without any supporting award of general damages. This violation of his instructions was particularly obvious to the trial judge, who had penciled on the complaint the amount of special damages supported by any evidence and had called the figures to the attention of the jury. The trial court followed the course repeatedly recommended by this court when it resubmitted the case to the jury after seasonable objection was made. In the recent case of Mullins v. Rowe, 222 Or 519, 353 P2d 861 (1960) we said, at 222 Or 524:
It seems strange that we are now criticizing the trial court for following a course which we have oft recommended.
The second verdict for general damages was a proper verdict and the trial court did not err in receiving it and entering judgment thereon.
I concur in the result. | 848af3448fb4797afc7b5e3a18a1c6fb40e45a10ef58f094e7163f36f80218bf | 1963-03-28T00:00:00Z |
cdc61fd0-0fce-4df6-b3e1-aeb979dd14ed | Shore v. Livengood | 234 Or. 280, 381 P.2d 492 | null | oregon | Oregon Supreme Court | Affirmed May 15, 1963.
Frederic P. Roehr, Portland, argued the cause for *281 appellant. On the brief were Charles S. Crookham and Vergeer & Samuels, Portland.
Donald A. Buss, Portland, argued the cause for respondent. On the brief were Buss & Pihl, Portland.
Before McALLISTER, Chief Justice, and ROSSMAN, PERRY, SLOAN, O'CONNELL, GOODWIN and DENECKE, Justices.
AFFIRMED.
O'CONNELL, J.
This is an action to recover damages for personal injuries suffered by plaintiff as the result of the alleged negligence of the defendants in the operation of their respective automobiles. Defendant Livengood appeals from a judgment for plaintiff against both defendants.
Plaintiff stopped at an intersection intending to make a left turn. While in this position plaintiff's automobile was struck in the rear by defendant Livengood's automobile which had been struck in the rear by defendant Allen's automobile. Livengood moved for a directed verdict on the ground that there was no evidence of negligence on his part. The motion was denied.
1. The jury could have concluded from the evidence that Livengood was negligent in failing to keep a proper lookout as a result of which he was forced to bring his vehicle to a sudden stop which in turn caused Allen to strike Livengood's automobile in the rear. There was also evidence that Livengood failed to signal his intention to stop. The motion for a directed verdict was properly denied.
As an alternative to the motion for a directed verdict Livengood moved that there be entered a partial satisfaction of judgment to the extent of a payment *282 of $4,350 made to plaintiff by her insurer under an uninsured motorist endorsement. Prior to the institution of the present action plaintiff's insurer, having determined that defendant Allen was an uninsured motorist and that he was legally responsible for the accident, paid plaintiff $4,350. The trial court denied this motion also.
2, 3. A payment made by or on behalf of one joint tortfeasor diminishes the amount of the claim against the other joint tortfeasor.[1] But the payment made by the insurer in the present case was not made on behalf of either of the defendants. The contract of insurance was between plaintiff and the insurer. The situation is not unlike that in Northwest Door Co. v. Lewis Inv. Co., 92 Or 186, 180 P 495 (1919). There it was decided that the defendant, in an action for the negligent destruction of property by fire, had no right to have applied to the judgment against it the insurance proceeds paid to the plaintiff by its insurer. We are not concerned here with the right of the defendant to require the insurer to be joined as a party litigant.
It is not necessary for us to decide whether plaintiff's insurer would be subrogated to plaintiff's rights against Livengood, an insured motorist, and therefore entitled to reimbursement to the extent of $4,350 from the amount recovered by plaintiff from defendant Livengood.
The judgment is affirmed.
[1] Hicklin v. Anders, 201 Or 128, 253 P2d 897 (1953); Murray v. Helfrich, 146 Or 602, 30 P2d 1053 (1934); 4 Restatement, Torts § 885 (3) (1939). A discussion of the rule appears in Stires v. Sherwood, 75 Or 108, 113, 145 P 645, 646 (1915). | 76b5ba63f74ee73bb4f6b2e59f3b794b4254e835565be9abf6e42f40f6a423c7 | 1963-05-15T00:00:00Z |
219b829c-aeff-4c2b-98ef-6728bd2fd360 | Agrue v. Agrue | 233 Or. 456, 378 P.2d 965 | null | oregon | Oregon Supreme Court | Affirmed as modified February 20, 1963.
Robert G. Ringo, Corvallis, argued the cause for appellant. On the briefs were Ringo & Walton, Corvallis.
*457 Robert Mix, Corvallis, argued the cause and filed a brief for respondent.
Before McALLISTER, Chief Justice, and ROSSMAN, SLOAN, GOODWIN and LUSK, Justices.
AFFIRMED AS MODIFIED.
SLOAN, J.
In July, 1959 plaintiff, wife, was awarded a decree of divorce from defendant. She was also awarded child support and alimony. In November, 1961 defendant moved that the decree be modified to reduce the amount of child support and alimony payments. Following a hearing on the motion the court reduced the child support payments for a period beginning February 1, 1962, to August 1, 1962, when the original amount of the payments were ordered to be restored. The order also reduced the amount of the alimony but did not require that such payments should also be restored at a later date. Plaintiff appeals from the decree.
Defendant, a dentist, had been engaged in the successful practice of his profession in Corvallis for several years prior to the last few months of 1961. According to defendant's testimony his practice dwindled to almost nothing in November and December of 1961. He stated that it would have been "economical suicide" for him to have attempted to continue his practice. In January, 1962 he sold the practice. He expressed the intent to move to California and establish himself there. He assigned the loss of income and the need for time to gain a license to practice in California as his reasons for wanting the reduction in the obligation fixed by the original decree.
The evidence in this case, and the conclusions to be made from the evidence, vary materially from those *458 stated in the opinion in Nelson v. Nelson, 1960, 225 Or 257, 357 P2d 536. In Nelson there was a finding of good faith upon the part of the doctor who also had decided to move to California. In this case the court expressed a substantial doubt as to the good faith of this defendant. The evidence supports that doubt. Defendant admitted that he had made no effort to find any other means by which to practice his profession other than the rather vague plan to go to California. All of the evidence suggested an intent to evade rather than perform. However, the court was justified in making a temporary reduction in the total payments defendant was required to make. The evidence did not justify the permanent reduction in alimony.
Accordingly, the order will be modified to require that the amount of alimony fixed in the original decree be restored as of August 1, 1962. Otherwise the order is affirmed. Costs allowed to neither party. | c0cd1e26d336c7aed894b90b6c9d784e684b728a02314831a65929685d675002 | 1963-02-20T00:00:00Z |
e4c4922d-9b8d-4e88-b1fb-2a62c15008f2 | Manning v. STATE IND. ACC. COMM. | 234 Or. 207, 380 P.2d 989 | null | oregon | Oregon Supreme Court | Reversed April 24, 1963.
*208 Gerald C. Knapp, Assistant Attorney General, Portland, argued the cause for appellant. With him on the brief were Robert Y. Thornton, Attorney General, and Ray H. Lafky, Assistant Attorney General, Salem.
Berkeley Lent, Portland, argued the cause for respondent. With him on the brief were Peterson, Lent & Paulson, and Charles Paulson, Portland.
Before McALLISTER, Chief Justice, and PERRY, O'CONNELL, DENECKE and LUSK, Justices.
REVERSED.
McALLISTER, C.J.
Plaintiff, while employed as a laborer by a landscape gardener, sustained a personal injury by accident arising out of and in the course of his employment. Plaintiff's claim for compensation under the Workmen's Compensation Law[1] was denied by defendant, State Industrial Accident Commission, on the ground that plaintiff was not covered under that act. Plaintiff appealed to the circuit court which reversed the commission and directed it to allow plaintiff's claim. The defendant appeals.
Whether plaintiff was covered under the Workmen's Compensation Law at the time of his injury depends on whether his employer was engaged in the non-hazardous occupation of landscape gardening or the hazardous occupation of "land clearing."
*209 Defendant's brief contains a statement of facts which was accepted by the plaintiff. From that statement we quote the following: "For approximately fourteen years prior to January 3, 1961, William F. Linton, plaintiff's employer and intervener herein, was engaged in the business of landscape gardening for private home owners in Portland, and vicinity. This work consisted primarily of planting, mowing, and caring for lawns, planting, moving, and trimming shrubs, spading and raking the ground in and around flower beds, and cleaning up trash and debris from the yards of private residences. Hand tools only were used as aids in performing the yard work.
"Mr. Linton did yard work for a number of regular customers and charged by the hour for his services. Occasionally he would hire additional help as laborers and would pay such help on an hourly basis, making a differential in the hourly charge to the tenant of the property. The plaintiff in this case had been hired by Mr. Linton in June, 1960, and had assisted him in performing the yard work for his several customers.
"Dr. Howard C. Emmerson, residing at 7285 S.W. Northvale Way in the Raleigh Hills district west of Portland was one of Mr. Linton's customers and had authorized Mr. Linton to utilize his spare time to clean up the trash, debris, brush and undergrowth on the unimproved back part of the lot on which his residence is located. This back yard area consisted of some 20,000 square feet, and had growing thereon, in addition to the undergrowth, a number of fir, maple and cedar trees. Also, a number of wild cherry saplings had sprung up. These ranged in size from three inches to six inches in diameter at the base and between 15 feet and 25 feet in height.
"In cleaning up the back yard area for Dr. Emmerson, *210 the instructions were not to disturb the large trees or the native ferns and some other bushes, but in cleaning out the underbrush [Mr. Linton] was to take out the wild cherry saplings and grub out the roots. Dr. Emmerson's plan was to have gravel paths running through the yard, to plant shrubs throughout the area, to clear a space for his children to play, and for a small garden plot.
"About the middle of December, 1960, Mr. Linton and the plaintiff herein started the clean-up work on Dr. Emmerson's back yard and had in the process cut out some 15 to 18 of the cherry saplings. A couple of years prior to January 3, 1961, the Portland General Electric Company, in clearing a right of way for its power lines along the roadway paralleling the back of Dr. Emmerson's lot, had cut out two or three large trees, leaving the stumps. One of the stumps from a maple tree, approximately 12-inches to 18-inches in diameter, remained on Dr. Emmerson's property, and on January 3, 1961, in the absence of Mr. Linton, plaintiff was chopping around the roots of this stump with an axe when he accidentally severed the tips of the ring and middle fingers of his left hand."
1. Our Workmen's Compensation Law is designed primarily to cover the workmen of employers engaged in hazardous occupations listed in the act. The controlling factor is the occupation of the employer.[2]
Landscape gardening is not one of the hazardous occupations listed in the act. ORS 656.084. It follows that if plaintiff's employer while cleaning up the rear of the Emmerson lot was engaged in his usual occupation *211 pation of landscape gardening, plaintiff was not covered by the act. In Butler v. State Ind. Acc. Com., 212 Or 330, 334, 318 P2d 303 (1958), we said:
See to the same effect Bennett v. State Ind. Acc. Com., 203 Or 275, 279 P2d 655, 279 P2d 886 (1955).
Plaintiff argues, however, that Mr. Linton in cleaning up the Emmerson back yard had departed from his usual occupation of landscape gardening and had engaged in the separate occupation of land clearing, which is listed as a hazardous occupation in ORS 656.084, the pertinent portion of which reads as follows:
2. We have carefully examined the record in this case and can find no substantial evidence to support the finding of the trial court that at the time of plaintiff's injury his employer was engaged in the separate occupation of land clearing. Mr. Linton was called as a witness by the plaintiff and gave the only evidence concerning his occupation. Linton testified that he had landscaped the front part of Emmerson's lot and had thereafter taken care of it nearly every week. He testified that his assignment to landscape the rear of the lot was all part of "one continuous operation." That testimony was undisputed.
*212 Plaintiff had been employed by Linton for about a year. No additional help was engaged in the landscaping of the Emmerson lot. Only hand tools were used. It will be noted that ORS 656.084 (3) classifies land clearing with logging, lumbering and other occupations requiring heavy machinery and equipment. There is little, if any, similarity between those occupations and the manual labor being performed with hand tools by plaintiff and his employer work of the kind that is not uncommonly performed by the average householder in landscaping his own residential lot.
It would not benefit plaintiff to find, if we could find from the evidence, that the landscaping of the Emmerson lot if undertaken as a separate occupation was land clearing. We would have to find further that the work was not being performed as an incidental part of Linton's occupation of landscape gardening. In 1932 this court decided Peterson v. State Ind. Acc. Comm., 140 Or 326, 12 P2d 564, in which the court said, at 140 Or 330:
As a result of that opinion the farmer's employees engaged in wood cutting were covered under the act, while his employees engaged in normal farm work were not covered.
3. The following year the legislature amended § 49-1810, Oregon Code 1930, by adding the following sentence: "It is the purpose of this act that an occupation and all work incidental thereto and all workmen *213 engaged therein shall be wholly subject to or wholly outside the provisions of this act." That amendment, which is now codified as ORS 656.022 (4), was intended to prevent a non-hazardous occupation from being converted to a hazardous occupation by work possibly hazardous by itself, but nevertheless only incidental to a non-hazardous occupation. See State Ind. Acc. Com. v. Eggiman, 172 Or 19, 139 P2d 565 (1943). By the same token the amendment was designed to prevent a hazardous occupation from being converted to a non-hazardous occupation by work non-hazardous by itself, but nevertheless only incidental to a hazardous occupation.
There is no testimony which would support a finding that the cleaning up of the rear of the Emmerson lot was a separate occupation. We think it clear that the work in question was no more than an incidental part of the non-hazardous occupation of landscape gardening in which Linton was regularly engaged.
The judgment of the lower court is reversed.
[1] ORS 656.002 to 656.590 is referred to herein as the "Workmen's Compensation Law" and as the "act".
[2] ORS 656.082. "If an employer is engaged in any of the occupations defined by ORS 656.084 or 656.086 as hazardous, the workmen employed by him in such occupations are deemed to be employed in a hazardous occupation but not otherwise." | 51d6c3b91d6970e3572b637c8565182f16dd11abf7758f544d1210ee47720b2f | 1963-04-24T00:00:00Z |
bc24cea0-6872-443b-a924-d8dfbb126367 | Strandholm v. General Const. Co. | 235 Or. 145, 382 P.2d 843 | null | oregon | Oregon Supreme Court | Reargued May 3, 1963.
Affirmed June 12, 1963.
Petition for rehearing denied July 30, 1963.
*146 Leo Levenson, Portland, argued the cause for appellant. With him on the briefs were William H. Poole, and Phillips, Poole & Dooley, Portland.
*147 Philip A. Levin, Portland, argued the cause for respondent. With him on the brief were Frank Pozzi, and Pozzi, Levin & Wilson, Portland.
Before McALLISTER, Chief Justice, and ROSSMAN, PERRY, SLOAN, O'CONNELL, GOODWIN and DENECKE, Justices.
AFFIRMED.
SLOAN, J.
Plaintiff, a longshoreman, was injured as a result of the collapse and fall of a large marine boom at a place where plaintiff was then employed. Defendant-appellant, General Construction Company, was not plaintiff's employer. Prior to the accident defendant had remodeled the boom; installed the boom in its place of use and rerigged the lines and gear necessary for the operation of the boom. Plaintiff claimed that defendant had negligently done so. The jury returned a verdict for defendant. The trial court thereafter sustained plaintiff's motion for a new trial. Defendant appeals. Other defendants were involved in the trial of the case but were eliminated on motion for nonsuit. This appeal is a contest only between plaintiff and General Construction Company and they will be referred to as plaintiff and defendant.
Another of the assignments of error brought here is that the court should have allowed defendant's motion for a directed verdict. A statement of the facts is necessary to clarify this and other issues presented on this appeal.
At the time of the accident plaintiff was employed by the Louis Dreyfus Company, an importer and exporter of grain. A part of the facilities of Dreyfus Company was a dock where grain was loaded and unloaded *148 from barges and ships. The latter process was accomplished by use of the boom in question. The boom, at the lower end thereof, was secured to the base of a mast. The top of the boom was rigged to the top of the mast by lines which permitted the boom to be raised and lowered in the usual way. These lines and rigging consisted in part, of course, of large blocks through which the lines were passed. The raising and lowering of the boom was controlled by drums and brakes to which the lines extended. The boom was used to raise, lower and control a large device designated as a marine leg. By use of the boom the marine leg was lifted into and out of the holds of the ships and barges and the marine leg moved the grain in or out of the hold of the ship or barge.
Several months prior to the accident the Dreyfus Company caused the boom and mast to be substantially lengthened. Designs for this alteration in the boom and mast were prepared by an engineering concern. Defendant contracted to install the boom, mast and rigging after the boom and mast were enlarged. There was evidence to show that defendant had the responsibility to inspect the pre-existing gear and rigging and, upon installation of the altered boom and mast was either to utilize that which had been used before or install different equipment. Defendant completed the alteration of the boom and mast and did install all of the rigging necessary for its operation. It should be obvious that this gear was intended to accommodate loads of several tons in weight.
The part of the rigging with which we are immediately concerned was a block at the top of the boom. Lines which passed through this block to the top of the mast controlled the raising and lowering of the boom. This block was secured to the end of *149 the boom by the use of a pin. The pin was described as being about five inches long and about an inch or an inch and a quarter in diameter. There were flanges or "cheeks" on each side of the block and the pin secured the block to the mast by the common means of inserting the pin through holes in these flanges or "cheeks" of the block and through a hole of a similar flange fastened to the top of the boom. One end of the pin had a flat head which secured it in place. The other end of the pin was secured with a cotter key.
The block and pin were a crucial part of the installation. The method of their installation presents the key issue in this case. Plaintiff had alleged, and presented evidence to show, that the accident was caused when this pin failed to remain in place and that when the pin came out of place it caused the collapse of the boom. Plaintiff's evidence could be said to establish that the use of a cotter key to secure the pin was inadequate and negligent. The evidence would also show that by proper rigging the pin should have been secured by the use of a castellated nut and that the castellated nut should then have been secured by a cotter key. The accident occurred about six months after defendant had completed its work on the boom.
To complete the story of the accident it should be mentioned that plaintiff was not injured by the fall of the boom itself. He was caught by one of the writhing lines and thrown to the lower deck of a barge which was being unloaded at the time. There could be no question but that the fall of the boom was the cause of his injury. In fact, we think that the evidence, above mentioned, was sufficient to factually establish a jury question as to negligence on the part of defendant. The real problem presented by the motion *150 for directed verdict is a legal one. Most directly stated the question is: Will this court apply the doctrine of MacPherson v. Buick Motor Co., 1916, 217 NY 382, 111 NE 1050, to the relationship existing between these parties at the time of the accident? We think the answer is yes. But before we discuss our reasons therefor it is necessary to consider the reason assigned by the trial court for the grant of a new trial. If that reason is insufficient the case would end at that point.
1. Both Dreyfus Company and plaintiff, at the time of the accident, were subject to the Longshoreman's and Harbor Workers' Compensation Act. (33 USCA § 901.) Plaintiff received compensation accordingly. Both before and during the long trial the trial court had specifically admonished defense counsel that no mention should be made to the jury that plaintiff had received compensation. Nevertheless, defendant did. When defendant was presenting its case it called as a witness one Mr. Gilpin, the Assistant General Manager of defendant. One of the hotly contested issues in the trial of the cause was created by the loss, before trial, of the critical pin we have before described. When Mr. Gilpin was being examined in respect to this issue he gave the following testimony:
*151 Plaintiff's counsel immediately asked for a conference in chambers. The conference was had. In chambers Mr. Gilpin was further examined and gave this testimony:
No denial was made as to the truth of that statement.
It is clear from the above that improper evidence was wrongfully injected into the case. It was done deliberately not only by defendant's counsel but by defendant itself. However, at that time plaintiff declined to move for a mistrial. The case proceeded to the conclusion before mentioned.
Later, in response to the plaintiff's motion for a new trial, the court ruled: "* * * Being of the opinion that there was misconduct and irregularity in the proceedings on the part of defendant General, which was prejudicial and prevented plaintiff from receiving a fair trial, * * *" a new trial was ordered. It might be well to add here that the alert trial judge saw fit to reproach defendant's counsel for other conduct engaged in during the trial.
2. The difficult decision is caused by plaintiff's failure to move for a mistrial. Did he waive the right to claim error? In a long line of decisions beginning with Tuohy v. Columbia Steel Co., 1912, 61 Or 527, 122 P 36, this court has held that it will not disturb the trial court's exercise of discretion when a new trial or mistrial is allowed for the deliberate injection of insurance into the trial of a case. Rosumny v. *152 Marks, 1926, 118 Or 248, 246 P 723; Wells v. Morrison et al, 1927, 121 Or 604, 256 P 641; Bennett v. City of Portland, 1928, 124 Or 691, 265 P 433, and more currently in Guthrie v. Muller, 1958, 213 Or 436, 325 P2d 883. The doctrine is so well established that reference to other cases is not necessary. We think those cases are apposite here. If a mistrial had been asked for and allowed no one could possibly have questioned the trial court's authority to do so. As indicated, we are more concerned by the failure of plaintiff to demand a mistrial.
3. However, an examination of our cases shows that a party does not irretrievably lose his right to move for a new trial by failure to act when the error occurs. In Neal v. Haight, 1949, 187 Or 13, 32, 206 P2d 1197, 1205, the court, by Justice BRAND said:
In addition to the cases just cited in the quotation, see Lyons v. Browning et al, 1943, 170 Or 350, 354, 133 P2d 599, 600. In Lyons the court said: "* * * one of the purposes of the new trial statute is to enable the trial judge to correct errors and to cure miscarriages of justice, notwithstanding the failure of counsel to make a record which would authorize this court to reverse *153 the judgment on appeal." This distinction was more fully expressed in Timmins v. Hale, 1927, 122 Or 24, 32, 256 P 770, 773:
A dissenting opinion in Fischer v. Howard, 1954, 201 Or 426, 468, 469, 271 P2d 1059, 1077, 1078, 49 ALR2d 1301, by Justice LUSK had this to say about the instant problem:
Although in a dissent, we think this statement would not be in conflict with the majority opinion in the Fischer case.
4. One of the more interesting cases on this subject is Veazie et al v. Columbia Etc. R.R. Co., 1924, 111 Or 1, 224 P 1094. The opinion by Chief Justice *154 McBRIDE, quotes from a memorandum made by the trial judge. The latter relates that:
The trial court in the Veazie case ordered a new trial despite the failure of counsel to have asked for a mistrial. In affirming the order for a new trial this court held (111 Or 6) that Section 3, Article VII of the Oregon Constitution did not deprive the trial courts of their common law power to order a new trial because of misconduct of a party or juror even if the injured party does not make an objection or move for a mistrial when the error occurs. This doctrine of the Veazie case has been ratified as recently as Hays v. Herman, 1958, 213 Or 140, 147, 322 P2d 119, 69 ALR2d 947. For a further elaboration of Justice McBRIDE *155 on the common law power of a trial court to order a new trial see his opinion on a petition for rehearing in De Vall v. De Vall, 1912, 60 Or 493, 501, 118 P 843, 120 P 13.
We cannot say that the trial judge abused either its common law or statutory power when he granted a new trial in this case.
We return now to the motion for directed verdict. In doing so it is necessary to first consider Welter, Adm'x v. M & M Woodworking Co., 1959, 216 Or 266, 273, 274, 338 P2d 651, 655. The opinion in Welter uses this language emphasized in defendant's brief:
That statement was immaterial to the decision in the Welter case. It is not controlling on our decision now. We deem the solution to the problem presented here to be an open one in this court.
5. It is now the generally accepted view that the liability of a contractor is the same as that specifically *156 imposed upon a manufacturer by MacPherson v. Buick Motor Co., supra, 217 NY 382. Study of the MacPherson opinion causes wonder that there could have been so much question as to the application of the doctrine announced by the MacPherson case to persons who were not manufacturers in the strict sense of the word. See Annotation, 58 ALR2d 865. The decision in MacPherson was, in good measure, based upon the earlier case of Devlin v. Smith et al, 1882, 89 NY 470, 42 AR 311. In Devlin the defendant was a person who contracted to build a scaffold for a painter and it was held there was a liability from the contractor to an employee of the painter. Such a contractor was not a manufacturer. In the concluding portion of the MacPherson opinion, Judge Cardozo stated:
It is difficult to see any distinction between a person *157 who manufactures goods of a particular kind for general sale to the public, such as an automobile manufacturer, and one who builds or manufactures a particular chattel made for a precise use. In fact when one builds for a particular use and knows how and by whom the product will be used the matter of foreseeability would seem to be more acute than would be true of one who manufactures for general use for many purposes. It appears futile to determine liability by attempting to find if a particular function were that of a contractor or of a manufacturer. No one could draw guidelines which would, for all purposes, describe and segregate the function of each. Common experience would teach that in a given instance each would be of the equivalent of the other. It would appear better to determine liability by conduct, not by a label to be attached to the actor.
6. In any event a person standing in the position of defendant in the instant case is now generally held to a liability for injury caused to third persons by his failure to safely build or manufacture. The older doctrine that the lack of privity of contract between the contractor and the third person bars responsibility of the contractor to the third person is no longer the prevailing theory. Prosser, The Law of Torts, (2d ed., 1955), § 85, 514, et seq; 2 Harper & James, The Law of Torts, 1956, Chapter 28; Hanna v. Fletcher, CADA 1956, 97 App DC 310, 231 F2d 469, 58 ALR2d 847, certiorari denied June 11, 1956, 351 US 989, 76 S Ct 1054, 100 L Ed 1502; 2 Restatement, Torts, § 404. And see the exhaustive opinion in Foley v. The Pittsburgh-Des Moines Co. 1949, 363 Pa 1, 68 A2d 517. In an earlier case before this court, Stout v. Madden & Williams, 1956, 208 Or 294, 300 P2d 461, Justice PERRY made an extensive analysis of much of the *158 authority just mentioned. It was decided in the Stout case that it was not then necessary to decide if the rule of non-liability of one person to another not in privity existed in Oregon. However, the opinion did recognize that the doctrine of MacPherson now has general acceptance. We now hold that the lack of privity doctrine does not apply and that the doctrine expressed in the still unsurpassed language of MacPherson v. Buick Motor Co. will apply.
7. It appears, in fact, that defendant here places greater reliance upon its argument that the alleged negligence of the Dreyfus Company was an intervening cause than on its argument as to the continued existence of the privity of contract rule. In this, too, we think more cogent, if not the prevailing authority, compel us to deny defendant's contentions.
2 Harper & James, The Law of Torts, supra, at pages 1556, 1557, expresses the rule more generally followed in this way:
*159 Judge Medina, when on the Second Circuit, in Fredericks v. American Export Lines, (2d Cir USCA 1955), 227 F2d 450, 453, 454, a case similar to the instant case, provided this answer to the question:
In the same opinion Judge Medina also gives answer to the contention made by defendant here that the Dreyfus Company's use of the boom for six months absolved defendant of liability:
The opinions in Foley v. The Pittsburg-Des Moines Co., supra, 363 Pa at page 26 and Alexander v. Nash-Kelvinator Corporation, (2d Cir USCA 1958), 261 F2d 187, arrive at the same conclusions as Judge Medina in much the same language. We think the rule applied by these cases is not unlike that which holds the original wrongdoer liable for the later malpractice of an attending physician. Gilman v. Burlingham, 1950, 188 Or 418, 216 P2d 252.
Section 452, 2 Restatement, Torts, provides:
The above citation to case law and texts, and the material cited therein, provides an adequate resume of the authority we follow in this case. We cannot say, as a matter of law, that any of the alleged omissions of Dreyfus Company avoided the legal liability of defendant.
It would not be amiss to here indicate from the testimony of Mr. Gilpin, the aforementioned responsible *161 officer of defendant, what defendant considered its duty to be when it installed this boom and rigging:
8. It was for the jury to decide if defendant negligently performed this duty and if so did any of the alleged later failures if any, of Dreyfus Company eliminate all liability for that negligence. The court did not err when it denied the motion for directed verdict. Judgment affirmed.
ROSSMAN, J., dissents. | 37f49f618576c8cad2352e55b8d03609e13e48a9b30c13c285784e07f8934b25 | 1963-06-12T00:00:00Z |
9ccd37fe-d418-4345-acd8-375ee8569220 | State v. Carlton | 233 Or. 296, 378 P.2d 557 | null | oregon | Oregon Supreme Court | Affirmed January 30, 1963.
Charles O. Porter, Eugene, argued the cause for appellant. On the briefs were Porter, Poole & Bach.
William F. Frye, District Attorney, Eugene, argued the cause and filed a brief for respondent.
Before McALLISTER, Chief Justice, and SLOAN, O'CONNELL, LUSK and DENECKE, Justices.
AFFIRMED.
DENECKE, J.
The defendant was convicted of concealing stolen property. His sole basis for appeal is that he not only concealed the property, he initially stole the same property. Therefore, he contends, being the original thief, he cannot be found guilty of concealing the same property.
The defendant and one other were indicted for receiving *297 and concealing eight parking meters. The defendant Carlton was tried by the court sitting without a jury. The trial court found Carlton guilty of concealing stolen property.
The state's evidence was that Carlton and three others unscrewed or unbolted eight parking meters from various locations in Eugene. They put the meters in a car, drove over the Willamette river to a deserted area and concealed the meters under some trees and stumps. The defense called only one witness. This witness was an accomplice of Carlton and testified Carlton stole as well as concealed the meters.
The keystone of the defense's contention is the proposition that a thief cannot be convicted of receiving stolen property when the property received is the selfsame property which he stole. The state concedes this proposition. It is without contradiction. 2 Wharton, Criminal Law and Procedure (Anderson), § 576. This proposition is based upon the logical reason that one cannot receive something from one's self. Here, however, the court convicted Carlton of concealing stolen property. The court stated it was not necessary to decide whether or not the defendant was also guilty of receiving stolen property.
Once this distinction is comprehended, that defendant was convicted of concealing, not receiving, stolen property, it is apparent that the logical barrier, one cannot receive from one's self, has no materiality. This then becomes a commonplace situation. The defendant engaged in a criminal transaction, or course of conduct. He stole meters; he carried them off; and he concealed them. The state selected one part of this transaction which constituted the crime of concealing stolen property and the defendant was convicted of such crime. The defendant is contending that *298 he cannot be convicted of concealing the stolen property because the state could have convicted him of a different crime involving the first part of the transaction, i.e., stealing or larceny. The fact that one transaction embodies facts constituting two crimes and the state chooses to prosecute for one rather than the other cannot avail defendant, unless the existence of one crime precludes the other. Proving larceny precludes establishment of receiving, but not concealing.
There are a considerable number of decisions in this general field. They involve, however, the question of whether or not a defendant can be convicted of two different crimes committed in the same transaction; not can a defendant be convicted of any one particular crime of several committed in the transaction. In these cases of conviction of two crimes, the question of double jeopardy arises and the doctrine of "carving" is examined. For example, in State v. Nodine, 121 Or 567, 256 P 387, the statute provided: "`It shall be unlawful for any person to receive, import, possess, transport * * * sell * * * any intoxicating liquor * * *.'" A conviction for possessing intoxicating liquor was affirmed, although the evidence was that defendant had previously been convicted of selling the same liquor. The decision was that a conviction for selling liquor did not bar a conviction for possessing the same liquor.
In State v. Pomeroy, 30 Or 16, 26, 46 P 797, the defendant was convicted of concealing stolen property. The defendant requested the court to instruct the jury that if the defendant was assisting the thief to escape, defendant was guilty of being an accessory to the crime of larceny and the defendant could not be convicted of concealing stolen property. Justice WOLVERTON *299 in affirming the conviction and holding the requested instruction erroneous, stated:
Defendant relied primarily upon the decisions of Milanovich v. United States, 365 US 551, 81 S Ct 728, 5 L ed2d 773, and People v. Daghita, 301 NY 223, 93 NE2d 649. Both of those cases held that the defendant could not be convicted of both larceny and concealing the same property which defendant had stolen. However, these cases did hold that the defendant could be convicted of either crime. The majority in State v. Carden, 50 Wash2d 15, 308 P2d 675, held that a thief could be convicted of concealing the property he stole. As in the present case, there was no indictment in the Carden case for larceny; the defendant was only charged with one crime, concealing stolen property.
The judgment is affirmed. | 6025a8821c11e470f5a0827676836e5b9854f1d6130551e27c2ed0c8f11e4252 | 1963-01-30T00:00:00Z |
51159353-4376-4e77-88b6-26a2260dcdc0 | Hansell v. Douglass | 234 Or. 315, 380 P.2d 977 | null | oregon | Oregon Supreme Court | Affirmed April 24, 1963.
Petition for rehearing denied May 21, 1963.
*316 David A. Rhoten and Sam F. Speerstra, Salem, argued the cause for appellants and intervenor-appellant. With them on the briefs were Rhoten, Rhoten & Speerstra, Salem.
M.D. Van Valkenburgh, The Dalles, and Howard A. Rankin, Portland, argued the cause for respondents. With them on the brief were Heisler & Van Valkenburgh, The Dalles, and Shuler, Sayre, Winfree & Rankin, Portland.
Before McALLISTER, Chief Justice, and ROSSMAN, PERRY, SLOAN, O'CONNELL, GOODWIN and DENECKE, Justices.
AFFIRMED.
SLOAN, J.
This was a declaratory judgment proceeding by which plaintiffs, and the intervenor, challenged a school election. The challenged election favored the consolidation of three school districts in Wasco county. The trial court found that the election was valid. Plaintiffs and intervenor appeal.
The major premise of plaintiffs' challenge is found in this statement taken from their brief:
Plaintiffs cite no authority to support this statement.
Article IV, § 1a of the Constitution provides that the initiative and referendum power are reserved to the "legal voters of every municipality and district as to all local, special and municipal legislation * * *." Chapter 254 of ORS contains the statutes referred *317 to by plaintiffs, above, governing the procedure required to begin and hold an initiative election. Plaintiffs' claim that the failure to follow that procedure by the respective school officials who conducted the challenged election caused the election to be void. The election procedure that was followed in this election was that set forth in ORS 330.110 et seq. The latter statutes are enactments that apply to all school districts and relate specifically to elections for the consolidation of school districts.
1. Plaintiffs' premise as to the law governing the election was wrong. Prior decisions of this court, contrary to plaintiffs' theory, make it abundantly clear that a school district was not a "municipality or district" that was granted the initiative power by Article IV, § 1a. School District No. 35 v. Holden, 1915, 78 Or 267, 151 P 702; School District No. 17 v. Powell, 1955, 203 Or 168, 279 P2d 492. And particular reference is made to the searching opinion of Justice HARRIS in Rose v. Port of Portland, 1917, 82 Or 541, 162 P 498.
Prior to the decision in the Rose case this court had given conflicting decisions construing the meaning of Article IV, § 1a and its companion amendment of 1906, Article XI, § 2. The latter was the Home Rule Amendment. See Burton v. Gibbons, 1934, 148 Or 370, 36 P2d 786.
The opinion in the Rose case decided that the two amendments must be construed together and then exhaustively analyzed the two amendments with unusual clarity and reason. The conclusion was reached that the two amendments extended the initiative power only to those municipalities and districts that had the power to legislate; basically cities and towns. The opinion said * * * "no other corporate body can, without *318 an enabling act, legislate power unto itself to legislate." 82 Or at 573. The case held that the Port of Portland did not have the initiative power. A year later, in Carriker v. Lake County, 1918, 89 Or 240, 171 P 407, 173 P 573, Justice HARRIS, in even more emphatic language, applied the same rule to a county:
The same rule would apply equally, if not more so, to a school district. "Although the municipality in Rose v. Port of Portland was a port and the municipality in the instant case is a county, nevertheless the legal principle involved is identical in both cases." Carriker v. Lake County, supra, 244.
The Rose case is also important here for its determination that the two amendments did not limit the power of the legislature to enact general legislation governing all municipalities and districts.
*319 The plaintiffs' contentions, therefore, that the election was invalid because the procedures for an initiative election were not followed are without merit.
Plaintiffs also complain of other alleged deficiencies in the election procedure. These allegations relate to the manner in which notice of the election was given; the failure to make proper entries in the minutes of the meetings of the school districts involved in the consolidation; the failure to properly seal the ballot boxes after the election and similar charges of "gross negligence and disregard of official duties * * *."
2. In respect to all of these contentions we fully agree with the thoughtful and considered opinion of the trial judge who found that:
The court also found that there had been substantial compliance with the statutory requirements in accordance with the decisions in the Powell and Witham cases above cited. In this respect it is well to also cite the valuable volume of Edwards, The Court and The Public Schools, (rev. ed 1955), page 58, et seq. to show that this court follows the "pronounced weight of authority" in subscribing to the substantial compliance rule.
3. There is a further assignment that the trial court erred when, long after the case had been submitted, the court refused to allow an amendment to the complaint. The proposed amendment contained what were alleged to be newly discovered facts. ORS 16.390 permits the court to permit amendment "* * * at any time before the cause is submitted, * * *." The trial court found that the cause had been submitted and that the amendment injected a new issue. The trial court did not abuse its discretion when it denied leave to amend. Tracy and Baker v. City of Astoria, 1951, 193 Or 118, 129, 237 P2d 954, 959. And see State ex rel Konen Construction Co. v. United States Fidelity & Guaranty Company, 234 Or 554, 380 P2d 795.
Affirmed. | 31b40f556d7a57c84e1be3e520833a6313a2a631d669e4501b30e3689eafa58d | 1963-04-24T00:00:00Z |
bbfd8492-8dbf-4072-869d-c5c86b79b868 | Heider v. Dietz | 234 Or. 105, 380 P.2d 619 | null | oregon | Oregon Supreme Court | Affirmed April 10, 1963.
*106 Kenneth E. Shetterly and Jerome L. Noble, Dallas, argued the cause for appellant. With Noble on the brief were Hayter & Shetterly, Dallas.
*107 Howard E. Parcel, Portland, argued the cause and filed a brief for respondents Dietz.
No appearance for respondent Otto W. Heider.
Before McALLISTER, Chief Justice, and ROSSMAN, PERRY, SLOAN, O'CONNELL, GOODWIN and DENECKE, Justices.
AFFIRMED.
GOODWIN, J.
This is an appeal from a decree which denied strict foreclosure of a land sale contract.
The controlling issue is whether the doctrine of equitable conversion applies to the factual situation outlined below.
In 1951, Cecil and Anna Smith sold the land involved in this suit under a title-retaining contract. The original contract purchasers were Albert and Lorraine Valle. Shortly after entering into the contract with the Valles, the Smiths conveyed the same land, by warranty deed, to Otto W. Heider and Callie B. Heider, husband and wife, as tenants by the entirety. The deed does not refer to the interest of the contract purchasers, but the testimony at the trial made it clear that the Heiders took subject thereto. It was not until February 14, 1956, that the Smiths assigned their vendors' interest in the contract. Then they assigned it only to Callie B. Heider. The record contains no explanation for the delay of some five years between the Smiths' deed to the Heiders and their assignment of the contract to Mrs. Heider, nor of the reason for not including Otto W. Heider as an assignee. (He appears on the instrument of assignment as the notary public who acknowledged it.) A fair inference is that *108 an oral assignment had been made contemporaneously with, and was the reason for, the deed to the Heiders. If so, the written assignment in 1956 would be a memorial at least of such an assignment to Mrs. Heider. Upon trial, however, there was no dispute concerning the assignment. Mrs. Heider is conceded to be the owner of the vendor's interest in the contract. In the meantime, the original purchasers sold their equity and assigned their interests in the contract to the present defendants, George and Matie Dietz, husband and wife. The Smiths and the Valles no longer have any interest in the contract, or in these proceedings.
Until June, 1961, all payments were made, pursuant to the contract, to Mrs. Heider. On or about June 8, 1961, a transcript of a judgment against Otto Heider, obtained in another county, was docketed in Washington County, where the land covered by the contract was situated. The judgment creditor, one Gowin, is not a party to this suit. Mr. and Mrs. Dietz, upon advice that Gowin's judgment against Otto Heider might be a cloud on their title, declined to make the payment due in July, 1961, or any further payment to Callie Heider. They have refused to pay until such time as Mrs. Heider can give them an insured title as called for in the contract. It is conceded that Mr. and Mrs. Dietz made and kept open their tender of the balance owed Mrs. Heider upon the condition that she furnish title insurance.
Mrs. Heider would not, or could not, give the purchasers an insured title, and since the purchasers refused to pay further installments of the purchase money without a policy of title insurance, this litigation resulted. The purchasers answered the complaint for strict foreclosure with a prayer for specific performance *109 of the contract to convey "said premises in fee simple, free and clear of incumbrances * * *."
Upon trial, a preliminary report by a title insurance company doing business in Washington County was received in evidence. The report revealed that the company would not insure the title so long as the judgment against Otto W. Heider remained outstanding. Mrs. Heider does not dispute the fact that the title company has refused to insure the title.
ORS 18.350 provides as follows:
1. Mrs. Heider took the position that a judgment against her husband was not a lien upon the real property being purchased by Mr. and Mrs. Dietz, even though the Heiders as tenants by the entirety were the record owners of the land. Mrs. Heider contends that the purchasers therefore had no right to withhold payments, even though a title company had refused to insure the title. Mrs. Heider arrives at this conclusion by claiming that the title company is simply wrong. The cloud on the title, she says, is imaginary. She contends that there is no defect in the title because equitable conversion applies to the transaction in question. Under equitable conversion the vendor's security interest in the land is treated as personal property (not reached by the docketing of a judgment under ORS 18.350), and the vendee's equitable interest in *110 the land is treated as real property. In other words, Mrs. Heider contends that the doctrine of equitable conversion must be applied, and that when it is applied there remains no real property in this case upon which the judgment lien can attach. She concludes that the purchasers therefore have no right to refuse payment. The then unjustified refusal to pay, she insists, is ground for strict foreclosure.
The purchasers take the position that equitable conversion should not apply in the case at bar, because its application would clearly defeat the purposes equity is called upon to serve. They have proved that at least one title insurance company has refused to insure the title because of the lien of a judgment against Otto W. Heider. They say that Mrs. Heider therefore has the burden of proving that she can give an insured title. The purchasers agree with the title company that the title is defective. Whether the title insurance company is right or wrong in its interpretation of the law, however, the purchasers say they have no duty to continue making payments to Mrs. Heider until they can be assured of receiving an insured title as called for in their contract. The trial court agreed with the purchasers. The purchasers were given a decree for specific performance, i.e., an insured title as a condition precedent to the payment of the tendered purchase money to Mrs. Heider.
2. We could affirm the trial court's decree upon the theory that Mrs. Heider failed to prove that she was entitled to a decree of strict foreclosure under the particular contract before us. The uncontradicted evidence proved the title to be uninsurable. Since the parties to the original contract had called for title insurance, they had, in effect, elected to treat title insurance as their standard of marketability of title. *111 We could, therefore, under the contract, hold that the availability of title insurance, whether rightly or wrongly withheld, was a condition precedent to the duty of the purchasers to pay the balance of the purchase price.
The parties have, however, argued the case upon an important question concerning the doctrine of equitable conversion. The briefs and argument were centered upon the apparent conflict between May v. Emerson, 52 Or 262, 96 P 454, 96 P 1065 (1908), and the recent case of Panushka v. Panushka, 221 Or 145, 349 P2d 450 (1960).
In May v. Emerson, we have a square holding that equitable conversion does not apply where the judgment creditor has levied upon the vendor's interest. There, a judgment creditor liquidated his lien. He levied upon and sold the debtor-vendor's interest in lands previously sold by the debtor under contract. The judgment creditor thus acquired whatever interest the debtor-vendor had, subject to the equities of the purchaser and subject to the purchaser's right to the performance (conveyance) called for in the contract upon payment by the purchaser of the balance of the purchase money. The effect of the holding in May v. Emerson is to keep the doctrine of equitable conversion from operating automatically to extinguish the lien of the judgment creditor insofar as lands previously sold under contract by the judgment debtor may be concerned. The title company in the case at bar evidently relied upon May v. Emerson.
The majority opinion in the Panushka case contains rather sweeping language to the effect that equitable conversion invariably applies whenever real property is sold under a title-retaining contract. 221 Or at 149-150. We may assume, for the purposes of the case *112 at bar, that the Panushka case was correctly decided, and that the case was a proper one in which to apply the doctrine of equitable conversion. Cf. the dissenting opinion, 221 Or at 164. (The case involved devolution of property upon death.)
3. As noted in the Panushka dissent, however, neither this court nor other courts actually apply the doctrine of equitable conversion automatically. Equitable conversion is not invoked unless it appears necessary to invoke it in a particular case in order to accomplish equity according to established rules of equity jurisprudence.
4-6. Clearly, not every contract for the sale of land creates an equitable conversion as a matter of law, even in a class of cases where equitable conversion might normally be the expected result. The doctrine does not ordinarily operate, for example, unless the contract is one that is specifically enforceable. See Panushka v. Panushka, 221 Or at 152; Langdell, A Brief Survey of Equity Jurisdiction 310 (2d ed, 1908). The doctrine is based on the maxim that equity in a proper case will regard as done that which ought to be done. By the same token, equity will not consider as done that which ought not to be done. In Huebener et al v. Chinn, 186 Or 508, 207 P2d 1136 (1949), it was said that if a contract to convey land is not specifically enforceable the purchaser acquires no legal interest in the land before conveyance is made, but has merely a personal claim against the vendor. See, also, Stone, Equitable Conversion by Contract, 13 Col L Rev 369, 381 et seq (1913); Simpson, Legislative Changes in the Law of Equitable Conversion by Contract, 44 Yale L J 559, 563 (1935).
Further support for the proposition that not every contract for the sale of land automatically creates an *113 equitable conversion may be found in the "risk-of-loss" cases. In Oregon prior to the enactment of ORS 93.290 et seq., and in a minority of other states, the doctrine of equitable conversion has been rejected in risk-of-loss cases where the purchaser has not gone into possession, whether or not a given contract is specifically enforceable. See Powell v. D.S. & G.R.R.R. Co., 12 Or 488, 8 P 544 (1885); and Lacy, The Uniform Vendor and Purchaser Risk Act, 36 OLR 108 (1957). Other cases adhering to the minority rule are collected in 101 ALR 1241. A majority of courts hold that where a contract for the sale of land is entered into and no provision is made for allocating the risk of loss to improvements on the land, the vendee is held to bear the risk of loss because, according to the doctrine of equitable conversion, he has become the owner of the real estate. McGinley v. Forrest, 107 Neb 309, 186 NW 74, 22 ALR 567 (1921). If, however, specific performance would not be available to a given vendor because intervening liens have prevented his giving a good title, then even courts following the majority rule reject the doctrine of equitable conversion, and the risk of loss remains upon such a vendor. Kinney v. Hickox, 24 Neb 167, 38 NW 816 (1888).
Compare also the cases involving devolution of title on the death of either the vendor or purchaser where, if specific performance is not available to either party because the Statute of Frauds has not been complied with, equitable conversion does not apply and title passes as though no contract had ever been made. Mills v. Harris, 104 NC 626, 10 SE 704 (1889); Langdell, A Brief Survey of Equity Jurisdiction 310 (2d ed, 1908), supra.
In still another factual situation, where a vendor, after selling land under a land sale contract, gave a *114 mortgage to a third person with notice of the contract, this court had no trouble in recognizing the mortgage as a junior lien upon the land. Pedersen v. Barkhurst, 139 Or 483, 10 P2d 347 (1932). In the Pedersen case, the doctrine of equitable conversion does not appear to have been invoked. The court held that the lien of the mortgage, being junior to the equity of the contract purchaser, could not prejudice the purchaser, but the court recognized the power of the vendor, while he held title, to create the lien of the mortgage. Obviously, if equitable conversion applied in all cases, the mortgage would have been a nullity rather than a junior equity.
7. It seems, therefore, not inappropriate to conclude, with Dean Pound, that equitable conversion is not a condition of property for all purposes, but is only a name given to a situation resulting from the application of equitable doctrines to special states of facts. Pound, The Progress of the Law, 1918-1919, 33 Harv L Rev 813, 831 (1920); Panushka v. Panushka, 221 Or 145, 167 (dissenting opinion), supra, and cases cited therein. This does not mean, however, that the whim of the chancellor will determine when an equitable conversion takes place. Cases of the same general class ordinarily will be treated alike. Thus, in cases involving the devolution of interests under a specifically enforceable contract of sale of real property, equity courts have almost uniformly seen fit to apply the doctrine of equitable conversion. Panushka v. Panushka, supra (majority). The Panushka case is therefore consistent with similar cases elsewhere in its application of the doctrine for purposes of deciding the mode of devolution upon death, in the absence of statute.
The reasons which persuade equity to hold that *115 equitable conversion applies in devolution cases, or (in a majority of states) in risk-of-loss cases, do not necessarily carry over to cases involving the rights of third-party creditors having judgment liens upon real property. Therefore, although it is settled in Oregon that in equity a purchaser is regarded as the owner of real property for some purposes, it has been held (in other than vendor-purchaser cases) that the judgment lien does not attach to such purchaser's equitable interest in the land. Smith v. Ingles, 2 Or 43, 45 (1862); Cummings v. Duncan, 22 ND 534, 134 NW 712, Ann Cas 1914B 976 (1912); and see Thompson, Collecting a Judgment, 30 OLR 95, 111 (1951).
Equally consistent with the view that an equitable conversion does not take place in every situation where there is a contract to purchase land are the cases which hold that where the vendor is the judgment debtor the judgment lien will attach to the vendor's interest to the extent of the unpaid purchase price. See, e.g., May v. Emerson, 52 Or 262, supra, and authorities therein cited; 3 Powell, Real Property 710, § 479. Iowa is the only jurisdiction we have found which holds that because of equitable conversion a judgment creditor may not foreclose his lien and sell the retained interest of the vendor to the extent of its value. See Cumming v. First Nat. Bank, 199 Ia 667, 202 NW 556 (1925).
It is our conclusion, therefore, that while the Panushka case correctly describes the effects of equitable conversion when the doctrine applies, that case must be limited to its facts when it suggests that equitable conversion automatically applies in every instance of a land-sale contract.
8-11. In the case at bar, the purchasers under the land sale contract were entitled to rely upon the rule *116 laid down in May v. Emerson, supra. They were entitled to withhold payment of further installments to Mrs. Heider until she could give assurance of her ability specifically to perform the contract, i.e., to give an insured title. The judgment creditor, who had never been made a party to these proceedings, could, under May v. Emerson, levy upon and sell any interest Otto W. Heider may have had in the security represented by the legal title he shared with his wife. In the face of such a potential hazard, the purchasers had no duty to continue to pay money to Mrs. Heider. Neither was it their duty, at their expense, to institute declaratory proceedings, or other litigation to remove the cloud on their title. They could rest upon their tender of the purchase money to Mrs. Heider, conditioned as it was upon performance by her, or, when sued, they could tender the money into court as they elected to do. They might also have impleaded the judgment creditor had they elected to do so. Whatever the outcome of any future contest between the Heiders and the judgment creditor might be, the purchasers are mere stakeholders. Equity will not permit the outcome of litigation by the judgment creditor and the Heiders to enhance the burdens of the purchasers under their contract. Neither will equity suffer the holder of the vendor's interest to work a forfeiture by applying the doctrine of equitable conversion under facts making such application clearly improper.
Affirmed. | b182b2409bcaa0c9aafb1bcace617e8950b526d02d83233a6dc3b0f2b1835f58 | 1963-04-10T00:00:00Z |
211255e3-2da8-431b-9f0c-5b4274b90d0b | HANN v. Nored | 233 Or. 302, 378 P.2d 569 | null | oregon | Oregon Supreme Court | Reversed and remanded in part; affirmed in part January 30, 1963.
*304 Clifford N. Carlsen, Jr., Portland, argued the cause for appellants and cross-respondents. With him on the briefs were John W. Hill, William B. Crow and Paul T. Bailey, Portland.
Harrison M. Weatherford, Albany, argued the cause for respondent and cross-appellant. On the brief were Weatherford & Thompson, Albany.
Before McALLISTER, Chief Justice, and ROSSMAN, O'CONNELL, LUSK and DENECKE, Justices.
REVERSED AND REMANDED IN PART; AFFIRMED IN PART.
DENECKE, J.
Plaintiffs are trustees of a health and welfare trust fund for carpenters. They brought this suit in equity to secure performance of two alleged contracts by the defendant employer to make contributions to this fund. *305 The defendant denied any obligation and asked to have one of the purported contracts rescinded. A trial was held and the court dismissed plaintiffs' complaint, as well as defendant's counterclaim for rescission. Plaintiffs appealed and defendant cross-appealed.
1. No findings or conclusions were made. This was in equity and none were required. The court wrote counsel: "* * * it is my conclusion that plaintiffs have failed to establish paragraph I of their amended complaint and for that reason plaintiffs cannot prevail. It is also my opinion that the defendants have failed to establish either of their separate answers and defenses * * *."
Paragraph I of plaintiffs' amended complaint is as follows:
Defendant on lack of information or belief denied paragraph I and all other allegations of the amended complaint. Except for this general denial there is nothing in the record, including the closing arguments, to indicate that the matter alleged in paragraph I really was an issue.
Paragraph I states plaintiffs were trustees, duly appointed and acting in accordance with the trust agreement. W.M. Perrault, one of the plaintiffs, testified he was a trustee of the Oregon-Washington Carpenters-Employers *306 Trust and Chairman of the Board of Trustees. The trial court indicated during Mr. Perrault's testimony that it did not want to hear the witness testify on the operation of the Board of Trustees under the trust. The Trust Agreement was received into evidence. Perrault further testified: "* * * plaintiffs here are successors to the Trustees named in the original Trust Agreement." Actually, three of the plaintiffs were original trustees designated in the trust instrument. The witness was not cross-examined. No other testimony on this subject was offered by any party.
2, 3. Perrault's testimony established that the plaintiffs were trustees. We find this uncontradicted evidence to be conclusive of the fact. Rickard v. Ellis, 230 Or 46, 368 P2d 396, 398. The trust agreement grants the trustees the power to enforce prompt payment of contributions. Therefore, they were acting in accordance with the trust agreement.
The only remaining question is whether they were duly appointed. This is the only deficiency urged by defendant. Defendant points out that the trust agreement requires that the employer trustees shall have their appointment confirmed by a writing by the employer association directed to each of the other parties. It also requires that the trustees representing employees shall be appointed by the parties specified. There was no proof of this. Need there be?
This is not a question of legal disability to sue, as is involved if a plaintiff is allegedly an infant. It is not a question of real party in interest, as is involved if someone other than a plaintiff allegedly owns the cause of action or will receive the benefit of a successful outcome of the action. It is a question of whether or not plaintiffs have the special capacity or authority to *307 bring this suit. Were they properly authorized as representatives of the trust fund?
4, 5. We hold that plaintiffs need not allege or prove such capacity or authority. If the defendant desired to put such capacity or authority in issue, he should have specially alleged such lack of capacity or authority as a plea in abatement. See cases cited in 1 CJS 131, Abatement and Revival § 92f and 1 CJ 118, Abatement and Revival § 185. A failure to so plead waives any objection defendant might have had. ORS 16.330. The reason for the ruling is the old distinction between pleas in abatement and pleas in bar. In Crowder v. Yovovich, 84 Or 41, 48-49, 164 P 576, the court illustrated the difference. It said:
The opinion then quoted from 1 CJ 28, § 9, a standard statement of the distinction:
If plaintiffs were not duly appointed this would not permanently bar representatives of the trust fund from maintaining a cause of action against defendant. Either the present plaintiffs could be duly appointed or other trustees could be duly appointed and bring the action.
*308 The defendant urges that Everart v. Fischer, 75 Or 316, 323, 145 P 33, 147 P 189, is contrary to the above reasoning. There, the plaintiff mother brought an action as guardian ad litem for damages for personal injuries to her son. Plaintiff alleged she was the duly appointed guardian. Defendant filed a general denial. Plaintiff offered in evidence the order of her appointment as guardian. Over defendant's objection it was received. The order showed that it was granted on plaintiff's application and not on the application of plaintiff's 16 year-old son whom the statute required to make the application.
The court relied upon Goodale Lumber Co. v. Shaw, 41 Or 544, 69 P 546, a case holding that when a plaintiff's corporate existence is denied in the answer, its existence must be proved. This case will be further discussed. In Everart v. Fischer, supra, although there was a general denial and not a plea in abatement, the plaintiff at the trial did not question her obligation to prove her capacity to sue. She attempted to prove her capacity and in so attempting she proved conclusively her lack of capacity to sue. Inasmuch as the plaintiff's own evidence showed she had no capacity to sue, this court reversed a judgment for the plaintiff.
Cockerham v. Potts, 143 Or 80, 88, 20 P2d 423, distinguished Everart v. Fischer, supra. Plaintiff Cockerham was an administrator. Evidence was introduced that at the time of the original complaint, no letters of administration had been issued plaintiff; prior to trial, letters were issued. The court pointed out:
*309 But it did not rest its decision on the pleading point. The court distinguished Everart v. Fischer, supra:
We reaffirm this distinction.
6. The question of plaintiffs' capacity or authority should be distinguished from one in which a plaintiff's capacity as a corporation is challenged. In this state if the defendant denies in his answer plaintiff's allegation that it is a corporation, plaintiff must then prove it is a corporation. Goodale Lumber Co. v. Shaw, supra (41 Or 544). Justice McBRIDE in The Multorpor Co. v. Reed, 122 Or 605, 260 P 203, 55 ALR 504, reluctantly accepted that to be the Oregon law. The court pointed out, however, that it had not always been the law in this state. The court believed it was more logical to have the issue raised by a plea in abatement as it believed a majority of the jurisdictions held. Stare decisis prevented an overruling of Goodale Lumber Co. v. Shaw, supra. The import of The Multorpor Co. v. Reed, supra, is that the principle that a plea in bar puts in issue the capacity of the plaintiff to maintain a suit should be limited to cases in which the corporate existence of the plaintiff is in issue.
7. In addition, the corporation cases must be limited to those in which the very existence of the corporation is in issue, as distinguished from a claim that an existing corporation has not performed certain acts which are conditions precedent to its right to bring a lawsuit. In the latter class of cases the issue must be raised by a plea in abatement. An example of this *310 latter class is Oregon Timber Co. v. Seton, 59 Or 64, 111 P 376, 115 P 1121. There, the contention was made that the plaintiff could not maintain the suit because it had not paid its annual license fee. It was held this could only be raised by plea in abatement; the statute so specified.
8, 9. Hindsight is a frequent source of wisdom. Nevertheless, we observe that if the trial court had used its inherent power to regulate its procedure, this question of the capacity of plaintiffs as trustees probably would not have been an issue on appeal. Our statute permits general denials. However, when a general denial is filed, the court and counsel cannot determine from the pleadings what the real issues of the lawsuit are. Some type of pretrial conference will uncover the issues. The trial courts have the inherent power to require such conferences. Rule 28 of the Rules of the Circuit Court of Multnomah County provides:
Without a formalized rule the trial court can require procedures which will unmask the issues.
Plaintiffs' lack of right or capacity was the only ground mentioned by the trial court in its letter opinion dismissing plaintiffs' causes of suit. An opinion, however, is not a substitute for findings of fact or conclusions of law. Therefore, we must examine the record to determine whether or not plaintiffs have proved the remaining essentials of their case. As regards *311 the first cause of suit, defendant does not contend plaintiffs were deficient in any other way than right and capacity to sue and the additional defenses alleged in defendant's affirmative defenses and counterclaim which will be taken up later. This court finds no other deficiencies.
The second cause of suit is for the period from 1959 to the filing of the complaint. Defendant contends that he never contracted to pay contributions for this period. Plaintiffs alleged that during this period defendant was a member of an organization called Willamette General Contractors Association (hereinafter called Willamette) and assigned his bargaining rights with labor to it. They further alleged that such association, on behalf of defendant and others, agreed that its members would pay health and welfare contributions. On information and belief defendant denied all the allegations of plaintiffs' second cause of suit, including the allegation that defendant was a member of Willamette General Contractors Association and assigned his bargaining rights to it.
There was a master labor agreement entered into between various labor organizations and employer organizations, including Willamette. Article XX of such agreement provided for the payment of health and welfare contributions by employers. The agreement provided, after naming the employer associations who were parties to the agreement:
*312 This could reasonably mean the association's members were as set forth in Schedule B or Supplement thereto; however, defendant makes no such contention. No Schedule B or Supplement thereto was offered in evidence. All the local unions bound by the agreement were set forth in Schedule C, which was introduced into evidence as part of the master agreement.
The defendant executed no document evidencing his membership in Willamette or assigning his right to bargain with any of his employees or evidencing his acceptance of the master labor agreement. He paid no health and welfare contributions under the terms of such agreement. Nored testified he was never a member of Willamette. No constitution, articles of incorporation, bylaws or other internal agreement among the members of Willamette was introduced. No representative of Willamette testified. No record of Willamette listing its members or its members' rights and obligations was offered, except a "mailing list."
On the other hand, Nored paid dues to Willamette for about one year and probably at the time the master labor agreement was entered into. He received some literature from Willamette. He went to two meetings. A representative of the bank which administered the trust fund testified he had received a list from Willamette. This list was denominated a "mailing list" of Willamette. It had Nored's individual name, firm name and address mimeographed. After the bank received the list it put beside each name, including Nored's, a number which the bank's employee testified was a code number for IBM purposes.
This court must decide whether Nored was bound to pay contributions because of Willamette's entering into the master labor agreement.
Plaintiffs cite Francis v. Perry, 82 Misc 271, 144 *313 NYS 167 (1913), for the proposition that the foregoing facts make Nored a member of Willamette. The issue in that case was the same but not the facts. That defendant admitted he was elected a member, voted at meetings, and was elected and served as an officer. Electrical Contractors' Ass'n. v. A.S. Schulman El. Co., 391 Ill 333, 63 NE2d 392, 161 ALR 787 (1945), also had different facts than are presented here. There, the defendant thought it was a member; it applied for membership and its application was accepted.
10, 11. We find that the defendant was not obligated to pay health and welfare contributions by reason of Willamette agreeing to the master labor agreement. Nored may have been a member of Willamette. That fact alone would not empower Willamette to obligate Nored to pay health and welfare contributions. We cannot say that a member of some kind of employer association, by membership alone, has thereby authorized the association to contract on his behalf in regard to his labor relations.
12, 13. There is no evidence whatsoever as to the legal nature of Willamette. It has as part of its name the word "Association." Plaintiffs claim defendant was a "member." Defendant paid "dues." All these connote an unincorporated association. Officers acting on behalf of unincorporated associations are deemed agents and their authority determined by the law of agency. United States Nat. Bank v. Guiss, 214 Or 563, 583, 331 P2d 865 (a fraternal organization). A member of an unincorporated association is not obligated by a contract entered into by the association through its officers unless the member expressly or impliedly consented to become so obligated. Cousin v. Taylor, 115 Or 472, 239 P 96, 41 ALR 750. Here, no express consent was shown. We can find no implied consent.
*314 The "mailing list" the bank employee testified was sent him by Willamette had the letterhead:
"Willamette General Contractors Association, Incorporated."
If Willamette was a corporation, the supposed relationship of Nored to it would be that of stockholder. Corporations normally do not have the authority to enter into contracts which obligate their stockholders individually. Stockholders are not usually referred to as "members" who pay "dues."
14. Plaintiffs had the burden of proving that Nored was obligated by the master labor agreement entered into by Willamette. They have failed in this proof.
15. Defendant alleged as an affirmative defense to the first cause of suit that the effective date of the written agreement whereby he contracted to pay health and welfare contributions was modified by a contemporaneous oral agreement. Nored had individually executed this earlier contract. The writing provided: "THIS AGREEMENT, Made and Entered into this 22 day of May 1956 by and between * * * shall be in full force and effect from date hereof to and including December 31, 1958, * * *." Plaintiffs objected to any evidence in support of such affirmative defense on the ground that its admission would violate the parol-evidence rule. The trial court sustained the objection.
The defendant testified under the rule to the alleged oral agreement. He stated he did not want to obligate himself to pay health and welfare contributions unless the other home-building contractors in the Corvallis area also were so obligated. At his deposition *315 defendant testified concerning this alleged oral agreement:
On cross-examination at the trial, after having the above read to him, Nored testified:
Nored further testified that about six months after he signed the agreement he found not one home builder signed up; however, he said he continued to pay for awhile, hoping "some of the other fellows would line up." When a representative of the trust fund pressed defendant for an audit of his payroll he never mentioned the alleged parol agreement. The two union representatives specifically denied any oral agreement *316 or representations that the agreement would not be binding unless other home builders also agreed. One union representative testified six or seven Corvallis home builders signed up in 1956 and a total of about 13 during Nored's contract period.
Even if parol evidence were admissible, we find it weak, vacillating and insufficient to prove the alleged oral agreement.
16. Defendant further affirmatively alleged as a defense to the first cause of suit that labor officials falsely promised to him that they would get all house-building contractors in Corvallis to agree to pay health and welfare contributions. On this ground defendant asked that the contract be rescinded. The trial court dismissed this affirmative defense and counterclaim. The court was correct.
Nored's testimony received in support of this affirmative defense was not that the union representatives promised him they would sign up other house builders; rather, he testified: "They [union representatives] said that if the home builders in Corvallis, the balance of them, wouldn't go along with the contract and sign, that I had no worry about mine." There was no misrepresentation.
On plaintiffs' first cause of suit the decision of the trial court is reversed and remanded. Because of a prayer by plaintiffs for an audit, the trial court initially will have to decide this and eventually determine the amount owing by defendant.
The trial court's decree dismissing plaintiffs' second cause of suit is affirmed.
Reversed and remanded in part; affirmed in part. No costs to either party. | b4ca4688803d0433c62faa17f4c53821d6c0ab83a6b04be07b17b3e1acd316c1 | 1963-01-30T00:00:00Z |
716d68af-603f-4e43-be3f-0ac3ba70d6b2 | Myhre v. Peterson | 233 Or. 470, 378 P.2d 1002 | null | oregon | Oregon Supreme Court | Reversed and remanded February 27, 1963.
*471 W.A. Franklin, Portland, argued the cause for appellant. On the brief were Anderson, Franklin, Jones & Olsen.
Asa Lewelling, Salem, argued the cause for respondent. On the brief were Lewelling & Gies.
Before McALLISTER, Chief Justice, and ROSSMAN, PERRY, GOODWIN and LUSK, Justices.
REVERSED AND REMANDED.
LUSK, J.
Plaintiff was struck by an automobile driven by defendant, sued to recover damages for his injuries, and the jury returned a verdict for the defendant. Plaintiff has appealed from the consequent judgment, assigning as error two instructions given by the court.
1, 2. Plaintiff was a railroad telegraph operator in the employ of the S P & S Railway Company. He worked in the company's depot located at the northwest corner of the intersection of Front and Chemeketa streets in Salem. Chemeketa street runs east and west. Front street runs north and south and has on it, in about the center, two sets of railroad tracks. In the early morning of November 24, 1960, apparently between *472 one and two o'clock, plaintiff was required to leave the depot, walk part way across Front street to the vicinity of the railroad track, and deliver to the fireman on the locomotive of a train coming from the south an order or message known in railroad parlance as a "list." The list is secured at the end of a stick called a hoop and handed up to the fireman as the train passes. As the plaintiff, after delivering the list to the fireman, was returning to the depot, he was struck by defendant's automobile, which was being driven in a southerly direction on Front street. It was a rainy, windy night.
The plaintiff alleged in his complaint, among other charges of negligence, that the defendant failed to yield the right of way. The court, on motion of the defendant, removed this issue from the consideration of the jury, being of the opinion that there was no evidence that at the time of the accident plaintiff was within the "unmarked crosswalk" at the intersection and hence that he was not entitled to the benefit of the right-of-way statute, ORS 483.210(1). Plaintiff testified that in going from the depot to perform his errand he walked in the unmarked crosswalk, delivered the list to the fireman of the locomotive, and remembered nothing thereafter until he woke up in the hospital. The fireman corroborated his testimony by stating that he saw the plaintiff walk out from the depot and that he was in the crosswalk when he delivered the list. The defendant testified, in substance, that he was blinded by the headlight of the approaching locomotive and that the plaintiff, when the defendant first saw him, was standing with "his hands on my radiator." His testimony given in a pretrial deposition was somewhat different. He said there that when he first saw the plaintiff the latter was *473 four or five feet directly in front of his radiator. He testified that he struck plaintiff "in the intersection" and that the plaintiff was "out from the engine at lease six, seven, eight feet, something like that". He did not say where in the intersection the accident occurred. After the accident the defendant's car came to rest with its right front wheel two paces about six feet north of the south curb line of Chemeketa street and in line with the west curb line of Front street, and the plaintiff was lying in the street slightly to the rear of the car and between it and the railroad track.
The train was moving at a speed of about ten miles per hour. The fireman saw the automobile approaching at a speed of about twenty miles per hour. He saw the top of the car as it passed the engine after he received the list and immediately thereafter heard a thud and screech of brakes and looking back saw the plaintiff lying in the street. He estimated that in his position in the cab which was towards the rear of the engine he was then from 50 to 75 feet from the north line of Chemeketa street. He ordered the train stopped and went back to the scene of the accident.
We think that under this evidence and the decision of this court in Manning v. Helbock et al, 135 Or 262, 295 P 207, the question whether the plaintiff was in the crosswalk when he was struck by defendant's automobile was for the jury. The direct evidence establishes that he was in the crosswalk when he handed up the list to the fireman. After that he would have returned to his duties in the depot but for the accident. His most direct route was the same as that by which he came, the crosswalk. No reason appears for him to deviate from that route. Under the evidence most favorable to the plaintiff, he was struck less than four *474 seconds after delivering the list and when he was as little as six feet two paces from the point where he then stood. We think that an inference could reasonably be drawn from the whole of the evidence that he traveled these six feet in the crosswalk or at least as close thereto as to give him the protection of the right-of-way statute. Lynch v. Clark et al, 183 Or 431, 442, 194 P2d 416; Manning v. Helbock, supra, 135 Or at 267. Of course, the position of the plaintiff in the street after the accident is evidence which may be considered as pointing to a different conclusion, but, since a person colliding with an automobile may be carried a considerable distance before falling to the ground, this circumstance is not conclusive. Cases from other jurisdictions supporting the view we take of this question are MacHale v. United States, 81 F Supp 372 (WD Wash 1948); Warshaw v. Reichman, 145 NYS2d 237; Lambrecht v. Archibald, 119 Colo 356, 203 P2d 897; Bohnenkamp v. Hibberd (Ohio App) 41 NE2d 259; Novak, Admx., etc. v. Chi & C Dist Tr Co et al, 235 Ind 489, 135 NE2d 1.
ORS 483.210(1) reads:
*475 The defendant argues that the statute does not apply to this case, for various reasons. It is said that the plaintiff was not a "pedestrian crossing the roadway" within the meaning of the statute because he was a workman required to go into the street by his employer to perform a job, and that the requirement that the motorist yield the right of way to a pedestrian who is approaching the half of the roadway along which the vehicle is traveling from the other half so closely as to be in danger, cannot be applied unless the pedestrian is completing the crossing. It is further suggested that the presence of the train passing through the intersection would lead a motorist to believe that pedestrians would not be crossing the street at that time. Defendant cites no authority for his contention and plaintiff's brief ignores it.
3, 4. The basic question seems to be whether the word "crossing" in the statute is to be given its ordinary significance of passing from one side to the other. Webster's New International Dictionary (2d ed); 25 CJS 10. In a criminal prosecution for violation of the California Vehicle Act the court adopted that construction, but only to avoid absurd consequences. People v. Hawkins, 51 Cal App 2d 779, 781, 124 P2d 691, 692. But in a civil action where one of the questions was whether the plaintiff had violated an ordinance that prohibited pedestrians from crossing streets except at intersections, and it was argued that the plaintiff was not crossing the street, but was merely going from one point in the street to the sidewalk, the court said: "* * * it seems to us to be splitting hairs to say that a person is not engaged in crossing a street merely because he has not traversed the entire street from curb to curb. Suppose he had alighted from an automobile instead of from *476 a streetcar." Mathes v. Schwing, 11 La App 5, 123 S 156, 158. We agree with this view. The statute was intended to promote the safety of pedestrians and should be given a construction in furtherance of that object. A person leaving the sidewalk to board a streetcar, for example, needs the protection of the statute as much as though he was intending to complete the crossing to the other side. And so of the plaintiff in this case. The fact that the pedestrian is engaged on some business of his employer is immaterial, though if the plaintiff in this case had been struck by the automobile driven by the defendant while standing in the street and handing the list up to the fireman of the locomotive, he would have ceased to be a pedestrian and a different question would arise. See Newton v. Thomas, 137 Cal App 2d 748, 762, 291 P2d 503, 511. We agree that the provision of the statute that the motorist must yield to the pedestrian if the latter is approaching the half of the roadway on which the motorist is traveling so closely as to be in danger has no application to a case where the pedestrian does not enter the motorist's half of the roadway, but that fact does not, to our mind, indicate that the statute does not cover a partial crossing. While it may be true, as counsel for defendant argues, that a motorist might assume that no one would venture a crossing while a train is passing along the center of the street, yet, as the legislature, which presumably knows that trains do run on the streets of our cities, did not choose to make an exception in that regard, the court cannot do so.
We think that the court below erred in withdrawing this issue from the jury.
5. The defendant in his answer charged the plaintiff with contributory negligence in failing to keep a *477 lookout. The plaintiff requested the court to remove this charge from the consideration of the jury. The request was denied and the issue was submitted to the jury by the court in its instructions. The ruling is assigned as error. It is true that there is no direct evidence that the plaintiff failed to keep a lookout, but there seldom is in this class of cases. The fireman of the locomotive testified that he saw the approaching automobile at a distance of 150 to 200 feet. The jury might have concluded that the plaintiff likewise could and should have seen it and that his failure to do so was the proximate cause of the accident. We think that it was a jury question. Barnes v. Winkler, 216 Or 130, 337 P2d 816.
The judgment is reversed and the cause remanded for further proceedings in conformity with this opinion. | ec21622038a4086ba9a8c4a78b96d268dd1766018e5e6745b11891135774b3ec | 1963-02-27T00:00:00Z |
11d80af6-fb2e-4d20-b732-6fc6d309c236 | Witham Hill Corp. v. Corvallis | 234 Or. 236, 380 P.2d 792 | null | oregon | Oregon Supreme Court | Reversed April 10, 1963.
Petition for rehearing denied May 14, 1963.
Edward L. Clark, Jr., Salem, argued the cause for appellants. With him on the briefs were Goodenough, Clark & Marsh, Salem.
*237 Paul M. Reeder, Hillsboro, argued the cause and filed a brief for respondents.
Before McALLISTER, Chief Justice, and ROSSMAN, PERRY, SLOAN, O'CONNELL, GOODWIN and DENECKE, Justices.
REVERSED.
SLOAN, J.
In this case plaintiffs sought and obtained a decree which avoided certain zoning ordinances adopted by defendants acting as the responsible officials of the city of Corvallis. Defendants appeal. For all practical purposes the parties are singular and will be referred to as plaintiff and defendant. A factual background is needed to explain the issue to be decided.
Prior to 1953 plaintiff acquired a tract of some 60 acres of land within the city limits of Corvallis. Plaintiff intended to develop the land for both residential and commercial purposes. In 1953 defendant enacted a comprehensive zoning ordinance. In that ordinance all but 3.2 acres of plaintiff's land was zoned in the R-1 District described as a "One-Family District." The 3.2 acres of plaintiff's land was specifically zoned for commercial use. The 3.2 acre zone was situated within a 16 acre tract which, plaintiff avows, had always been intended to be used for a public parking area for users and customers of businesses operated within the 3.2 acre commercial zone. All of the 16 acre tract, except the 3.2 acres were zoned in the R-1 District. Plaintiff claimed, however, that the provisions of the 1953 ordinance permitted him to use all of that portion of the 16 acre tract designated R-1 for public parking purposes for the benefit of the commercial area. This is claimed despite the clear mandate, just mentioned, of the 1953 ordinance *238 that all of the 16 acre tract except the 3.2 acres were zoned for R-1 residential use. Plaintiff convinced the trial court that the 1953 ordinance did permit the use of the entire 16 acre tract for commercial public parking incidental to the area zoned for commercial use.
In 1959 and 1961 certain amendments were made to the zoning ordinance. If there were any doubt as to the right of plaintiff to have public parking on the questioned land by the 1953 ordinance, the doubt was removed by the later amendments. Because of the trial court's finding, above mentioned, that the 1953 ordinance had permitted public parking in the entire area the court proceeded to hold that the 1959 and 1961 amendments took away this right and thereby deprived plaintiff of property without due course of law and the amendments were void as to plaintiff.
We hold that the trial court erred when it interpreted the 1953 ordinance as it did. And, as we understand the issue presented here, that is the end of the case. It was not contended that the 1953 ordinance could not have prohibited public parking, as defined in the ordinance. It was the proposed changes made by the 1959 and 1961 amendments that were said to have violated plaintiff's rights. Consequently, our concern is limited to the meaning of the 1953 ordinance.
Section 2 of the 1953 ordinance contained certain definitions that were applicable to all of the defined zones created within the city. Among the definitions were these:
Section 3 of the ordinance divided or zoned the city into ten different districts beginning with the R-1, single family dwelling district, to an M-2, heavy industrial district.
Section 5, specified the uses permitted within the R-1 District. In addition to one family dwellings the uses permitted in the R-1 District included schools, parks, libraries, churches, necessary utility installations and other uses incidental or reasonably convenient for a residential area. The permitted uses did not include public parking. The restraints and limitations contained in the whole of Section 5 indicated an intent to prohibit any form of commercial enterprise such as that proposed by plaintiff within the R-1 District. Subsection D of Section 5 provided that a permitted use shall be "Parking space [within the R-1 District] for dwellings and buildings other than dwellings as required in Section 15." This reference to Section 15 is crucial to decision in this case.
Section 15 specified the space that was required to be provided for off-street parking for virtually every type of building that was governed by the ordinance. It provided for the amount of off-street parking space required for dwellings, dance halls, industrial *240 buildings, commercial buildings, hotels and other types of buildings. It is important to note that every section in the ordinance which designated the permitted uses within a given zoned district made substantially identical reference to Section 15 to indicate the amount of off-street parking space required for the type of buildings and uses permitted within a given zoned district. It was a section of general application to the entire ordinance.
Recall that Subsection D of Section 5 used the words "Parking space for dwellings and buildings other than dwellings as required by Section 15." We have emphasized the words "buildings other than dwellings" because it was claimed that, since Section 15 "provide[d] for certain parking spaces based upon floor space of a commercial or office building,"[1] the emphasized words, relating to permitted uses in the R-1 District, included commercial type parking. We do not agree with that interpretation. If it were correct then, by the same reasoning, the parking permitted within the R-1 District, would have likewise included the same type of parking space required for dance halls, hotels and other buildings mentioned in Section 15. The emphasized words, "buildings other than dwellings," found in Subsection D of Section 5 meant the kind of buildings other than dwellings permitted in the R-1 District. It meant nothing more. The words referred to schools, libraries and the like which were permitted uses, other than dwellings, within the R-1 District.
We conclude that the 1953 ordinance did not permit commercial parking areas within the R-1 District. The decree is reversed and plaintiff's complaint dismissed.
[1] Trial court's opinion. | 935700a24ca5b7b866a0851941da22551adf9e79113f0cda9be0f0c357db4457 | 1963-04-10T00:00:00Z |
1e2db531-63af-452c-ae70-d760a502e560 | Board of Medical Examiners v. Mintz | 233 Or. 441, 378 P.2d 945 | null | oregon | Oregon Supreme Court | Reversed and remanded February 20, 1963.
*442 Arthur G. Higgs, Assistant Attorney General, Portland, argued the cause for appellant. With him on the briefs was Robert Y. Thornton, Attorney General, Salem.
Harold Banta, Baker, argued the cause for respondent. On the brief were Banta, Silven, Horton & Young.
Before McALLISTER, Chief Justice, and PERRY, O'CONNELL, DENECKE and LUSK, Justices.
REVERSED AND REMANDED.
O'CONNELL, J.
This is an appeal from a decree of the circuit court of Multnomah county setting aside an order of the Board of Medical Examiners revoking defendant's license to practice medicine in Oregon.
The medical investigator of the Board of Medical Examiners filed with the board a complaint in which *443 it was alleged that defendant represented to Mrs. Leroy Mills and Mrs. Phyllis Fogel that he would perform abortions upon each of them for fees varying from $15 to $25; that he administered drugs to them for the purpose of performing an abortion, and that this conduct was contrary to the provisions of ORS 677.190 which sets forth the grounds for the revocation of a medical license.[1]
*444 After a hearing the board made written findings of fact which adopted substantially all of the charges contained in the complaint and concluded from these findings that defendant's acts constituted "unprofessional and dishonorable conduct and was and is contrary to the laws of the State of Oregon, particularly § 677.190 (1) Oregon Revised Statutes." The board then entered its order revoking defendant's license.
Defendant then appealed to the circuit court for Multnomah county. The court held that the board's *445 complaint failed to state sufficient grounds for action in that the representation by a physician that he would commit an abortion upon a patient could not constitute "unprofessional or dishonorable conduct" within the meaning of ORS 677.190 (1) unless the board had previously adopted rules and regulations specifically defining such conduct as unprofessional or dishonorable.[2] The court also found that the evidence was insufficient to sustain the board's findings as there was "no evidence to prove that the treatment of the doctor would tend or that the appellant intended to cause an abortion."[3] The court set aside the board's order revoking defendant's license and ordered the reinstatement of his license. The board appeals.[4]
*446 1. We find nothing in the medical practice act (chapter 677) or in the history of the legislation which formed it supporting the lower court's conclusion that the legislature intended ORS 677.010 (L) to be inoperative until the board made rules and regulations further defining "unprofessional or dishonorable conduct."[5]
There is authority for the proposition that a prior formulation of specific standards by the administrative agency is necessary where the grounds for suspension or revocation is cast in broad terms. Sometimes this result is predicated upon the violation of a constitutional right to "due process" and sometimes upon the theory that there is an invalid delegation of legislative power.[6] The contrary view has been taken. The leading case on the point is Matter of Bell v. Board of Regents, 295 NY 101, 65 NE2d 184, 163 ALR 900 (1946). In that case the state medical practices act specified certain acts of misconduct. It then provided that a license to practice dentistry could be revoked, suspended or annulled upon a showing "`that the dentist has been otherwise or in any other way guilty of unprofessional conduct.'" (295 NY at p. 105). The court held, with two judges dissenting, that the promulgation of rules specifying the acts which would constitute unprofessional conduct was not a condition precedent to the board's right to revoke a license. The court rejected the licensee's argument *447 that the statute was fatally vague. The court adopted the view expressed in an earlier case that "the standards of conduct generally accepted by practitioners in the State of New York are not so indefinite that they cannot be determined by qualified persons. They are part of the ethics of the profession and `what is generally called the "ethics" of the profession is but the concensus of expert opinion as to the necessity of such standards.' * * * [Semler v. Oregon State Board of Dental Examiners, 294 US 608, 612, 55 S Ct 570, 572, 79 L Ed 1086]." (295 NY at 110, 65 NE2d at 189).
2. We agree with the view expressed by the court in the Bell case, supra, first in regarding the prior promulgation of rules as unnecessary under the circumstances, and secondly in treating "unprofessional conduct" as an adequate standard. We have previously held that the failure to specify in a statute the standards circumscribing administrative actions is not necessarily fatal.[7] It may be advisable for the legislature or the administrative agency to set out specific adjudicatory standards in some instances.[8] But this does not mean that a statute must always set out the precise instances under which it is to be operative. No matter how specific the standard or standards are stated, there is almost always a penumbra which requires the administrative agency to exercise a judgment as to whether the facts before it fall within or outside the legislative design. And delegated power to decide may be in such vague terms that it is impossible *448 to discern the legislative policy behind the statute.
But the statute here is not that vague. Admittedly, the term "unprofessional conduct" does not have precise contours circumscribing its meaning. The limits between good and bad professional conduct can never be marked off by a definite line of cleavage. And the variety of forms which unprofessional conduct may take makes it infeasible to attempt to specify in a statute or regulation all of the acts which come within the meaning of the term. The fact that it is impossible to catalogue all of the types of professional misconduct is the very reason for setting up the statutory standard in broad terms and delegating to the board the function of evaluating the conduct in each case. The language in Old Republic Life Insurance Company v. Wikler, 9 NY2d 524, 215 NYS2d 481, 486-87, 175 NE2d 147, 151 (1961) is appropriate:
3, 4. The board's discretion is not without controls. As was noted above, the standards are those which are accepted by the practitioners in the community. The standard must be ascertained through expert opinion; except where the standard is clear as it is in the present case. The act of procuring an abortion contrary to the provisions of ORS 677.190 (2) is clearly unprofessional *449 conduct.[9] The charge against defendant is that he "did administer * * * drugs or substances * * * for the purpose of performing an abortion * * *." The lower court held that this did not charge defendant with the act of procuring an abortion but only with a mere offer or attempt to commit an abortion. Conceding that the charge is so limited, we are of the opinion that the conduct described is of such a nature that the board was warranted in regarding it as a violation of medical ethics and that it was not necessary to elicit expert opinion outside of the board to support the conclusion.
5, 6. The lower court further held that there was no legal evidence to support the action of the board. As noted earlier, ORS 677.210 (6) (b) provides that the court may reverse the order of the board if "There is no legal evidence to support the action of the board." We construe the term "legal evidence" to mean substantial evidence in this context.[10] Such evidence appears in the record. It is undisputed that Mrs. Mills and Mrs. Fogel made calls to defendant's office for medical consultation and treatment. Each came for two separate series of treatments. Both women testified that at the time of these visits they were pregnant and that the purpose of seeking defendant's services was to induce a miscarriage. At least one of these pregnancies was confirmed by an independent physician. Both testified that defendant agreed to give them shots for the purpose of inducing a miscarriage. Mrs. Mills testified that in administering *450 the shot defendant used substances from two containers, one a bottle and the other a capsule. According to her testimony, defendant in each instance threw the bottle in the wastebasket but put the capsule in his pocket. Defendant testified that the drug administered was prostigmin and that it was given simply as a test for pregnancy. Prostigmin is a clear white substance, yet Mrs. Mills testified that the contents of the capsule were yellow, a color closer to that of ergot than prostigmin. The prosecution contends that the purpose of administering the drugs was to induce a miscarriage. The evidence indicated that if in addition to prostigmin the drug ergot were also administered the combination of the the two drugs could induce a miscarriage. Although there was testimony that the quantity of ergot necessary to abort would be a dose lethal to the mother in many cases, a pathologist testified that the combination would produce the type of symptoms experienced by these women such as excessive saliva, flushed face, bulging eyes, expanding and tingling ribs and stomach sickness. He also said that the symptoms produced by the combination might last for as long as the women said their symptoms lasted. But he stated that he had never heard of a case in which the symptoms produced by prostigmin alone persisted so long. However, he admitted that the effects produced by prostigmin alone would be similar to the effects produced by a combination of prostigmin and ergot. Mrs. Mills testified that after she received one series of treatments she passed an object or substances which resembled "an oversized bloodclot." Other testimony developed the idea that this substance could have been either a foetus or placenta following a previous birth.
Both women testified in detail as to their conversations *451 with defendant, the effect which the drugs had upon them, and other matters surrounding the occasions when they received the treatment in question. Defendant denied that he agreed to perform abortions on Mrs. Mills and Mrs. Fogel or that he gave them drugs to induce miscarriages. If either Mrs. Mills or Mrs. Fogel were telling the truth, there would be sufficient evidence to sustain the charge. If their testimony is accepted as true, defendant undertook to induce and did induce a miscarriage under circumstances not sanctioned under the statute. It is true that a finding that defendant was guilty of the acts charged rests primarily upon the credibility of Mrs. Mills and Mrs. Fogel. But the board had the right to believe these witnesses and if the board did, there was evidence to sustain the charges.
The decree of the lower court is reversed and the cause is remanded with directions to reinstate the board's order revoking defendant's license.
[1] "677.190 The board may refuse to grant a license to any applicant who desires to practice medicine and surgery in this state or may suspend or revoke such licenses for any of the following reasons:
"(1) Unprofessional or dishonorable conduct.
"(2) The procuring or aiding or abetting in procuring an abortion unless such is done for the relief of a woman whose health appears in peril because of her pregnant condition after due consultation with another duly licensed medical physician and surgeon who is not an associate or relative of the physician or surgeon and who agrees that an abortion is necessary. The record of this consultation shall be in writing and shall be maintained in the hospital where the consultation occurred or in the offices of all physicians and surgeons involved for a period of at least three years after the date of such abortion.
"(3) The employing of what are popularly known as `cappers' or `steerers.'
"(4) Representing to a patient that a manifestly incurable condition of sickness, disease or injury can be permanently cured.
"(5) The obtaining of any fee through fraud or misrepresentation.
"(6) The wilful betraying of a professional secret.
"(7) Conviction of any offense for which the punishment may be incarceration in a state penitentiary or in a federal prison. A copy of the record of conviction, certified to by the clerk of the court entering the conviction, shall be conclusive evidence.
"(8) Habitual or excessive use of intoxicants or drugs.
"(9) Fraud or misrepresentation in applying for or procuring a license to practice in this state, or in connection with applying for or procuring an annual registration.
"(10) Making false or misleading statements regarding his skill or the efficacy or value of his medicine, treatment or remedy in the treatment of any disease or other abnormal condition of the human body or mind.
"(11) Advertising in any manner, either in his own name or under the name of another person, or clinic, or concern, actual or pretended, in any newspaper, pamphlet, circular, or other written or printed paper or document, professional superiority to or greater skill than that possessed by fellow physicians and surgeons, the restoration of `lost manhood,' the treatment of private diseases peculiar to men or women, or the advertising or holding himself out to the public in any manner as a specialist in the diseases of the sexual organs or the diseases caused by sexual weakness, self-abuse or excessive indulgence.
"(12) Advertising or holding himself out to treat diseases or other abnormal conditions of the human body by any secret formula, medicine, method, treatment or procedure.
"(13) The use of any advertising in which untruthful, improper, misleading or deceptive statements are made.
"(14) The advertising of any medicines or any means whereby the monthly periods of women can be regulated or the menses re-established if suppressed.
"(15) The impersonation of another licensed practitioner or permitting or allowing any person to use his certificate in the practice of any system or mode of treating the sick or afflicted.
"(16) Aiding or abetting the practice of any of the healing arts by an unlicensed person or persons, or aiding or abetting any person who has a license to practice any of the healing arts to employ any method of diagnosis or treatment not within the scope of his license.
"(17) The use of his name under the designation `doctor,' or `Dr.' or `M.D.' or any similar designation with reference to the commercial exploitation of any goods, wares or merchandise.
"(18) Insanity or mental disease as evidenced by an adjudication or by voluntary commitment to an institution for treatment of a mental disease, or as determined by an examination conducted by three impartial psychiatrists retained by the board.
"(19) Gross carelessness or manifest incapacity in the practice of medicine or surgery."
[2] The court said: "It is the opinion of the Court that the legislature at the time of the amendment of what is now ORS 677.190 realized that there were other matters which should result in disciplinary proceedings other than those specifically stated in ORS 677.190, Subsection (2) through (18) and as a result Subsection (1) was adopted so that within the confines of the definition of unprofessional and dishonorable conduct contained in ORS 677.010, Subsection (L), the Board could establish rules of conduct which would protect the best interests of the public."
[3] ORS 677.210 provides in part that:
"(5) On appeal the court shall be confined to the record certified by the secretary of the board. The court shall consider the record so certified, and may affirm or reverse the order of revocation or suspension entered by the board.
"(6) The court may reverse the order of the board only on any one or all of the following grounds:
"(a) The complaint does not state sufficient grounds for the action of the board.
"(b) There is no legal evidence to support the action of the board.
"(c) The board did not have jurisdiction of the matter or the accused."
[4] ORS 677.210 (8) provides:
"Either the board or the accused may appeal from the decision of the circuit court to the Supreme Court of Oregon, within 30 days of the entering of the decision, in like manner as in civil actions."
[5] ORS 677.010 (L) defines these terms as follows:
"`Unprofessional or dishonorable conduct' means conduct unbecoming a person licensed to practice medicine or detrimental to the best interest of the public."
[6] E.g., Green v. Blanchard, 138 Ark 137, 211 SW 375, 5 ALR 84 (1919); Hyatt v. Williams, 148 Cal 585, 84 P 41 (1906); Matthews v. Murphy, 23 Ky L Rep 750, 63 SW 785 (1901); Czarra v. Board of Medical Ex-Supervisors, 25 App D C 443 (1905).
[7] Warren v. Marion County, 222 Or 307, 353 P2d 257 (1960). But see, Comment, State Statutes Delegating Legislative Power Need Not Prescribe Standards, 14 Stan L Rev 372 (1962).
[8] Friendly, The Federal Administrative Agencies: The Need for Better Definition of Standards (1962).
[9] The proscription against performing abortions has been a part of the code of medical ethics from the earliest times. The Hippocratic Oath calls for the following pledge: "Similarly I will not give a pessary to a woman to cause abortion."
[10] Cf., Latham v. State Unemp. Comp. Com., 167 Or 371, 117 P2d 971 (1941). | b7f2dce100e6fbcd287b09a69487bb77eee5d3db76893c5a72ec0dcb622094f5 | 1963-02-20T00:00:00Z |
d42ee704-f3da-41d3-8b1e-3b06ebc0c9f3 | Brown v. Hayden Island Amusement Co. | 233 Or. 416, 378 P.2d 953 | null | oregon | Oregon Supreme Court | Affirmed February 20, 1963.
*417 Alonzo P. Stiner, Portland, argued the cause for appellant. With him on the briefs were Dusenbery, Martin, Beatty & Parks.
Bruce Spaulding, Portland, argued the cause for respondent. On the brief were Mautz, Souther, Spaulding, Kinsey & Williamson.
Before McALLISTER, Chief Justice, and SLOAN, O'CONNELL, DENECKE and LUSK, Justices.
AFFIRMED.
LUSK, J.
The plaintiff, a girl fifteen years of age, brought this action to recover damages for personal injuries sustained by her when she dived into a swimming pool owned and maintained by the defendant and *418 struck her head on the bottom of the pool. She alleged that the defendant was negligent (a) in failing to provide adequate markings showing the depth of the water in the pool and (b) in failing to warn the plaintiff that the bottom of this pool was not constructed in the same manner as other swimming pools in the vicinity of Portland, Oregon, in regard to depth of water near the sides of the pool. There was a jury trial and at the conclusion of the testimony the court denied a motion for a directed verdict made by the defendant. In submitting the case to the jury the court withdrew allegation of negligence (b). The jury returned a verdict for the plaintiff. Thereafter the court, on motion of the defendant, entered judgment for the defendant notwithstanding the verdict and the plaintiff has appealed.
Defendant operates an amusement park in Portland known as Jantzen Beach Park where it maintains, besides two wading pools for small children, a "shallow" pool and a "deep" pool. These pools were built in 1928. The plaintiff was injured in the shallow pool, which is approximately 165 feet running north and south and 100 feet running east and west. It has no springboard or other diving apparatus. Its shallowest parts are at the ends and sides and the floor slopes towards the middle. The maximum depth is approximately five feet. The deep pool adjoins the shallow pool on the east and is equipped with the usual facilities for diving. A photograph of the shallow pool, defendant's Exhibit 12, is herewith reproduced.
On the west side of the shallow pool, midway between the north and south ends, is a concrete abutment which bears the legend "SHALLOW POOL" in conspicuous letters, plainly visible to anyone coming from the dressing room to the shallow pool. On either side
*419
of the concrete abutment are steps leading down into the water. At either end of the pool, near the corners, the word "SHALLOW" in tile is imbedded in the cement. The letters were painted red each year before the opening of the season.
According to the testimony of J.F. Turpin, manager of the park, the shallow pool was used for instruction as well as by anyone who chose to use it. *420 The plaintiff, who was an experienced swimmer and diver, testified that she liked to go into it first because the water was warmer than in the deep pool. She freely conceded in her testimony that she knew she was diving into the shallow pool.
Plaintiff was a student in high school at the time of the accident. On June 7, 1958, at about seven o'clock in the evening, she and a number of her schoolmates, girls and boys, went to Jantzen Beach Park for a swim and to enjoy the other recreational facilities. Plaintiff had never before been to the Jantzen pool. She paid the regular charge, changed to her swimsuit and went to the shallow pool. Some of the boys had preceded her and were already in the water. She walked to the north end of the pool to a spot a few feet from the east side and looked around for any indication that it might be dangerous to dive. She testified that she made a shallow dive which she described as "at about a forty-five degree angle to the pool." She took about two steps and dived out toward the middle of the pool. Her "hands hit the bottom and jerked back and my head hit." The doctor who attended her testified that she received a laceration on the top of her head and was apparently diving straight down.
The plaintiff had been accustomed to swimming in a pool at Mount Scott in Portland where there is a shallow pool and a deep pool. According to the plaintiff's testimony, the shallow pool at Mount Scott is about sixty feet long and forty feet wide and it is about four feet deep in its deepest part, with a gradual slope to the opposite end.
The plaintiff was accustomed to diving in the Mount Scott pool at the four foot depth and testified that people commonly dived in this pool. She said *421 that she knew that all pools are deeper in some places than in others; that the Mount Scott pool in places was from one and one-half to three feet in depth and that she had no information as to the location of the deeper and shallower parts of the Jantzen pool. She testified that she "saw what I thought was the same kind of arrangement as the Mount Scott Pool, a shallow pool and a deep pool; and I took it for granted that this spot where I dove in would be deeper as it was at the Mount Scott Pool."
She gave as reasons why she thought the water was deep where she dived, that close to where she stood there was a handrail evidently for use in getting out of the pool, and that she observed that the water was breast high on her boy friends who were standing approximately in the middle of the pool. These boys averaged about six feet in height. She testified:
She indicated the position of the boys on a diagram of the pool as not quite half the distance to the south end and opposite the northernmost flight of steps leading into the water on the west side of the pool. She said:
*422 She also observed people scattered generally throughout the pool, though none in the immediate area where she dived. Plaintiff was asked whether she noticed the steps on the west side of the pool, and, if so, what she thought they meant when she was considering these things before she dived. She answered: "That it must be pretty shallow in that part."
She testified that she could see the bottom of the pool as she stood there before diving, but could not determine its depth. After she dived she estimated that the water was about three feet deep where she struck her head on the bottom. She testified that it would be safe to make a shallow dive into four feet of water and, as previously stated, that this was the depth of the water in the Mount Scott pool at its deepest part.
The parents of the plaintiff went to the scene of the accident a month or several months afterwards the precise time is not clear and inspected the pool from outside a wire fence which surrounds the pool. The gate in the fence was locked so that they were unable to get closer than eight or nine feet to the pool. They testified that at the north end they saw the "shallow" markers above described. Mr. Brown testified that "If you looked real close you could see it * * *." Mrs. Brown described the marker as "very pale." The plaintiff was not asked and did not testify whether she observed the markers. A photograph of one of the markers in which the letters were indistinct was identified by the witness Turpin on cross-examination as depicting the marker as it looks after the pool is closed for the season. He attributed its faded appearance to "the elements."
There is conflict in the evidence as to whether there *423 were any signs indicating the depth of the water in the pool.
To sustain the allegation of the complaint that the defendant was negligent in failing to warn the plaintiff that its pool was not constructed in the same manner as other pools in the vicinity of Portland in regard to depth of water near the sides, the plaintiff called as a witness Harold E. Milliken, assistant chief sanitary engineer for the State Board of Health, who had charge of the swimming pool program of the State Board of Health and who, as a part of his duties, inspected public swimming pools. He testified that he knew of no pools other than the Jantzen pool which are shallow on each end and slope toward the middle. He also testified that in the case of a shallow pool, no purpose other than drainage is served by having the pool deep at one end and shallow at the other.
1. In Johnson v. Hot Springs Land & Imp. Co., 76 Or 333, 337-338, 148 P 1137, LRA 1915F 689, where the plaintiff, who was injured in diving from a spring-board into a pool maintained by the defendant, was denied recovery because of contributory negligence, Mr. Justice HARRIS, speaking for the court, stated the rule applicable to a case of this kind as follows:
This language has been cited and quoted with approval by many courts throughout the country.
2. In applying it to the present case, it is to be borne in mind that, as the plaintiff knew, the defendant maintained for the use of its patrons two pools, one, the shallow pool in which she received her injury and which was not equipped with a diving board, and the other the deep pool which was so equipped. There is no evidence that the shallow pool was "ordinarily used in a customary way" for diving or indeed that anyone had ever dived into it before. The plaintiff did not allege in her complaint that the defendant was negligent in failing to warn her by signs or otherwise against diving into this pool, but she did allege that it was negligent in failing to mark the depth of the water. What this actually comes to is a claim that the defendant should have given notice not only that the pool was shallow, but how shallow it was. We think that no such duty rested upon the defendant and that notice to its patrons that the pool was shallow *425 was sufficient notice to a reasonably prudent person that it was a pool of a particular character maintained for certain limited uses, one of which was not diving. The deep pool with its diving board was an invitation to dive. The shallow pool by contrast carried a warning that it was intended to serve a different purpose.
In this connection it is worthy of note, since the case of the plaintiff is largely built on her experience at the Mount Scott pool, where she had swam hundreds of times, that there is no evidence that the depth of the water at that pool was marked, and that in testifying to its depth the plaintiff resorted to approximations.
The defendant was not charged with knowledge that the plaintiff would assume that the water at the place where she dived was of sufficient depth for diving with safety to herself. She was not warranted in assuming that the pool was deeper at one end than another or, if this were the case, that she was at the deep end; for in going to the spot from which she dived she passed one marker indicating that the water was shallow at the north end of the pool and she decided to dive from a spot only a few feet from a similar marker. She did not testify that she saw the markers, but neither did she deny that she saw them. They were there to be seen and the defendant could rightly assume that they would be seen. The defendant was entitled to assume "that patrons would act as reasonable men act" and that they "would possess such perception of the surrounding circumstances as a reasonable man would have, that they would possess such knowledge of other pertinent matters as a reasonable man would have, and that they would correlate such perception and knowledge with reasonable intelligence and judgment * * *." Glaze v. Benson, 205 *426 Md 26, 33, 106 A2d 124, 128. See, also, Restatement, Torts § 289.
The evidence on behalf of the plaintiff as to the faded appearance of one of the markers at some undetermined time is not sufficiently substantial to show that this was the condition of the marker on the day of the accident. The plaintiff introduced no evidence as to when the photograph of a faded marker was taken. The witness Turpin testified that the photograph showed the appearance of the marker after the pools closed for the season. Presumably, if this were not the fact, the plaintiff would have shown when the photograph was taken.
3. The plaintiff seems to have assumed that because people dive from a particular spot in the Mount Scott pool it would be safe for her to dive at a correspondingly located spot at the Jantzen pool. The defendant was not charged with knowledge of the construction of the Mount Scott pool, nor of the manner in which it was used by the plaintiff and others. The defendant was under no duty to maintain a pool constructed as are other pools in the Portland area so long as its pool, as constructed and maintained, was reasonably safe, considering the purpose for which it was built and its customary use. The charge that the defendant was negligent in this regard was properly removed by the court from the consideration of the jury.
4. The mere fact that a pool of the kind in question is not deep at one end and shallow at the other is no evidence of negligence. There must be something in addition which might mislead a reasonable person as to the depth of the water. It is necessary that a pool be deeper at some point than at others for drainage, but beyond this no purpose is served by having a *427 "shallow" pool deep at one end and shallow at the other. The plaintiff's witness Milliken so testified.
The plaintiff testified that she judged the depth of the water by the fact that it was breast high on her friends in the pool some seventy feet distant from her. She thought that it must be even deeper where she dived, but here again she indulged the unwarranted assumption that the Jantzen pool was built like the Mount Scott pool. Moreover, if, as she testified, she "took in the whole situation" and saw people "scattered throughout the pool" (though not in "the immediate area" where she dived) it must have occurred to her as a reasonably prudent person that this was not a pool the floor of which sloped gradually from the south end to the north end. See photograph, defendant's Exhibit 12.
5. We have examined the cases cited by the plaintiff involving diving accidents in public swimming pools or at bathing beaches in which the courts have held that the questions of negligence and contributory negligence were for the jury, and others collected in the Annotation, 48 ALR2d 104, but we see no occasion to discuss these cases in this opinion. Of necessity, the decision in each case must depend on its own particular facts and circumstances. The governing principles, as stated in Johnson v. Hot Springs Land & Imp. Co., supra, are clear and well established. The task of the court is simply to apply those principles to the evidence. The plaintiff sustained serious injuries in this unfortunate accident which befell her, but the defendant was not an insurer of her safety, and, since there is no evidence of a departure from the standard of care which the law imposes upon the defendant, the court rightly allowed the motion for judgment n.o.v. The judgment is affirmed.
*428 SLOAN, J., dissenting.
Defendant solicits people of all ages and experience to use its pools. Some are acquainted with the peculiar design of the pools, others, like plaintiff, are not. It seems to me that we are not justified in judging plaintiff's actions from the caution of mature years blessed with a measurable degree of hindsight.
The jury should decide if defendants had given adequate warning to unwary patrons of the hazards inherent in this pool. | 3b5ba4742a0f8d9bc70ee6a81116baa485f78d0aa2c22bb76a8d5770a60ef850 | 1963-02-20T00:00:00Z |
7cf70f09-ddce-4447-97c8-9d1f634418fa | Shell Oil Co. v. Boyer | 234 Or. 270, 381 P.2d 494 | null | oregon | Oregon Supreme Court | Reversed May 15, 1963.
*271 William D. Campbell, Portland, argued the cause for appellant. With him on the briefs was Edgar Freed, Portland.
*272 James R. Ellis, Portland, argued the cause for respondent. With him on the brief was Howard I. Bobbitt, Portland.
Before McALLISTER, Chief Justice, and SLOAN, O'CONNELL, GOODWIN and LUSK, Justices.
REVERSED.
GOODWIN, J.
The trial court refused to grant Shell Oil Company specific performance of an option to purchase land held under a service-station lease. Shell appeals.
1. The only question is whether the lessors pleaded and proved such equities in their behalf that the trial court was justified in refusing to enforce the lease. Ordinarily the granting of specific performance is said to be a matter of sound judicial discretion. Such discretion must be exercised in accordance with established principles of equity. County of Lincoln v. Fischer et al, 216 Or 421, 438, 339 P2d 1084 (1959); Temple Enterprises v. Combs, 164 Or 133, 100 P2d 613, 128 ALR 856 (1940); Restatement, Contracts § 359. Cf. Patecky v. Friend et al, 220 Or 612, 624, 350 P2d 170 (1960); Wagner v. Savage, as Adm'r., 195 Or 128, 244 P2d 161 (1952). See Annotation, Specific Performance of a Contract as a Matter of Right, 65 ALR 7 (1930).
The parties have stipulated to many of the facts. The material facts in dispute are those surrounding the execution of the lease. The man who represented Shell in the transaction is dead. Shell therefore put on no evidence about the execution of the lease. The lessors, Forest M. Boyer and Violet Boyer, swore they did not understand that they were giving Shell an option to purchase their property and that they would *273 not have signed the lease if they had known that it contained such an option.
The Boyers, in their third amended answer, had pleaded fraud. They also pleaded a supposed gross inadequacy of the option price in relation to current market value. As the trial court found nothing inequitable about the option price, and since a major purpose of an option is to protect the optionee against a price increase in any event, we will not pursue that phase of the case further. Cases on this point are collected in the Annotation, 11 ALR2d 390, 406 (1950).
The trial court then said that while fraud, in the usual sense of the word, was not established, specific performance should be denied on the equitable principle that the extraordinary relief of specific performance may be withheld if, in the court's discretion, it is inequitable to grant such relief.
The lease was entered into on November 9, 1950, for a ten-year term beginning in December of 1950. The Boyers had purchased the land for $6,500 in 1949. Mr. Boyer was involved in the buying and selling of real estate and referred to himself as a carpenter-contractor. He built the service station on the land at a cost of $18,000.
The Boyers testified that when they signed the lease they noticed the paragraph entitled "Option to Purchase" and the paragraph entitled "Purchase Refusal". They testified that they asked Shell's agent the meaning of those paragraphs. Then, they recalled, Shell's agent evaded their question as to the purchase option, and read to them from the purchase-refusal provision. The agent said this purchase-refusal option was designed only to give Shell a chance to protect itself should the Boyers ever decide to sell the property. The agent assured them, they said, that Shell *274 was not interested in buying service stations and so they had nothing to worry about. They further testified that they allowed the agent to fill in the purchase-option price and then initialed the margin to show their assent solely because Shell's agent told them he had to fill in all the blanks on the lease or it wouldn't be legal.
In 1960, Boyer refused to grant Shell a new lease except upon terms that were not acceptable to Shell. Shell thereupon exercised its option under paragraph 18 of the 1950 lease. It is stipulated in the case at bar that Shell has performed every condition precedent to specific performance.
The two options are clear, legible, and understandable. If there is any ambiguity, it has to be found in reading the two options together. The trial court said the options were ambiguous when read together.
The two sections read in their material parts as follows:
Since mistake was never pleaded, and since ambiguity between the two options was never directly pleaded, a strict construction of the parol evidence statute, ORS 41.740, would exclude such unpleaded defenses in the case at bar. Shell has not questioned the trial court's assumption that the issues of mistake and ambiguity were before the court, however, so we shall treat the appeal as if the pleadings were broad enough to include those issues.
The lessors, without conceding that the trial court correctly decided the issue of fraud against them, maintain in this court that there was at least a species of overreaching by Shell's agent sufficient to move a court of equity to deny relief. We shall accept, for the purposes of this appeal, the proposition that a sufficient showing of inequitable inducement resulting in an innocent mistake will sometimes justify a court in refusing to hold the parties to their bargain. See, e.g., Bayne v. Cinak, 320 Ill 23, 150 NE 344 (1926). The case at bar, however, is not such a case.
2. The only flaw, if any, in the representations attributed to Shell's agent lay in an incomplete and inaccurate *276 description of the legal effect of the foregoing sections of the lease. If the testimony of the lessors is believed, they relied upon the agent's interpretation of the legal effect of the two clauses rather than upon their own reading. Ordinarily, the failure to read an instrument, when there is ample opportunity to do so, affords the party no defense to its enforcement. See Long v. Smith Hotel Co. et al, 115 Or 306, 237 P 671 (1925).
3. If the lessors did read the option to purchase, but chose to disregard its plain language in favor of the agent's alleged assurance that Shell would never exercise such an option, then in that event, also, their ignorance or mistake is not wholly innocent. Ball v. Associated Oil Co., 151 Or 383, 50 P2d 125 (1935).
4. The lessors' story that the agent prevented them from reading the option is incredible in view of the painstaking examination they admittedly made of other parts of the lease. (For example, they revised the lease to eliminate Shell's option to terminate in the event of a loss of volume.) When such testimony is considered in light of the written lease, which bears the initials of the lessors opposite the purchase option, and when the lessors admit that they watched the agent write into the blank space in the purchase option the purchase price of $28,000, their denial that they understood the option cannot be taken seriously.
5. In rejecting their testimony, we do not impute to the lessors any intentional dishonesty. Rather, it is probable that on trial the lessors recalled in a subjective way long-forgotten conversations. Their negotiations with Shell's agent were concluded ten years before. The fact that the land had increased substantially in value perhaps taxed the objectivity of the lessors. The nonavailability of Shell's agent to give *277 his version of the conversation may have tempted the lessors to interpret the conversation with less than complete detachment. Whatever may be the explanation of their testimony, this case well illustrates the wisdom of the rule that solemn covenants, solemnly arrived at, should be enforced according to their express terms unless there is some good reason for defeating the expressed intention of the parties.
6. The lessors failed to prove that they did not understand the purchase option. Further, even if their testimony were to be taken as true, the fact that they were mistaken about the meaning of the option to purchase, if it were a fact, would not provide a legal basis for refusing to enforce it. Cf. Bayne v. Cinak, supra, where the optioner was an immigrant who had difficulty with the English language.
7. This court has adopted the rule that where there are no inequities which appeal to the legal, as contrasted with merely the subjective, discretion of the court, specific performance of a lease is as much a matter of right as damages at law for the breach thereof. Temple Enterprises v. Combs, 164 Or supra at 156.
8. Inequity sufficient to enable one to evade his contractual duties must be more than a mere mistake concerning the legal effect of an instrument knowingly executed. It is not sufficient for a person desiring to be relieved of a duty to say, "I did not mean to make such a bargain." While cases involving attempted rescission are not necessarily controlling in cases involving specific performance, we believe the language of this court concerning a service-station lease in a rescission case is equally appropriate here:
We believe the better-reasoned decisions allow specific performance of lease agreements in cases substantially similar to the one at bar. See, e.g., Cunningham et al v. Esso Standard Oil Co., 35 Del Ch 371, 118 A2d 611 (1955). When a party seeks to avoid the burdens of an agreement duly made and executed after having enjoyed the benefits thereof, a court of equity will require more than a mere assertion that he did not understand the agreement before the court will permit him to be relieved from it.
9. Since the only option which Shell seeks to exercise is the fixed-price option, it is not necessary to decide whether, in some other case, there might be a latent ambiguity between the two option provisions. The dual-option provisions commonly found in service station leases have been fruitful sources of litigation. Some courts have taken the view, as the trial court apparently did in the case at bar, that the two severally unambiguous options somehow become ambiguous when read together. See, e.g., Shell Oil Co. v. Blumberg, 154 F2d 251 (5th Cir 1946). While it might be possible to conceive of a factual setting in which the *279 two option clauses could not be read together without conflict, we need not explore such possibilities in this case. The lessors have suggested that the very existence of the first-refusal option in the lease made the fixed-price option unworkable. They pleaded and tried their case, however, on a different theory. During the trial, the lessors insisted that they did not know the lease contained a fixed-price option. The lessors have contended that the refusal-option caused them to become confused. We hold that the fixed-price option is an independent covenant that speaks for itself. See Sinclair Refining Co. v. Allbritton, 147 Tex 468, 218 SW2d 185, 8 ALR2d 595 (1949). Since the purchase-refusal option was never invoked in this case, we deem it irrelevant that some real or imaginary ambiguity might have been pleaded as a defense if the purchase-refusal option had been exercised or tendered. Cases elsewhere discuss the problems that may arise when an asserted conflict between the two options is relied upon for relief from one of them. See, e.g., Gulf Oil Co. v. Rybicki, 102 NH 51, 149 A2d 877 (1959); and Annotation, 8 ALR2d 604.
10, 11. We conclude (1) that the lessors could not have executed the lease as they did without knowing that they were giving Shell a fixed-price option; (2) that one who assents to a plain statement in an instrument should not later be heard to say he did not understand what he was agreeing to, unless there is some evidence, in addition to his own assertion, of facts which would make it inequitable to hold him to his agreement; and (3), that there are no facts in the execution of the lease in this case which shock the conscience of equity. The case must be reversed with instructions to grant specific performance.
Reversed. | 6c81537a5696e62a1353fc35fb2d2ca3ec905e844a5ca70c444ae7d3efbf8d6d | 1963-05-15T00:00:00Z |
5ab9cc12-e50f-410c-87ab-67240e36e15e | Dorr Et Ux v. Janssen | 233 Or. 505, 378 P.2d 999 | null | oregon | Oregon Supreme Court | Affirmed March 6, 1963.
*506 Charles D. Burt, Salem, argued the cause and filed a brief for appellants.
Sam Speerstra, Salem, argued the cause for respondents. With him on the brief were William B. Wyllie and Rhoten, Rhoten & Speerstra, Salem.
Before McALLISTER, Chief Justice, and ROSSMAN, SLOAN, GOODWIN and LUSK, Justices.
AFFIRMED.
GOODWIN, J.
This is an action for damages for alleged fraud in the sale of a cattle ranch. The plaintiff-purchasers appeal from a directed verdict for the defendant-vendor.
The transaction out of which this litigation arose began with an exchange of property. The purchasers, hereinafter referred to as Dorr, exchanged certain equities which they owned in Oregon real property for an equity in the vendor's ranch in California. The vendor, hereinafter referred to as Janssen, was to be paid the sum of $165,000 for the difference between the agreed value of Dorr's interests in Oregon property and that of the California ranch.
*507 Dorr had no capital and could not obtain credit with which to operate the ranch. The periodic payments to Janssen at the beginning of the contract period were to be slightly under $1,000 per month, plus such additional sums as would fall due on notes for money advanced to Dorr by Janssen. The payments were scheduled to increase substantially in the future. It soon became obvious to all parties that Dorr could not make even the contract payments, much less finance the operations of the ranch. He made five payments, three of them with money borrowed from Janssen, during the eleven months he was in possession.
After falling six payments in arrears, Dorr reconveyed all the real and personal property to Janssen. The reconveyance was supported by valuable consideration, although the equities previously transferred by Dorr to Janssen were all retained by Janssen. There is no evidence that Dorr requested their return. In this connection, it may be observed that there was, therefore, no mutual rescission and restoration of the status quo as those terms are ordinarily understood. See Bridgmon et al v. Walker et al, 218 Or 130, 344 P2d 233 (1959). We cannot treat the reconveyance as an election to rescind. See Scott v. Walton, 32 Or 460, 464, 52 P 180 (1898). The reconveyance, however, is not without legal effect. What that legal effect is becomes the pivotal question in this case.
After reconveying the ranch to Janssen, Dorr filed his complaint in this action. He alleged that he had been induced to buy the ranch by false representations concerning the value of the ranch, its livestock-carrying capacity, the availability of local bank loans for operating capital, and the like. There was a failure *508 of proof on all the allegations of fraud except, perhaps, the one concerning the carrying capacity of the ranch. Without rehearsing the details, it is sufficient to observe that there may have been a jury question on that score. Accordingly, we may assume, without deciding, that it might have been mandatory to submit the cause to the jury unless the trial court correctly analyzed the legal effect of the transaction which resulted in the reconveyance of the ranch to Janssen. If the evidence proved facts from which it could be said, as a matter of law, that Dorr had lost his right to bring the action, then the trial court was free from error in any event.
1. Dorr challenges first the ruling of the trial court which permitted Janssen, after his evidence was in, to amend his answer to allege a waiver of the alleged fraud. The original answer had alleged that Dorr had voluntarily returned the property to Janssen to avoid the costs of litigation. The amended answer, by interlineation, alleged that Dorr had knowledge of and had waived any fraud that may have been perpetrated. The amendment merely asserted a legal conclusion the pleader drew from evidence that had come in without objection. While the amendment may have been redundant, it did not substantially change the theory of the defense. The voluntary return of the property, as a factual matter, had been alleged by the original answer. The legal effect of reconveyance had not been pleaded, but the circumstances surrounding the reconveyance had been. Dorr had responded to these facts in his reply (by alleging new fraud). There was no surprise on any allegation of fact. In permitting the amendment, the court did not abuse its discretion. See ORS 16.390; Baker v. Brookmead Dairy, Inc. et al, 230 Or 384, 370 P2d 235 (1962); Smith v. Jacobsen, *509 224 Or 627, 356 P2d 421 (1960). The evidence was not entirely free from conflict upon what the parties said or intended to say at the time of the reconveyance, but it was clear that the reconveyance was voluntary and was motivated by Dorr's desire to gain time to find a buyer, to release himself from burdensome payments, and to avoid the expenses of litigation should Janssen take the matter to court.
2. The trial court, on the urging of Janssen, characterized the reconveyance as a "mutual rescission," which, as noted, it was not. There was no attempt to restore the status quo ante the contract. Whatever the agreement to reconvey is called, however, it was a new agreement. Dorr was in serious default and subject to immediate foreclosure. The evidence is uncontradicted that a part of the consideration for the voluntary reconveyance was an enforceable promise by Janssen that Dorr would have an additional ninety days in which to seek to sell the ranch on his own account, with Dorr having the obligation in such event to distribute the proceeds of sale to Janssen until Janssen was fully paid, the overplus to go to Dorr. Additional consideration may be found in the cancellation and return to Dorr of notes representing his indebtedness to Janssen for advances in addition to the purchase-money for the ranch.
3. The conflict in the evidence concerned the question whether Dorr was induced to reconvey by an alleged representation on Janssen's part that if Dorr refused to reconvey such refusal would cost Dorr another $14,000 in attorney fees. This was the new fraud alleged in the reply. Janssen denied giving Dorr such advice. Dorr swore that he reconveyed solely in reliance upon that advice. The trial court correctly disregarded this testimony of Dorr because, whether *510 or not a jury might have thought his version of the conversation was true, Dorr had no right, as a matter of law, to rely upon any such expression of opinion by Janssen. See 23 Am Jur 781, Fraud & Deceit § 27; and Ward v. Jenson, 87 Or 314, 170 P 538 (1918).
In certain circumstances, an expression of opinion can give rise to a claim of fraud (see Ward v. Jenson, supra), but here there was no evidence that Janssen made the statement as an assertion of fact, nor, if made, that the statement was false, nor, if false, that Janssen knew or should have known it to be false. The evidence amounted to nothing more than the bald assertion by Dorr that the statement was made by Janssen. For all the record shows, Janssen's opinion may, indeed, have been an accurate one. Both parties were experienced business men, dealing at arms' length. Neither had any right to rely upon the other's speculation concerning the cost of future litigation.
4. The trial court was fully warranted in concluding that no useful purpose could be served by submitting the cause to the jury. It is undisputed that the parties, after Dorr had knowledge of all the facts, made a new agreement, supported by consideration, respecting and materially changing the rights and duties arising out of the first transaction, which Dorr claimed he had been fraudulently induced to enter. By his participation in the new agreement, Dorr relinquished all right to damages arising out of the alleged misrepresentations. Anderson v. Laws et al., 176 Or 468, 159 P2d 201 (1945).
See, to like effect, Conzelmann v. N.W.P. & D. Prod. Co., 190 Or 332, 354-357, 225 P2d 757 (1950).
Affirmed. | df326846280f69b34a3b41c9f6ef064ebbe0e0c9efbfc35287b32e561b427ea3 | 1963-03-06T00:00:00Z |
e0abb10f-ed2e-4ab2-ba04-4d1a20e8f6f5 | Raz v. Mills | 233 Or. 452, 378 P.2d 959 | null | oregon | Oregon Supreme Court | Affirmed February 20, 1963.
*453 Warren Hastings, Portland, argued the cause for appellant. With him on the briefs were James K. Buell and Phillips, Coughlin, Buell & Phillips, Portland.
Francis E. Marsh, McMinnville, argued the cause for respondent. With him on the brief were Marsh, Marsh, Dashney & Cushing, McMinnville.
Before McALLISTER, Chief Justice, and PERRY, O'CONNELL, GOODWIN and LUSK, Justices.
AFFIRMED.
PER CURIAM.
This is an action for damages arising out of a collision between two automobiles. The verdict was for the defendant. The plaintiff appeals.
The facts of the accident are reported in Raz v. Mills, 231 Or 220, 372 P2d 955 (1962). In the first case, Mrs. Raz recovered a judgment against Mrs. Mills. We affirmed, holding that there was a jury question whether Mrs. Mills was negligent. In the case at bar, Mr. Raz failed to recover. We affirm, again holding that there was a jury question.
1. The plaintiff contends that Mrs. Mills was negligent as a matter of law in permitting her automobile to cross over the center line into the lane occupied by the plaintiff's automobile. We held in the first case that the total factual situation, including an alleged emergency caused by a jay-walking pedestrian, and the defendant's reaction thereto, had to be considered by the jury. We adhere to that view.
*454 2, 3. Error is assigned to the giving of an instruction upon the defendant's theory that the accident was unavoidable. As we have observed before, the instruction is not one that should be given in the ordinary case. Locatelli v. Ramsey, 223 Or 238, 243, 354 P2d 317 (1960); Ordeman v. Watkins, 114 Or 581, 236 P 483 (1925). However, in a case in which the defendant contends that a sudden emergency was caused by a third party, the emergency involving no fault of the defendant, the trial court may, in its discretion, give so much of the sudden-emergency and unavoidable-accident instructions as are supported by the evidence. See Locatelli v. Ramsey, supra, and Annotations, 65 ALR2d 12, 32-34 (1959) (accident); 80 ALR2d 5 (1961) (emergency).
4. The final assignment of error contends that the trial court should have directed a verdict for the plaintiff because the judgment in the first case was conclusive on the question of the defendant's liability. We have found no authority to support the proposition that a plaintiff in an action for damages for his own injuries can treat as res judicata a finding in favor of some other plaintiff against the same defendant. In such cases, the stranger to the first action is not bound by the judgment therein. Therefore, because of the want of mutuality, neither can he claim the benefit thereof. See Owens v. Kuro, 56 Wash2d 564, 354 P2d 696 (1960). Cases elsewhere are collected in the Annotation, 23 ALR2d 710, 714 (1952).
5. Neither can the related concept of collateral estoppel apply to the case at bar. In Wolff v. Du Puis, 233 Or 317, 378 P2d 707 (1963), we held that one who had urged his freedom from negligence in an action by an injured woman was not collaterally estopped by an unfavorable judgment from again asserting *455 his freedom from negligence in an action by her husband for loss of consortium. A fortiori, the defendant here is not collaterally estopped. The two actions now under discussion have even less in common than had the two in the Wolff v. Du Puis litigation. See, generally, Collins, Collateral Estoppel in Favor of Nonparties: A Defendant's "Fringe Benefit", 41 OLR 30 (1961).
The cause was submitted upon instructions which, when taken as a whole, presented impartially the plaintiff's and defendant's theories of the case. The jury reached a verdict different from that reached by another jury considering the same accident. In the first case we held that a jury question was presented because reasonable minds might differ upon the question of negligence. Apparently reasonable minds have differed. There was no error of law.
Affirmed. | 92949c8e327d4d9a16f42efa0080f3b675752e4fcbdb183715c3de713a9c382d | 1963-02-20T00:00:00Z |
264c9086-be76-43db-8ee1-dd2a25fd364e | Willard v. Hutson | 234 Or. 148, 378 P.2d 966 | null | oregon | Oregon Supreme Court | Reargued January 8, 1963.
Reversed and remanded February 27, 1963.
Petition for rehearing denied April 16, 1963.
*149 Hugh L. Biggs, Portland, argued the cause for appellants. With him on the briefs were Cleveland C. Cory, Portland, and Paul E. Geddes, Roseburg.
Randolph Slocum, Roseburg, argued the cause for respondent. On the brief were Horn & Slocum, Roseburg, and Belli, Ashe & Gerry, San Francisco, California.
Before ROSSMAN, Presiding Justice, and PERRY, SLOAN, O'CONNELL, GOODWIN, DENECKE and LUSK, Justices.
REVERSED AND REMANDED.
LUSK, J.
This is an action for malpractice against two physicians in which the jury returned a verdict for the plaintiff for $40,000 compensatory damages and *150 the defendants have appealed. At the time of the alleged negligent conduct the plaintiff Daniel Willard was an infant eight months old. He was a victim of hemophilia[1] and the charges of negligence relate to the act of one of the defendants in retracting the foreskin of the child's penis, thus causing it to bleed and bringing about the loss of a portion of the organ known as the frenulum, and to the failure of the defendants thereafter to use proper means to stop the bleeding.
The defendants moved for a directed verdict, which was denied. They moved also separately for withdrawal of each of three specifications of negligence which the court submitted to the jury in its charge. These motions were likewise denied. The rulings are assigned as error.
The essential facts are as follows: The plaintiff is the youngest of five children born to Mrs. Alberta Bray. Two of his brothers were suspected hemophiliacs and the mother was informed that her uncle and grandfather were also hemophiliacs. Danny (as he is referred to in the testimony) manifested symptoms of the disease when he was three months old after he began to suck his thumbs and they would bleed and his mother was unable to stop the bleeding. Due to their dire poverty Mr. and Mrs. Bray in February 1957 agreed to the adoption of Danny by Mr. and Mrs. Fay Alvin Willard. Mrs. Willard was informed that Danny was a hemophiliac before the arrangements were completed. The adoption appears to have been authorized by the court on March 8, 1957.
*151 The defendants J.M. Hutson and A.B. Munroe were physicians and surgeons practicing their profession in Roseburg as partners. Mrs. Bray brought the baby to the defendants' clinic on February 21, 1957. Accompanying her was Reverend Howard E. Baker, a local minister, who was aware that the boys in the family were hemophiliacs. Dr. Munroe examined the baby, found that he was undernourished, his buttocks inflamed and chest "wheezy," and had him taken to the Community Hospital. On this occasion Danny's thumbs were bleeding and had tape on them. Dr. Munroe, according to Mrs. Bray, asked why the baby's thumbs were taped and she told him that she suspected that he was a "bleeder" because he had two brothers at home who were "bleeders." Mrs. Bray never saw her child after that. He remained in the hospital until February 28, 1957, his weight increased and his general condition improved and he was discharged to Mr. and Mrs. Willard.
Thereafter the adoptive mother brought the child to the defendants' clinic for treatment and DPT shots on March 4, 6, 7, April 11, May 24, and June 26, 1957. On the April 11 visit the baby was attended by Dr. Hutson for the first time. On July 26 Mrs. Willard brought Danny to the clinic to be vaccinated for smallpox. Dr. Munroe was not there and Dr. Hutson attended the child. According to Mrs. Willard's testimony, Dr. Hutson vaccinated the child and then the following occurred:
Mrs. Willard and the nurse in attendance removed the diaper. The nurse got three other diapers with which they padded the bleeding penis.
The bleeding continued after the child was taken home and that evening about seven o'clock Mrs. Willard called Dr. Munroe on the phone, told him about what had occurred that morning as a result of Dr. Hutson's treatment of the baby and that she thought the bleeding was dangerous because Danny was a bleeder. Dr. Munroe advised her to keep the child quiet and that in a few hours the bleeding would stop. It did not stop and she called Dr. Munroe again and he said to wait a few more hours. The following morning she took the baby to Dr. Munroe's house. After examining the baby Dr. Munroe told her to take the baby to the clinic, where he met them, and Dr. Munroe applied "pressure bandages" as Mrs. Willard put it. They were at the clinic two or three hours. The bleeding continued, however, and on the next day Mrs. Willard called Dr. Munroe again. He told her that he had done all he could for Danny and that she should take him to another doctor. Upon Dr. Munroe's suggestion, the baby was taken to Eugene where, on the evening of Sunday, July twenty-eighth, he was admitted into Sacred Heart Hospital under the care of Dr. Robert Overstreet.
It was Dr. Munroe's recollection that the treatment *153 on July twenty-seventh was at his home, not the office. He testified that he applied to the affected area an oxidized cotton material called "oxycel," which has the power to cause coagulation and a holding back of blood and that he was successful in controlling the bleeding. He was becoming suspicious, however, that the child was a hemophiliac and on July twenty-eighth inquired of Mrs. Willard about the family history, but she said that she did not know it. Dr. Munroe conceded that he did not have sufficient knowledge of the disease of hemophilia to undertake its treatment and that he would have referred the case to a specialist before he did so had he known that the child was a hemophiliac.
Dr. Overstreet ascertained that the bleeding was from the frenulum. He made a diagnosis of hemophilia. Two transfusions of blood were given the child, one of 200 cubic centimeters and the other of 100 cubic centimeters. The purpose of the blood transfusion is to restore an element of the blood which is present in normal persons but absent in the hemophiliac. Dr. Overstreet, who was called as a witness by the plaintiff, testified that there had been no appreciable loss of blood and no serious injury had been done to the child as a result of his previous bleeding. On August third Danny was discharged from Sacred Heart Hospital. The active bleeding had stopped and the child's coagulation time returned to normal.
Dr. Hutson testified that on July twenty-sixth before the vaccination, which was performed by a nurse, he examined the child and as part of his examination he retracted the foreskin of the penis. It was easily retracted up to the point just before the corona, but then he had difficulty because the lining of the foreskin was adherent to the glans due to adhesions *154 completely around the coronal area and which prevented him from seeing behind into the sulkus.[2] In order to free the adhesions he applied more pressure and with a quick movement retracted the foreskin the full distance. This had to be done with some force. There was some blood near the frenulum after this manipulation caused by separation of the adhesions; he wiped the blood away with gauze, took away the gauze, and the bleeding seemed to have stopped and he pulled the foreskin down over it. He wrote on the chart "phy neg Smallpox foreskin retracted and adhesions freed." He then left to attend to another patient.
The record shows that at this time Dr. Hutson did not know that Danny was a hemophiliac. He had not been so informed by Dr. Munroe and the child's chart contained no reference to that fact. Dr. Hutson testified that there was "some blood" after the manipulation; evidence for the plaintiff indicated that the child bled profusely.
Mrs. Willard testified that she bathed the child daily and retracted the foreskin and washed it; that she had no difficulty in doing so and had never noticed any adhesions and that this was true on the morning of July twenty-sixth before she took the child to the defendants' clinic to be vaccinated.
At no time prior to July 26, 1957, had either of the defendants observed any adhesions.
*155 Dr. Munroe was asked whether, in the case of a child of the age of Danny Willard, a mother washing the child can slide the foreskin down if the penis is not affected by adhesions. He answered: "Yes, if there are no adhesions and the foreskin is not tight." He further testified that if the mother washed the baby on the morning of July twenty-sixth "and the foreskin retracted as it had on every other occasion when she washed the child" no adhesions could have occurred between that time and the time she saw Dr. Hutson later in the morning.
Dr. George N. Lenci, a physician and surgeon practicing in Roseburg, testified as follows as a witness for the plaintiff: He examined Danny on July 6, 1961. Normally there is a band of tissue called the frenulum, perhaps one-sixteenth of an inch in thickness, which frequently binds the foreskin to the end of the shaft of the penis. The frenulum was not present and in this area below the corona there was a faintly visible scar approximately one-half an inch in length and about one-eighth to a quarter of an inch in width. A few small blood vessels, capillaries, were clearly visible in the upper part of the scar. Dr. Lenci was asked a lengthy hypothetical question which contained a recital of most of the facts in evidence, including a summary of the case of Danny Willard taken from the chart of the Sacred Heart Hospital. Among other things, the summary stated:
On the basis of the facts stated in the hypothetical question Dr. Lenci was asked whether he had an opinion as to whether the defendants "in the diagnosis, *156 treatment and care of the infant child in question did or did not meet those standards of care usually employed by reputable physicians and surgeons practicing a general practice in the community of Roseburg, Oregon, in the diagnosis, care and treatment of the private parts, to-wit, the penis of the infant in question?" The witness answered that he did have such an opinion and testified that in the hypothetical case the physicians did not observe "the standards in this community in regard to this little hemophiliac youngster. I feel that any kind of manipulation that resulted in a tearing of the skin or frenulum, anything that might produce an injury to this youngster should have been omitted." He based his answer in part, at least, on the fact that the history of hemophilia in the family was apparently known to the treating doctors. He was next asked whether, in his opinion, the physicians in their treatment of the patient after the initial injury met the standards of care in the community. He answered:
He testified that the cause of the initial bleeding was the forcible drawing back of the foreskin.
The defendants maintained a laboratory with facilities for testing blood to determine coagulation time and clotting time. No such tests were made of the *157 plaintiff's blood. Dr. Overstreet testified as follows with respect to the treatment of hemophilia:
The case was tried upon the fifth amended complaint in which, after deletions and amendments made on the trial, the defendants were charged with negligence in the following particulars:
It was alleged that as the result of these acts of negligence the plaintiff suffered physical and mental pain, and atrophy of the frenulum of the penis and scarring thereof.
*158 In support of their motion for a directed verdict the defendants say that there is no substantial expert testimony to support any of these charges.
1. There is evidence that the act of Dr. Hutson in forcibly retracting the infant's foreskin caused bleeding which the defendants were unable to control, loss of the frenulum and a scar which remained at the time of the trial. It is conceded in the defendants' brief that as early as February, 1957, the defendants knew, or should have known, that plaintiff was a hemophiliac, but it is insisted that the uncontradicted medical testimony shows that on July 26, 1957, the plaintiff suffered from adhesions and that the foreskin could be retracted only to a point just before the corona and that the answer of Dr. Lenci to the hypothetical question put to him is entitled to no weight as evidence because the question did not assume the presence of adhesions. We cannot agree with this contention because we think that there was competent evidence that there were no adhesions on July 26, 1957. The jury could have found from the expert testimony of the defendants themselves that Mrs. Willard could not have retracted the foreskin as she said she did were there adhesions present and hence could have found that there were none. Moreover, Mrs. Willard testified, without objection, that there were no adhesions. It is asserted by the defendants that this was a medical fact "beyond the ken of laymen." Reference is made to Nation v. Gueffroy, 172 Or 673, 142 P2d 688, 144 P2d 296, in which case there was a total absence of expert testimony as to the standard of care to be employed by a physician in treating the plaintiff's injury and a directed verdict for the defendant was sustained. The decision applied the established rule in this class of cases. Ritter v. Sivils, 206 Or *159 410, 413, 293 P2d 211; 41 Am Jur 240, Physicians and Surgeons, § 129. But it was also said in Nation v. Gueffroy that there are "some things of a non-technical nature occurring in the practice of medicine and surgery which a layman might well comprehend and understand. Under such circumstances, the juror needs no expert witness for his guidance and enlightenment." 172 Or at 680.
According to Dr. Munroe's testimony "[a]dhesions are caused by an irritation between any two surfaces of the body which might come in contact or might lie in contact." In the medical dictionaries an adhesion is thus defined:
Webster's New International Dictionary (2d ed) defines adhesion:
There was no direct evidence upon the question whether adhesions such as are described by the testimony in this case are recognizable by a non-expert. We pass the point of admissibility of lay testimony as to their existence in ordinary circumstances. We think that the question was for the jury in this case for two reasons, first, the testimony came in without objection, *160 and second, Mrs. Willard testified that she retracted the infant's foreskin without difficulty and the medical testimony is to the effect that she could not have done so had adhesions been present. Hence, Dr. Lenci's answer to the hypothetical question was entitled to be given weight, notwithstanding the question did not assume the presence of adhesions.
2. In this view, the argument based on the fact that Dr. Lenci testified that the freeing of adhesions on the penis of a known hemophiliac would be a matter of judgment with the treating physician avails the defendants nothing on their motion for a directed verdict. It should be noted, however, that Dr. Lenci also testified that there would have to be extremely good reasons for doing so and he could think of no such reasons in the particular case and, moreover, that retraction in such a case should be accomplished by the use of a blunt instrument rather than by the method used by Dr. Hutson. The rule that a physician or surgeon is not liable for an honest error or mistake of judgment is not ironclad, but exempts from liability only when there is a reasonable doubt as to the nature of the physical condition involved or as to the proper course to be followed or where good judgments may differ. Moulton v. Huckleberry, 150 Or 538, 546, 46 P2d 589. Even on the assumption that, as the defendants claim, the only competent evidence in the case shows the presence of adhesions, the contention that whether or not to retract the foreskin was in the circumstances a matter of judgment could not be sustained, for Dr. Hutson testified, and there is no evidence to the contrary, that he did not know that the infant was a hemophiliac. Yet that there is evidence that he should have known is conceded by the defendants. Hence, there was no occasion for him to exercise *161 judgment with respect to the existence of that condition.
It is also argued that there is no evidence that the negligence of the defendants was the proximate cause of the atrophy of the frenulum and the scarring of the penis. It is not claimed that these injuries were not the result of the retraction of the penis by Dr. Hutson, but simply that they were not caused by any negligence of Dr. Hutson in performing the retraction. The brief says:
But Dr. Hutson testified that he used "some force," Mrs. Willard testified that he "jerked" his hand back and if, as the jury could have found, there were in fact no adhesions, they could have further concluded that he used more force than was necessary. Moreover, if the jury believed Mrs. Willard's testimony, quoted above, they could have found that Dr. Hutson retracted the foreskin without even seeing the penis. The defendants' medical witness, Dr. John H. Donnelly testified that good practice in the community required additional care and concern in the treatment of a hemophiliac when doing a retraction of the foreskin. A finding that this standard was not met by the defendants was justified under the evidence. We think that the question whether the loss of the infant's *162 frenulum and the scarring of the organ were due to the defendants' negligence was for the jury.
3. The second specification of negligence is that the defendants failed properly to attend to the bleeding of the plaintiff. With this should be considered the allegation in the third specification that the defendants were negligent in leaving the care of plaintiff to his mother. We view these allegations, as do the parties, as a charge of improper treatment. A further specification that the defendants were negligent in failing to refer the case to a specialist was stricken by the court on motion of the defendants. We think, however, that the second specification of negligence is broad enough to include this charge.
Whether a physician or surgeon has exercised the requisite degree of skill and care in the treatment of his patient is, in the generality of cases, a matter of expert opinion. Ritter v. Sivils, supra. It is the position of the plaintiff that the requirements of this rule are satisfied by the testimony of Dr. Overstreet that bleeding in a hemophiliac is stopped or controlled through blood transfusions. It is argued that no effective treatment was administered by the defendants and that if Dr. Munroe had been familiar with the disease, or if he had referred the child to a specialist, proper treatment would have been administered two days earlier than actually occurred and the child spared two days of bleeding.
The defendants argue that there is no medical testimony as to how long a physician might properly wait, in circumstances such as appear in the present case, before giving a transfusion or calling in another physician skilled in the treatment of hemophilia.
The contention calls for an analysis of the medical testimony.
*163 Dr. Overstreet testified that when he first examined the plaintiff he found "[a]n active, vigorous, irritable baby boy of good color with slight oozing from the foreskin, the exact site not determined." He next did laboratory work which "disclosed that the youngster had not lost an appreciable amount of blood" and then gave him a transfusion. He took a history of the child which included the period of 48 hours or more following the inception of the bleeding. He testified, as we have seen, that to stop bleeding in a hemophiliac "the prime requisite is usually whole blood or some fraction of whole blood" and that this was the common method, but he added that "bleeding tends to stop if blood loss is not great after a period of several hours, days, and a minor oozing will stop by itself spontaneously."
He was not asked the critical question, namely, what, under the appropriate standard of care, was the proper treatment to have been administered during the 48-hour period, nor was that question put to Dr. Lenci or to Dr. Donnelly.
That the plaintiff suffered no "appreciable loss of blood" is established beyond dispute by the only competent medical testimony in the record. It is true that Mrs. Willard testified in substance that there was copious, uninterrupted bleeding during the 48-hour period, but the testimony of Dr. Lenci, as well as of Dr. Overstreet, demonstrates that Mrs. Willard's testimony in this regard was a gross, if natural, exaggeration. Based upon Mrs. Willard's testimony, Dr. Lenci was asked the following question by counsel for the defendants:
The witness answered:
The question which the jury was called upon to decide was, not merely what is the standard treatment for bleeding of a hemophiliac in the generality of cases, but whether, in the circumstances of the particular case, the defendants were negligent either in failing to give that treatment during the 48-hour period or in not referring the case to a specialist. If it be assumed that the child had been under the care of a physician like Dr. Overstreet, possessing the requisite knowledge and skill in the treatment of hemophilia, and that he, believing reasonably that the bleeding was not severe and was not endangering the child's health, and with his knowledge that "bleeding tends to stop if blood loss is not great after a period of several hours, days, and a minor oozing will stop by itself spontaneously" if such a physician in these circumstances had waited over a period of two days to see if the bleeding would stop without a transfusion, would a jury be warranted in finding him negligent in the absence of expert evidence that his treatment was improper? We think not. The defendants were entitled to have their conduct measured by the same standard that would be applied to the conduct of a *165 specialist. The question whether Dr. Munroe should have called in a specialist was a medical question. Seneris v. Haas, 45 Cal2d 811, 828-829, 291 P2d 915, 53 ALR2d 124. As the record contains no medical testimony that the treatment by the defendants was negligent in the circumstances of this case we think that it was error to submit that charge to the jury.
4, 5. The third charge of negligence is failure to "* * * diagnose the condition of hemophilia in plaintiff after defendants had started him to bleed * * *." We need not labor the point that there is evidence to support this charge. A mere mistake in diagnosis is not actionable where the physician uses the proper degree of care and skill. Moulton v. Huckleberry, supra, 150 Or at 545-546. In that case a doctor was found to be negligent because he failed to use a simple well-known test for determining the nature of an injury to the plaintiff's leg. So here the medical evidence shows that it was the duy of the defendants to have tried to ascertain the reason for the continued bleeding and particularly whether there was a history of hemophilia in Danny's family, a factor of the utmost importance, according to Dr. Overstreet, in diagnosing the cause of the bleeding. No such effort was made. Besides, there was evidence on behalf of the plaintiff that Dr. Munroe had been advised that there was such a history in Danny's family. If the jury believed this testimony they could have found the need for all the more diligence on the part of Dr. Munroe to discover the nature of the ailment he was attempting to treat.
6. It is to be borne in mind, however, that a wrong diagnosis to be actionable must not only be negligent, but must also be followed by improper treatment to the injury of the plaintiff. Skodje v. Hardy, 47 Wash2d 557, 288 P2d 471; Hester v. Ford, 221 Ala *166 592, 130 S 203; 41 Am Jur 210, Physicians and Surgeons § 93. On the present record, therefore, with its complete lack of competent evidence of improper treatment, the question of diagnosis became immaterial.
The motion for a directed verdict was properly denied, but submission of the second specification of negligence to the jury was reversible error.
Two other assignments of error raise questions which are likely to arise on another trial and will therefore be considered.
The defendants excepted to the giving of the following instruction:
A number of courts have approved an instruction of this kind. The Wisconsin court adequately stated the ground of these decisions as follows:
See, also, New Amsterdam Casualty Co. v. Soileau, 167 F2d 767 (5th Cir.1948) 6 ALR2d 128, cert den 335 US 822, 69 S Ct 45, 93 L ed 376; Risley v. Lenwell, 129 Cal App 2d 608, 277 P2d 897; Gist v. French, 136 Cal App 2d 247, 288 P2d 1003; Chadek v. Spira, 146 Cal App 2d 360, 303 P2d 879; Guerra v. Balestrieri, 127 Cal App 2d 511, 274 P2d 443; Smith v. Illinois Central Railway Co., 343 Ill App 593, 99 NE2d 717; Halloran v. New England Tel. & Tel. Co., 95 Vt 273, 115 A 143, 18 ALR 554. In numerous cases the courts, in reviewing verdicts claimed to be excessive or inadequate, have taken into consideration the current purchasing power of the dollar (see Annotation, 12 ALR2d 611, 614 et seq.); and in numerous others have said that the jury was authorized to do likewise. Wiest v. Twin City Motor Bus Co., 236 Minn 225, 52 NW2d 442; Normand v. Thomas Theatre Corp., 349 Mich 50, 84 NW2d 451; Garrett v. Taylor, 69 Idaho 487, 210 P2d 386; Bardack v. Extract, 13 NJ Super 350, 80 A2d 570; Moore v. Public Service Coordinated Transport, 15 NJ Super 499, 83 A2d 725; Fort Worth & *168 Denver City Ry. Co. v. Gifford (Tex Civ App) 252 SW2d 204; Bethke v. Duwe, 256 Wis 378, 41 NW2d 277; Shields v. Buffalo County, 161 Neb 34, 71 NW2d 701 (the court cited Segebart v. Gregory, 160 Neb 64, 69 NW2d 315, in which the court held that the jury could consider the matter but that it was not a proper subject for an instruction); Holz v. Pearson, 229 Minn 295, 39 NW2d 867. Arguments addressed to the jury based on the change in the purchasing power of money were approved in Washington & R.R. Co. v. LaFourcade, 48 App DC 364; and Halloran v. New England Tel. & Tel. Co., supra.
7, 8. It has not been contended in argument that the jury, in assessing damages, should exclude from their consideration the present value of the dollar; but it is said that the jury might take the instruction as a suggestion from the judge to bring in a large verdict one not warranted by the evidence. We are not persuaded that the instruction would have this effect. We think, however, that it would not be error to refuse the instruction because, as the court said in Gist v. French, supra, it is hardly necessary to remind a jury of the diminished purchasing power of the dollar, as the jurors are reminded of it almost daily when they purchase the necessaries of life. See, to the same effect, Rebholz v. Wettengel, 211 Wis 285, 248 NW 109.
We hold, therefore, that the court did not err in giving the instruction complained of.
9. For similar reasons the court could properly refuse to give the following instruction requested by the defendants:
While it would not have been error to give this instruction, Brown v. McCloud, 96 Or 549, 190 P 578, neither was it error to omit it, because there was no issue of punitive damages. Walkup v. Beebe, 139 Iowa 395, 116 NW 321; Roach v. Wright, 195 Ala 333, 70 S 271; San Antonio Traction Co. v. Davis (Tex Civ App) 101 SW 554; Western Union Tel. Co. v. Waller (Tex Civ App) 47 SW 396. The court made it clear in the charge that damages were to be awarded only as compensation for the injury sustained. The requested instruction is purely cautionary in its nature, the giving or refusal of which lies within the sound discretion of the trial judge.
The defendants have also assigned as error the court's denial of their motion for a new trial based on the alleged misconduct of a juror. In view of our disposition of the case, it will be unnecessary to pass upon this question.
The judgment is reversed and the cause remanded for further proceedings in conformity with this opinion.
[1] Hemophilia is a condition, usually hereditary, characterized by a tendency to profuse and uncontrollable hemorrhage even from the slightest wounds. Webster's New International Dictionary (2d ed).
[2] As explained in the testimony, the glans is the tip of the penis. The purpose of retracting the foreskin is to expose the body of the penis so that it may be cleaned. The frenulum is a band of tissue, perhaps one-sixteenth of an inch in thickness, which frequently binds the foreskin to the end of the shaft of the penis. The corona or coronal ridge is an encircling piece of tissue near the base of the glans and adjacent to a small indentation called the coronal sulkus. | 75a4d12cd86883171b9de8164d3a56e792d02b041904cfdddd92d31789207a62 | 1963-02-27T00:00:00Z |
39ce9697-2194-4eee-a06a-0c07e894cb2f | Martin v. Dretsch | 234 Or. 138, 380 P.2d 788 | null | oregon | Oregon Supreme Court | Affirmed April 10, 1963.
Frederic P. Roehr, Portland, argued the cause for appellant. With him on the briefs were Vergeer & Samuels and Charles S. Crookham, Portland.
George L. Hibbard, Oregon City, argued the cause for respondent. With him on the brief were Hibbard, Jacobs, Caldwell & Kincart, Oregon City.
Before McALLISTER, Chief Justice, and ROSSMAN, SLOAN, GOODWIN and DENECKE, Justices.
AFFIRMED.
*139 GOODWIN, J.
The defendant appeals from a judgment for the plaintiff in an action for damages arising out of an automobile collision. The principal issue is whether the trial court abused its discretion in not granting one of several motions by the defendant for an order of mistrial.
The plaintiff's attorney in his opening statement improperly injected into the case the plaintiff's experiences in World War II. The defendant's counsel thereupon objected to conduct which he characterized as "waving the flag in front of the jury." The defense also moved, in chambers, for a mistrial. The motion was overruled. The trial court admonished counsel to remain within the pleadings. The plaintiff's attorney made no further overt attempt to get irrelevant matter before the jury. He did, however, permit his client to follow the lead that had been given him in the opening statement. The defendant again made timely objection.
Counsel's tactics were an apparent attempt, under the color of a supposed aggravation of a pre-existing condition, to show that the plaintiff's pre-existing condition was the result of misfortunes suffered by him during military service between 1942 and 1945. The opening statement had referred to the plaintiff's capture by the Japanese, his subsequent hardships in prison, and the like. Later, when a relatively innocuous reference was made by the plaintiff himself to "the docks in Manila", the court promptly told the jury to disregard the irrelevancy. The question now is whether any misconduct chargeable to the plaintiff was bad enough to require another trial. (We note, for the record, that the attorneys who argued this appeal are not those who tried the case.)
*140 1, 2. The granting of a motion for a mistrial is discretionary. The trial judge is in a better position than is the appellate court to understand the circumstances and the effect of the alleged impropriety in a given case. This court will not disturb the ruling of the trial court unless there is an abuse of discretion. See, e.g., City of Portland v. Holmes, 232 Or 505, 376 P2d 120 (1962); Denton v. Arnstein, 197 Or 28, 56, 250 P2d 407 (1952).
3. Upon the whole record, there is no substantial reason for a new trial. It is true that the misconduct in the opening statement was such that the trial court, within its discretion, could have granted a mistrial. The court likewise properly could have taken some mild disciplinary action against the plaintiff's attorney after the trial. It does not follow, however, that the court abused its discretion in refusing a mistrial. The court no doubt was confident that the jury would disregard the irrelevant matter. The record does not suggest that the jury was deceived by the tactics of counsel. We find no abuse of discretion.
There are other assignments of error, but they present no points worthy of notice.
Affirmed. | 1e2705c71d8e831b862d20960cee06a00fbe7d47a58cd9f7ea07fbbb714a7eb9 | 1963-04-10T00:00:00Z |
646f7d5b-0c11-43e2-bd96-3f381d328cf7 | State v. Herrera | 236 Or. 1, 386 P.2d 448 | null | oregon | Oregon Supreme Court | Affirmed November 6, 1963.
*3 Joseph W. Hagler, Klamath Falls, argued the cause and filed briefs for appellant.
Dale T. Crabtree, District Attorney, Klamath Falls, argued the cause for respondent. With him on the *4 brief were Sam A. McKeen and John R. Thomas, Deputy District Attorneys, Klamath Falls.
Before McALLISTER, Chief Justice, and ROSSMAN, PERRY, SLOAN, O'CONNELL, GOODWIN and DENECKE, Justices.
AFFIRMED.
GOODWIN, J.
The defendant was indicted for first-degree murder. The jury found him guilty of second-degree murder. He appeals.
The defendant was accused of killing Frankie Long, a twenty-three-month-old boy, by kicking him to death. Frankie Long was the child of Franklin Long and Lorene Long. The defendant had been acquainted with Lorene Long before her marriage to Mr. Long. The defendant's relationship with Lorene was interrupted when the defendant pleaded guilty to the crime of contributing to the delinquency of a minor and was sent to the state penitentiary. Lorene, as the minor in that case, was committed to the Hillcrest School for girls. Upon her release from Hillcrest, Lorene married Mr. Long. Frankie was born of that union. Lorene then divorced Mr. Long. The defendant was released from prison and, after her divorce, resumed his association with Lorene.
The state contended that the defendant resented the Long child and studied its destruction. There was evidence that the defendant had attacked and beaten the child on other occasions. The mother testified, for example, that the defendant hit Frankie in the face with his fists and broke the child's jaws a few weeks before the murder. This evidence was corroborated in part by other witnesses.
*5 At the time of the crime, the defendant was living with Lorene, Frankie, and two of his own children, a six-year-old boy and a two-and-a-half-year-old girl. The evidence tended to prove the following: During the afternoon when the murder was committed, the two children of the defendant were in a bedroom with Frankie. The three were supposed to be taking naps. Frankie began to cry. The defendant told Lorene he would go in and take care of Frankie. The defendant went into the bedroom. He emerged a short time later and repaired to a tavern. Some minutes later, Lorene went into the room to look after the children and found that Frankie was dead. The body was badly bruised. (Later examination revealed extensive internal bleeding, broken ribs, brain damage, and a ruptured liver.) Lorene ran to a neighbor's house for help. The two other children were taken to the neighbor's house, where they watched television. Meanwhile officers were summoned.
There are nine assignments of error. One challenges the conviction upon the ground of misconduct by the prosecuting attorney.
The alleged misconduct of the prosecutor consisted in declaring in his opening statement that the deceased child had been conceived while the defendant was serving time in the state penitentiary. The trial court promptly told the jury to disregard that statement by the district attorney. The matter was not mentioned again in the opening statement. In defense of conduct that appears to have been dangerously close to pettifogging, the state now asserts that it was entitled, upon trial, to prove that the child the defendant was accused of kicking to death had been conceived by his female friend while the defendant was in prison, and, therefore, the jury should be permitted to infer that *6 the defendant had a malicious predisposition to kill the child.
1-3. Fragments of such evidence later did come in, and did have some relevence on the score of malice and premeditation. We cannot say, as a matter of law, that the fact of defendant's prior imprisonment could never properly be brought to the attention of the jury in an opening statement. If such evidence actually has probative value concerning a material issue in the case, there is no reason why reference may not be made to it in the opening statement. Cf. State v. Martin, 47 Or 282, 83 P 849 (1906). See, where the evidence alluded to in opening statement was later excluded, State v. Broadhurst, 184 Or 178, 196 P2d 407 (1948). However, the inflammatory nature of the prosecutor's remarks in the case at bar outweighed any reasonable excuse for including them in the opening statement. It is, of course, error to permit the state to attack the defendant's character at any stage of the trial, except where the defendant has offered himself as a witness on his own behalf. State v. Ede, 167 Or 640, 644, 117 P2d 235 (1941). See also ORS 45.600. The accused is required to answer a charge of a specific crime, not a charge that he is a bad man. State v. Ogden, 39 Or 195, 65 P 449 (1901).
4, 5. We do not believe, however, that the misconduct of the prosecutor resulted in actual prejudice to the defendant. It is presumed that the jury disregarded the improper remarks of counsel. If any damage to the defendant remained in the mind of any juror, it was neutralized later in the trial. The evidence of the former conviction was placed before the jury when the defendant took the stand as a witness. The state then introduced evidence of the former conviction to impeach his credibility. See State v. Rollo, *7 221 Or 428, 437, 351 P2d 422 (1960). The assignment of error based upon the conduct of the prosecutor reveals no basis for reversal.
The next assignment of error which we will consider presents a different sort of problem. During the prosecution's case, the state induced the trial court to admit evidence which the defendant characterizes as hearsay.
Some time while the Herrera children were at the neighbor's house watching television, a woman there asked the six-year-old boy what had happened. At the trial the neighbor was permitted to testify over the objection of counsel that the six-year-old had told her, "Daddy jumped on Frankie." The state apparently offered the testimony to prove the truth of the charge. (The state argued that the evidence was admissible as a "spontaneous utterance.")
6, 7. While the trial court has some discretion in permitting a witness to report what was said by another during or immediately after an event if the reported declaration was spontaneous or impulsive, this exception to the hearsay rule was misapplied in the case at bar. Compare State v. Hutchison, 222 Or 533, 543, 353 P2d 1047, 83 ALR2d 1361 (1960), where the child, a victim of sexual molestation, within three or four minutes after the crime, and while still under the influence of a traumatic experience, told his mother what had happened.
8. It does not follow, however, that there was error requiring a reversal of the judgment. In addition to circumstantial evidence against the defendant, the state had already put in evidence the eyewitness testimony of the defendant's six-year-old son. The child's testimony had been subjected to intensive cross-examination. The defendant was not, therefore, prejudiced by *8 any lack of opportunity to cross-examine the person who had made the out-of-court declaration. The testimony of the neighbor woman, although hearsay, was not infected with the usual prejudicial quality of hearsay, i.e., that it is not subject to cross-examination.
9. A more serious objection to the challenged testimony is one that was not raised during trial, and, accordingly, not presented here as error. Before the boy's testimony had been impeached in any manner, it was improper for the state to seek to help the boy's oath by bringing in the neighbor's testimony that the boy had told the same story before. For this purpose, the challenged testimony was both irrelevant and self-serving. Maeder Steel Products Co. v. Zanello, 109 Or 562, 577, 220 P 155 (1924); 4 Wigmore, Evidence 194-196, § 1124 (3d ed 1940). The testimony was, accordingly, inadmissible for any purpose at the time it was offered.
The error in receiving the challenged testimony, however, in substance turned out to be an irregularity in the order of proof. Later in the trial, the defendant did attack the child's credibility as a witness by insinuating that the child had been coached by a deputy district attorney. Reasonable latitude in rebuttal would have allowed the state then to use the neighbor's testimony to meet the defendant's attempts to show that the child as a witness was telling a recently contrived story. (The fact that the child had told the same story before would thus tend to prove, not the truth of the story, but only that the story was not the product of coaching.) Cf. Maeder Steel Products Co. v. Zanello, supra at 578; 4 Wigmore, Evidence 205, 216, §§ 1129, 1132 (3d ed 1940).
10, 11. If the challenged testimony had been offered at the proper time, and for a permitted purpose, *9 there would have been no error in receiving it. Viewing the record as a whole, the net defect in the procedure that was followed was the failure of the court to advise the jury of the limited purpose for which the challenged testimony should be considered. See, on cautionary instructions in this context, 1 Wigmore, Evidence 300, § 13 (3d ed 1940). In view of other instructions which were given, however, the jury understood that it was to view the child's testimony with caution. We are satisfied that the defendant was not prejudiced by the failure of the trial court to explain the limited purpose for which the jury might consider the neighbor's testimony at the time it came in. Whatever error may have been committed, it was not excepted to, and is not of the sort that would require us to notice it under Rule 46.
While such cases are not common, there are times when it is necessary to invoke the provisions of Oregon Constitution, Art. VII (Amended), § 3, and affirm a judgment "notwithstanding any error committed during the trial." See State of Oregon v. Cahill, 208 Or 538, 293 P2d 169, 298 P2d 214, cert. den. 352 US 895, 77 S Ct 132, 1 L Ed2d 87 (1956). In the case at bar, the irregularity in receiving testimony was precisely the sort of error referred to in the constitutional provision and in ORS 138.230, which requires this court upon appeal to give judgment "without regard to the decision of questions which were in the discretion of the court below or to technical errors, defects or exceptions which do not affect the substantial rights of the parties."
12. There was abundant evidence to support the jury's verdict. Even without the direct testimony of the six-year-old child, there was evidence that the defendant was the only adult who could have committed *10 the crime. There was sufficient competent evidence to sustain the conviction. The challenged evidence can, and should be, disregarded as surplusage. While this court will, without hesitation, reverse a conviction when inadmissible testimony injects prejudice into the case, there was no prejudice in this case.
13, 14. Another assignment of error attacks the propriety of permitting the six-year-old child to testify at all. Whether or not to permit the child to testify was a matter within the discretion of the trial court. The record reveals that the trial court, out of the presence of the jury, made a painstaking examination of the child, and subjected the child to searching cross-examination by the defendant's attorneys before permitting him to testify. There was no abuse of discretion in permitting the child to tell the jury what he saw. See ORS 44.030 (2); State v. Jensen, 70 Or 156, 140 P 140 (1914). Cf. State of Oregon v. Doud, 190 Or 218, 225 P2d 400 (1950).
15. Another assignment of error challenges the rulings of the trial court on motions for acquittal. It is clear that there was no merit in any of the several motions for a judgment of acquittal. There was enough evidence to support the verdict.
16. There was likewise no merit in an assignment which challenges the instructions given concerning lesser, included crimes. The court, pursuant to ORS 17.255 (2), sent written instructions to the jury. The written instructions informed the jury that the state must prove the cause of death, but did not, with special reference to the included crimes of second-degree murder and manslaughter, repeat the instruction that the state must prove that the death of the victim was caused by the defendant "striking the said Frankie Long with his feet." (This is the form in which the *11 allegation appeared in the indictment for first-degree murder and in the instructions.) The defense attorneys requested the trial court to instruct the jury again upon cause of death with reference to the included crimes. The court then told the jury that it was just as necessary for the state to prove, in connection with the lesser offenses, that death was caused by striking with the feet as it was in connection with the charge of first-degree murder. The defendant now contends that the verbal additions to the written instructions should have been incorporated in the written instructions and that the failure of the court to so incorporate them somehow renders the instructions bad.
The contention cannot be sustained. The written instructions sufficiently advised the jury of the facts the state needed to prove in connection with the included crimes, and there was no need to amplify them. Further, the verbal instructions were requested by the defendant. When the trial court acceded to the defendant's request for additional instructions, it gave him more than he was entitled to. It hardly seems necessary to point out that no right of the defendant was prejudiced by the failure of the trial court to put the surplus instructions in writing.
We have noticed a number of other irregularities in the trial record, which were not objected to at the trial, and which have not been assigned as error. We do not consider any of them, alone or in combination, to be of sufficient gravity to warrant reversal.
There being no error which affected a substantial right of the defendant, the judgment is affirmed. | 2e680d6f3da069ce88b4c5dc13b893e1074e0ecc095e4c6a3a29d8c96cfb63dd | 1963-11-06T00:00:00Z |
1d2feb74-b5c2-4db6-add7-bc1d3d609652 | State v. Gardner | 233 Or. 252, 377 P.2d 919 | null | oregon | Oregon Supreme Court | Affirmed January 23, 1963.
*253 Edward N. Fadeley, Eugene, argued the cause and filed a brief for appellant.
William F. Frye, District Attorney, Eugene, argued the cause and filed a brief for respondent.
Before McALLISTER, Chief Justice, and ROSSMAN, PERRY, GOODWIN and LUSK, Justices.
AFFIRMED.
LUSK, J.
The defendant, who was indicted by the grand jury for Lane County on a charge of burglary not in a dwelling, has appealed from an order denying his motion for dismissal of the indictment based on alleged unreasonable delay in bringing him to trial. *254 The motion is authorized by ORS 134.120 and the appeal by ORS 138.040.
The indictment was returned on August 4, 1961. On the same day the defendant was indicted in Lane county for two other burglaries. At the time that these indictments were returned defendant was in jail in Linn county awaiting trial on still another burglary charge.
The Lane county cases bore file numbers, respectively, 62807 (the instant case), 62808 and 62809. The latter two cases will be hereinafter referred to as numbers 8 and 9.
The defendant was tried on the Linn county charge, convicted, and on September 27, 1961, was sentenced to a term in the penitentiary. On September 29 he was brought to Lane county, appeared for arraignment in the instant case, given until Wednesday, October 4 "to obtain counsel of his own choosing," and ordered to appear again on October 4 for arraignment. On that date, the defendant not having yet obtained counsel, but stating that he wished to contact an attorney named William Huey, the court instructed the district attorney to "contact Mr. Huey for the defendant" and continued the case until that should be done. On October 9 the defendant appeared in court with Mr. Huey as his attorney and entered a plea of not guilty.
On November 3 all three Lane county cases were set for trial as follows:
Thereafter, on the petition of the defendant, the court appointed Mr. Martin Brandenfels, an attorney, *255 to represent the defendant in the trial of the instant case.
On December 6, 1961, the court on motion of the defendant in case number 9, which had been set for trial in the week of December 5, ordered that case to be continued and set it down for trial on December 12. The ground of the motion was a recent change of attorneys from Mr. Huey to Mr. Brandenfels. December 12 was the date on which the instant case was originally set for trial and, as the defendant could not be conveniently tried on two indictments charging separate burglaries at the same time, it became necessary to continue the instant case, as to which the clerk of the presiding judge made the notation "over" on her record. Case number 8 was tried on the nineteenth, twentieth and twenty-first of December.
In accordance with the practice of the circuit court for Lane county no law actions were tried between Christmas and New Year's. On December twenty-sixth the defendant, having been convicted in cases number 8 and 9, was taken to the penitentiary. As, by this time, he had three burglary convictions against him, we assume that he is still confined there.
On January 2, 1962, Mr. Brandenfels filed notice of withdrawal as attorney for the defendant. The next setting of the docket was on January 5, 1962, when cases were set for trial in February. The instant case was not set evidently because of Mr. Brandenfels' notice of withdrawal. The defendant does not appear to have asked the court to appoint a successor to Mr. Brandenfels, as on February 15 the court, on its own motion, appointed his present attorney, Mr. Edward N. Fadeley. At the calling of the docket on February 2 the case was set for trial in the week commencing March 12, but was not tried because of the interposition *256 of the defendant's motion to dismiss. After an extended and careful hearing the court denied the motion and the defendant immediately served notice of appeal upon the district attorney.
1, 2. The governing statute reads:
A "reasonable time" is "such length of time as may reasonably be allowed or required having regard to attending circumstances." State v. Jackson, 228 Or 371, 377, 365 P2d 294. The question whether an accused has been brought to trial within a reasonable time is to be determined as a matter of judicial discretion. State v. Dodson, 226 Or 458, 465, 360 P2d 782; State v. Kuhnhausen, 201 Or 478, 513, 266 P2d 698, 272 P2d 225.
We think that the court did not err in denying the motion.
3. The defendant makes no specific complaint of delay between indictment and arraignment. Since, at the time the indictment was returned the defendant was in jail in Linn county on a burglary charge and his trial on that charge was not concluded until September twenty-seventh, and since the defendant himself was responsible for the delay between September twenty-ninth, when he was brought into court for arraignment, and October 9, when he entered his plea, there was certainly no violation of the defendant's statutory or constitutional rights during that period.
4. Nor do we think there was subsequently. The circuit court for Lane county customarily in the first *257 week of each month sets up a docket of cases to be tried during the following month. Accordingly, the three burglary cases involving the defendant, having been put at issue by pleas of not guilty on October ninth, were on November third set for various dates in December. No doubt, all three would have been tried at the times fixed were it not for the continuance at the request of the defendant of case number 9 set for December sixth. This necessitated rearrangement of the trial docket. Case number 9 was reset for December 12 and the instant case originally set for that date was taken off the trial docket. Case number 9 was tried on December 12 and trial of number 8 was commenced on December 19, as previously set, and concluded on Thursday, December 21. Christmas week commenced the following Monday and it was hardly to be expected under the circumstances that the court should depart from its established custom of not trying law actions during that week to accommodate the defendant.
The reason, fairly inferable from the evidence, why the instant case was not set for trial in February when the docket was called on January 5, 1962, was that three days before Mr. Brandenfels had filed a notice of withdrawal as attorney for the defendant. This was a circumstance which the trial judge in an oral opinion denying the motion rightly took into consideration.
Thereafter, as we have seen, on February second, the next calling of the trial calendar, the case was set for trial in the week beginning March twelfth.
5. Counsel for defendant calls our attention to evidence that during the period that this case was pending the normal elapsed time between plea and trial in a criminal case in Lane county was six weeks to two *258 months. The circumstances of this case are, however, not normal and disclose the reasons for the delay. The defendant argues that the case should have been set for trial at the calling of the calendar on January 5, 1962, because the circuit court could have denied permission to Mr. Brandenfels to withdraw and the request to withdraw was not made at the instance of the defendant. It is true that the court might have denied the request, but the fact is that it was allowed and a third attorney appointed, although not on the petition of the defendant. The defendant being then in the penitentiary serving time for three burglary convictions, it may well be that it was a matter of indifference to him whether he was tried in February or at all and, therefore, whether he had an attorney. However that may be, the disposition of Mr. Brandenfels' tendered withdrawal and the question whether the defendant's case should be set for trial in view of that circumstance, were matters addressed to the judgment of the presiding judge of the circuit court for Lane county, not of this Court. There has been delay in this case, but no unreasonable delay, for the record shows that in each instance when the timetable of events was disarranged it was not the court nor the district attorney but the defendant or his attorney who was responsible. We have no way of knowing why two members of the bar left the defendant, but whether it was his fault or theirs is immaterial. The fact remains that the withdrawal of two of them led to the situation of which he now complains.
6. In consequence of the defendant's motion to dismiss, its denial, and this appeal, there will have been a further delay of approximately one year before the defendant can be brought to trial. The state, justifiably disturbed by this fact, asks us to place limitations *259 of some kind on the recent case of State v. Jackson, supra, where we held that pending an appeal to this Court from a denial of a motion to dismiss an indictment under ORS 134.120 the circuit court was without jurisdiction to proceed with the trial of the case. Our attention is called to the possibility that after this case is remanded to the circuit court another motion to dismiss could be filed and another appeal taken and after that a third and so on, ad infinitum. We were aware when we decided the Jackson case of the possibility of abuse of the right of appeal by an accused who actually is seeking delay, rather than a speedy trial, and commented on it in the opinion, 228 Or at 387. But this Court must take a procedural statute as it finds it, with all its imperfections on its head. If a change in the statute is desirable it must be made by the legislative assembly and it may be that that body will consider it well to give the question attention. It should be borne in mind, however, that the argument is not all one way. If, for example, the legislature should see fit to provide that the circuit court could properly proceed with the trial notwithstanding an appeal from denial of a motion to dismiss had been taken, or if it should provide that the question whether the denial was erroneous could only be raised on appeal from a judgment of conviction, we would then be faced with the possibility of an abortive trial held after a motion to dismiss had been wrongly denied. The concurring opinion of Chief Justice Beatty in Strong v. Grant, 99 Cal 100, 102, 33 P 733, to which reference was made in the Jackson case, is a strong statement of the view that an accused should not be tried until the propriety of the ruling on the motion has been finally determined. In any event, as we have indicated, these *260 policy considerations are matters to be resolved by the legislative assembly.
7. Among other questions raised in the state's brief is, what would be the result if the motion to dismiss were filed after the jury was empaneled and the state was in the process of putting on its case. Although no such question is now involved, we think it not out of place to say that in those circumstances the defendant would have waived his right to dismissal for unreasonable delay in bringing him to trial. Bevel v. Gladden, 232 Or 578, 376 P2d 117; 14 Am Jur 862, Criminal Law § 137.
8. We are also asked by the state to construe ORS 134.510-134.530,[1] a statute enacted in 1955 making special provision for the speedy trial of inmates of the penitentiary and the correctional institution. It *261 is urged that this statute requires a demand for a trial as a prerequisite to relief and prescribes the sole remedy for an inmate of either of the institutions named.
We do not have the benefit of argument by counsel for the defendant on this question. Neither is there available any legislative history which might throw light on the purpose intended to be accomplished by the enactment of the statute. Our consideration of it, however, leads us to the conclusion that it was intended as an additional measure of protection for inmates of the penitentiary or the correctional institution and not to deprive them of any rights under the previously existing legislation. The discussion of the statute in the recent case of Bevel v. Gladden, supra, seems to be in accord with this construction.
The judgment is affirmed.
[1] ORS 134.510:
(1) Any inmate of the Oregon State Penitentiary or the Oregon State Correctional Institution against whom there is pending at the time of commitment or against whom there is filed at any time during imprisonment, in any court of this state, an indictment, information or criminal complaint charging him with the commission of a crime, may give written notice to the district attorney of the county in which the inmate is so charged requesting the district attorney to prosecute and bring him to trial on the charge forthwith.
(2) The notice provided for in subsection (1) of this section shall be signed by the inmate and set forth the place and term of imprisonment. A copy of the notice shall be sent to the court in which the inmate has been charged by indictment, information or complaint.
ORS 134.520:
(1) The district attorney, after receiving a notice requesting trial under ORS 134.510, shall, within 90 days of receipt of the notice, bring the inmate to trial upon the pending charge.
(2) A continuance may be granted upon the request of the district attorney and with the consent of the inmate. The court shall grant any continuance with the consent of the defendant. The court may grant a continuance on motion of the district attorney for good cause shown. The fact of imprisonment is not good cause for the purposes of this subsection.
ORS 134.530:
On motion of the defendant or his counsel, or on his own motion, the court shall dismiss any criminal proceeding not brought to trial in accordance with ORS 134.520. | 366e62534c247166615d286f7c8a2082b1d3b35428e1fd88f68bacc21bc5ff74 | 1963-01-23T00:00:00Z |
b2466205-35e2-43ad-b700-e5f2fbc38d2a | Philpott v. State Ind. Acc. Com. | 234 Or. 37, 379 P.2d 1010 | null | oregon | Oregon Supreme Court | Reversed March 28, 1963.
*38 Thomas C. Enright, Assistant Attorney General, Salem, argued the cause for appellant. With him on the brief were Robert Y. Thornton, Attorney General and Ray H. Lafky, Assistant Attorney General.
C.S. Emmons, Albany, argued the cause for respondent. On the brief were Willis, Kyle & Emmons.
Before McALLISTER, Chief Justice, and PERRY, O'CONNELL, GOODWIN and LUSK, Justices.
REVERSED.
LUSK, J.
This is an appeal by the defendant, State Industrial Accident Commission, from a judgment of the circuit court sitting without a jury, which reversed an order of the commission disallowing plaintiff's claim for compensation for an accidental injury.
Plaintiff, Thomas J. Philpott, the owner and operator of a log truck, entered into an agreement with *39 Schneider Lumber Company to haul logs for the latter from the woods to its mill near Brownsville, Linn County, Oregon. When not in use, the plaintiff kept his truck at his home. Early in the morning of August 17, 1960, plaintiff got into the cab of his truck, which was parked at his home, and started the motor preparatory to driving to the job site, when he discovered that he had forgotten his lunch, which he customarily took with him. He jumped to the ground, intending to return to his house and get his lunch, but landed in such a manner as to injure his right knee.
Both the plaintiff and Schneider Lumber Company were subject to the Workmen's Compensation Act. Plaintiff filed his claim for compensation with the defendant, which rejected it, and plaintiff appealed to the circuit court. It is conceded that the injury plaintiff sustained was accidental and that he would have been covered under the Workmen's Compensation Act if he had been hauling logs for Schneider Lumber Company at the time that he was injured. But the defendant contends that the accident was not one "arising out of and in the course of his employment" as it must have been in order to entitle the plaintiff to recover benefits from the Industrial Accident Fund, ORS 656.152.[1] This is the only question for determination.
The facts relating to plaintiff's employment are free from dispute in all essential particulars. He was *40 paid at the rate of $6 per thousand board feet of lumber hauled by him. He furnished his own truck and bore all the expense of fueling, servicing and maintaining the truck. He was expected to make four trips a day twenty miles each way between the landing where he picked up logs and the mill where they were dumped, although there was no agreement to that effect. If, however, he did not make four trips a day, his employer would have gotten somebody else to do the hauling. He had the right to quit at any time he chose and the lumber company had the right to terminate the contract without liability for breach of contract. He could have driven to and from work in his passenger car; but, instead, he drove his truck home each evening rather than leave it at the landing or the mill, because the truck was secure at his home from thieves who might steal his gasoline and tools. Further, he kept at home grease and greasing equipment with which he serviced the truck in the evenings. He thus saved time in getting started to work. He was not paid for his time, but for the quantity of logs he hauled. He usually ate his lunch while driving, but occasionally might do so at the mill while the logs were being dumped.
1, 2. Plaintiff's theory of recovery is, as we understand it, that the circumstances of this case are such as to constitute an exception to the well established rule that injuries sustained by employees when going to and coming from their regular place of work are not deemed to arise out of and in the course of their employment. King v. Ind. Acc. Com., 211 Or 40, 73, 309 P2d 159, 315 P2d 148, 318 P2d 272; Hopkins v. State Ind. Acc. Com., 160 Or 95, 102, 83 P2d 487; March v. State Ind. Acc. Comm., 142 Or 246, 20 P2d 227; Finley v. State Ind. Acc. Com., 141 Or 138, 16 *41 P2d 648. "The reason for the rule" it is stated in 8 Schneider, Workmen's Compensation Text (perm ed) 3-6, "is that the relationship of employer and employee is ordinarily suspended `from the time the employee leaves his work to go home until he resumes his work, since the employee, during the time that he is going to or coming from work, is rendering no service for the employer.'"
Exceptions to the rule are listed by Schneider, op. cit., § 1712, as follows:
An enumeration of cases in which the facts were held to be grounds for making exceptions to the "going and coming" rule may be found in Hopkins v. State Ind. Acc. Com., supra, 160 Or at 109. It is probable that all the cases there referred to fall within one or another of the generalizations stated by Schneider. We are not to be understood, however, as suggesting that there is a closed category of exceptions. There may be others; but whether so or not, we find nothing in the facts of the present case to justify a holding that it is not governed by the general rule. The facts do not bring the case within any of the exceptions stated by Schneider nor make applicable any of the cases reviewed in Hopkins v. State Ind. Acc. Com., supra.
*42 The plaintiff owned the truck. He was at his own home, miles away from the place where his work was to commence. He was not paid for the time spent in traveling to the job site. He was not in fact paid for his time at all, but for the results he accomplished that is, the quantity of logs he hauled. He was in truth an independent contractor, though for the purposes of the compensation act he was carried on the books of the lumber company as an employee.
Plaintiff argues that in view of the requirement that he haul four loads of logs a day, it was of benefit to his employer for him to drive his truck to and from work because of the time saved in servicing the truck in the evening at his home. Eating his lunch while driving along the highway is also pointed to as a time-saving factor by which his employer profited. It is said that when the plaintiff got into his truck on the morning of the accident and started the motor he was to all intents and purposes on his way to his place of work, and that to return to the house for the purpose of picking up his lunch bucket which he had forgotten was incidental to the journey and to the service of his employer. Plaintiff further contends that, because the truck was not only his means of transportation, but also a necessary piece of equipment in the work of transporting logs for the lumber company, he should be regarded as rendering a service to his employer by "carrying employment impedimenta to and from work." Larson's Workmen's Compensation Law, § 18.24, quoted in King v. Ind. Acc. Com., supra, 211 Or at 77.
Since plaintiff owned the truck and was free to service it whenever and wherever he chose, and to use any means of transportation and take any route that he chose in going to and from work, and to eat his *43 lunch at any time or place that he chose, we think that the argument based on benefit to his employer cannot be sustained. It is no different in substance from the contention in Stuhr v. State Ind. Acc. Com'n, 186 Or 629, 208 P2d 450, that a truck driver engaged to haul sand in his own truck, who was injured while undertaking to remove springs from a wrecked car to install them on his truck, thus enabling him to keep the truck on the job, sustained his injury in an accident arising out of and in the course of his employment. That contention was rejected by this court.
It may be observed in this connection that, while the lumber company expected the plaintiff to haul four loads a day, it was under no obligation to have logs ready for him to haul. Plaintiff conceded in his testimony that if the loading equipment broke down in the morning he would turn around and go home or some other place and he would receive no pay that day.
Plaintiff quotes in his brief the following from Brazeale v. State Ind. Acc. Comm., 190 Or 565, 577, 227 P2d 804:
In that case the plaintiff was injured while he was engaged on direct orders of his employer in servicing a truck which belonged to his employer. The distinction from the present case is too obvious to require elaboration.
A case in point is In re Croxen, 69 Idaho 391, 207 P2d 537. A claim for compensation under the Idaho Workmen's Compensation Act was made by the widow *44 of Croxen, a workman, who was killed at a railroad crossing when a train struck the log truck which he was driving. At the time of the accident the deceased was on his way from his home to the site of his employer's logging operations. His agreement with his employer called for payment of $6 per thousand with a minimum guarantee of $1 per hour in wages for an agreed average of eight hours per day. The court held against the claim on the ground that the injury to the deceased did not arise out of or in the course of his employment. We agree with the court's reasoning as set forth in the following excerpt from the opinion:
3. In support of his contention based on the asserted carrying of employment impedimenta to and from work, plaintiff cites King v. Ind. Acc. Com., supra. The general rule upon this subject, as stated in Larson's Workmen's Compensation Law, § 18.24, and approved by the court in the King case, 211 Or at 84, is this:
In the King case we held compensable the accidental death of a workman who was drowned with his fellow workmen while they were crossing a bay in decedent's boat to their place of work, a boom site under construction. The only way to get to the job site was by boat and a boat was essential for use in the construction of the boom, the work which the men were hired to perform. A tug was furnished by the employers for this purpose, though, as stated, the decedent's boat was used to make the trip in question. In the circumstances, the court held that the accident arose out of and in the course of the decedent's employment, but the distinguishing features of the case were not only that there was no other way for the men to get to the job site than by boat, but also that there was an implied agreement that the employers were to furnish a means whereby the men could cross the bay. Neither of these elements is present here. The difference between that and the instant case is pointed up by the following statement in the opinion:
We have found it necessary to refer specifically to only a few of the numerous decisions of this and other courts cited in the briefs of counsel. The rules applicable to the question under consideration are well established and the cases have been reviewed at length in our prior opinions. See, especially, King v. Ind. Acc. Com., Stuhr v. State Ind. Acc. Com'n, Hopkins v. State Ind. Acc. Com., all supra; Lamm v. Silver Falls Tbr. Co., 133 Or 468, 277 P 91, 286 P 527, 291 P 375. To allow the present claim would be to sanction an unjustifiable departure from controlling precedents.
The judgment is reversed.
[1] ORS 656.152 (1) Every workman subject to ORS 656.002 to 656.590 while employed by an employer subject to ORS 656.002 to 656.590 who, while so employed, sustains an accidental injury, or accidental injury to prosthetic appliances arising out of and in the course of his employment and resulting in his disability, or the beneficiaries of such workman, if the injury results in death, are entitled to receive from the Industrial Accident Fund the sums specified in ORS 656.002 to 656.590. The repair or replacement of prosthetic appliances so injured shall be provided subject to the approval of the commission.
(2) * * * * * | c5c9f1af5a657858e175b43ec6027f320e9771bb4c34aef12d07bb7716a858f4 | 1963-03-28T00:00:00Z |
93b905d5-c619-417d-9a4d-79b1205c3964 | State v. Lamphere | 233 Or. 330, 378 P.2d 706 | null | oregon | Oregon Supreme Court | Affirmed January 30, 1963.
*331 James K. Gardner, Hillsboro, argued the cause and submitted a brief for appellant.
Francis W. Linklater, District Attorney, Hillsboro, argued the cause and submitted a brief for respondent.
Before McALLISTER, Chief Justice, and PERRY, O'CONNELL, DENECKE and LUSK, Justices.
AFFIRMED.
McALLISTER, C.J.
The defendant, Howard Harold Lamphere, was convicted by a jury in Washington county of the crime of burglary not in a dwelling, and sentenced to the penitentiary for a term not exceeding five years, from which judgment he appeals.
At the close of the state's case the defendant moved the court for a judgment of acquittal on the ground that the state had failed "to establish that any crime had been committed." The motion was denied and the defendant then presented evidence in his defense, and the state presented evidence in rebuttal. The motion was not renewed after the close of all the evidence. The denial of the motion for judgment of acquittal is assigned as error.
1, 2. Defendant argues that the evidence presented by the state in its case in chief was not sufficient to support a verdict against defendant. As we noted in State v. Gardner, 233 Or 252, 372 P2d 783 (1962), the former rule that the defendant in a criminal case could not move for a judgment of acquittal until he had rested his case was changed by the enactment of chapter 576, Oregon Laws 1957, now ORS 136.605. That statute permits a defendant to move for a judgment of acquittal at the close of the state's case, and if the motion is denied, to thereafter present evidence *332 in his defense. If a defendant elects not to stand on his motion and presents evidence in his defense he may assign as error the denial of his motion for judgment of acquittal made at the close of the state's case, but in such event the appellate court will consider all the evidence and will not reverse the trial court if the record as a whole contains sufficient evidence to support a verdict against defendant. State v. Gardner, supra. The same rule is applicable to a motion for nonsuit in civil cases. See Clarizo v. Spada Distributing Co., 231 Or 516, 373 P2d 689, 692 (1962); Patty v. Salem Flouring Mills Co., 53 Or 350, 363, 96 P 1106, 98 P 521, 100 P 298 (1908); Carney v. Duniway, 35 Or 131, 57 P 192, 58 P 105 (1899). We have reviewed all of the evidence and find that it fully supports the verdict against defendant.
3. The defendant also assigns as error the denial of his motion to take the deposition of the complaining witness. We think this assignment is without merit. ORS 136.530 prescribes the manner in which testimony may be given in a criminal action as follows:
The exception provided in ORS 136.080 to 136.100 authorizes the court in its discretion to require as a condition precedent to granting a postponement of a trial, that the party applying therefor consent that the deposition of a witness may be taken and read on the trial of the case. In State v. Walton, 53 Or 557, 99 P 431, 101 P 389 (1909), it was said that the statute, which is now ORS 136.530, "was intended to make the general *333 rule, concerning the taking of depositions, inapplicable to criminal trials." That interpretation of the statute was quoted with approval in State ex rel. Gladden v. Lonergan, 201 Or 163, 180, 269 P2d 491 (1954).
4. The defendant's last assignment of error alleges that the court erred in allowing the state on rebuttal to offer testimony to impeach defendant on a collateral or irrelevant matter. This assignment of error completely ignores our Rule 19 and Appendix B, Illustration 1, and we decline to consider it.
Finding no error the judgment is affirmed. | e512a4ef8fad2ab7699c149ee25952514f253362f54c45b593f40cf13de24751 | 1963-01-30T00:00:00Z |
4387370e-c9c8-4820-adc8-35dad807b38c | Foster v. Agri-Chem, Inc. | 235 Or. 570, 385 P.2d 184 | null | oregon | Oregon Supreme Court | Reversed and remanded September 18, 1963.
Petition for rehearing denied November 5, 1963.
*571 Robert W. Collins, Pendleton, argued the cause for appellants. On the briefs were Fabre & Collins and John W. Smallmon, Pendleton.
George H. Corey, Pendleton, argued the cause for respondent. On the brief were Corey & Byler and Lawrence B. Rew, Pendleton.
Before McALLISTER, Chief Justice, and ROSSMAN, SLOAN, O'CONNELL, GOODWIN and DENECKE, Justices.
REVERSED AND REMANDED.
DENECKE, J.
The primary problems in this case involve the admissibility of evidence of out-of-the-courtroom experiments and whether there was any evidence of a waiver of a claim for damages.
The defendant contracted to sell and apply liquid nitrogen fertilizer on the plaintiffs' wheatlands. The defendant agreed to apply not more than 50 pounds of fertilizer per acre. Plaintiffs contend that 64 pounds per acre were applied and the application was performed in an unhusbandlike manner. They allege that because of this negligence the land yielded 10,550 *572 bushels of wheat less than it would have yielded had the fertilizing been performed according to the contract.
The defendant denied excessive or improper application; alleged plaintiffs were contributorily negligent in improperly applying the fertilizer; and contended plaintiffs waived any claim for damages by paying for the entire amount of fertilizer. The jury returned a verdict for the defendant.
A crucial question was whether or not the application of 64 pounds of fertilizer per acre caused the yield to decrease 10,550 bushels or in any substantial amount. The claimed loss was approximately 11 bushels of wheat per acre. Plaintiffs' evidence was that in the crop year involved, 1959, their wheatland produced an average of 46 bushels per acre. (The crop year of 1959 means the crop is harvested in the summer of 1959, but seeded and fertilized in the fall of 1958.) To prove that the application of 64 pounds of fertilizer adversely affected their yield, the plaintiffs introduced evidence of the amount of fertilizer used by their neighbors and the crop yield of their neighbors. The evidence was that plaintiffs' neighbors used a maximum of 45 pounds per acre and had yields of no less than 58 bushels per acre.
To counteract this testimony defendant offered the testimony of two experts, Mr. Oveson, superintendent of the Pendleton Branch, Oregon Agricultural Experiment Station, and Mr. Gassett, supervisor of the research laboratory of Pendleton Grain Growers, a large farmers cooperative. Both of these witnesses testified that in the course of their work they had conducted various tests to determine the effect of nitrogen fertilizer upon wheat. They testified these tests indicated that the application of 60, 90, and 120 pounds of liquid *573 nitrogen fertilizer had not substantially reduced the yield of wheat. Evidence of specific test results was admitted. Plaintiffs objected to the introduction of these test results upon the ground that the results of experiments cannot be introduced without evidence that they were made under conditions substantially similar to those present in the matter in dispute.
1, 2. As a general proposition an experiment is admissible only if the experiment is performed under conditions substantially similar to those existing in the case being tried. See Western Feed Co. v. Heidloff, 230 Or 324, 347, 370 P2d 612 (1962). It is also a general principle that the trial court has wide discretion in the admission of the results of experiments. Loibl v. Niemi, 214 Or 172, 181, 327 P2d 786 (1958).
There was testimony that the type of soil and the amount and time of rainfall on the test plots were the same as those on the Foster ranch. The time when seeding was done is unknown as to either plaintiffs' land or the test crops. Mr. Oveson, one of the testers, stated this was immaterial. He also stated it was immaterial whether or not the land had been fallow or had a previous crop of peas or grain.
3. The tests conducted by these two witnesses are not the usual kind of "experiments" as that term is used in decisions on the admissibility of evidence. The usual "experiment" consists of the arranging of conditions approximating those attendant upon the fact in issue and observing the data emanating from such arranged conditions. The sole purpose of such an "experiment" is to obtain information for use in a particular lawsuit. The tests here had no relation to any lawsuit and were for the sole purpose of obtaining scientific knowledge. No decisions have been found pointing up this distinction. However, because this *574 type of evidence is free from the taint of interest or bias that might accompany the usual "experiment" evidence, we believe greater latitude should be shown in admitting such evidence.[1]
4. Therefore, for these two reasons, that it is within the discretion of the trial court to admit the usual "experiment" if as much similarity of conditions is shown as was here, and that these were not "experiments for trial," the trial court's admission of the evidence is approved.
5. Plaintiffs' next assignments of error concern defendant's affirmative defense of contributory negligence. There was evidence that plaintiffs' employees pulling the applicator, when fertilizing the corners of the fields, applied fertilizer to ground already fertilized. This would result in overfertilization of certain areas. The trial court's rulings were not erroneous.
Defendant affirmatively alleged in its answer that plaintiffs paid the defendant for all the fertilizer used and this constituted a waiver of any claim plaintiffs might have had. After defendant rested, plaintiffs moved to strike this defense upon the ground that there was no evidence to support it. The motion was denied.
After summarizing defendant's allegation of waiver, the trial court instructed the jury as follows:
The plaintiffs excepted to the giving of this instruction upon the ground that there was no evidence of waiver and the instruction "does not require that [sic] the jury to find that it was the intention to waive this obligation before they would be able to consider this question."
6. After the fertilizer had been applied and the bill for the fertilizer had been sent to plaintiffs, Mr. Foster wrote Agri-Chem, stating that there had been overfertilization and that if this caused any damage he would expect reimbursement therefor. Mrs. Foster testified that thereafter when defendant's manager asked about payment of the bill, it was paid. At or before the time of payment she testified the manager said, "if there was anything wrong that the differential would be taken care of, and that if there was any damage that would be taken care of; he would stand behind his product and his company." None of this testimony was denied by defendant's manager when he was on the stand.
When uncontradicted testimony must be accepted by the jury as establishing the fact is outlined in Wiebe v. Seely, Administrator, 215 Or 331, 343-344, 335 P2d 379 (1959), quoting from Ferdinand v. Agricultural Ins. Co., 22 NJ 482, 126 A2d 323, 62 ALR2d 1179 (1956). The principle is stated as follows:
Measured by this criteria the uncontradicted testimony of Mrs. Foster is conclusive of the facts involved in this issue.
The facts that the jury must have accepted on this issue are that plaintiffs gave notice of a claimed breach of contract and that they would expect reimbursement if they suffered any damage because of this breach. The jury would further have to find that at the time of payment or immediately prior thereto the defendant stated it would pay any damages. Upon these facts it is held that the trial court erred in submitting the question of waiver to the jury.
The term "waiver" has been used to cover several classes of legal problems. Both Williston and Corbin term the problem one of "discharge" rather than "waiver." 5 Williston, Contracts (3d ed), 437, § 724; 5 Corbin, Contracts, 984, § 1245. The rule is stated in Corbin, supra, as follows: "* * * a claim for damages for a breach can be discharged by a mere voluntary statement * * *." As this statement indicates, consideration is not necessary to support such a discharge. However, "The mere receipt of the defective performance is not in itself sufficient to discharge the claim to damages for the breach. There must be an expression of assent to accept it in satisfaction *577 and as a complete discharge. * * * he must express his assent to accept it as a complete discharge of the obligor's duty to him." (at 984-985)
McDonald v. Supple, 96 Or 486, 497, 190 P 315, involves the same general principle although in a different context. In that action Wakefield contracted to do certain work for the defendant for an agreed price. Wakefield brought an action for additional compensation, alleging that the defendant had caused Wakefield to do additional work in order to fulfill his contract. Pursuant to the terms of the contract, during the course of the work, Wakefield submitted progress statements and had been paid in accordance therewith. Defendant contended that Wakefield's acceptance of such payments barred him from claiming additional compensation. The court denied this contention, stating:
The contract here between the parties involved more than a sale of goods. However, the law of sales should be very persuasive. The Uniform Sales Act (ORS 75.490) provides:
*578 Durbin v. Denham, 106 Or 34, 39, 210 P 165, 29 ALR 1227, was an action upon a promissory note given in payment for a tractor. The answer alleged a breach of warranty and the plaintiff urged that such a claim was waived by reason of payment by execution of the note. The court quoted 35 Cyc 433, 434, with approval as follows:
The evidence here is conclusive that the plaintiffs by payment, did not intend to waive any claim they may have had against defendant. The trial court's failure to remove this defense from the jury's consideration was error and the case must, therefore, be reversed and remanded to the trial court for a new trial.
[1] The same kind of evidence may have been visualized in the statement at 361, § 169, McCormick, Evidence (1954): "It seems also that experiments designed to show the general traits and capacities of materials involved in the controversy might often reasonably be admitted in evidence without confining such experiments to the conditions surrounding the litigated situation." | bb96be7b3917d7d9eb0287a7533e7a76bd923f811068f55ba57db33729c2764d | 1963-09-18T00:00:00Z |
0410c3c6-82f5-42d9-b1f0-7eb5028d54da | Sunshine Dairy v. Jolly Joan | 234 Or. 84, 380 P.2d 637 | null | oregon | Oregon Supreme Court | Affirmed April 10, 1963.
*85 Kenneth M. Judd, Portland, argued the cause for appellant. With him on the briefs were Koerner, Young, McColloch & Dezendorf, Portland.
Donald W. McEwen, Portland, argued the cause for respondent. On the brief were Cake, Jaureguy, Hardy, Buttler & McEwen and John R. Faust, Jr., Portland.
Before McALLISTER, Chief Justice, and PERRY, O'CONNELL, DENECKE and LUSK, Justices.
AFFIRMED.
DENECKE, J.
The plaintiff dairy brought an action on an account stated against one of its former customers, the defendant restaurant. The jury returned a verdict for the plaintiff. The trial court set aside the verdict and entered judgment for the defendant on the ground that there was no evidence to support the plaintiff's cause of action. The only question on appeal is whether there was any evidence to support the jury's verdict.
"An account stated is an agreement between persons who have had previous transactions of a monetary character fixing the amount due in respect to such transactions and promising payment: * * *." Steinmetz v. Grennon, 106 Or 625, 634, 212 P 532.
1. The crux of an account stated is an agreement between the parties that a certain amount is owing and will be paid. The question here is, was there such an agreement?
*86 In 1951 the defendant restaurant did not pay the plaintiff dairy a bill rendered by the dairy to the restaurant in the approximate amount of $3,300. There is testimony that there was a dispute whether any or all of this bill was owed by the restaurant. In 1953 $1,000 was paid on this disputed bill, leaving a balance of about $2,300. From 1953 until the parties ceased doing business with one another in 1960, monthly statements were rendered by the dairy to the restaurant. Each month the statement contained an itemization of the charges for each day of the past month, and the unpaid balance carried forward from the last statement. Except in an inconsequential amount, the unpaid balance was always equal to or greater than this $2,300 resulting from the 1951 dispute.
The restaurant would make payment of the dairy's monthly statement the middle of the following month in an amount approximately equal to the charges made for deliveries in the previous month. The restaurant did not direct any application of such payments and the dairy always credited such payments on the total of the account, including daily charges and past due balance, and the balance would be reduced again to the $2,300 figure.
Mr. Karamanos, one of the dairy owners, testified that he was a social and business friend of Mr. Michos, the restaurant owner. He stated that from 1953 to 1959 he "used to kid [Mr. Michos]" about the balance owing every time they met and Mr. Michos jokingly said he did not have the money to pay. Mr. Michos died in 1959.
In December, 1961, the dairy filed an action against the restaurant, alleging that on February 1, 1959, an account was stated between the parties showing a balance of $3,658.59 and the defendant agreed to pay *87 the same. The plaintiff further alleged that the defendant paid approximately $1,300 on the account, leaving a balance of $2,300.
Why the February 1, 1959, statement was used no one explained. The statement for any month could have been used and the net amount, after payment of the charges from the past month, would have been the same.
The principal issue is whether the defendant impliedly or expressly acquiesced and promised to pay the amount shown by the statement of February 1, 1959.
"[A] statement of the same [account] rendered by one to the other and received without objection by the latter urged within a reasonable time becomes a stated account binding upon the parties * * *." Crim v. Thompson, 98 Or 599, 613, 193 P 448.
This is the principle relied upon by the plaintiff. There is evidence that no express objection was made to the February 1, 1959, statement until not long before the lawsuit was filed.
2. We hold, however, that there was no evidence of acquiescence or implied assent to the account and no implied promise to pay. The above quotation from Crim v. Thompson, supra, states an accepted commercial practice. If one sends a statement containing certain charges or a balancing of mutual accounts and the receiver of the statement makes no objection or reply within a reasonable time, the commercial world reasons that the amount is accepted and payment will be forthcoming. That was not, however, what happended here. On February 1, 1959, a statement or bill for $3,600 was sent to the restaurant. The customer, however, did not remain silent or inactive. The customer promptly paid the charges for the last month *88 and left unpaid $2,300, a practice the customer had followed for six years. After February 1, 1959, the customer continued the same practice as long as it continued to do business with the dairy, another 19 months. What legal or commercial reasoning can be twisted to draw an inference from this course of conduct that the customer has impliedly acknowledged that it owed the dairy?
When one pays 12 times a year for eight years a specific portion of an account and each of such times does not pay another portion of the account contained in such statement a strong suspicion would arise in the mind of a man of business that the payor disputes his liability for the latter portion of the account. Certainly, no inference of acquiescence to such unpaid portion arises.
The plaintiff also contends that it is entitled to be paid on the account stated because there was testimony from which the jury could infer that the restaurant's general manager expressly acknowledged the correctness of the account and agreed to pay it. Mr. Karamanos testified that the Jolly Joan's manager, Mr. Howser, told him, "You say we owe the bill and we are going to pay the bill, but give us a little more time to catch up on some bills and we will pay it." Mr. Howser denied this conversation, which is claimed to have taken place in early 1960 or later.
3, 4. An express acquiescence and promise to pay will support an account stated. However, this was not an acquiescence and promise to pay an account stated on February 1, 1959. It was an oral agreement to pay a bill which allegedly became due in 1951. Jolly Joan's representative was not talking about the account rendered on February 1, 1959. He was not agreeing to *89 pay a current account of $3,600 or $2,300. He was talking about this old 1951 bill of $2,300.
The distinction between a current account with a balance of $2,300 and an old account in such amount is stated by the plaintiff's reply brief. The defendant in its answer and brief contends that the statute of limitations bars the plaintiff's claim because the statement of account was never acknowledged in writing by the defendant and the promise to pay was not made in writing.[1]
Plaintiff's reply to the argument is as follows:
The dairy's position is that the old debt of 1951, as reduced by the 1953 payment, was paid long ago because as each check was received from the restaurant the dairy applied it against the oldest charge. *90 The dairy then reasons the account stated did not include the old debt; the account stated was for $3,600, comprised of the most recent charges totaling that amount. There was no evidence that the defendant expressly promised to pay this 1959 account stated of $3,600. The only evidence was that it agreed to pay the balance of the old 1951 account. An oral agreement to pay this old account would not have enabled the plaintiff to recover and plaintiff did not so contend. See Annotation 14 ALR 240, 247 (1921); 2 Restatement 793, Contracts § 422.
Judgment affirmed.
[1] ORS 12.230, in the chapter on limitations of actions, states: "No acknowledgment or promise shall be sufficient evidence of a new or continuing contract, whereby to take the case out of the operation of this chapter, unless the same is contained in some writing, signed by the party to be charged thereby; * * *." | 54bf2f52d64ee4908cd935413cd8d1b103b3519a6dcf2f2c7675e1ba9d54be6d | 1963-04-10T00:00:00Z |
8307cd31-0c94-4a82-97a8-d8391a13aa1a | Bay v. State Board of Education | 233 Or. 601, 378 P.2d 558 | null | oregon | Oregon Supreme Court | Reversed with instructions January 30, 1963.
Petition for rehearing denied March 19, 1963.
*602 Cecil H. Quesseth, Special Assistant Attorney General for Oregon, Salem, argued the cause for appellant. On the brief was Robert Y. Thornton, Attorney General for Oregon, Salem.
Willard K. Carey and S.H. Burleigh, La Grande, argued the cause for respondent. On the brief were Burleigh, Carey & Gooding, La Grande.
Before McALLISTER, Chief Justice, and PERRY, SLOAN, O'CONNELL, GOODWIN, LUSK and DENECKE, Justices.
REVERSED WITH INSTRUCTIONS.
PERRY, J.
Dean Norman Bay petitioned the circuit court of Union County for judicial review of the decision of appellant State Board of Education denying him issuance of a five-year elementary teacher's certificate. From the decree of the circuit court reversing the Board's decision for lack of competent evidence, appeal is made to this court.
In December of 1953 petitioner was tried and convicted *603 in the state of Washington for his acts of breaking, entering, and grand larceny of several stores, the American Legion Club, and the local high school, committed while employed as a night policeman. At the time these acts were perpetrated, petitioner was 24 years old. After serving 18 months of a two-year sentence, he was paroled. He moved to La Grande, Oregon, where, in the fall of 1956 he enrolled at the Eastern Oregon College of Education. In 1958 the state of Washington restored to him his full civil rights.
In 1960 petitioner was granted a one-year elementary teacher's emergency certificate by the Superintendent of Public Instruction, and taught elementary school while completing his fourth year at the college. Following graduation he applied for a five-year elementary teacher's certificate, but his application was denied on June 14, 1961.
On September 13, 1961 a hearing was conducted before the Board, the primary purpose of which was to determine whether petitioner had furnished the evidence of good moral character which ORS 342.060(2) authorizes the superintendent to require of an applicant. Whereas numerous witnesses appeared at the hearing to testify of petitioner's good character and over-all reputation in the community, the sole evidence of bad character introduced was the record of the prior conviction. The Board concluded that petitioner had not met his burden of furnishing satisfactory evidence of good moral character and he thereupon petitioned the circuit court of Union County for review of the administrative order pursuant to ORS 183.480. The court held that evidence as to a prior conviction was irrelevant and immaterial in determining present character where not accompanied by other evidence *604 which related the prior act to the present, and therefore adjudged there was no competent evidence to support the Board's findings. The Board was ordered to issue petitioner the certificate, from which order this appeal is taken.
The appeal from the ruling of the Board of Education to the trial court was taken under the provisions of the Administrative Procedures Act, which reads, in part, as follows:
In order to properly discuss the issues presented it is first necessary to discuss the powers of the trial court in reviewing the Board's determination.
1, 2. While the statute uses the language "as a suit in equity," it is quite clear that this language refers only to the fact that the review shall be made by the court, not a jury, and does not grant to a trial court the *605 right on appeal to try the cause de novo. That is, the reviewing court is not granted the power to weigh the evidence and substitute its judgment as to the preponderance thereof for that of the agency. The extent to which a reviewing court should review the action of an administrative agency has been expressed by this court, as follows:
The learned trial court recognized these guide posts and reached the conclusion that the finding of the Board as to lack of good moral character could not be sustained by the record. This conclusion of the court is based upon a finding that there was no evidence of bad moral character at the time of application and therefore the Board's conclusion was clearly wrong.
3, 4. Whether or not the Board arrived at a conclusion which was clearly wrong depends upon whether a review of the entire record discloses any facts from which the conclusion drawn by the Board could be reached by reasonable minds. NLRB v. Columbian Enameling & Stamping Co., 306 US 292, 83 L Ed 660. There must be evidence that is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consolidated Edison Co. v. NLRB, 305 US *606 197, 83 L Ed 126. These thoughts are contained in and usually expressed as the "substantial evidence rule." Cf Davis Administrative Law Treatise, Vol 4, § 29.02.
5. The Board made the following findings of fact which are pertinent to this appeal:
The Board then made the following conclusions of law:
In resolving the question of moral character there must be kept in mind the distinction between character and reputation. "Character is what a man or woman is morally, while reputation is what he or she is reputed to be." Leverich v. Frank, 6 Or 212; State v. Sing, 114 Or 267, 229 P 921.
Since the crux of the question before the Board was good moral character, the fact that he had been guilty of burglarizing properties while he held a position of trust was most pertinent. These actions of petitioner clearly evidenced a lack of the moral fiber to resist temptation. The trial court therefore erred in holding there was no evidence of lack of good moral character.
The petitioner offered numerous witnesses from which a conclusion might properly be reached that this lack of moral fiber no longer exists. However, this condition, having been shown to have existed, it became a matter of judgment as to whether it had been overcome.
The power to decide such an issue was delegated by the legislature to the Board of Education, therefore, as previously pointed out, the courts are not permitted to substitute their judgment for that of the Board where there is substantial evidence to support the agency.
The judgment of the trial court is reversed with instructions to enter findings of fact and conclusions of law sustaining the action of the Board of Education.
GOODWIN, J., specially concurring.
I concur in the majority's statement of applicable law. The opinion, however, should not be understood as a tacit approval of the administrative proceedings which resulted in the appeal to the circuit court. I do not believe the State Board of Education followed either the statutes or its own rules (III-C-5-a-(3) and *609 III E)[1] which have to do with the conduct of hearings. As I read the applicable statutes, the original decision was for the Superintendent of Public Instruction to make. ORS 342.060 (2). Any hearing under ORS 183.410 should have been before the superintendent and not before the State Board of Education. The state board has certain hearing functions under ORS 342.180, but this section has no application to the case at bar. Another section, ORS 342.170, provides for a review committee, which may have an advisory function in the granting of certificates upon original application. However, the function of this committee does not appear to have been invoked. The only statutory provision I have found under which a hearing would have been appropriate is that of the declaratory-ruling section of the administrative procedures act, ORS 183.410. Under that section, the superintendent is the "agency" required to hold the hearing. See ORS 342.015; 342.060.
If the correct procedure had been followed at the administrative level, the trial court probably would not have been led into the error of treating the view of the State Superintendent of Public Instruction as *610 the mere opinion of a witness in the case. The views of the superintendent were, indeed, the final decision of the only agency having any authority in the matter, and should have been considered accordingly. If that officer acted arbitrarily, and without cause, there would be a case for judicial review. We have held there was no such abuse of power. While the net result might have been the same, correct administrative procedure no doubt could have saved the state and the private litigant both time and money.
On the merits, I concur fully in the views expressed in the majority opinion.
[1] Rule III-C: "5. Institution of declaratory ruling. (ORS 183.410).
"a. A hearing may be instituted by:
"* * * * *
"(3) Petition for review by any person who has had a license summarily revoked, denied or renewal thereof refused by the Board or Superintendent.
"* * * * *."
Rule III-E: "Conduct of hearing
"Hearings before the Superintendent shall be conducted by him personally, and hearings required to be heard before the Board shall be conducted by the Chairman of the Board, or in his absence, the Vice-chairman, or a member of the Board elected by the majority of the members present at the meeting to serve as temporary chairman." | 94c1e74e34c0a34d56297200756d3955853843aa4f9ae49afab5b908a8df8ac6 | 1963-01-30T00:00:00Z |
663bff89-82d3-4cfe-a149-9690ec7407e0 | Smoke v. Palumbo | 234 Or. 50, 379 P.2d 1007 | null | oregon | Oregon Supreme Court | Affirmed March 28, 1963.
*51 Russell R. Niehaus argued the cause for appellants. With him on the briefs were Wheelock, Richardson & Niehaus.
Wilber Henderson argued the cause for respondents. With him on the brief was Donald Alderton.
Before McALLISTER, Chief Justice, and PERRY, O'CONNELL, GOODWIN and LUSK, Justices.
AFFIRMED.
GOODWIN, J.
This is an appeal by the owners of certain lots in Palumbo's First Addition (to the City of Portland) *52 from a decree dismissing their suit. Plaintiffs sought to impose restrictive covenants upon other lots, owned by the defendants, within the platted subdivision.
The subdivision consists of 34 lots. The plat was dedicated by the defendants Palumbo. The Palumbos began to develop the tract by building speculative houses for sale. After four houses had been built and did not appear to be readily salable, the Palumbos began selling lots. The entire subdivision lies in a part of the city zoned to permit multiple-residence use.
The plaintiffs have purchased or built single-family residences and now contend that the defendants are bound by an implied covenant to build nothing but single-family residences on the remaining lots. The defendants contend, to the contrary, that since nothing in any written instrument restricts the use of the lots to single-family dwelling houses, they are free to construct duplex or other multiple-family housing as they see fit. The trial court deemed the evidence insufficient to support the plaintiffs' prayer for relief.
1, 2. Where a general plan of development can be proven, reasonable building restrictions consistent with such plan and necessary to its implementation will be enforced in a proper case for the benefit of prior grantees even though such restrictions are omitted from the conveyances to the subsequent grantees of the common grantor. Snashall et ux v. Jewell et ux, 228 Or 130, 363 P2d 566 (1961). However, covenants are to be strictly construed against the restriction, and unless the use complained of is plainly within the provisions of the covenant, it will not be restrained. Schmitt et ux v. Culhane et al, 223 Or 130, 132, 354 P2d 75 (1960).
3, 4. Ordinarily when a subdivider of land desires to create restrictions which will burden as well as benefit *53 all the lots in his subdivision, he creates the restrictions by recording a list of them in the appropriate public record. Reference is made to the recorded restrictions in each conveyance thereafter. In such cases, the courts have little difficulty in giving effect to reasonable restrictions, because the intent of the parties is clear. See Snashall et ux v. Jewell et ux, supra. Further, in such cases, the equities in favor of one seeking to enforce a restriction are not opposed by countervailing equities in favor of third persons who may have acquired their land without notice. Recording generally constitutes notice for such purposes. See 5 Powell, Real Property 187, 188, § 679 (1962).
5. One recording method frequently employed by subdividers is to list all the contemplated restrictions in the first deed conveying a lot to a grantee. Subsequent deeds then may incorporate by reference the restrictions found in the first deed. Such deeds thus give grantees the same notice as would be given by a reference to a plat or other record containing the restrictions. The case at bar, however, did not arise out of a plan memorialized in writing. Here we must examine circumstantial evidence in order to decide what the parties intended.
It must be noted that the original plat, as recorded, contained no restrictions whatever. Neither did any deed in the plaintiffs' chain of title contain a restriction, so far as the record reveals. The warranty deed from the Palumbos to the plaintiffs Smoke contains the following:
Similar restrictions are to be found in the deeds to other plaintiffs. The Smoke deed was recorded March 31, 1960.
The warranty deed to the defendants Grimm, recorded April 25, 1961, contains the following:
The Grimm deed is similar to the deeds of other defendants.
6. Our cases, as well as other generally-recognized authorities, teach that the plaintiff must prove the existence of his right and the defendant's notice thereof before a court of equity will impose restrictions upon the lands of others. See Rodgers et ux v. Reimann et ux, 227 Or 62, supra; Snashall et ux v. Jewell et ux, 228 Or 130, supra; 5 Powell, Real Property, supra at 193. A similar burden is placed on a grantee who seeks to impose restrictions upon the lands retained by the grantor. The trial court held that there was a failure by the plaintiffs to prove a case for equitable relief against either the common grantor or the other defendants who, as grantees, intended to build duplex housing.
7. The plaintiffs in the case at bar had the burden of proving that the defendants Palumbo intended to create restrictions for the benefit of the entire subdivision. *55 Until the plaintiffs have proved that much, there would be no need to inquire further into such questions as the notice, if any, which could be charged to other grantees who had been made defendants. In other words, if the plaintiffs failed in their proof against their original grantors, the Palumbos, that failure of proof would end the case. If, on the other hand, the plaintiffs did prove a case against the Palumbos, other questions would become material. It would not necessarily follow that equity would enjoin the other defendants, even if a building scheme should be established.
8. When the entire record is reviewed, the circumstantial evidence tending to prove the existence of a general plan of development, and hence of an intent by the Palumbos to create restrictive covenants, can be summarized as follows:
At the time the plaintiffs acquired their respective lots (during the early part of 1960) there were houses upon four of the 34 lots in the subdivision. All the houses were substantially of the value of $25,000, all were single-family units, and all were advertised as "restricted." One of the plaintiffs swore he was given to understand by an agent of the Palumbos that the word "restricted" meant "restricted to single-family dwellings." This evidence was denied by the Palumbos, and presented a question of fact, one of many in the case.
Opposed to evidence tending to show a general scheme of development that would restrict the entire tract of 34 lots to single-family units was the following circumstantial evidence:
The area within which the subdivision was situated was zoned for apartment houses, and indeed contained a number of such structures outside the boundaries of *56 the Palumbo subdivision, but visible from the subdivision. The recorded plat contained no restrictions whatever. The trial record revealed no restriction in any deed in the Palumbo chain of title. (The deeds given by the Palumbos to the plaintiffs contained only the restrictions we have quoted.) The reference in the plaintiffs' deeds to restrictions of record when none existed is at best only neutral evidence on the score of restrictions, if not indeed evidence that no restrictions were intended.
We believe that the plaintiffs failed to prove the existence of a scheme of development which unequivocally pointed to an intent by the developers to restrict all 34 of their lots to single-family dwellings. We need not decide in this case whether a greater number of finished houses of the type initially built by the Palumbos would have been proof of a development plan that would support the plaintiffs' theory. We do agree with the trial court that four such houses, when viewed in light of the written records, the Portland zoning ordinance which applied to the property, and the character of the surrounding neighborhood, were insufficient proof of a development plan to carry the plaintiffs to a decree in their favor. It is not necessary, therefore, to examine the other disputed questions of notice on the part of the defendants who claimed under deeds from the Palumbos or of reliance upon such a plan by the plaintiffs. In the absence of a proven development plan, it is not necessary to speculate whether the subsequent grantees of the Palumbos would have been liable to the plaintiffs in this case in any event.
9. When a restriction is important to the parties, they should express their covenant in writing. When the written instruments fail to include restrictions that easily could have been included, a court of equity *57 should exercise caution. The court should not impose restrictions until it is convinced by substantial evidence that such restrictions were intended. Here, the trial court viewed the property, and evaluated all the testimony as it came in. The trial court was in a better position to resolve doubtful inferences or ambiguous testimony than are we, confined as we are to a cold record.
Affirmed. | 22f404dd255b7d34b512c8993e25c6ac4684c9ad493bd81c431575ddb135c1f3 | 1963-03-28T00:00:00Z |
ed4a1501-e725-4f31-b15a-da12079ea83d | Tuel v. Gladden | 234 Or. 1, 379 P.2d 553 | null | oregon | Oregon Supreme Court | Reversed March 20, 1963.
*3 C.L. Marsters, Assistant Attorney General, Salem, argued the cause for appellant. On the briefs were Robert Y. Thornton, Attorney General, and Harold W. Adams, Assistant Attorney General, Salem.
Merlin Estep, Salem, argued the cause and filed a brief for respondent and cross-appellant.
Before McALLISTER, Chief Justice, and ROSSMAN, PERRY, SLOAN, O'CONNELL, GOODWIN and DENECKE, Justices.
REVERSED.
DENECKE, J.
A 1929 conviction and sentence is the genesis of this post-conviction proceeding. In that year defendant was convicted of burglary not in a dwelling. Upon a showing of three prior felony convictions, he was sentenced to life imprisonment under the Habitual Criminal Act then in effect.
The defendant has been the subject of action by officials of the state of Oregon many times since then; not, however, by its courts. In 1940 Governor Sprague conditionally commuted his sentence. Governor Snell revoked this conditional commutation in 1944 upon a finding that he had violated the terms of his commutation. In 1954 Governor Patterson commuted his sentence to 40 years and thereby made him eligible for parole. In the same year the Chairman of the Parole Board revoked his parole because he had violated the terms of his parole.
1. Thirty years after his conviction the defendant petitioned for a writ of habeas corpus. The lapse of 30 years is no bar to relief if it is otherwise in order. The petition was amended and became a petition for post-conviction relief. The trial court concluded that *4 the sentence ordered in 1929 was invalid. The basis for its holding was that the habitual criminal statute in effect in 1929 was contrary to Art I, § 15, of the Oregon Constitution. This section of the Bill of Rights declares:
The Warden contends that the petitioner is now in no position to urge that his life sentence with no parole was void because such sentence had been commuted to 40 years with the possibility of parole. That issue is not here resolved. We prefer to decide the case upon the same issue that the trial court did.
In State v. Hicks, 213 Or 619, 325 P2d 794, cert den 359 US 917, 79 S Ct 594, 3 L ed2d 579, the Habitual Criminal Act, enacted in 1947 (Oregon Laws 1947, ch 585, p 1101), was attacked. There, the defendant was also convicted of burglary not in a dwelling, as here. He was then charged as a habitual criminal, admitted two prior felony convictions, and was sentenced to 10 years. He could have been paroled at any time the Board of Parole determined him to be fit for parole. This court specifically held, with little comment, that the 1947 Habitual Criminal Act did not violate this section of the Oregon Bill of Rights.
Inasmuch as the penalty here was so much more severe, life imprisonment with no parole, and the trial court, experienced in post-conviction proceedings, held the act unconstitutional, we will further examine this portion of the Bill of Rights.
Our constitutional provision was substantially copied from Indiana. State v. Finch, 54 Or 482, 498, 103 P 505. State v. Finch, supra, held the imposition of the death penalty did not violate this constitutional *5 provision. The court partly relied upon an Indiana decision that this provision of the Indiana Constitution from which the Oregon provision was patterned did not prohibit the death penalty.[1]Kelley v. State, 204 Ind 612, 185 NE 453, held that this provision of the Indiana Constitution did not invalidate the Indiana Habitual Criminal Act. That case involved a principal conviction of check forgery and a life sentence as a habitual criminal. No such constitutional provision has been found in any other state.
Reformation means doing over to bring about a better result, correction, or rectification. Vindictive, on the other hand, is defined by words such as "revenge," "retaliate," or "punishment." The best known law applying vindictive justice is lex talionis: "An eye for an eye, and a tooth for a tooth." Matthew 5:38.
It has been suggested that life confinement is not inconsistent with reformation, i.e., the person might be reformed, but, nevertheless, his confinement would be continued. That view, we believe, is contrary to an implied essential corollary of reformation, that permanent reformation should be followed by release from confinement.
2. It is held, however, that the Habitual Criminal Act and the life confinement thereunder is not contrary to Art I, § 15, of the Oregon Bill of Rights. The Oregon Constitution does not attempt to state all of the principles to be followed by the legislature in enacting sentencing laws. The constitution does contain sentencing restrictions in addition to the above quoted. It requires that "all penalties shall be proportioned to the offenses"; excessive fines shall not be imposed; *6 and cruel and unusual punishments shall not be inflicted. Art I, § 16. The drafters of the constitution, however, did not include the most important consideration of all, the protection and safety of the people of the state. Such a principle does not have to be expressed in the constitution as it is the reason for criminal law. All jurisdictions recognize its overriding importance.[2]
3. We interpret Art I, § 15, of the Oregon Bill of Rights to command and require that Oregon sentencing laws have as their object reformation and not retaliation, but they do not require that reformation be sought at substantial risk to the people of the state.
Habitual criminal acts are based upon the belief that the criminal, as well as the crime, is a material factor to be considered in fixing the sentence. If the criminal is a menace to the community, his sentence should be aimed at offering the most protection to the community, regardless of the relative innocuousness of the particular crime for which he is now convicted. Habitual criminal acts take into account the accepted fact that one who has previously committed felonies is more likely to commit them again upon release from confinement. One with a previous felony record is more likely to be a danger to the community even though his present crime is relatively petty.[3]
*7 Coupled with this necessity for protecting society is the knowledge that it is difficult to determine whether or not a person has really reformed and how permanent this reformation is. The petitioner's history is an example of this difficulty. Twice he was thought to be reformed to the extent that he could be released from confinement; and twice it was found that such a conclusion was erroneous.
The motive of the legislature in enacting the Habitual Criminal Act here attacked could be found to be as follows:
4. Providing for a mandatory life sentence is not to attain revenge or retaliation. However, the odds of true and permanent reformation of one who has already committed four felonies are so outweighed by the odds that a four-time repeater will continue to be a menace to a community if he is released from his confinement that the obligation to protect the people of this state justifies the passage of a compulsory life sentence for a four-time felon.[4]
*8 The statute and the sentence thereunder is consistent with Art I, § 15, of the Oregon Constitution.
The petitioner has cross-appealed and assigned as errors the trial court's conclusions of law that the other grounds alleged as a basis for post-conviction relief were not well taken.
5. His first assignment is that the 1929 information did not state facts sufficient to constitute a crime. This is not a ground for post-conviction relief. State v. Cloran, 233 Or 400, 378 P2d 961.
Petitioner contends that the judgment of conviction was "illegal" in that no information charging the petitioner with being previously convicted of three felonies was filed subsequent to his conviction or sentencing for the principal crime.
6. The district attorney charged the defendant by an information, on waiver of indictment. The information charged the principal crime, and also charged the defendant with having committed three previous felonies; the felonies were detailed. After the defendant had pleaded guilty to the principal crime the matter of the past felony convictions was taken up. The defendant admitted that he had been convicted of these three felonies, whereupon, the court sentenced him.
It is not contended that this procedure deprived the defendant of his constitutional rights or deprived the court of jurisdiction. The only ground complained of is that the procedure required by statute was not followed. The statute required that at any time after sentence or conviction if it appeared that the defendant had previously been convicted of felonies, the district attorney was to file an information charging the defendant with committing such felonies. Oregon Laws 1927, ch 334, § 4, p 432. This portion of the statute, obviously, was not followed. The information *9 was made prior to the conviction and sentencing. However, the hearing and sentencing as a habitual criminal was held after the conviction.
7, 8. Failure to comply with a criminal procedural statute is not a ground for post-conviction relief unless it creates a condition which is specified as a ground for post-conviction relief, such as a denial of constitutional rights. ORS 138.530. This failure to proceed in accordance with the statute is classified as an error of law or irregularity of practice which cannot be collaterally attacked. See cases cited in Smallman v. Gladden, 206 Or 262, 270, 291 P2d 749.
9. Petitioner assigns as further error that the habitual criminal statute violates that provision of the Oregon Constitution requiring that all penalties be proportioned to the offense. Art I, § 16. State v. Hicks, supra, and State v. Smith, 128 Or 515, 525-526, 273 P 323, specifically held to the contrary.
State v. Hicks, supra, also held contrary to the petitioner's contention that the Habitual Criminal Act was contrary to the equal protection clause of the Fourteenth Amendment of the Constitution of the United States.[5] The facts urged there to support the contention of unconstitutionality were different than those apparently urged here, but the conclusion is the same.
Reversed.
[1] The death penalty was provided by statute at the time of State v. Finch, supra, rather than by constitution, as it now is.
[2] "The main object of all punishment is the protection of society." Driskill v. State, 7 Ind 338, as quoted in State v. Finch, supra, at 498. "Ultimately the justification of all sentencing is the protection of society." Judge William J. Campbell, Developing Systematic Sentencing Procedures, Federal Probation, Sept 1954, at p 3.
[3] "This legislation [habitual criminal] has been widely enacted to remove from society a class of confirmed criminals whose depredations have proven to be limited only by their opportunities." State ex rel Grandstaff v. Gore, 182 Tenn 94, 102, 184 SW2d 366.
[4] There is substantial disagreement today that habitual criminal acts do afford more adequate protection to the community. "* * * This is because their [habitual criminal acts] operation depends upon the prosecution's showing of prior convictions and prosecutors have proved more inclined to use the law as a means of bargaining for pleas than to secure a life sentence or a very long term. As a result hardened criminals may profit from the recidivist legislation where they can effect a favorable transaction for a plea. In response to an inquiry conducted by the author, attorneys general in the United States pointed to the general circumvention of the laws and the resultant nullification of their deterrent value. One commentator has observed, `Certainly the extent of judicial intransigency [these laws] have incurred points up a need for legislative reexamination not only of present enforcement procedures, but of the entire orientation of existent recidivist legislation.'
"It is interesting to observe that in foreign countries where recidivist legislation has also very commonly been established their experience is essentially similar to that in the United States. * * *" Paul W. Tappan, Crime, Justice and Correction (1960), at 472-473.
[5] Numerous cases holding habitual criminal acts constitutional are collected at 24B CJS 438, Criminal Law § 1959. | d99a1cdc7f0a1f09d88a6193149af63956fc1b6f5f86fac4c4fc87a3ae9acffd | 1963-03-20T00:00:00Z |
24122709-95b8-4206-9c97-107ca5c0fcf9 | Fitzpatrick v. Marastoni | 234 Or. 192, 379 P.2d 1022 | null | oregon | Oregon Supreme Court | Reversed March 28, 1963.
Petition for rehearing denied April 23, 1963.
Seymour L. Coblens, Portland, argued the cause for appellant. With him on the brief were Reinhardt, Coblens & Stoll, Portland.
George A. Rhoten, Salem, argued the cause for respondents. With him on the brief were Myron L. Enfield and Rhoten, Rhoten & Speerstra, Salem.
*193 Before McALLISTER, Chief Justice, and ROSSMAN, SLOAN, GOODWIN and LUSK, Justices.
REVERSED.
SLOAN, J.
Plaintiff sustained injury when he fell on a mooring dock owned and operated by defendants at Detroit Lake. In this action for damages resulting from the injury defendants were granted a judgment of involuntary nonsuit. Plaintiff appeals.
The dock where plaintiff fell consisted of a number of floating platforms tied together with ropes. On the particular float with which we are immediately concerned the ropes which held the float to an adjacent one were secured along the surface or deck of the float. The ropes were not securely fastened but slack or tolerance was allowed to permit the floats to move with the rise and fall of the water. As the float moved with the water the ropes could either be slack upon the deck or held taut above the deck surface of the float. The ropes in question were placed near the edge of the particular float and apparently at the only place where one could step onto the float from the adjacent one.
Plaintiff, an invitee, fell when he did step from the adjacent float onto the described ropes. He testified that when he observed the ropes that they appeared to be flat upon the deck, but that, in fact, they were stretched tight, like a bow string, and when he stepped on them he was caused to spin and fall. Plaintiff did receive serious injury.
We think the evidence presented a jury question as to whether or not defendant had exercised reasonable care in maintaining the place where plaintiff was injured. Defendant, however, relies on 2 Restatement, *194 Torts, § 340, which says a landowner is not liable to an invitee "* * * if [the invitees] know of the condition and realize the risk involved therein." Defendant also cites § 893 of the Restatement. The rule suggested by the Restatement is more clearly stated by Prosser:
Plaintiff did testify that he saw the ropes but that their appearance deceptively led him to believe that they were flat on the deck planking. He stated that he did not see that they were taut, like a spring, until after he fell and was lying on the dock awaiting aid. There was testimony that plaintiff had been on the dock before but no testimony that he was familiar with the place where the accident happened.
So that when we apply § 340 of the Restatement it would still seem that this case presents a question of fact as to whether plaintiff, having seen the condition, should have fully "realize[d] the risk involved therein." Or in the language of Prosser did the sight of the ropes and other conditions existing flash a sufficient warning to plaintiff.
Although Grover v. Owens, 1960, 222 Or 496, 353 P2d 254, was decided adversely to that plaintiff the decision is distinguishable from this case and supports our decision here. For in Grover it was said:
Here there was no evidence of full knowledge. And see Williamson v. Derry Electric Company, 1938, 89 NH 216, 196 Atl 265.
This is a very close case but we think the jury should have decided if plaintiff could or should have realized the hazard confronting him.
Reversed. | 4d0852db13779ddd90e4a45309e0ecd70577a72a6f73005f37e688de84f3e959 | 1963-03-28T00:00:00Z |
c7d7d438-71b4-4d64-8d58-d76cf1381791 | Carson v. Brauer | 234 Or. 333, 382 P.2d 79 | null | oregon | Oregon Supreme Court | Reversed May 29, 1963.
*334 Richard Bryson, Eugene, argued the cause for appellant. On the brief were Calkins and Bryson, Eugene.
Arthur C. Johnson, Eugene, argued the cause for respondent. On the brief were Johnson, Johnson & Harrang, Eugene.
Before McALLISTER, Chief Justice, and ROSSMAN, PERRY, SLOAN, O'CONNELL, GOODWIN and DENECKE, Justices.
REVERSED.
ROSSMAN, J.
This is an appeal by the defendant, Dr. Albert J. Brauer, from an order which the circuit court made upon the plaintiff's motion. The order set aside a judgment entered in the defendant's favor after trial by jury and granted a new trial of the action. This is *335 also a cross appeal by the plaintiff from the judgment thus set aside. The action, out of which the challenged judgment arose, was based upon charges of negligence which the plaintiff made against the defendant who became his physician when one of his legs was fractured and placed a plaster of Paris cast upon it. The complaint alleges that the defendant placed the cast negligently, that gangrene developed, and amputation became necessary.
The sole assignment of error which the appellant (physician) presents reads: "The trial court erred in granting a new trial." Those words are succeeded by the following:
The words "The bailiff's remarks" refer to a brief conversation between the bailiff and one of the jurors which occurred after the case had been submitted to the jury and while the latter were in a restaurant for dinner.
ORS 17.305 reads:
The plaintiff-respondent presents the following four assignments of error:
After the verdict had been returned and judgment upon it had been entered, the plaintiff filed his motion for a new trial and accompanied it with twelve affidavits. Six of the affidavits were by five jurors, three were by counsel for the plaintiff, two were by courtroom spectators, and one was by the bailiff. All described incidents which the plaintiff claimed subjected the jury to wrongful influences. The affidavits charged individual wrong-doings to the bailiff, two jurors, and a member of the audience. No one claims *337 corruption, dishonesty, or evil purpose on anyone's part.
The affidavit of the bailiff stated:
The affidavits by jurors, which the plaintiff filed, with the exception of the 5th, pertained to incidents which occurred in the jury room. In these affidavits one or more jurors deposed: (1) a juror mentioned an experience that she had had with a plaster of Paris cast, (2) another juror, based upon personal experience, expressed an unfavorable opinion of the skill and veracity of two physicians who testified for the plaintiff, (3) still another juror mentioned that a curtain attached to hospital beds in wards prevents the occupant of one bed from seeing into another, (4) a juror who changed her vote from the plaintiff to the defendant stated that her husband was waiting for her in the court house, (5) still another juror who had voted up to the last ballot for the plaintiff stated on the way home to a juror who voted constantly for the plaintiff that she couldn't "stay all night. I had to go to work the next day." The affidavits of two spectators *338 deposed that the defendant's father-in-law, a clergyman who attended the trial, assumed at times a posture of prayer.
The above brief sketch of the plaintiff's affidavits affords an impression of their contents.
The defendant-appellant presented ten affidavits nine from jurors. The foreman of the jury deposed:
The foreman's and other affidavits stated that when any juror mentioned a personal experience he was at once reminded of the instructions which told the jury that personal experiences must be ignored. Some of the juror affidavits contradicted or modified those that the plaintiff had filed. No affidavit from any juror which either the plaintiff or the defendant filed mentioned the bailiff's affidavit. The individual to whom the bailiff spoke was left undisclosed. No one said that he heard the bailiff speak.
We will now consider specifically the bailiff's affidavit. It states that while the jury was in a restaurant for dinner, "one of the Jurors asked me * * *. The Juror then asked * * *. The Juror then asked * * *." The bailiff's use of the terms "one of the Jurors" and "The Juror" possibly indicates that the conversation was between the bailiff and one juror only. The identity of the juror who spoke to the bailiff, as we have seen, was not disclosed. Nothing reveals, at least not directly, whether or not the juror to whom the bailiff spoke, whoever he may have been, was desirous of *339 going home shortly or made the inquiry for nothing but conversational purposes. Only the bailiff's affidavit mentions the conversation. Although the affidavit of the foreman deposes that during the dinner "there was discussion * * * as to how long we would be out," it does not mention the bailiff nor the latter's conversation with a juror. The affidavit pertaining to one of the jurors who was required to be at her place of employment the following morning does not indicate that she was familiar with the bailiff's words or surrendered her views in order to hasten home. Another juror mentioned in the jury room that her husband awaited her in the court house, but there is no indication that that juror was familiar with what the bailiff had said or was anxious to proceed home. The foregoing is the extent to which the affidavits indicate that any juror felt that time was a factor.
1, 2. Although ORS 17.305, supra, is intended to promote the purity of the verdict, we do not believe that it should be construed literally and yield a reversal whenever the limits of literal compliance are exceeded. A juror might ask a bailiff whether he could use the telephone; or in the late evening the hour at which the bus lines cease operation for the night. Likewise, in the event it was announced that the jurors would be taken to a hotel for the night, some jurors might seek the name of the hotel or ask whether they will be provided with night clothes. Yet, if the bailiff's words are limited to literal compliance with ORS 17.305, he could respond to such inquiries only by asking whether the jury "had agreed upon a verdict." If a court granted a new trial in instances of the kind just conceived, it would not promote justice. Plainly, ORS 17.305 prohibits the bailiff from saying anything *340 whatever to the jury except to make such communications as are necessary in the discharge of his duties as the officer in charge of the jury. The statute, however, does not require a reversal on account of communications by the bailiff incidental to his custodial duties which could not have had any influence upon the deliberations of the jury.
If it should be assumed that a statement by a bailiff in reply to a juror's question that the jury is expected to reach a verdict can be deemed a communication unauthorized by ORS 17.305, we are aware of nothing that establishes that the bailiff's statements were prejudicial. Previous paragraphs show that no affidavit except the bailiff's mentions the bailiff's communication.
3. The trial judge did not decide that the bailiff's words influenced the jurors for or against either party. He ruled that because the bailiff uttered the words that are reported in her affidavit, he was required to vacate the judgment and order a new trial. He based his decision upon State v. Kristich, 226 Or 240, 359 P2d 1106, and in so ruling stated:
The Kristich decision states:
A substantial distinction exists between the facts of this case and those of State v. Kristich, supra. In the Kristich case the defendant was charged with a felony. Charges that can consign a party to a penitentiary cause the courts to view each development in the case with a more critical attitude and with a greater demand for faithful compliance with procedure's rules than when the case prays for nothing more than a judgment for money. In the Kristich case a juror asked the bailiff if it were necessary for the jury to reach a verdict. According to the decision, "the bailiff * * * replied that it was; that the defendant had been tried once before and therefore it was necessary to arrive at a verdict." Thus was emphasized at the hour of deliberation the fact that this was the defendant's second trial. Continuing, the decision said, "Most of the jurors heard the statements made." By reverting to the review of the facts set forth in previous paragraphs of this opinion, it will be noticed that what occurred in this case was materially different from the developments in the Kristich case. Still another distinction must be mentioned. The new trial in the Kristich case was not granted by the circuit court in ruling upon the defendant's motion for a new trial. The circuit court denied that motion. It was this court which granted the new trial. This court did so after reading the affidavits concerning the bailiff's conduct. Motions for new trial are governed by ORS 17.610 and that section is rendered applicable *342 to criminal cases, such as the Kristich case, by ORS 136.850. The circuit court, as shown by decisions of this court, many in number, is invested with discretion in ruling upon motions for new trial. The Kristich case is modified to the extent that we believe that case should have been remanded to the trial court with instructions for it to determine what, if any, misconduct had occurred and whether such misconduct "materially affected the substantial rights" of the defendant. ORS 17.610.
In the case now at bar the circuit court did not determine whether the bailiff's remarks had prejudicial effect upon the jurors. The circuit court felt itself bound by the Kristich decision. Unless the remarks actually prejudiced the plaintiff's case, the judgment should not have been vacated and a new trial should not have been ordered. The cause is therefore remanded to the circuit court so that it may make the necessary determination and rulings.
We have mentioned the affidavits of the jurors. The plaintiff filed his to support his motions for a new trial. The circuit court found no basis in those affidavits for the grant of a new trial. The order for the new trial was entered solely on the basis of the bailiff's affidavit.
One function that a verdict and its resulting judgment should perform is to terminate, if possible, the controversy out of which the judgment arose. One of society's major purposes in creating the state and establishing courts is to terminate controversy. If a verdict is to terminate controversy and if the resulting judgment is to possess value for the successful party, the judgment must have the attributes of finality, stability and permanency. Its overthrow must not be easy of accomplishment. Complete honesty, *343 probity and uprightness must at all times be exacted of the jurors, but the courts must recognize that when the jurors, as laymen, are by themselves in the jury room they may at times indulge in remarks of doubtful merit. The state must assume that the tongue's slip up in instances of that kind does not tilt the scales.
In Jorgensen v. York Ice Machinery Corp., 160 F2d 432, Judge Learned Hand said, concerning a motion for a new trial which charged misconduct of the jury:
4. From the very beginning this court, in an effort to give verdicts and judgments permanency, has refused to permit the jurors who served in the case to impeach their verdict. In Cline v. Broy, 1 Or 89, Chief Justice WILLIAMS, in rejecting a juror's affidavit, said: "Affidavits of jurors will not be received to impeach their verdict."
In State v. Smith, 43 Or 109, 71 P 973, the defendant, after sentence to execution for homicide, based a motion for a new trial in part upon the affidavit of *344 a juror who swore that he joined in the conclusion reached by the others "under the apprehension that if they were not discharged without delay the effect of the confinement upon Ball (a juror whose ebbing strength had required repeated attention from a physician during the trial) would be serious." The denial of the motion for a new trial was sustained by this court on rule that a juror's affidavit is not admissible to impeach his verdict.
State v. Imlah, 204 Or 43, 281 P2d 973, analyzes the rule that lends stability to verdicts and reviews our holdings which rejected attacks upon them undertaken through the use of juror affidavits. The defendant in that case was under sentence to execution for first degree murder. His attack upon his verdict failed. The decision said in part:
State v. Gardner, 230 Or 569, 371 P2d 558, reviewed and classified all of the Oregon cases that sought the impeachment of verdicts through juror affidavits. The attack upon the verdict in that case failed. The decision left for future determination the limits to be imposed upon such affidavits. The only limitation definitely set by the Gardner case is the following:
5. To the above stated rule we add a further one that affidavits showing oral communications between jurors are insufficient to impeach a verdict. Subsequent cases before this court reveal, however, some uncertainty on the part of the bar. While jurors' affidavits are receivable in evidence in the sense that the trial court should permit them to be filed, affidavits which disclose nothing more than oral misconduct during the jury's deliberations cannot impeach a verdict. In order to make plain the meaning of the rule, we will restate it: The affidavit of a juror concerning utterances of other jurors during the deliberations or at any other material time cannot warrant the impeachment of a verdict. The kind of misconduct of a juror that will be considered in an attack upon a verdict by a juror's affidavit within the rule set forth in the Gardner and Imlah cases is misconduct that amounts to fraud, bribery, forcible coercion or any other obstruction of justice that would subject the offender to a criminal prosecution therefor. We do not necessarily use the words "fraud," "bribery," "forcible coercion," and "obstruction of justice" in a purely technical sense, but as words that denote such serious breach of the juror's duties that the trial judge would be justified in citing him for nothing less than a contempt of court. Clark v. United States, 289 US 1, 77 L Ed 993, 53 S Ct 465, is an illustration. When this court said in the Gardner case that affidavits *346 by jurors may impeach verdicts where there was misconduct of such a serious nature as to have deprived a party of a "fair trial," the words "fair trial" may perhaps mislead some one. The quoted term takes the emphasis away from the word "serious." Many litigants are inclined to suspect, immediately after losing a case, that a fair trial was not had. There is a great temptation to prepare affidavits for the signatures of such jurors as can be prevailed upon to give them. The overriding policy of the law in this respect is to favor the finality of the verdict as State v. Gardner points out. Obviously, this policy would be frustrated if affidavits concerning conversations in the jury room are to be examined to see whether or not a trial was fair. Conversations in the jury room, under the Uniform Rules of Evidence, which we have previously approved, are irrelevant. The abstract fairness of such conversations is equally irrelevant. Except for the kind of criminal misconduct which we described, the risk of extraneous and improper conversation that may or may not find its way into a jury's deliberation is simply a risk that litigants assume when they submit their disputes for determination by the jury system. The many Oregon authorities in support of this proposition are fully set forth in the Gardner case and need not be cited again here. To the extent that the "fair trial" language in the Gardner case may have been understood as a departure from the rule that oral misconduct is not a ground for impeachment, the case must be considered as modified by the statement herein made.
6. The juror affidavits cannot support the attack which the plaintiff makes upon the verdict.
The plaintiff contends that a juror by the name of Mrs. Winkley failed to reveal, upon voir dire examination, *347 a distrust that it is said she had of the physicians who later testified for the plaintiff. The voir dire examination was not reported by a court reporter. For its nature we are dependent upon affidavits that are contradictory. The trial judge, in a memorandum opinion, gave careful attention to this phase of the plaintiff's charges and in finding no merit in it stated:
We adopt that view as our own.
The above disposes of all issues presented by the appellant (defendant) and by the cross-appellant (plaintiff) with the exception of the cross-appellant's fourth assignment of error. We think that every issue embraced within the averment of the complaint that is mentioned in that assignment of error was fully litigated and that, therefore, the fourth assignment of error reveals no prejudice to which the plaintiff was subjected.
The affidavits filed by the plaintiff do not indicate that anything occurred in the jury room which was of the general type of misconduct that we have denoted by the words "fraud," "bribery," "forcible coercion," or "other obstruction of justice." The record indicates that the jurors endeavored in good faith to analyze the evidence thoroughly and reach an honest verdict. It is true that two of them mentioned experiences that they had undergone which were somewhat similar to the case under consideration; but when jurors are together for more than seven hours and are earnestly discussing the evidence, the discussion may call to mind a by-gone experience and induce mention of it. *348 Mere mention of it is not misconduct of the kind that we denoted in preceding paragraphs.
The plaintiff's cross-appeal and the assignments of error that are based upon it reveal no merit. The order challenged by this appeal is reversed. The appellant's assignment of error reveals merit. The cause is remanded to the circuit court so that it may once more pass upon the motion for a new trial, but in accord with the above rulings.
Reversed.
McALLISTER, Chief Justice, and PERRY and GOODWIN, Justices, concur in this opinion.
DENECKE, J., specially concurring.
I concur in the majority opinion that the conduct of the jurors, as disclosed by the affidavits, is not a ground for setting aside the verdict. However, I believe it is unrealistic and unnecessary to write, "Affidavits of jurors will not be received to impeach their verdict," or that such affidavits are not to be examined or are irrelevant. In my opinion such statements hide the real process that occurs. The trial judge attempts to find out whether there was misconduct on the jury's part.[1] If, judged by the precedents of this court, the misconduct "would violate `the plainest principles of justice'" the trial court will set *349 aside the verdict. (State v. Imlah, 204 Or 43, 55, 281 P2d 973, which in turn quoted from McDonald v. Pless, 238 US 264, 59 L ed 1300, 35 S Ct 783.) It is the seriousness of the misconduct which is the crux of the problem and all these other statements obscure this. State v. Gardner, 230 Or 569, 371 P2d 558, merely attempts to lift the veils and reveal the true issue. I do not interpret State v. Gardner, supra, as any attempt to relax the well-established principle of this and most courts that only the most gross jury misconduct will afford grounds for setting aside a verdict.
I also cannot concur with the majority's attempt to set out "guidelines"[2] outlining what misconduct is so serious as to justify setting aside a verdict. Such disagreement is not intended to indicate that any lesser misconduct should be grounds to set aside a verdict. The disagreement is because the "guidelines" are abstract without relation to the facts of this case and because I doubt that they will cover the myriad combinations of facts which will come before this court.
SLOAN and O'CONNELL, JJ., concur.
[1] It is my opinion that if the trial court believes, on the basis of the affidavits, that there may have been serious misconduct, it holds a hearing on the matter with witnesses sworn and cross-examination permitted. In light of ORS 17.615-17.625 and State v. Magers, 36 Or 38, 58 P 892, the correctness of this procedure is not free from doubt, but normally it is the only method by which the trial court can determine the facts. Affidavits are admissible evidence in only a few instances. ORS 45.120. They are admissible to support a motion for a new trial on the ground of misconduct. They are the weakest kind of evidence. 32 CJS 1075, Evidence § 1032, n 81.
[2] From Mr. Justice Harlan's dissent in Sanders v. United States, No. 202, US S Ct, April 29, 1963. | 127666c35559d2ff9c0596742dcb367f3ef391711ac7a03a4c9735729f9f3935 | 1963-05-29T00:00:00Z |
30a8c1ed-add9-4ab7-b1d2-da23cc98e46d | Fleischhauer v. BILSTAD, GRAY ET UX | 233 Or. 578, 379 P.2d 880 | null | oregon | Oregon Supreme Court | Affirmed March 13, 1963.
*579 Will H. Masters, Portland, argued the cause for appellants. On the briefs were Masters and Masters.
Paul D. Hanlon, Portland, argued the cause for respondent. On the brief were Morton H. Zalutsky and Hart, Davidson, Veazie & Hanlon.
Before McALLISTER, Chief Justice, and ROSSMAN, PERRY, SLOAN, O'CONNELL, GOODWIN and LUSK, Justices.
AFFIRMED.
LUSK, J.
This is a declaratory judgment proceeding instituted for the purpose of obtaining a declaration that certain real property is subject to the lien of a judgment in favor of the plaintiff Josephine Fleischhauer. The property, described as Lot 1, Block 13, Beusonic Heights, Washington County, Oregon, was formerly owned and occupied as a homestead by the defendants Herb Bilstad and Leola Bilstad (who are not parties *580 to this appeal). The defendants Omar W. Gray and Zeda M. Gray, husband and wife, hereinafter referred to as the defendants, purchased the property from the Bilstads after the plaintiff had recovered a judgment against the latter in the circuit court of Washington county. The court entered a declaratory decree favorable to the plaintiff from which the defendants have appealed. The court held, not only that our statute as construed by this court does not exempt a homestead from the lien of a judgment, but, in addition, that the Bilstads had abandoned the homestead prior to the sale of the property to the defendants. Both propositions are challenged by the defendants in this court.
Upon the former question the plaintiff relies, as did the trial judge, on Bush v. Shepherd, Adm'r., 186 Or 105, 205 P2d 842 (1949). The defendants say that this court erred in its construction of the homestead statute in that case and urge that the decision should be overruled.
The applicable statute, ORS 23.240, originally enacted as Chapter 112, Oregon Laws 1919, reads:
*581 Except for an increase in the amount of the exemption from $3,000 to $7,500 and a verbal change that is not material, the statute reads today as it did when Bush v. Shepherd, Adm'r., was decided. See section 6-1301, OCLA. We held in that case that a motion of a judgment debtor for the satisfaction and discharge of the judgment was erroneously allowed by the circuit court. The judgment debtor based his motion on the ground that he had been discharged from the payment of such judgment by his discharge in bankruptcy and that the property involved was his homestead which had been set off to him as exempt property in the bankruptcy proceedings. We held that the action of the bankruptcy court was effective only to discharge the debtor from his personal liability and not to release a valid lien. We said that ORS 18.350 (then section 6-801, OCLA) imposes the lien of a judgment upon all the real property of the judgment debtor in a county from the time of docketing and that the homestead statute contains no exception from this provision. Notice was taken of the decision in Willamette C. & C. Ser. v. Henry, 138 Or 460, 7 P2d 261 (1932), where we said at page 465:
But this statement was said to be dictum and the conclusion of the court was that the legislature did not intend to exempt the land claimed as a homestead from judgment liens, but only "to prohibit the sale of it on execution when the right to the property as a homestead *582 is timely asserted and established." 186 Or at 120.
The briefs of counsel in Bush v. Shepherd, Adm'r., were singularly devoid of argument upon the construction of the 1919 Act a lack which well may have contributed to the error into which we are now convinced the court fell in that case.
A history of homestead legislation in this state and the course of judicial decision will aid in demonstrating the accuracy of this statement. This history was recited in Willamette C. & C. Ser. v. Henry, but its repetition briefly here is necessary for a full understanding of the question. The first homestead statute was enacted in 1893. It provided:
This section was amended in 1905 so as to read:
It was held in Hansen v. Jones, 57 Or 416, 109 P 868 (1910), that under the language of these sections "the exemption of the homestead is only from judicial sale, and not from the lien of a judgment, nor from the levy of an execution thereon." 57 Or at 420. Hence, the court decided that upon a conveyance of the property by its owner "the homestead right ceased to exist, and [the] grantee took the full title freed therefrom, but subject nevertheless to the judgment lien, which *583 from that time became superior in right." 57 Or at 426.
In the course of a discussion of the decisions in other states the court said:
The significance of these observations will appear later.
The construction placed upon the former statute in Hansen v. Jones was approved in Wilson v. Peterson, 68 Or 525, 136 P 1187 (1914) and Johnson v. Tucker, 85 Or 646, 167 P 787 (1917). At the session of the legislative assembly next following the decision in Johnson v. Tucker the prior law was repealed and the present statute enacted. Following enactment of the 1919 statute, came Willamette C. & C. Ser. v. Henry and then Bush v. Shepherd, overruling the so-called dictum in the former case, and, in effect, reinstating the decisions construing the repealed statute. That is to say, Bush v. Shepherd holds that, notwithstanding the very marked change in language, no change in meaning was effected by the 1919 enactment. While the presumption of a change of intention from a mere change of language in a statute is not always entitled to weight (Endlich, Interpretation of Statutes, § 378), *584 still it must be acknowledged that the new language of the 1919 Act, "from the lien of every judgment and from liability in any form for the debts of the owner", is sufficiently arresting to raise a presumption that a departure from the old law was intended, particularly in view of the fact that our decisions construing the former law had held that a homestead was not exempt from the lien of a judgment. See Rieger v. Harrington, 102 Or 603, 613, 203 P 576; 1 Sutherland, Statutory Construction 412, 415, Amendatory Acts § 1930; 50 Am Jur 261, Statutes § 275.
There is convincing evidence that the 1919 Act was copied in relevant part from a Wisconsin statute adopted in 1878, Wisconsin Revised Statutes § 2983 (1878), which is now substantially West's Wisconsin Statutes Annotated § 272.20. See Lacy, Homestead Exemption Oregon Law, A Postcript, 34 Ore L Rev 1, 9.[1] The Wisconsin statute, as it was in 1919, provided:
This statute had been construed by the Supreme Court of Wisconsin prior to 1919 as exempting a homestead from the lien of a judgment. Carver v. Lassallette, 57 Wis 232, 15 NW 162 (1883); Smith v. Zimmerman, 85 Wis 542, 55 NW 956 (1893). The statute had the effect of changing the law in that regard as previously announced in Hoyt v. Howe, 3 Wis 752, 62 Am Dec 705 (1854), which construed language of the older *585 Wisconsin statute similar to that used in the original homestead law of this state and in the 1905 amendment thereof. Hoyt v. Howe was cited by this court in Hansen v. Jones as supporting its construction of our former statute and, as we have seen, the court pointed out that the later decisions of the Wisconsin court were not opposed to this holding because they were based on a change in the statute.
1. In view of the adoption in this state, substantially, of the portion of the Wisconsin statute quoted above so soon after the decision in Johnson v. Tucker and the pointed reference in Hansen v. Jones to the state of the law in Wisconsin, this would seem to be a clear case for application of the presumption that when the legislature adopts the statute of another state it intends to adopt also the construction theretofore placed upon the statute by the highest court of that state. Big Butte H. & C. Ass'n v. Anderson, 133 Or 171, 182, 289 P 503, 70 ALR 399. Even without the aid of this presumption it would be difficult, as we have already observed, to hold that the legislature did not intend to make a change in the law when it added the language respecting the lien of every judgment in the 1919 enactment.
About the only argument that can be even plausibly made in opposition to this view and it has been made by counsel for the plaintiff is that the legislature did not copy the Wisconsin statute exactly, but left out a comma, which is found in the Wisconsin statute, between the first phrase, "exempt from sale on execution", and the second, "from the lien of every judgment". Because of this omission it is sought to have the language read as though it were one continuous phrase, thus "exempt from sale on execution from the lien of every judgment". So read, "from the lien *586 of every judgment" modifies "sale on execution" instead of "exempt". If this was deliberately done one would be hard put to explain why it was done. Obviously, the words, "exempt from sale on execution", were used as a substitute for "exempt from judicial sale * * * for the satisfaction of any judgment" in earlier statutes. Nothing more needed to be said to express that idea. If it were desired to be more precise (though needlessly so, because sale on execution means a sale to enforce a judgment pursuant to statute) no one even fairly conversant with English usage and legal terminology would have added "from the lien of every judgment". A "sale on execution from the lien of every judgment" is little short of meaningless.
2. On the other hand, when the clause is read as though there were a comma between the two phrases, the language is clear and the intent obvious. That intent was to liberalize the homestead statute which theretofore had contained an exemption from judicial sale only, by adding an exemption from the lien of a judgment obtained against the owner. While it is true that punctuation may be resorted to as an aid in construction when it tends to throw light on the meaning, yet, in general, little reliance is placed upon punctuation and it will be disregarded where otherwise the legislative intent could not be given effect. Mackenzie v. Douglas County, 81 Or 442, 450, 159 P 625, 1033; Sargent v. American Bank and Trust Co., 80 Or 16, 42-43, 154 P 759, 156 P 431. See, also, 50 Am Jur 249-250, Statutes § 253. "For the purpose of arriving at the true meaning of a statute, courts read with such stops as are manifestly required." United States v. Lacher, 134 US 624, 628, 10 S Ct 625, 33 L ed 1080. To the same effect, see Hammock v. Loan and Trust Co., 105 US 77, 84, 26 L ed 1111; United States v. *587 Oregon & C.R. Co., 164 US 526, 541, 17 S Ct 165, 41 L ed 541. We are of the opinion that the words of the statute under consideration should be read with a stop after "execution".
When so read, full effect may be given to the concluding words of the section that "such exemption shall not be impaired by temporary removal or absence with the intention to re-occupy the same as a homestead, nor by the sale thereof," etc. These provisions, it should be noted, were likewise taken from the Wisconsin statute. If a judgment against the owner of a homestead is held to be a lien upon the homestead property, the exception extended to the proceeds of a sale "while held, with the intention to procure another homestead therewith, for a period not exceeding one year" would be without value to the owner, for the purchaser would deduct the amount of such judgment from the price he would otherwise pay. As Professor Lacy points out in the article to which we have referred: "The result is the same as if the debtor could sell for the full unencumbered value of his house but had to hold the proceeds subject to levy." 34 Ore L Rev at 14. In these circumstances the exemption under the interpretation given the statute in Bush v. Shepherd becomes illusory.
3, 4. Courts are properly reluctant to overrule a precedent which lays down a rule of property. It is not clear to us, however, that anyone has ever been prejudiced because of reliance on Bush v. Shepherd unless it be homestead owners who may have given up rights which but for that decision would have been asserted. We therefore overrule Bush v. Shepherd, reinstate the so-called dictum in Willamette C. & C. Ser. v. Henry, and hold that in this case the defendants took the property free from the lien of the plaintiff's judgment *588 unless, prior to the conveyance to the defendants, the Bilstads had abandoned the homestead. That question will now be considered.
The plaintiff's judgment, in the amount of more than $13,000 against Herb Bilstad and Leola Bilstad was docketed in Washington county on July 10, 1958. At that time the Bilstads and their children occupied the property in question as a homestead. On November 7, 1958, the Bilstads filed for record with the county clerk of Washington county a claim of homestead pursuant to ORS 23.270 (2).[2]
Sometime prior to August 22, 1959, Mr. Bilstad, having experienced financial reverses, moved to Los Angeles where he sought employment and found it.
On August 20, 1959, Mrs. Bilstad signed a listing agreement with a real estate agent authorizing the sale of their property. On August 21, 1959, she notified Portland General Electric Company that electrical service to the premises should have been discontinued on August 2, and on August 22, she had the water service discontinued.
Mrs. Bilstad had been for seven years an employee of Lerner Shops in Portland in an executive capacity. *589 On August 22, 1959, she quit her job, giving as the reason that she was moving to Los Angeles to be with her husband. Peter Van Dyke, manager of Lerner Shops, a witness for plaintiff, testified on cross-examination:
Sometime in August Mrs. Bilstad moved the furniture out of the house and went to California to join her husband and live in an apartment which he had rented.
Under date of September 19, 1959, Mr. and Mrs. Bilstad signed an earnest money receipt for the sale of the Washington county property to the defendants Gray. They gave their address on this document as "501 N. Verdugo Rd., Glendale, California." Under date of October 14, 1959, Mr. and Mrs. Bilstad executed a bargain and sale deed conveying the property to the defendants. The deed was acknowledged by the Bilstads before a notary public for California and was recorded in Washington county, Oregon, on October 22, 1959.
Mrs. Bilstad died of a heart attack at Ashland, Oregon, in December, 1959, while on her way by automobile from Los Angeles to Portland. Mr. Bilstad *590 was to have joined her, apparently in Portland, but the purpose of the trip is not disclosed. There is no evidence that Mr. Bilstad ever returned to Oregon. It appears that at the time of the trial, in October, 1961, he was living in Chicago. He was not called as a witness by either party, although it is apparent that his address in Chicago was either known to both parties or could have been readily obtained.
C.E. Dickey, the real estate agent who represented the Bilstads in the sale of their property, testified, when asked if he had any knowledge whether Mr. Bilstad had gone to California permanently or "on a temporary deal":
Mr. Glen McCarty, an attorney who had represented the Bilstads, was called as a witness by the defendants and testified that the Bilstads were going to California so that Mr. Bilstad could take a job with an organization known as Robbins Floor Lines; that he was going for the purpose of training and getting himself re-established financially; that Mrs. Bilstad remained behind to sell the house and decided to join her husband because his training period was of longer duration than he had anticipated; that Bilstad was not to have a permanent job in California, but it was "a training situation", and that he later was transferred *591 to Chicago, "but he'd hoped to come back here but it was a job for him in the line with which he was familiar."
Much of Mr. McCarty's testimony was hearsay, and was duly objected to as such; but, even though it were treated as competent, it does not show the requisite statutory intent.
We quote again that part of ORS 23.240 pertinent to this issue:
5. Although the homestead statute should be liberally construed in favor of the exemption, courts have no authority to disregard provisions that are plain and unambiguous. The "temporary removal or absence" which will not impair the exemption is one which is accompanied by "the intention to reoccupy the same as a homestead." As the court said in Blackburn v. Lake Shore Traffic Co., 90 Wis 362, 366, 63 NW 289:
There is no evidence in this case that when the Bilstads, with their children, moved to California they intended ever again to make the premises in question their "actual abode" or "to reoccupy the same as a homestead."
6. Notwithstanding some language to the contrary in DeHaven & Son Hardware Co. v. Schultz, 122 Or 493, 496, 259 P 778, the rule is that the cessation of occupancy raises a presumption of abandonment which will devolve upon the claimant a duty of overcoming it. Monte Vista Bank & Trust Co. v. Savage, 75 Colo 180, 225 P 219; Jarvais v. Moe, 38 Wis 440; Pedersen v. Nielsen, 212 Wis 608, 250 NW 400; Shaffer v. Miller, 195 Iowa 891, 192 NW 868; Crail v. Jones, 206 Iowa 761, 221 NW 467; Harper v. Forbes, 15 Cal 202; Stotts v. Stotts, 198 Mich 605, 165 NW 761; Kaes v. Gross, 92 Mo 647, 3 SW 840; Vittengl v. Vittengl, 156 Iowa 41, 135 NW 63; Marshall v. Applegate, 10 Ky Law Rep 811, 10 SW 805; Rasmussen v. Rasmussen, 368 Ill 137, 13 NE2d 166; Waples, Homestead and Exemption, 564; 40 CJS 671-672, Homesteads § 196.
"The intention which is sufficient to rebut the presumption must be positive and certain, not conditional or indefinite." Jarvais v. Moe, supra, 38 Wis at 448; or, as this court said in DeHaven & Son Hardware Co. v. Schultz, supra, 122 Or at 497, "a constant and abiding intention to return and occupy the same as a home."
And "when such intent ceases, the abandonment becomes complete." Crail v. Jones, supra, 206 Iowa at 764.
*593 7. The defendants did not sustain the burden resting upon them. The most that can be said for the evidence is that it shows an intention to return to Oregon at some time in the future. Even this was not a "fixed and abiding" intention. Mr. McCarty testified that Mr. Bilstad "hoped to come back here." It may be said that he desired to return to Oregon, but that his intention to do so was conditional upon the circumstances which might develop in his new field and the endeavor to rehabilitate himself financially. See Peterson v. Wasserman, 246 F 88, 89 (7th Cir.1917).
It is suggested, however, that in view of the provision that the sale of a homestead does not impair the exemption, but that it "shall extend to the proceeds derived from such sale * * * while held, with the intention to procure another homestead therewith, for a period not exceeding one year", it would be unreasonable to construe the statute in such a manner as to deprive the owner of the benefit of the exemption simply because he had removed from the premises before making the sale if he intended to reinvest the proceeds in another homestead. This presents a question of some difficulty, for certainly the property must not have lost its character as a homestead at the time of its sale if the exemption is to be sustained. Peterson v. Wasserman, supra. And if the owner removes from the property with a fixed purpose to sell it or manifests that purpose afterwards by, for example, entering into a contract of sale of the property, in strict logic it cannot be said that there is a temporary removal accompanied by an intention to reoccupy the property as a homestead. In Vittengl v. Vittengl, supra, the Iowa court came to the aid of the homestead owner by giving effect to an intention to purchase a new homestead with the proceeds of the sale *594 of the old if her contemplated sale were finally consummated. The sale did not go through. Without expressing an opinion as to the soundness of this decision, it should suffice to point out that the Vittengl case was not a contest between a purchaser and a creditor, that in the present case the sale was actually made and that there is no evidence whatever that the Bilstads intended to invest the proceeds of the sale in a new homestead or, for that matter, as to what they actually did with the money. And it may be observed in passing that, if the rights of the purchasers are to be made to depend upon the existence of the requisite intention of the sellers to invest the proceeds of a sale in another homestead, it would be highly unreasonable to hold that a creditor has the burden of proving a negative in that regard. Crail v. Jones, supra; Smith v. Hart, 49 SD 582, 207 NW 657, 46 ALR 811; Orange Brevard Plumbing & Heating Co. v. LaCroix (Fla) 137 S2d 201. As the court said in the case last cited:
This case more nearly resembles Conway v. Nichols et al, 106 Iowa 358, 76 NW 681, where the homestead was sold by the nonoccupying owner who testified *595 that he intended to go back to the farm if he did not sell it, but he did sell it and never occupied it again and the court held that there had been an abandonment. But this is a stronger case for abandonment than Conway v. Nichols, as there is no evidence here of even a contingent intention of the owners to re-occupy the premises.
DeHaven & Son Hardware Co. v. Schultz, supra, cited by the defendants, holds that the evidence of the homestead owner and his witnesses sufficiently showed that his removal from the homestead was temporary, notwithstanding the fact that he had offered the property for sale. "Indeed," the court said, "under the statute, he could have actually sold the property and kept the proceeds exempt for a period of one year if it was his intention to invest the same in a home." 122 Or at 497. This is true, of course, where there has been no abandonment and the court could have meant nothing more. The dictum does, however, lend support to the view that it is not necessary for the owner of a homestead to be occupying it as his place of abode at the time he sells it in order to preserve his right to the exemption. Other Oregon cases cited by the defendants on the question of abandonment contain nothing inconsistent with our holding and need not be specifically discussed. Sterrett v. Hurlburt et al, 129 Or 520, 275 P 689, 278 P 986; Watson v. Hurlburt, 87 Or 297, 170 P 541.
8. We hold that the Bilstads' removal constituted an abandonment of the homestead and that the lien of the plaintiff's judgment attached before the sale to the defendants.
The decree is affirmed. No costs or disbursements will be allowed.
*596 O'CONNELL, J., dissenting.
I concur in that part of the opinion which overrules Bush v. Shepherd, Adm'r., 186 Or 105, 205 P2d 842 (1949). I do not agree with the conclusion that there was an "abandonment" in this case.
ORS 23.240 expressly provides that the homestead exemption "shall not be impaired * * * by the sale" of the homestead. The majority opinion construes this provision to mean that the exemption is preserved only when the sale is made by the owner while still in occupancy or when the owner has entered into a contract of sale intending, however, to return if the contract is not finally performed by the vendee. That is a very narrow construction of the statute. It must be remembered that the homestead exemption statute never comes into operation until the owner is pressed with a judgment and he asserts his claim to the exemption. The statute was intended to give the home owner, at that point, a means of protecting enough of his assets from the judgment lien to enable him to have a roof over his head. The legislature did not say that the roof had to be the one which the claimant had at the time he asserted his exemption. On the contrary, the statute permits him to sell without impairing the exemption.[1] But the majority opinion takes the position that the exemption is lost unless the claimant is either an actual or contingent occupant at the time of the sale.
*597 Assuming that the owner wishes to make an outright sale of his property, that is, not under a land sale contract, what legislative policy relevant to the purposes of the homestead exemption would require the consummation of the sale before the owner leaves the premises? The owner who sells while in occupancy has one year in which to invest the proceeds (up to the amount of the exemption) in another homestead unless the judgment creditor can prove that sometime within that period the claimant ceased to have the intention to procure another homestead with such proceeds. Since the legislature saw fit to let the claimant leave the premises after making the sale, it certainly cannot be said that occupancy by the owner was of any significance to the legislature in preserving the exemption to owners who wish to sell. To insist upon the occupancy of the owner at the time of the sale would, as the court in Vittengl v. Vittengl, 156 Iowa 41, 135 NW 63 (1912) described it, "reduce the law to somewhat of an absurdity at this point." It is just as absurd to insist upon a contingent intent to return where the sale is made under the circumstances found in the Vittengl case.
I would construe ORS 23.240 to mean that the exemption is not impaired where the owner leaves the homestead with the intent to sell it and invest the proceeds in another homestead. The exemption would continue to remain unimpaired until the owner evidences an intent to relinquish his homestead right through words or conduct. The burden of proving that the owner has relinquished his homestead right should rest upon the judgment creditor. That is the conclusion reached in DeHaven & Son Hardware Co. v. Schultz, 122 Or 493, 496, 259 P 778 (1927) and a substantial *598 number of cases in other states.[2] In the DeHaven case the court said:
The majority opinion rejects this view and adopts the "rule" that "cessation of occupancy raises a presumption of abandonment." No explanation is offered for rejecting the rule in the DeHaven case and thus shifting the burden of proof from the judgment creditor to the claimant of the homestead right. I believe that the retention of the rule in the DeHaven case permits a more reasonable construction of the sale provision of the homestead statute. If the burden of negating abandonment is placed upon the homestead claimant or purchaser, the statute is practically inoperative where the owner wishes to sell the homestead. Normally, the purchaser will deduct the full amount of the judgment because he will not wish to gamble on whether proof can be adduced negating an *599 abandonment. Thus the owner is not substantially better off under the rule adopted by the majority than he would be under Bush v. Shepherd, supra.[3]
If the burden of proof is placed upon the judgment creditor to establish the relinquishment of the homestead right, the owner will usually have a better chance of inducing the purchaser to make the purchase on the basis of an existing exemption right. Neither solution is satisfactory but one of the two constructions of the statute must be adopted and I believe that the position I have taken is preferable. The sale provision of ORS 23.240 is in need of revision. If the legislature wishes to allow the exemption in those cases where the owner sells the homestead, it would seem that the only satisfactory solution is to preserve the exemption for a specified period irrespective of the owner's intention upon ceasing to occupy the homestead. This is the solution attempted in at least one state.[4]
In the present case the intention to sell the property was evidenced by the fact that Mrs. Bilstad signed *600 a listing agreement while occupying the premises. There was no evidence that defendants did not intend to use the proceeds of the sale for the purchase of another homestead. Therefore, plaintiff has not overcome the presumption of the continuance of the homestead exemption.
The judgment should be reversed and judgment entered for defendants.
SLOAN and GOODWIN, JJ., concur in this dissent.
[1] Professor Lacy's article ably sustains his thesis that Bush v. Shepherd was wrongly decided.
[2] a judgment is recovered against a homestead owner, he may make and file for record in the proper registry of deeds of the county in which the homestead is situated, a statement executed with the same formality required for the execution of deeds of real property, giving the description and the quantity of land claimed by him as a homestead, an estimate of the value thereof, and his name and postoffice address, with a declaration that he claims the property as his homestead; and the making and filing of such statement shall have the same effect as the giving of the notice above provided for."
The "notice above provided for" is a notice that may be given by the homestead owner whenever a levy is made upon the homestead, the effect of which is to prevent a sale on execution of the premises unless a greater sum than the amount of the exemption is bid. ORS 23.270 (1).
[1] The inquiry in this type of case should not be whether the owner abandoned his homestead, but rather whether he relinquished his right. The statute permits a sale without impairing the exemption. This contemplates the "abandonment" of the homestead because, normally, one who sells property has no intent to return to it.
[2] E.G., Petition of Lehman v. Cottrell, 298 Ill App 434, 19 NE2d 111 (1939); First National Bank of Crowley v. Brooks, 164 La 297, 113 So 853 (1927); Gordon v. Emerson-Brantingham Imp. Co., 168 Minn 336, 210 NW 87 (1926); Jackson v. Coleman, 115 Miss 535, 76 So 545 (1917); American State Bank v. Leforce, 95 Okla 88, 218 P 1073 (1923); Bell v. Franklin, 230 SW 181 (Tex Civ App 1921); Jones v. Kepford, 17 Wyo 468, 100 P 923 (1909).
[3] Cf., Lacy, Homestead Exemption-Oregon Law: A Postscript, 34 Or L Rev 1 at p. 14 (1954).
[4] The Minnesota homestead exemption statute contains the following provision:
"The owner may sell and convey the homestead without subjecting it, or the proceeds of such sale for the period of one year after sale, to any judgment or debt from which it was exempt in his hands. He may remove therefrom without affecting such exemption, if he do not thereby abandon the same as his place of abode. If he shall cease to occupy such homestead for more than six consecutive months he shall be deemed to have abandoned the same unless, within such period, he shall file with the register of deeds of the county in which it is situated a notice, executed, witnessed, and acknowledged as in the case of a deed, describing the premises and claiming the same as his homestead. In no case shall the exemption continue more than five years after such filing, unless during some part of the term the premises shall have been occupied as the actual dwelling place of the debtor or his family." 29 Minn Stat Ann, § 510.07 (1947). | 2689578a17acf91667983f057abff17decbbf768546359a3845dc5b53ced9e27 | 1963-03-13T00:00:00Z |
3401c8fe-27db-4ea5-9c79-aa66b1c4be6d | Bryant v. State | 233 Or. 459, 378 P.2d 951 | null | oregon | Oregon Supreme Court | Affirmed February 20, 1963.
*460 Ralph W.G. Wyckoff, Salem, argued the cause and submitted a brief for appellant.
C.L. Marsters, Assistant Attorney General, Salem, argued the cause for respondent. On the brief were Robert Y. Thornton, Attorney General, and Harold W. Adams, Assistant Attorney General, Salem.
Before McALLISTER, Chief Justice, and ROSSMAN, SLOAN, GOODWIN and LUSK, Justices.
AFFIRMED.
GOODWIN, J.
This is a proceeding under ORS 138.510 to 138.680, the Post-Conviction Hearing Act. The petitioner has been released on parole. Accordingly, the proceedings are continued against the State of Oregon under the provisions of ORS 138.560 (2) and 138.570.
1. The petitioner was sentenced in 1960, in Lake County, for the crime of burglary not in a dwelling, and now seeks to have his sentence, and, he suggests, his conviction as well, set aside. The setting aside of the sentence, however, would not vacate the conviction in any event. State v. Cloran, 233 Or 400, 377 P2d 911.
The principal question is whether the circuit court loses jurisdiction of a convicted person who absconds from probation and remains absent from the state until after the expiration of the maximum period for which he could have been kept on probation. The petitioner relies upon In re Keene, 47 Ariz 191, 54 P2d 791 (1936), which appears to support his contention. *461 The state relies upon State v. Ludwig, 218 Or 483, 344 P2d 764 (1959), in which the facts differ in some respects from those of the case at bar.
On December 17, 1952, the petitioner pleaded guilty to the crime, which then carried a maximum penalty of five years in prison. § 23-513, OCLA. On January 7, 1953, he was released on his recognizance and was told to report to the local parole officer for instructions concerning probation. He was ordered to return to court on March 16, 1953, for the pronouncement of sentence or such further proceedings as the court might direct.
On March 16, 1953, the petitioner appeared and represented to the court that illness in his family made it inconvenient for him to be sentenced at that time. At his request the matter was continued until June 22, 1953. He was told to report to, and to remain under the supervision of, the Parole Board pending further order of the court. On April 23, 1953, upon a motion by the district attorney reciting that the "said defendant has failed, neglected and refused to comply with the rules and regulations of the Oregon State Board of Parole and Probation as directed in the Order granting probation * * *", the circuit court ordered the issuance of a bench warrant for his arrest. He was not located. The petitioner did not appear as ordered on June 22, 1953.
2. On January 14, 1957, the circuit court entered another order, which purported to revoke the petitioner's probation ex parte, and again ordered a bench warrant for his arrest. We give no effect to the attempt to revoke probation ex parte. Revocation is provided for in ORS 137.550, which requires a summary hearing. At this time, three years and ten months had passed since the petitioner had last been present in *462 court. The petitioner had not yet been sentenced. Neither had he been placed on probation for a specific length of time. We shall consider, however, that the petitioner was on probation when last seen in court.
In August of 1959, the petitioner was arrested in Texas, and in due course was returned to Oregon. On July 14, 1960, he was sentenced to the Oregon State Penitentiary.
At all material times, the sentencing court had authority to place convicted persons on probation for periods not to exceed five years' duration. ORS 137.510 (1) (b) and (2). The sentencing court had never fixed the term of the petitioner's probation because he did not appear in court at the time set for that purpose. The court had merely kept the matter of fixing the term open until a later date. Under ORS 137.550 a court may issue a bench warrant and cause a convicted person to be arrested any time within a period of probation previously fixed, or within the maximum period for which the person might have been sentenced if the imposition of sentence had not been suspended. In the pending matter, the imposition of sentence had been suspended.
The state contends that the time limitation in ORS 137.550 refers to the issuance of the warrant, but not to the execution thereof. See Gholston v. Boles, 305 F2d 162 (4th Cir 1962); United States v. Smith, 50 F Supp 464 (DC ED Pa 1943). The petitioner contends not only that the warrant must issue during the prescribed time period, but that the fugitive must also be arrested during that time. See In re Keene, supra. We prefer to follow the rule found in the cited federal cases.
This court, in State v. Ludwig, supra, held that a bench warrant issued within a two-year probationary *463 period previously fixed by the court was effective to continue the jurisdiction of the court even though the fugitive was not brought into court until eleven months after his probationary term had expired. The question in the Ludwig case was simplified, perhaps, by the fact that the sentencing court in that case could have placed the convicted person on probation for five years in the first instance. Had the court done so, it then would have been acting within the maximum period of probation fixed by statute in any event. We do not consider the five-year provision significant, however, in the analysis of the Ludwig case. The same rule would seem to apply to this case despite the difference between the factual situations. In each case the arrest came after the probation would have expired. We need not decide now whether the petitioner's probation expired when he violated it and fled the state, or at the end of the time during which he could have been placed on probation had he appeared in court as ordered. It is clear that whatever probation the petitioner had formerly enjoyed was a dead letter and he was a fugitive from justice when next he appeared in court.
3, 4. The intent of ORS 137.550 is to permit the court to enter such orders as may be necessary to carry out the terms of the probation, even though the convicted person, by absconding from supervision, may delay the execution of a particular order. The situation is analogous to that of a convicted person who absconds while free on bail. Such an exercise of self-help, so far as we can learn, has not been deemed sufficient to oust the convicting court of its jurisdiction to pronounce sentence. We do not believe the legislature intended to put it within the power of convicted persons to avoid all liability for their crimes merely by *464 absconding from probation and remaining absent as fugitives until five years have passed. If such a scheme for banishing our criminals had been contemplated by the Assembly, it is likely that such an intent would have been clearly expressed in the statutes. See In re Lujan, 18 NM 310, 137 P 587 (1913). Transportation is not an approved penalty in this state, and we doubt that the legislature intended to have it accomplished indirectly. See In re Hinson, 156 NC 250, 72 SE 310, 36 LRA (ns) 352 (1911).
5. We conclude that the court was not ousted of its jurisdiction to pronounce sentence. The petitioner fled the state and remained in exile during the period which he might have served on probation had he complied with the orders of the court. After violating his probation, the petitioner cannot be heard to say that his probation continued until terminated by the passage of time. The warrants for the petitioner's arrest were timely. By its orders, the court preserved its jurisdiction to proceed with the pending matter as soon as the warrants could be executed. Accordingly, there was no error in pronouncing sentence.
Affirmed. | 7c854bdb5a51b85bf5aabb1b5a0041f43d9fb0a83418f6971da4f2e807b7d8ed | 1963-02-20T00:00:00Z |
09c927d7-da2b-47e6-bbd1-6ce6f42b1749 | In Re CE Wheelock | 233 Or. 236, 377 P.2d 858 | null | oregon | Oregon Supreme Court | 233 Or. 236 (1963)
377 P.2d 858
IN RE COMPLAINT AS TO THE CONDUCT OF C.E. WHEELOCK
Supreme Court of Oregon.
Submitted December 31, 1962.
Accused reprimanded January 16, 1963.
*237 No appearances.
ACCUSED REPRIMANDED.
ROSSMAN, J.
Mr. C.E. Wheelock, the accused, was admitted to the Oregon State Bar in 1938 and proceeded at once with the active practice of law. In 1956 a Mrs. Jacque Williamson of Portland engaged his services to protect her interest in an estate which was under probate in Clovis, New Mexico. The estate was that of an intestate by the name of Mrs. J.D. Bailey who was Mrs. Williamson's mother. Mrs. Williamson was one of five children who survived their mother. One of the five was a son. They were the only heirs. Ill feeling, or a sense of mistrust, existed among some of the five. Mrs. Williamson was not on cordial terms with all other members of the family. The mother's death and the probate of her estate caused the ill feeling to become active.
The mother's estate consisted largely of (1) a ranch near Clovis, (2) the family home in that town, and (3) a duplex.
While the mother was living the son occupied the ranch, which was devoted largely to the raising of wheat, and continued to operate it while the estate was under administration.
Although there were five children of the deceased, Mrs. Williamson expected that upon the sale of the home the sum thus derived would be divided into three parts, not five, and that she would receive one of the three parts. The attorney for the estate felt that the maximum value of the home property was $10,000; nevertheless, Mrs. Williamson insisted that Mr. Wheelock should see to it that it brought not less than $12,000. Mrs. Williamson complained to Mr. *238 Wheelock that the amounts for which her brother accounted as the proceeds of the wheat crop were inadequate and wished him to obtain a larger return. She also believed that the sale of the ranch should yield a sum materially larger than that which was under discussion.
The ill will which some members of Mrs. Williamson's family manifested toward the others was known to at least some of the attorneys who practiced in the small town of Clovis. Mr. Wheelock, although he attempted to do so, was unable to induce the members of the bar in that town to whom he applied to undertake the rendition of the service which Mrs. Williamson desired. He thereupon attempted to obtain for her through his own efforts the results which she desired.
The attorney who had charge of the probate of the estate seemingly was honest and competent. Mrs. Williamson did not criticize the procedure he employed, but, as above noted, thought that the properties should produce sums substantially greater than were under consideration and that her mother's estate represented a large value. She also thought that her brother who lived upon the ranch had not reported honestly the amounts that he received from the wheat crop and that he should be required by Mr. Wheelock to account for a much larger sum of money.
According to Mr. Wheelock, Mrs. Williamson called upon him with exasperating frequency. Testimony indicates that she was in his office an excessive number of times and phoned to him with great frequency. In the meantime he told her untruthfully, as he frankly conceded to the trial committee, that he had arranged matters so that the home would sell for $12,000, that Mrs. Williamson would receive one-third *239 of the proceeds of the sale, and that he had engaged an auditor to determine the sums received by her brother from the wheat ranch. He also told Mrs. Williamson falsely that he had made two trips to Clovis on her behalf. All of those statements, Mr. Wheelock conceded, were untruths. Evidently the client had dominated the attorney and the latter had made statements which he thought his client wished to hear. Finally, Mr. Wheelock, in recognition of the fact that the situation had got into a highly unsatisfactory condition which he wished to terminate, told Mrs. Williamson that the home place had sold for $12,000 and gave her his check for one-third of that sum less the amounts that (1) he charged for his services as an attorney, (2) his expenses for many long distance telephone calls to Clovis that he made upon Mrs. Williamson's request, and (3) for two trips to Clovis that he told Mrs. Williamson he had made, which he had not. He then gave her the check. Mr. Wheelock had received no remuneration whatever from Mrs. Williamson and had not been paid for the expenses that he had incurred in her behalf. He did not expect to receive any of the proceeds from the sale of the home property whenever a sale was in truth made. He swore that he expected that by pretending that the home property had sold for $12,000 and by giving Mrs. Williamson a check for the appropriate sum he would terminate his relationship with her. He added that he was willing to suffer the loss in order to end the relationship. The record does not indicate that Mrs. Williamson has suffered any loss through Mr. Wheelock's representation of her or on account of anything that he had done. No one attributes to Mr. Wheelock any purpose to gain financially through solving his difficulty *240 in this atypic manner. His honesty has not been questioned. Money that was sent to him for Mrs. Williamson was promptly delivered to her. Since expenses that he incurred in handling this matter have not been paid to him, he has suffered a substantial loss.
The trial committee which gave the evidence careful consideration made this recommendation: "Recommends that the Accused, C.E. Wheelock, be administered a private reprimand." The Board of Governors adopted the findings of the trial committee and advised this court: "Recommend to Supreme Court of the State of Oregon that the Accused, C.E. Wheelock, be administered a private reprimand by the Supreme Court of the State of Oregon."
1, 2. After undertaking to represent Mrs. Williamson, Mr. Wheelock, according to his words, felt that he "had a bull by the tail," and did not know how to be relieved of the situation. He then adopted the course which we have mentioned an appalling mistake. In all likelihood, Mr. Wheelock is not the only attorney who has found himself representing a client whom he cannot satisfy and whose constant insistence upon attention to her wants irritates him. But no attorney who finds himself in such a situation should adopt the course that Mr. Wheelock embraced. The recommendation of the Board of Governors in favor of a reprimand is adopted; but we do not favor a private reprimand. Attorneys must be truthful as well as honest. Even when annoyed by a client who is unreasonably persistent the attorney must not resort to falsehoods not even falsehoods accompanied by a sizeable check such as Mr. Wheelock's. The publication of this opinion is Mr. Wheelock's reprimand. | 160b0d613765cd746175c084f3644b57a29e8bc44a432dc142d69933c0b09db9 | 1963-01-16T00:00:00Z |
3adba91b-38be-468e-a872-d20a61672ffa | Lovins v. JACKSON | 233 Or. 369, 378 P.2d 727 | null | oregon | Oregon Supreme Court | Reversed and remanded February 14, 1963.
*371 William D. Cramer, Burns, argued the cause for appellant. On the briefs were Cramer & Gronso.
Roland F. Banks, Jr., Portland, and James F. Bodie, Prineville, argued the cause for respondents. With them on the brief was Pat H. Donegan, Burns.
Before McALLISTER, Chief Justice, and PERRY, SLOAN, O'CONNELL, GOODWIN, LUSK and DENECKE, Justices.
REVERSED AND REMANDED.
DENECKE, J.
Plaintiff, while working on a State Highway Department truck, was injured when the truck was hit by a vehicle driven by one of the defendants. The jury returned a verdict for the defendants. All the assignments of error are directed to instructions given or requested instructions not given.
Plaintiff worked for the State Highway Commission. On a cold and foggy Eastern Oregon morning, he and another state employee, Denstedt, were sent out from Burns to plow snow and sand U.S. Highway No. 20. They had a dump truck with a snowplow attached in front. On the rear was a sanding machine. The sand was in the bed of the truck.
They plowed the edge of the road to the top of Sagehen Hill. There they turned around and pulled over to the righthand side of the road, facing east. The right side of the truck was against the snow, which was piled up by continual plowing. The surface of the road was slick, packed snow. Denstedt, who *372 had been driving, got out and started the sanding motor on the rear. Plaintiff got out of the cab, climbed onto the frozen sand and started to loosen it. The sanding motor was balky and the truck remained stationary on top of the hill from three to five minutes before the collision.
The defendant David Jackson was driving eastward with a truckload of lumber. He testified he saw plaintiff standing on the load, hit the brakes, turned left and skidded into the left corner of the sanding truck. Plaintiff was knocked off the truck, or, as one witness testified, the truck was knocked out from under plaintiff. There was a dispute in the testimony as to whether the state truck's lights, including the warning blinker, were on.
Plaintiff's first assignment of error, and the most crucial, was directed to the court's giving the following instruction:
No warning signs were out so the instruction almost amounted to a directed verdict. The instruction is based on the assumption that violation of the regulation would be negligence per se. Plaintiff excepted to the instruction and argues in his brief, several grounds, any of which he claims are sufficient to make the giving of the instruction error.
The instruction was based upon a regulation of the Oregon State Highway Commission. The commission has adopted regulations requiring many different types of warning signs. These are incorporated in the Highway Department's Technical Bulletin No. 24, entitled, "Oregon Manual on Uniform Traffic Control Devices."
The particular regulation and prescribed sign on which the instruction was based is on page 118 of the Manual after a picture of the familiar "Men Working" sign, with sign specifications, and is as follows:
Plaintiff urges that a violation of this Highway Department regulation would not be negligence per se. Stated in another way, his contention is that this regulation does not establish a standard of care in a negligence action.
1. In the usual negligence case the standard of care is what a reasonably prudent person would do under the same or similar circumstances.
This court has repeatedly held that the safety regulations promulgated by the State Industrial Accident Commission established a standard of care for employers and a violation of such a regulation was *375 negligence per se. Baldassarre v. West Oregon Lumber Co., 193 Or 556, 239 P2d 839. On the basis of the Oregon decisions involving safety codes the federal District Court of Oregon held that a violation of an Oregon Public Utilities Commission certificate limiting the load for a truck was negligence per se. Oregon Transfer Co. v. Tyee Construction Company, 188 F Supp 647 (D Or 1960).
2. Not every administrative regulation, however, fixes a standard of care. Each regulation must be examined to determine the purpose of the administrative agency and the legislature's purpose in authorizing the administrative agency to make such regulations.
It seems obvious that the legislature intended safety codes to be standards of care. The title to the Act authorizing the Industrial Accident Commission to promulgate safety codes states as follows:
The act states:
The act made violations of the safety codes misdemeanors.
3. The total impact of all parts of the safety statute is that safety orders of the commission unequivocally set a standard of care. Compliance with such standards was of such importance that the legislature made a failure to comply a crime. If failure to comply is specifically made a crime, certainly failure to comply in a negligence case is conclusive evidence of negligence.[1]
The purpose of the legislature in authorizing the Highway Commission to provide a uniform system of signs was very different than its purpose in authorizing the Accident Commission to provide safety regulations. The statute authorized the Highway Commission:
The statute gave exclusive jurisdiction to do the marking and signing to the commission, except that in specific instances, municipalities were permitted to mark and sign. ORS 483.044. It was made unlawful *377 for private persons to place unofficial traffic signs on the highways. ORS 483.138.
4. Violation of these sign regulations by Highway Commission employees was not made a crime. Nothing in the statutes stated or inferred that these regulations set safety standards. Without any special legislative authority the Highway Commission could have issued orders directing its employees to erect certain kinds of signs under certain circumstances, including "Men Working" signs. The legislation was probably thought necessary to direct that the sign system be uniform and conform to other states; to grant jurisdiction over signs throughout the whole state to the Highway Commission rather than municipalities; and to prohibit private persons from placing unofficial signs along the highways. These sign regulations are not intended to fix standards of care. They are merely work directives to State Highway employees.
The giving of the instruction was error.
In some instances the jury is instructed that the fact that a party violates an administrative regulation is some evidence of negligence. Schumer v. Caplin, 241 NY 346, 150 NE 139. We recently held violation of a general custom or usage was some evidence of negligence, and not negligence per se. Mennis v. Cheffings, 233 Or 215, 376 P2d 672. The jury should not be so instructed in this case, however, because the regulation is not applicable under the circumstances of the accident.
Sanding a highway is a moving operation. Denstedt testified: "During our sanding operations, we sand in spots and cover a lot of territory. * * * The idea is, we sand maybe for a hundred yards and then we go for two or three miles before we sand any more." *378 Initially, they were going to sand the mile and a half down the hill.
The inapplicability of the regulation requiring the "Men Working" sign is shown by other Highway Department regulations. A road grader is no more mobile in operation than a sander. The regulations provide if a grader is being operated, a "Grader" sign shall be posted. (Oregon Manual, p 131.) The regulation states:
The Manual contains an accompanying illustration showing when a grader is working no "Men Working" signs are to be posted.
A mower is also no more mobile in operation than a sander. Highway regulations provide that if a mower is being used, a "Mower" sign shall be placed which shall be used in the same manner as the "Grader" sign. (Oregon Manual, p 132.) The regulations contain no sign, "Sander" or "Sanding."
The "Men Working" sign and regulation concerning its placing are not applicable as they were not intended to apply to an operation conducted by means of a truck which is usually constantly moving and covering miles of highway in a short time. It is immaterial that at the time of the collision the state truck was not moving and had been stationary for a *379 time. This was a temporary condition and incidental to its principal method of operation. We do not believe that a road grader or mower operator would be required by the regulations to put out "Men Working" signs if he stopped temporarily to do something to the grader or mower. Neither are the operators of a sander.
5, 6. Defendants argue that even if this instruction were incorrect the plaintiff in other respects was contributorily negligent as a matter of law. Therefore, a defendants' verdict should have been directed and an error in instructions is immaterial. Defendants' contend plaintiff was contributorily negligent as he climbed and remained on the back of a truck parked on the highway when visibility was poor, no warning signs were posted and the truck could have been parked off the road. The testimony of Denstedt and plaintiff was that Denstedt, not plaintiff, was the man in charge and determined where the truck was to be parked. However, assuming plaintiff could have had the truck parked off the highway, we still conclude defendants' contention is untenable. The provision of the vehicle code prohibiting parking on the highway is not applicable to a vehicle working on the highway. ORS 483.032. There is testimony that visibility was 500 feet or more and that the blinking amber warning light on the truck was on. Plaintiff remaining on the back of the truck, working, under those circumstances was not contributorily negligent as a matter of law.
7. Defendants further contend plaintiff was contributorily negligent as a matter of law in that he failed to go to a safe place after he saw that a collision might occur. Plaintiff saw the defendants' headlights. He did not know whether defendants would get around the state truck or not, so he yelled, "Look out" or *380 "Jump" to Denstedt. Plaintiff testified as defendants' truck approached, he "froze"; he was scared. He said he could have jumped off but he did not know where to jump. He did not know what course the Jackson truck was going to take, right, left, or straight ahead. The snow was piled two to two and one-half feet high on the road next to the truck. We cannot say that a man standing on a big solid dump truck watching a skidding vehicle approaching a short distance away is required to jump from what might be a haven onto the slick road or the snow, hoping that he has not jumped into, instead of out of, danger.
Defendants rely heavily upon the case of Cumming v. Dosland, 227 Iowa 470, 288 NW 647 (1939). There, the plaintiff highway worker was one step onto the pavement when he saw defendant's car swerving back and forth about 200 feet away. Plaintiff stayed where he was and was hit. No explanation was given why plaintiff did not move. The Iowa court held him contributorily negligent as a matter of law because he did not get off the pavement. The case can be distinguished. The Iowan was not in a position that may have been the safest, such as in a heavy truck. The opinion does not state whether or not it reasonably appeared that the vehicle would not go off the road. If the basic rationale of Cumming v. Dosland, supra, is not distinguishable, we do not find it persuasive. We hold that whether or not the plaintiff was contributorily negligent is a question of fact for the jury.
8. Plaintiff assigned as error the court's giving of an instruction on plaintiff's duty to keep a lookout and its failure to give a requested instruction on the subject. Plaintiff's alleged negligence in failing to keep a lookout went out of the case as the testimony *381 came in. He saw defendants' vehicle but took no action because he did not know whether to stay or jump right or left. No prejudicial error was committed in this regard.
9. Plaintiff also contends the court erred in regard to defendants' duty to look out. The court refused to give the following requested instruction:
The jury was instructed:
The court also explained "ordinary negligence" and pointed out that what care was required was dependent upon the circumstances.
We believe it is more helpful to the jury to be instructed as specifically as possible, rather than generally. However, we have repeatedly held:
No error was committed in instructing on the defendants' duty of lookout.
*382 Plaintiff requested the court to instruct:
10. An instruction on this subject is proper if the trial court determines that as the case developed the jury may be uncertain on the matter. Again, whether or not to cover this with a specific instruction is ordinarily within the trial court's discretion. The court did instruct more generally that if the defendants were negligent and such negligence was the proximate cause of injury to plaintiff, and plaintiff was not himself negligent in a manner which was a contributing cause of his injury, plaintiff was entitled to recover. (It is suggested that "a proximate cause" or "a cause" is correct, rather than "the proximate cause.")
It cannot be anticipated whether or not an instruction similar to that requested would be appropriate at a new trial.
Reversed and remanded.
[1] This is somewhat the thesis advanced by Thayer in 27 Harv L Rev 317 (1914). It was criticized, however, by Lowndes, 16 Minn L Rev 361 (1932). | b6714ef8fb5ced021b9336381f3628969ed80f622695f08b2be08a2425d87a19 | 1963-02-14T00:00:00Z |
97455811-8c45-4666-8454-6700878ef076 | Lukas v. JC Penney Co. | 233 Or. 345, 378 P.2d 717 | null | oregon | Oregon Supreme Court | Reargued February 6, 1963.
Affirmed as modified February 14, 1963.
*346 James W. Morrell, Portland, argued the cause for appellant. With him on the brief were Tooze, Powers, Kerr, Tooze & Morrell.
Roscoe C. Nelson, Portland, argued the cause and filed the brief for respondent.
Before McALLISTER, Chief Justice, and ROSSMAN, PERRY, SLOAN, O'CONNELL, GOODWIN and DENECKE, Justices.
AFFIRMED AS MODIFIED.
ROSSMAN, J.
This is an appeal by the defendant, J.C. Penney Company, from a judgment which the circuit court entered in favor of the plaintiff in an action which averred that the defendant wrongfully detained the plaintiff in the defendant's custody upon a false claim that she had shoplifted a dress from one of the defendant's Portland stores. The answer, in addition to denials, pled that if the defendant detained the plaintiff, the detention was made in good faith and with reasonable cause for believing that plaintiff had committed the crime of shoplifting. It alleged that all of *347 the defendant's conduct was in good faith, in a reasonable manner, and for no more than a reasonable length of time. The jury's verdict and the court's resulting judgment were in the sums of $4,000 general damages and $500 punitive damages.
The first and the second assignments of error challenge respectively rulings which denied the defendant's motions for an involuntary nonsuit and a directed verdict. The third is based upon a ruling which denied the defendant's motion to withdraw the plaintiff's averments of malice "on the ground that there is no evidence here of malice sufficient to take the issue of punitive damage to the jury." The fourth assignment of error is based upon the refusal to charge the jury that "the defendant's employee had reasonable cause under the statute, which is Section 164.392, ORS, reasonable cause to detain and interrogate the plaintiff and remaining for the jury the only question as to whether or not the method and time of detention was reasonable." The fifth (the last) assignment of error complains because the trial judge denied the defendant's motion to strike from the complaint the averments that the plaintiff was subjected to a search.
We will now consider the fourth assignment of error and in so doing will take note of the episode which resulted in the institution of this action.
ORS 164.392, above mentioned, provides:
In midafternoon of November 11, 1959, the plaintiff and her granddaughter entered the store of the defendant which is located at Fifth and Washington Streets in Portland and went to the dress department where they hoped to find a white dress suitable to the needs of the granddaughter whose name is Barbara Lukas. The defendant's dress department is upon the second floor of its building. In the morning of that day Barbara had gone to the plaintiff's home and had helped her grandmother with housecleaning. At the conclusion of that work Barbara placed her work clothes in her grandmother's shopping bag and then the two went downtown and eventually entered the defendant's aforementioned store. When they went upon their shopping tour Barbara carried with her the shopping bag and its contents.
Before the two reached the defendant's dress department they visited similar departments in other stores. When they came to the defendant's dress department no clerk was available so they took a couple of dresses from a hanger into one of the dressing rooms and Barbara tried them on. Presently a clerk (Mrs. Groom) approached the dressing room and after speaking *349 to the plaintiff brought some dresses. Barbara tried on the dresses which were rendered available to her, but none of them seemed suitable except a white one. Upon that development the plaintiff recommended that Barbara should keep the white dress in mind and that before making a choice they should visit a store known as Bedell's. She further testified that since the hour was in the vicinity of 4:30 p.m. she suggested that they should proceed rapidly lest the Bedell store close before they could reach it. Barbara acquiesced and redressed. In the meantime the plaintiff returned some dresses to the racks. When Barbara was prepared to leave, the two looked for a clerk, but finding none returned, so they swore, the white dress to a rack and left for Bedell's. When they had gone a few feet upon the Fifth Street sidewalk toward Bedell's the incident occurred upon which this case is based. In describing it the plaintiff (referring to Barbara as Jeanie) testified:
The store employee concerning whom the plaintiff spoke was Mr. Paul N. Hales. When he was granted permission to do so, he looked into the shopping bag but found no dress. He then returned to the store.
Mrs. Groom swore that when she first saw the Lukases she was waiting upon a customer, but spoke to them and brought a couple of dresses to them. She then returned to her customer. Later, when she saw the plaintiff again Barbara had on the white dress and, concerning it she (Mrs. Groom) inquired of the plaintiff, "Have you decided on this one?" and received the reply, "Yes." She further testified that she thereupon wrapped her customer's parcel and after handing it to her "went back to the dressing room and there was nothing there except an empty hanger." By "the dressing room" she referred to the one the Lukases had used. By that time the plaintiff and her granddaughter had left. We quote again from Mrs. Groom's testimony:
She next swore that she reported the incident to her superior (Mrs. Turnage) and that the two of them made a quick search for the white dress but could not find it. According to her, she was not told that the Lukases were going to the Bedell store. She thought *351 that the Lukases were in the dress department "maybe 30, 45 minutes," and she did not see them depart. According to her, "We only had one white sheath dress in size 14, the only one in the store." It was that dress that Barbara tried on and which, it is claimed, disappeared. Mrs. Groom testified that before she reported the incident to her superior she had examined the rack from which the white dress was taken and "I would say approximately four" others. Immediately thereafter, according to her, "all the girls got together and we went through everything" in search for the dress. By the term "all the girls" she referred to the six salesladies in the department. Mrs. Turnage, upon receiving the report from Mrs. Groom, went to the first floor where she reported the incident to Mr. Hales. Through quotation from the plaintiff's testimony we have mentioned the plaintiff's version of what then took place.
The Lukases testified that they found a suitable dress in Bedell's and purchased it. Further, they testified that on the afternoon of the day following the unfortunate episode they returned to the dress department of Penney's and found the white dress "right where we put it" the preceding afternoon. The Lukases did not give any impression of the length of time that the incident in the street lasted by estimating it in terms of minutes, but Mr. Hales testified "It couldn't have been over two minutes." The Lukases mentioned incidents and exchanges of words that occurred in the street; from them the jury could have inferred that the incident consumed two minutes or possibly more.
It will be noticed from the testimony which is reviewed in preceding paragraphs that Hales was prompted by a belief that the white dress was in the *352 shopping bag. He wished to gain control of the bag in order to search its contents. Such being his purpose, he took hold of Barbara's arm and sought to gain access to the shopping bag. He did not take similar hold of the plaintiff, but the latter, being fearful that Hales was about to gain possession of the shopping bag, took it within her grasp. He therefore sought to wrest it from her.
Before accosting the two women Hales did not give them his name nor state that he was an employee of the Penney Company. When Barbara told him that before he could look into the bag he would have to show his "credentials" he replied, "I don't have to show anything." He conceded that he replied to her in those words. Barbara testified that she was fearful that he was some character from the public street. Through the display of physical force Hales made the two Lukases apprehensive of injury. The plaintiff was confronted with the choice of standing her ground, or surrendering her granddaughter and her shopping bag to Hales. Only by abandoning her granddaughter and shopping bag would she be free to go her way. To stand her ground was therefore to abandon her freedom of movement.
We take the following from Westerman v. Oregon Credit Corp. 168 Or 216, 122 P2d 435:
1. False imprisonment is the imposition of unlawful restraint upon another's freedom of movement. The restraint need not be for more than a brief time. Restatement of the Law, Torts, § 35. Section 40 of that treatise states:
The following is taken from 22 Am Jur, False Imprisonment, § 13, page 361:
We quote the following from 35 CJS, False Imprisonment, § 11, page 635:
2. The privilege of examining the shopping bag was the objective of Hales' efforts, but Barbara swore that she and her grandmother did not know that the man who accosted them and took hold of the shopping bag was from Penney's store. We believe that the combination of anger, threats, force, fear and struggle for the shopping bag, all developing suddenly upon the public sidewalk in a public spectacle and involving a grandmother and her granddaughter, were capable of supporting a finding that the defendant restrained the movements of the plaintiff.
We have quoted ORS 164.392 which authorizes a "merchant's employe" if he "has reasonable cause for believing" that a person "has committed the crime of shoplifting" to "detain and interrogate such person in regard thereto in a reasonable manner and for a reasonable time." The defendant concedes that in this case the issue as to "a reasonable manner and for a reasonable time" were for the jury. Hence, we shall not analyze those phases of the evidence. In determining whether Hales' detention of Barbara was privileged under ORS 164.392, we must take into account not only the information that he possessed but also that possessed by Mrs. Groom and Mrs. Turnage. If a "merchant or merchant's employe" wishes to detain some one for questioning he surely should identify himself, especially when, as in this case, the detention *355 occurred upon a public sidewalk and the individual detained demanded a show of identity. But, let us for the time being brush that aside.
It will be recalled that when the Lukases entered the dress department no clerk was available and, accordingly, they waited upon themselves by taking possession of a fitting room and moving some dresses into it. Presently Mrs. Groom divided her time between them and the customer that she was then serving. She brought them some dresses and then returned to her current customer. The Lukases had brought with them the shopping bag which we have mentioned and which Barbara described as "about twelve inches, thirteen, fourteen inches by sixteen" inches in size. Before long, according to Mrs. Groom, the plaintiff manifested an intention to take the white dress, but when she next returned, the Lukases and the white dress were gone. Only an empty hanger remained. At that juncture Mrs. Groom, so she swore, made a quick search for the dress but failed to find it. She testified that a moment later she and her superior made a search and then all six employees of the department unsuccessfully sought the dress. These are the circumstances to which the defendant points in support of its contention that the three of its employees who were involved in the detention of Barbara acted "with reasonable cause for believing" that an act of shoplifting had occurred.
The detention for a short period of an individual who is connected with a transaction that needs explanation has long been authorized. For example, Standish v. Narragansett Steamship Company, 111 Mass 512, 15 Am Rep 66, which was decided in 1873, arose out of the inability of a passenger on the defendant's boat to surrender, as required by the defendant's regulations, his ticket at the end of the trip. The defendant then *356 detained him, and he claimed that its refusal to permit him to go constituted false imprisonment. In holding that the defendant had a right to detain the plaintiff for a reasonable time while it investigated whether the plaintiff had purchased a ticket, the court ruled:
Courts, without the aid of legislation such as ORS 164.392, have recognized the right of a merchant to detain an individual, whom he had reasonable grounds to believe had committed an act of shoplifting in his establishment, for a reasonable period of time while he investigated.
In Collyer v. S.H. Kress Co., 11 Cal2d 170, 54 *357 P2d 20, three employees of the defendant swore that they saw the plaintiff pilfering merchandise from the defendant's stock. He was intercepted at the exit of the store and was escorted into a room for the purpose of investigation. While there he was accused of having stolen merchandise and a demand was made upon him to produce it. Presently he removed from his pockets several items. At the end of half an hour of detention in the office he was incarcerated in the city jail. The trial upon the criminal charge resulted in a verdict of not guilty; and trial upon the charge of false imprisonment brought a verdict in the plaintiff's favor in the sum of $3,500. In reversing that judgment and in disregarding the verdict of not guilty, returned in the criminal case, on the ground that the defendant had probable cause to believe that the plaintiff had stolen merchandise in its store, the decision stated:
The court further held that the issue of probable cause was one of law for determination by the court. Its words were:
Although in that case the meeting in the defendant's office in the course of which the plaintiff divulged the stolen property was a stormy one, the decision ruled: "In our opinion, the evidence in that case does not disclose an unreasonable compulsion or detention."
In Bettolo v. Safeway Stores, 11 Cal App 2d 430, 54 P2d 24, the plaintiff, while in the defendant's store, placed some groceries into a carrying bag and then was seen to put some candy into his pocket. When he went to the check stand he exhibited the groceries in the carrying bag and paid for them, but two employees who had seen him take the candy and not pay for it followed him to the sidewalk and forced him to return to the store. There he was searched but no candy was found. The candy was shortly discovered among some vegetables at a counter where the plaintiff had stood immediately before leaving the store. The plaintiff, after being detained for ten or twelve minutes, was permitted to leave. The jury returned in his favor a verdict of $1,500 upon a charge of false imprisonment. In reversing the judgment the court stated:
*359 It further stated:
It is unnecessary to take further note of the many decisions which held without the aid of legislation such as ORS 164.392 that a merchant, acting in a reasonable manner, may detain for a reasonable time anyone whom he has probable cause to believe has stolen some of the merchant's goods. The pivotal question in most cases of that character is that of probable cause. In Gibson v. J.C. Penney Company, 165 Cal App 2d 640, 331 P2d 1057, the court said:
*360 A decision which went further in the merchant's behalf than any so far mentioned is Kroger Grocery and Baking Company v. Waller, 208 Ark 1063, 189 SW2d 361. Many other decisions are digested and analyzed in Comment, 47 N.W. Univ. Law Rev. 82 and Note 3 U.C.L.A. Calif. Law Rev. 269.
ORS 164.392 authorizes the detention "for a reasonable time" if the "peace officer, merchant or a merchant's employe" has reasonable cause for a belief that the suspected person "has committed the crime of shoplifting." ORS 164.392 requires the detention to be made "in a reasonable manner." Obviously, the detention may be made only for the purpose of investigating the purported crime and not for some other purpose such as to enforce payment or gain a confession.
It will be recalled that the motion made by the defendant for an order directing the jury that the defendant had "reasonable cause to detain and interrogate the plaintiff" acknowledged that there remained for the jury's decision the question "as to whether or not the method and time of detention was reasonable."
We have mentioned that when Hales approached the Lukases he did not identify himself, nor say that he was from the Penney store. Nor did he request the Lukases to return to the store. Barbara, as we have said, testified that she thought he was some intruder from the street. The episode that occurred upon the public sidewalk lasted for approximately two minutes.
In order to sustain its fourth assignment of error the defendant must establish that Hales "had reasonable cause under" ORS 164.392 for a belief that the plaintiff had shoplifted the white dress.
*361 We take the following from Kraft v. Montgomery Ward & Co., Inc., 220 Or 230, 315 P2d 559, 348 P2d 239:
The following is quoted from 22 Am Jur § 118, False Imprisonment, page 429:
In discussing this subject 35 CJS, False Imprisonment, § 59, page 761, says:
Under this analysis the jury decides which of the conflicting stories is true, and the judge decides whether this story satisfies the requirements of reasonable cause.
3. And so in this case whether Hales' purported detention of the plaintiff was supported by reasonable *362 cause was dependent upon the knowledge possessed by Mrs. Groom and Mrs. Turnage. Hales had no information from personal observation of what occurred in the dress department. He was dependent entirely upon what Mrs. Turnage told him; and she, in turn, was largely dependent for her knowledge upon what Mrs. Groom had related to her. Mrs. Groom's testimony concerning her purported search for the dress was not unchallenged. If the Lukases actually returned the dress to the rack, as they swore they did, then one of the following propositions is true: (1) Mrs. Groom's search for the dress may not have met the demands of a reasonably adequate search; (2) Mrs. Groom testified falsely when she swore that she had not found the dress upon the racks after the Lukases had left her department.
In short, the Lukases' testimony that they returned the dress to the rack and saw it there the following day affords the basis for an issue as to whether or not the defendant's employees had "reasonable cause for believing" that the plaintiff was guilty of shoplifting the dress. The motion upon which the defendant's fourth assignment of error is based was properly denied.
We have mentioned the basis of the first and second assignments of error. In view of the fact that the defendant concedes that the question "as to whether or not the method and time of detention was reasonable" was for the jury, we cannot sustain these two assignments of error.
4. The third assignment of error was based upon the refusal of the trial judge to withdraw from the jury's consideration the issue of malice. The motion states that there was "no evidence here of malice sufficient to take the issue of punitive damage to the *363 jury." We have given a comprehensive statement of the evidence and believe that the third assignment of error must be sustained.
5. The fifth assignment of error is based upon a contention that the defendant did not seek to search anything in the plaintiff's possession. It states: "The bag that was with her was in the possession of her granddaughter." The shopping bag was the only thing which Hales sought to search. It was the property of the plaintiff and her hands were upon it when Hales sought to gain possession of it. She was the one who eventually gave Hales the privilege of looking into the bag. The fifth assignment of error is without merit.
The foregoing disposes of all contentions. The judgment of the circuit court is affirmed with the exception of the sum of $500 punitive damages. That award is reversed and vacated because of the disposition which was made of the third assignment of error.
McALLISTER, Chief Justice, and SLOAN, O'CONNELL, and DENECKE, Justices, concur.
PERRY, J., dissenting.
I am compelled to dissent, because, in my opinion, the facts of the case do not bring the case within the definition of the tort false imprisonment.
The majority state, "False imprisonment is the unlawful restraint upon another's freedom of movement." While this statement is often used to describe the tort of false imprisonment, this definition is far too all-inclusive, unless there is kept in mind the basic element of false imprisonment, an intent to confine.
A person out of anger may assault another and knock him down, thus restricting the other person's freedom of movement, but I do not believe the law *364 would say the assailant was guilty of false imprisonment, even though the act that caused the restraint from any movement was unlawful. The Restatement of the Law defines false imprisonment as follows:
From this statement, it is quite certain that the evidence must disclose an intent to confine, otherwise, while an unlawful act, such as assault and battery, may have been committed, the tort is not that of false imprisonment. As we stated in Roberts v. Coleman et al, 228 Or 286 at 293, 365 P2d 79:
Therefore, it becomes important to determine from the facts of this case whether a reasonable conclusion can be reached that the agent of the defendant intended to confine the plaintiff to a particular area and the plaintiff could, from the actions or words, conclude that such was the agent's intention.
The fact of whether or not there was an intent to confine is to be determined from all of the circumstances which occurred after the defendant's agent learned of the purported theft and after the plaintiff and her granddaughter left the store.
An examination of the statements of the plaintiff and her granddaughter discloses these facts concerning the actions of defendant's agent: (1) He said we had a white dress in that shopping bag; (2) the granddaughter had possession of the shopping bag; (3) he took hold of the granddaughter; (4) the granddaughter told him he would have to show his credentials to see in the bag; (5) he said he didn't have to show "anything"; (6) he took hold of the shopping bag; (7) he got loud and boisterous and plaintiff got afraid he might hit her or the granddaughter; (8) plaintiff then took hold of the shopping bag to keep him from jerking the bag away from the granddaughter; (9) he was so loud and boisterous and plaintiff was embarrassed and getting scared, so she let him look in it.
As stated by the majority, the intention of the defendant's agent was to look into the shopping bag. They state, "What he wished to do was to look inside the bag." The only conclusion that reasonable minds could draw is, therefore, that to accomplish this object, *366 it might be necessary to detain the possessor of the bag. This was the granddaughter and not the plaintiff. Therefore, if there was any intent to confine anyone for the purposes disclosed by the evidence, it was the possessor of the bag, and, as stated, this was not the plaintiff.
Now, the majority cite the Restatement of the Law of Torts, as follows:
I am unable to discover any application of this rule of law to the facts in this case. The illustrations 1 and 2 of Section 40, and comments thereon, show the purpose and extent of the rule. I quote:
There was not one single threat directed against the plaintiff that if she walked away from the scene she would be injured because she left, nor was there the slightest threat that the granddaughter would be injured if the plaintiff left without the agent's permission. In fact, the defendant's agent uttered no threat of violence to anyone if plaintiff wished to leave. The only evidence is that plaintiff drew a conclusion from his "getting so loud and boysterious-like [sic] * * * he might get so mad he might hit one of us because we wouldn't let him have the shopping bag; * * *." (Emphasis mine).
As pointed out by the Restatement, and clearly held in Roberts v. Coleman, supra, the force, apart from physical barriers, physical or by threats must refer to the intention to presently confine. There is simply no evidence of this fact in this case.
The facts disclose the plaintiff herself was a voluntary participant in the entire affair. "A mere voluntary remaining in custody * * *" does not constitute false imprisonment. 35 CJS 634, False Imprisonment, § 9.
The majority, to sustain the judgment, must then somehow rely upon the fact that since the plaintiff testified it was her shopping bag she did not remain voluntarily but to protect her shopping bag.
There is not a single iota of evidence that defendant's agent wished to purloin the shopping bag. According to plaintiff's own testimony, he wanted to look in the shopping bag. This does not imply he wished to take, steal, and carry away the bag. The *368 fact that he grabbed the bag can hardly indicate to the plaintiff, or anyone, an intention to possess permanently the bag, when she herself states she did not think so.
For the above reasons, I would reverse the judgment, with instructions to enter a directed verdict for the defendant.
Mr. Justice GOODWIN joins in this dissent. | 0bd3b7f3d8865a5c590e277437bf05d22427155bec235542ab5a68b2f713d85a | 1963-02-14T00:00:00Z |
f5da0f49-e952-40c6-8777-ee135d62cc85 | State Land Board v. Pekarek | 234 Or. 74, 378 P.2d 735 | null | oregon | Oregon Supreme Court | Affirmed February 14, 1963.
Petition for rehearing denied April 9, 1963.
*75 Peter A. Schwabe, Portland, argued the cause for appellants. With him on the briefs was Peter A. Schwabe, Jr., Portland.
Catherine Zorn, Assistant Attorney General, Salem, argued the cause for respondent. With her on the brief was Robert Y. Thornton, Attorney General.
Before McALLISTER, Chief Justice, and ROSSMAN, PERRY, SLOAN, O'CONNELL, GOODWIN and DENECKE, Justices.
AFFIRMED.
O'CONNELL, J.
This is an appeal from a decree of the circuit court of Multnomah county that certain property of the *76 decedent, Martin Pekarek, escheat to the state of Oregon. The decree is based upon findings that Pekarek was a resident and domiciliary of Czechoslovakia at the time of his death; that at that time he had a savings account of approximately $7,600 in the First National Bank of Portland; that the legatees of his will were residents and nationals of the Republic of Czechoslovakia; that these legatees failed to establish the right to take under ORS 111.070; and that there were no other heirs, legatees, or devisees eligible to take the property. The legatees appeal from the decree.
ORS 111.070 provides as follows:
1-3. The legatees contend that ORS 111.070 is not applicable to the savings account in this case since the distribution of personal property of the intestate is governed by the law of the decedent's domicile. We construe ORS 111.070 as a declaration of legislative policy limiting the right of nonresident aliens to take any kind of property, real or personal, tangible or intangible, including choses in action in the form of bank accounts. All property interests are intangible whether the subject matter is land, chattels or choses in action. Such interests can have no physical situs. For some purposes it may be necessary or desirable to distinguish between property interests which relate to a tangible subject matter and property interests which have no tangible referrent. There appears to be no reason for making such a distinction in the application of ORS 111.070. The policy which underlies ORS 111.070 restricting the movement of assets out of this state to a nonreciprocating country is equally applicable whether the subject matter of such assets are represented in tangible or intangible form. We are of the opinion that it was the legislative purpose to subject bank accounts to the operation of ORS 111.070.[1]
*78 It is next argued that ORS 111.070 is so vague, indefinite, uncertain and contradictory in its provisions that it is invalid. It is pointed out that subsection (2) of ORS 111.070 imposes the burden upon the nonresident alien to establish the existence of the reciprocal rights in subsection (1), and that subsection (3) provides for escheat only if "such reciprocal rights" are not found to exist. We are then reminded that in State v. Kolovrat, 220 Or 448, 454, 349 P2d 255, 258 (1960), reversed on other grounds 366 US 187, 81 S Ct 922, 6 L Ed2d 218 (1961), we said that "[i]t is only the `right to take' which must be reciprocal in character." The provision relating to the "right to take" is found only in subparagraph (a) of subsection (1). Subparagraphs (b) and (c) of subsection (1) relate to the "right to receive." The legatees contend that there is no burden on the nonresident alien to establish the requirements stated in subparagraphs (b) and (c) of subsection (1) since subsections (2) and (3) refer only to "reciprocal rights". In any event they argue that the statute is at least so ambiguous as to render it invalid.
4. The legatees misconstrue the statute. All of subsection (1) concerns reciprocal rights. Subparagraph (a) of subsection (1) spells out the requirement of reciprocity "to take." Here the legislation on the right to take in Oregon must be equated to the legislation on the right to take in the foreign country. Under subparagraph (b) the right of a citizen of the United States to receive is not expressly equated to the right *79 of nonresident aliens to receive. Similarly, the right of foreign legatees and heirs to the use, benefit or control of property from estates of persons dying in Oregon is not expressly equated by subparagraph (c) to the corresponding rights of Oregon legatees and heirs to be free from confiscation of property from foreign estates by Oregon officials. But the right of a nonresident alien to take (stated in the preface to subparagraphs (a), (b) and (c)) is equated to the right of United States citizens to receive as stated in subparagraph (b) and is predicated upon the right of the foreign distributees to receive in their own country as stated in subparagraph (c). Implicit in subparagraphs (b) and (c) is the expression of policy that if United States citizens do not have a right to receive payment within the United States, or if the foreign legatees and heirs will not have the benefits of use, the reciprocal right to receive will be denied the foreign distributee. All of the subparagraphs of subsection (1) must be read together and in relation to the prefatory statement in the subsection. Thus read it becomes apparent that subsection (2) imposes the burden of proof upon the nonresident alien to establish all of the conditions recited in subparagraphs (a), (b) and (c) and that the requirement in subsection (3) that the existence of "such reciprocal rights" be shown relates to all of the conditions in the subparagraphs of section (1).
We are brought, then, to the question of whether the conditions of ORS 111.070 have been established by the legatees. If the legatees fail to establish any one of the conditions stated in subparagraphs (a), (b) and (c) of subsection (1) the property will escheat to the state.
We shall first direct our attention to the evidence *80 relating to the condition stated in subparagraph (c). The legatees must prove that they will receive the benefit, use or control of the property "without confiscation, in whole or in part," by their government. In support of their contention that this condition was met the legatees introduced into evidence a certificate of the Ambassador of Czechoslovakia to the United States declaring "that heirs or beneficiaries in Czechoslovakia to estates in the United States of America actually receive payment of their inheritance in Czechoslovakia without diminution by taxation or other levies." There was evidence that Czechoslovakian beneficiaries of United States inheritances were able to purchase merchandise from "Tuzex" stores in Czechoslovakia at prices lower than those charged persons using funds from other sources. Dr. Alexander Bozdech, a lawyer practicing in Prague, testified on behalf of the legatees that he had extensive experience in handling estate matters. He stated that funds received in Czechoslovakia from estates in the United States were not subject to confiscation in whole or in part and that Czechoslovakian heirs and beneficiaries had the free uncontrolled use and enjoyment of inheritance funds received by them from the United States.
Dr. Vladimir Masa, First Secretary at the Embassy of Czechoslovakia in Washington, D.C. and Chief of its Consular Division, testified to the same effect, basing his conclusion on his experience in dealing with decedents' estates and related matters while in Czechoslovakia at approximately the time of the decendent's death.
5. The state called Dr. R.J. Chytil as an expert witness on Czechoslovakian law. Dr. Chytil had graduated in 1948 from Charles University in Prague with *81 a Doctor of Laws degree. He was forced to leave Czechoslovakia in 1948. He had never practiced law but he had worked in a law office from 1945 to 1948 while he was obtaining his law degree. He testified that he had continued to study Czechoslovak law after leaving his homeland. It was his opinion that the right of persons to receive property in Czechoslovakia was closely restricted to accord with the peoples' socialistic order. His testimony was rather general and vague. For the most part it appeared to be conclusions based upon his interpretation of the Czechoslovak statutes and legal documents which he had studied. This was the only expert testimony offered by the state. The state is handicapped in this class of cases because the iron curtain limits the evidence available to it. This was observed in In re Wells' Estate, 204 Misc 975, 126 NYS2d 441, 446 (1953):
The court then noted that "The Federal government and its agencies would, in the normal course of events, have sources of information not available to private individuals." (126 NYS2d at 446) Looking to this source the court took judicial notice of the official findings of the Secretary of the Treasury relating to the control of funds by the Czechoslovakian government, contained in Treasury Department Circular, *82 1951, No. 655, Supp 7 and now recorded in Title 31 Code of Federal Regulations § 211.3 (a) (Supp 1962) which presently reads as follows:
This official determination was operative at the date of decedent's death.[2] We regard this official declaration as evidence that foreign beneficiaries would not receive their interests free from control amounting to, at least, a partial confiscation.[3]
*83 6-8. We have, then, a conflict of evidence as to whether the condition stated in ORS 111.070 (1) (c) has been met. Assuming, without deciding, that all of the evidence offered by the legatees was admissible, it can be given relatively little weight. The statements of Czechoslovakian officials must be judged in light of the interest which they had in the acquisition of funds for their government. Moreover, in judging the credibility of these witnesses we are entitled to take into consideration the fact that declarations of government officials in communist-controlled countries as to the state of affairs existing within their borders do not always comport with the actual facts. Weighing these official statements together with Dr. Bozdech's testimony against the findings of the Treasury Department and the testimony of Dr. Chytil, we are of the opinion that the legatees failed to carry the burden of establishing the existence of the condition specified in ORS 111.070 (1) (c).
It is not necessary, therefore, to decide whether the conditions specified in subparagraphs (a) and (b) of ORS 111.070 were met.
The decree of the lower court is affirmed.
[1] The right of a state legislature to enact statutes controlling the devolution of intangible property is well established. E.g., Standard Oil Co. v. New Jersey, 341 US 428, 71 S Ct 822, 95 L Ed 1078 (1951); Security Bank v. California, 263 US 282, 44 S Ct 108, 68 L Ed 301, 31 ALR 391 (1923); State v. First Nat. Bank of Portland, 61 Or 551, 123 P 712, Ann Cas 1914B 153 (1912); Commonwealth v. Western Union Tel. Co., 400 Pa 337, 162 A2d 617 (1960), reversed on other grounds 368 US 71, 82 S Ct 199, 7 L Ed2d 139 (1961).
[2] See the sources of this regulation set out in 31 CFR § 211.3 (a) (1) (1959).
[3] Supporting this conclusion is In re Wells' Estate, supra 126 NYS2d at 446:
"* * * This determination has received serious consideration in the courts, and where no countervailing evidence is produced, it has sufficed to make it appear that a legatee would not have the benefit, use or control of the money. Matter of Braier's Estate, 305 N.Y. 148, 111 N.E.2d 424; Matter of Geffen's Estate, 199 Misc. 756, 104 N.Y.S.2d 490; Matter of Thomae's Estate, 199 Misc. 940, 105 N.Y.S.2d 844; Matter of Best's Estate, 200 Misc. 332, 107 N.Y.S.2d 224; Matter of Getream's Estate, 200 Misc. 543, 107 N.Y.S.2d 225; Matter of Yee Yoke Ban's Estate, 200 Misc. 499, 107 N.Y.S.2d 221."
The fact that the Treasury Department directive was applicable to public funds is immaterial. As pointed out in Klein's Estate, 203 Misc 762, 123 NYS2d 866, 870 (1952), "The important factor is whether or not there is a reasonable assurance that a distributee will actually receive the moneys to which he is entitled * * *." | 016a1c0beb02799947116d37e9a01ea69d30af849f8fc9b69f242bddfb6cd6a2 | 1963-02-14T00:00:00Z |
a0f0cf84-bfb8-4e50-8573-e7788d1c1941 | Wolff v. Du Puis | 233 Or. 317, 378 P.2d 707 | null | oregon | Oregon Supreme Court | Reversed and remanded January 30, 1963.
*318 Edwin J. Peterson, Portland, argued the cause for appellant. With him on the briefs were Tooze, Powers, Tooze, Kerr & Morrell, Portland.
Robert E. Jones, Portland, argued the cause for respondent. With him on the brief were Anderson, Franklin, Jones & Olsen, Portland.
Before McALLISTER, Chief Justice, and ROSSMAN, PERRY, SLOAN, O'CONNELL, GOODWIN and LUSK, Justices.
REVERSED AND REMANDED.
GOODWIN, J.
This is an action for damages for loss of consortium, brought by a husband whose wife was injured in an *319 automobile collision. The defendant appeals from a judgment which awarded damages to the husband upon a verdict directed in his favor on the score of liability.
The trial court held that inasmuch as the plaintiff's wife earlier had been awarded damages in an action arising out of the same collision, the issues of negligence and contributory negligence were res judicata. The jury was accordingly instructed that it need concern itself solely with the amount that would compensate the plaintiff for his loss of consortium. This instruction is assigned as error.
The question is one of first impression in Oregon. In California, where community-property considerations are relevant, the courts have found the husband and wife to be in privity (in their personal property) and have reached a result similar to that reached by the trial court in the case at bar. See, e.g., Zaragosa v. Craven, 33 Cal2d 315, 202 P2d 73, 6 ALR2d 461 (1949). However, such cases are not particularly instructive in this state, where privity in the collateral-estoppel context does not necessarily exist merely because two persons are married to each other.
It is argued in support of the trial court's ruling that an action to recover for the inconvenience of having one's spouse injured is a derivative action; i.e., that the cause of action is a parasitic one, drawing whatever vitality it may have from the right of the injured spouse to recover against the wrongdoer. While the question has never been squarely presented to this court, we believe the rule to be otherwise. We have observed that the statutory right (ORS 108.010) of a wife to sue for loss of consortium is nothing more nor less than the equivalent of the common-law right of the husband to bring an action per quod consortium *320 amisit. See Ellis v. Fallert et al, 209 Or 406, 411, 307 P2d 283 (1957).
1, 2. At common law, the cause of action which a husband and father had for the loss of services of a wife, a child, or a servant, was an independent and not a derivative right. Hitaffer v. Argonne Co., 183 F2d 811, 23 ALR2d 1366 (DC Cir 1950), cert. den., 340 US 852, 71 S Ct 80, 95 L Ed 624, overruled on another point in Smither and Company, Inc. v. Coles, 242 F2d 220, 221 (DC Cir 1957), cert. den., 354 US 914, 77 S Ct 1299, 1 LEd2d 1429. Cf. Kosciolek v. Portland Ry., L. & P. Co., 81 Or 517, 524, 160 P 132 (1916). The wrong to the husband or master lay in the inconvenience of having a tort victim on his hands. The right to recover for this wrong was independent of any right the victim of the personal injury may have had. See Womach v. St. Joseph, 201 Mo 467, 100 SW 443, 10 LRA (ns) 140 (1907), and Prosser, Torts 702, § 104 (2d ed, 1955). We hold that the cause of action for loss of consortium in favor of the spouse of an injured person is an independent action which stands on its own footing.
The husband's cause of action being independent of and separate from the wife's right to recover for bodily injury, it would follow, in the absence of compelling policy considerations to the contrary, that issues decided between one set of parties should not be considered res judicata between other parties in subsequent actions arising out of the same alleged acts of negligence. See Gilman v. Gilman, 115 Vt 49, 51 A2d 46 (1947), and cases noted in Annotation, 23 ALR2d 710, 735 (1952).
3, 4. Collateral estoppel requires identity of parties, or their privies, together with identity of one or more issues necessarily disposed of in the earlier of the *321 two trials. Where an issue of fact, essential to the judgment, is actually litigated and determined by a valid final judgment, that determination is conclusive between the parties and their privies. Restatement, Judgments, § 68 (1) (1942). Since it appears to be well settled that the husband and wife are not necessarily in privity, the essential element of privity must be found, or collateral estoppel lacks one of the legs upon which it must stand.
The trial court, like other courts which have reasoned that a question of liability once tried should be given the effect of collateral estoppel in cases of this character, took the position that whether or not the husband and wife are in privity in the classical sense of the word, their interests in the litigation are so closely interrelated that one trial ought to be enough. See, e.g., Barbour v. Great Atlantic & Pacific Tea Company, 143 F Supp 506 (DC Ill 1956); Stephens v. Snyder, 65 Ga App 36, 14 SE2d 687 (1941); Maxson v. Tomek, 244 App Div 604, 280 NY Supp 319 (1935).
An able jurist has said "that a man having had his day in court is collaterally estopped by the judgment rendered in the lawsuit as against his opponent. He is likewise estopped as to persons sufficiently close to that opponent to make it fair to have the estoppel run against them also * * *. Privity states no reason for including or excluding one from the estoppel of a judgment. It is merely a word used to say that the relationship between the one who is a party on the record and another is close enough to include that other within the res judicata." Goodrich, Circuit Judge, concurring, in Bruszewski v. United States, 181 F2d 419, 423 (3d Cir 1950). While we are inclined to concur in the view of Judge Goodrich, it does not follow that we may entirely ignore the want of privity in cases *322 of this character. We must decide whether there is a valid basis in the case at bar for finding some kind of privity even under the liberal definition set forth above.
5. The Restatement defines privity as a word which expresses the idea that as to certain matters and in certain circumstances persons who are not parties to an action but who are connected with it in their interests are affected by the judgment with reference to interests involved in the action, as if they were parties. The word "privity" includes those who control an action although not parties to it; those whose interests are represented by a party to the action; and successors in interest to those having derivative claims. Restatement, Judgments 389, § 83. None of the classes of interest there characterized as creating privity exist in a case of the kind now before us. See Restatement, Judgments, § 93 (b), Comment d., Illustrations 8 and 9.
6, 7. Whether we use the idea expressed by Judge Goodrich that there must be sufficient proximity between the interests of the two persons to make it fair to estop one with a judgment for or against the other, or use the three-fold idea found in the Restatement, there can be no such privity between persons as to produce collateral estoppel unless the result can be defended on principles of fundamental fairness in the due-process sense. A trial in which one party contests his claim against another should be held to estop a third party only when it is realistic to say that the third party was fully protected in the first trial. We do not believe the assumption is warranted that the rights of a wife or a husband are necessarily protected in any trial by one of them against a third party merely because the first spouse chooses to litigate during coverture.
*323 In a case of this character, the policy considerations which favor collateral estoppel, i.e., the desire to expedite and terminate litigation, come into conflict with the policy in favor of giving every litigant a bona fide day in court. It may well be that separate trials can lead to abuse and inconvenience, but such arguments do not meet the equally cogent argument that the two spouses have different interests to protect, and may very properly approach their respective trials with different witnesses, different lawyers, and different theories.
As a matter of abstract public policy, and, indeed, of common sense, there is much to be said for the proposition that one trial is enough. Assuming the desirability of combining the two cases in one trial, before one jury, the solution lies in a joinder procedure, rather than in collateral estoppel. Joinder would insure the right of each party to protect his own interest. That matter, however, is one for the legislature. For this court to attempt to reduce litigation by creating an exception to the law of collateral estoppel would tend to make the remedy worse than the disease. There would still be two trials in many cases, one of which might be justly characterized as unfairly prejudged.
Other questions have been presented in the briefs and arguments but will not be discussed. One invites an advisory opinion. Others concern matters which are now moot. We have concluded that there was error in withdrawing the question of negligence from the jury. The defendant is entitled to a new trial.
Reversed and remanded.
SLOAN, J., does not concur in that part of the opinion which refers to joinder of parties and causes of action. | 5b20d9254d01df196485ee44a0f3d88801f8b6252d0dfb958c6c8018ba42be3f | 1963-01-30T00:00:00Z |
bd75d9f7-7d94-44d6-bca9-950a9d6926dd | Hopkins v. SAIF | null | S058081 | oregon | Oregon Supreme Court | Filed: December 9, 2010
IN THE SUPREME COURT OF THE STATE OF OREGON
In the Matter of the Compensation of
Barbara L. Hopkins, Claimant.
BARBARA L. HOPKINS,
Petitioner on Review,
v.
SAIF CORPORATION
and NYSSA GARDENS ADULT ALTERNATIVE LIVING,
Respondents on Review.
(WC 0407794; CA A138825; SC S058081)
On review from the Court of Appeals.*
Argued and submitted September 13, 2010.
R. Adian Martin, Ransom, Gilbertson, Martin, & Ratliff, LLP, Portland, argued the cause for petitioner on review.
David L. Runner, Appellate Counsel, Salem, argued the cause and filed the brief for respondent on review.
Before De Muniz, Chief Justice, and Gillette, Durham, Balmer, Walters, and Kistler, Justices.**
WALTERS, J.
The decision of the Court of Appeals and the order of the Worker's Compensation Board are affirmed.
*On judicial review from an order of the Workers' Compensation Board. 232 Or App 439, 222 P3d 1140 (2009).
**Linder, J., did not participate in the consideration or decision of this case.
This case requires that we determine the legislature's meaning of the term "arthritis" in ORS 656.005(24)(a)(A). We conclude that, in defining pre-existing conditions for workers' compensation claims, the legislature intended the term "arthritis" to mean the inflammation of one or more joints, due to infectious, metabolic, or constitutional(1) causes, and resulting in breakdown, degeneration, or structural change. We also decide that the evidence in the record was sufficient to permit the Workers' Compensation Board (board) to find that, at the time of her work-related injury, petitioner suffered from pre-existing "arthritis" as we define it. We therefore affirm the board's denial of petitioner's claim for workers' compensation benefits.
Petitioner was a caretaker at an assisted-living facility. On May 3, 2004, petitioner was preparing medications for the residents when she bent down to retrieve medication from a drawer about eight inches from the ground. Petitioner felt a sharp pain in her hip. When she stood again, her legs felt numb and tingly. Shortly thereafter, petitioner's legs became totally numb, and she was unable to move them. Petitioner was transported by ambulance to the hospital and the next day received an MRI of her thoracic spine, which revealed disc herniations. Dr. Hajjar, a neurosurgeon, performed multiple laminectomies, discectomies, and fusions on petitioner's thoracic spine. Today, petitioner is paraplegic.
Petitioner filed a workers' compensation claim for her thoracic spine condition on May 5, 2004, and respondent denied the claim on August 17, 2004. At the hearing on petitioner's claim,(2) an administrative law judge (ALJ) considered both whether petitioner had suffered a compensable work-related injury and whether she suffered from "arthritis."
Under ORS 656.266(1), a worker has the burden of proving that he or she has suffered a "compensable injury."(3) To establish a "compensable injury," the worker must prove that a work-related injury is a material contributing cause of a disability or need for treatment. ORS 656.005(7)(a); ORS 656.245(1)(a) ("For every compensable injury, the insurer * * * shall cause to be provided medical services for conditions caused in material part by the injury" (emphasis added)). See SAIF v. Sprague, 346 Or 661, 663-64, 217 P3d 644 (2009) (discussing standards for showing injuries in workers' compensation cases); Albany General Hospital v. Gasparino, 113 Or App 411, 415, 833 P2d 1292 (1992) (discussing legislative history and concluding major contributing cause standard not intended "to supplant the material contributing cause test for every industrial injury claim"). If a compensable injury combines with a pre-existing condition to cause or prolong disability or a need for treatment, the combined condition is compensable only if the compensable injury is the major contributing cause of the disability or need for treatment. ORS 656.005(7)(a)(B). In that instance, the employer, not the worker, shoulders the burden of establishing that the worker has a pre-existing condition and that the compensable injury is not the major contributing cause of the disability or need for treatment. ORS 656.266(2)(a).(4) To establish a pre-existing condition, the employer must demonstrate that the claimant "has been diagnosed with such condition, or has obtained medical services for the symptoms of the condition," or suffers from "arthritis or an arthritic condition." ORS 656.005(24)(a)(A).(5) Thus, by proving that a claimant suffers from pre-existing "arthritis,"(6) an employer is relieved of the burden of establishing that that condition was diagnosed or treated prior to the work-related injury.
In this case, the ALJ understood, based on previous board opinions, that both the meaning of the statutory term "arthritis" and whether petitioner suffered from that condition were to be "determined by medical evidence on a case by case basis. Adam M. Karjalainen, 57 Van Natta 172, 173 (2005)." With regard to the first issue -- the meaning of "arthritis" -- petitioner's treating neurosurgeon, Dr. Hajjar, opined that "arthritis" is a condition "which primarily is caused by wear and tear, degeneration and erosion, of mobile joints in the body." As to the second issue -- whether petitioner suffered from arthritis -- Dr. Hajjar testified that, although petitioner suffered from degenerative disc disease, her need for treatment arose from the work-related injury to her spine.
Respondent's medical experts also testified about both issues. Dr. Warnock, a radiologist, testified that, "if one assumes the intervertebral discs to be joints, as many do, then there's an arthritic condition." Dr. Parsons, a neurosurgeon, opined that petitioner's thoracic spine condition was "arthritis" because it was age-related and progressive over time. Dr. Parsons considered the intervertebral disc a cartilaginous body and testified that the erosion of such cartilage comes within the definition of "arthritis." Dr. Carr, an orthopedic surgeon, explained that the intervertebral disc is made up of structures similar to articular cartilage and that degenerative disc disease met the definition of "arthritis" because it "involved an inflammatory process or a degenerative condition of a soft tissue interface between two movable bones." Two other experts, Dr. Rosenbaum, a neurosurgeon, and Dr. Young, a radiologist, simply opined that petitioner's condition met the definition of "arthritis."
The ALJ found the testimony of respondent's experts more persuasive and concluded that petitioner had pre-existing "arthritis" and that the employer had met its burden to establish that petitioner's otherwise compensable injury was not the major contributing cause of her disability or need for treatment of a combined condition. The ALJ therefore entered an order denying petitioner's claim.
Petitioner appealed to the board,
pursuant to ORS 656.295(1).(7) The board affirmed the ALJ's order, and petitioner sought review by the Court of Appeals, pursuant to ORS 656.289(1).(8) The Court of Appeals vacated the board's decision and remanded it for reconsideration in light of its opinion in Karjalainen v. Curtis Johnston & Pennywise, Inc., 208 Or App 674, 146 P3d 336 (2006), rev den 342 Or 473, 155 P3d 51 (2007). Hopkins v. SAIF, 215 Or App 356, 168 P3d 1259 (2007) (per curiam). In Karjalainen, the Court of Appeals had held that the statutory term "arthritis" has a fixed legal meaning: an "inflammation of one or more joints due to infectious, metabolic, or constitutional causes[.]" 208 Or App at 682 (quoting Webster's Third New Int'l Dictionary 123 (unabridged ed 2002) (internal quotation marks omitted)).
On remand, the board decided that the record established that petitioner suffered from "inflammation of a joint"(9) and, therefore, that she suffered from "arthritis." The board found that the testimony of respondent's expert, Dr. Carr, was more "fully explained and more persuasive" than that of petitioner's expert, Dr. Hajjar. The board again affirmed the order of the ALJ.
Petitioner again sought review by the Court of Appeals, which affirmed the board's order without opinion. Hopkins v. SAIF, 232 Or App 439, 222 P3d 1140 (2009). Petitioner filed a petition for review in this court, asserting that the term "arthritis" has a fixed legal meaning that is not dependent on case-by-case expert testimony and that the correct legal meaning is "inflammation of one or more synovial (freely articulating) joints causing a breakdown and eventual loss of cartilage, due to infectious, metabolic, or constitutional causes." The definition used by the board -- "inflammation of a joint" -- was so broad, petitioner contended, that it would include acute injuries such as ankle sprains, whereas, under the correct definition of "arthritis," petitioner's pre-existing condition would not qualify. Intervertebral discs (where the inflammation in her spine is located), petitioner asserted, are not mobile, or freely articulating, joints.
In its brief in this court, respondent agrees that the term "arthritis" is a statutory term with a fixed legal meaning. Respondent contends that the correct definition of "arthritis" is that stated by the Court of Appeals in Karjalainen -- "inflammation of a joint due to infectious, metabolic, or constitutional causes[.]" 208 Or App at 682 (quoting Webster's at 123) (internal quotation marks omitted). The causes required by that definition, respondent asserts, eliminate the possibility that a sprained ankle could be considered "arthritis" because those causes imply a disruption to "the integrity of the joint and lead to degeneration over time."
Thus, the issue presented for our consideration is the meaning of the statutory term "arthritis." We begin by confirming that the meaning of a statutory term is a matter of law, not a question of fact for expert testimony. See Miller v. Water Wonderland Improvement District, 326 Or 306, 309, 951 P2d 720 (1998) (meaning of statute presents question of law). Whether one expert is more persuasive than another in a particular case can be important in resolving a factual question; it cannot, however, determine the legal meaning of a statutory term.
We also think it helpful to note, preliminarily, that the parties agree that the correct definition of the term "arthritis" includes at least the following three elements, which they take from standard and medical dictionary definitions: (1) inflammation of one or more joints, (2) due to infectious, metabolic, or constitutional causes, and (3) resulting in breakdown, degeneration, or structural change.(10) The parties disagree about whether the term "arthritis" must be further limited to inflammation of mobile or freely articulating joints and refer us to the legislative history of the workers' compensation statutes for assistance.
To identify the correct interpretation of a statutory term, we begin by considering the meaning of that term and the context in which the legislature used it. PGE v. Bureau of Labor and Industries, 317 Or 606, 610, 859 P2d 1143 (1993). In this case, having considered the relevant definitions of the term "arthritis," and the context in which it is used in the workers' compensation statutes, it is obvious to us that, to resolve the question presented, we also must consult the legislative history that the parties proffer. See State v. Gaines, 346 Or 160, 172, 206 P3d 1042 (2009) (court free to consider legislative history even if statute's text not ambiguous). It is to that source that we now turn.
The statutory provision that includes the term "arthritis," ORS 656.005(24)(a)(A), was enacted in 2001. Or Laws 2001, ch 865, § 1. The legislature had directed a Management-Labor Advisory Committee (MLAC) comprised of six members, three representing management and three representing labor, to re-evaluate the workers' compensation statutes and offer proposed amendments. One of the amendments that the MLAC proposed was to the definition of "preexisting condition." Before amendment, former ORS 656.005(24)(1999) provided:
"'Preexisting condition' means any injury, disease, congenital abnormality, personality disorder or similar condition that contributes or predisposes a worker to disability or need for treatment and that precedes the onset of an initial claim for an injury or occupational disease, or that precedes a claim for worsening pursuant to ORS 656.273."
(Emphases added.) Under that provision, an employer could establish that a worker had a pre-existing condition by showing that the worker had a condition that predisposed him or her to disability or need for treatment and that that condition preceded the work-related injury at issue.
Senate Bill (SB) 485 (2001) changed the definition of "preexisting condition" to the following:
"'Preexisting condition' means, for all industrial injury claims, any injury, disease, congenital abnormality, personality disorder or similar condition that contributes to disability or need for treatment, provided that:
"(A) Except for claims in which a preexisting condition is arthritis or an arthritic condition, the worker has been diagnosed with such condition, or has obtained medical services for the symptoms of the condition regardless of diagnosis[.]"
Under the amended definition, an employer could not establish a pre-existing condition unless it proved either that the worker previously had been diagnosed or treated for that condition or that the condition was within the meaning of the terms "arthritis" or "arthritic condition."
In written testimony, John Shilts, an MLAC member, stated that the reason for the "arthritis" exception was the "employer's desire to not be held responsible for conditions that arise out of aging." Testimony, Senate Committee on Business, Labor and Economic Development, SB 485, Jan 31, 2001, Ex A at 3. When asked about the policy decision underlying the arthritis exception, Shilts, testifying before the House Committee on Business, Labor and Consumer Affairs, responded that there was "a strong interest on the management side, and labor agreed to this, to not pay for the aging process." Tape Recording, House Committee on Business, Labor, and Consumer Affairs, SB 485, May 15, 2001, Tape 114, Side B.
As a result of its significance, the meaning of the term "arthritis" was quite a contentious topic. The original draft of SB 485 contained the following definition of that term:
"For the purpose of this paragraph only, 'arthritis' or 'arthritic condition' means inflammation of a joint, usually accompanied by pain, swelling and frequently, changes in structure."
Bill File, Senate Committee on Business, Labor and Economic Development, SB 485, Jan 25, 2001 (draft bill). However, the MLAC members did not agree that that definition was appropriate and removed it from the bill. See Testimony, Senate Committee on Business, Labor and Economic Development, SB 485, Feb 21, 2001, Ex B at 1 (statement of John Shilts) ("There was controversy about the definition as written"). When questioned about that decision, Shilts and fellow MLAC member J.L. Wilson indicated that there already was case law that defined the term and that the intention of the committee was that the existing law discussing arthritis as a basis for the denial of claims would remain unchanged. Tape Recording, Senate Committee on Business, Labor and Economic Development, SB 485, Feb 21, 2001, Tape 32, Side B.
That assertion was repeated by management attorney Jerry Keene, who testified that the Senate committee had called on him to act as an observer of the MLAC process and to create a thorough record of the legislative intent. Tape Recording, Senate Committee on Business, Labor and Economic Development, SB 485, Mar 14, 2001, Tape 49, Side A. Keene testified that the MLAC left the meaning of the term "arthritis" undefined "on purpose." He stated that workers' compensation practitioners had an "idea or understanding" of what those terms meant and that the bill did not change that prior usage. There was no consensus, he stated, to either restrict or expand that meaning. Tape Recording, Senate Committee for Business, Labor, and Consumer Affairs, SB 485, Mar 14, 2001, Tape 50, Side A. Keene also predicted that, under a common-law approach, the board eventually would supply a definition of those terms that would be satisfactory. Tape Recording, Senate Committee on Business, Labor and Economic Development, SB 485 Feb 21, 2001, Tape 33, Side B. According to Keene, the problem with the definition that originally had been included in the proposed amendment was that it was based on medical dictionary definitions. Some MLAC members believed that those definitions were too narrow because they did not account for the entire constellation of conditions that could be considered "arthritic," whereas other members believed that those definitions were too broad and that a symptomatic definition was preferable. Id. But leaving the term undefined also was problematic. Keene acknowledged that, at that time, there was no one definition of "arthritis" in the case law but, rather, "a trend." Id.
When the bill reached the Senate floor, Senator Beyer said that he expected that judges would define the term "arthritis" based on "experience and traditional usage." Tape Recording, Senate Floor Proceedings, Mar 22, 2001, Tape 93, Side B. Beyer predicted that the case law probably would define "arthritis" to include such conditions as "degenerative joint disease" and other "compromises in the structure surrounding arthritic joints." Id.
Because those who testified before the legislature when SB 485 was adopted indicated that existing case law could give some meaning to the term "arthritis," we have perused that case law, but find it, as Keene acknowledged we would, less than definitive. The term "arthritis" had not been used in the workers' compensation statutes before the enactment of SB 485, and, as a result, no appellate court had had occasion to interpret it. The most that it appears that either appellate court had done was to describe how medical experts had used the term "arthritis" in their diagnoses. In some cases, experts associated arthritis with inflammation of the joints. See, e.g., Garcia v. Boise Cascade Corp., 103 Or App 508, 511, 798 P2d 265 (1990) (describing "low-grade inflammation" and "changes * * * of osteoarthritis" as commonly occurring conditions); Havice v. SAIF, 80 Or App 448, 450, 722 P2d 742 (1986) (describing arthritic condition as "swelling in the joints" of claimant's hands); Wells v. Wells, 15 Or App 507, 511, 516 P2d 480 (1973) (describing "arthritic swelling" of the hands). In others, experts linked the term "arthritis" with the descriptor "degenerative." See, e.g., Kaspar v. SAIF, 93 Or App 246, 250, 761 P2d 1345 (1988) (claimant's "arthritis" included conditions of "spondylosis, osteoarthritis and degenerative disc disease"); McHorse v. Portland General Electric, 268 Or 323, 330, 521 P2d 315 (1974) (condition described as "degenerative arthritis of the hip and spine"); Russell v. Mount Hood Railroad Co., 267 Or 335, 338, 517 P2d 276 (1973) ("arthritis" described as "natural degenerative changes * * * which exist because of age"); Stubbs v. Mason, 252 Or 547, 549, 450 P2d 773 (1969) ("arthritis" described as "chronic degenerative changes in the vertebra and intervertebral disk of the neck"); Todd v. Occidental Life Ins. Co., 208 Or 634, 639-40, 303 P2d 492 (1956) (describing "arthritis" as including "deterioration or degeneration" of bone and cartilage). And in still others, experts seemed to assume that arthritis was distinct from degenerative disc disease. See, e.g., Worldmark The Club v. Travis, 161 Or App 644, 648, 984 P2d 898 (1999) (describing claimant's back condition as "degenerative disc disease" and not arthritis); Sheffield v. SAIF, 50 Or App 427, 429, 623 P2d 1082 (1981) (diagnosing claimant with "arthritis and degenerative disc disease").
Our review of the legislative history of SB 485 leads us to conclude that the legislature amended the definition of "preexisting condition" to implement a compromise that had been reached between management and labor. That compromise included a new requirement that, to establish a pre-existing condition, an employer must establish that the condition had been previously diagnosed or treated, but excluded "arthritis" from that requirement. In doing so, the legislature had an "idea" of the meaning of the term "arthritis" but also knew that a compromise had not been reached on how to define that term more precisely. Therefore, the legislature intentionally left the word "arthritis" undefined and understood that the task of defining it would be left to the common law, the board, and the appellate courts.
With that understanding of the legislature's intent, we conclude that we must proceed as follows. First, we must identify the various definitions or usages that the term "arthritis" had in 2001 and endeavor to identify their common elements. Those common or core elements would have been considered essential to the definition of the term "arthritis," and the legislature surely intended to include them within its meaning. After identifying those common or core elements, we will then consider the parties' arguments that we interpret the term "arthritis" to include additional elements or concepts.
In 2001, Webster's defined "arthritis' as follows:
"[I]nflammation of one or more joints due to infectious, metabolic, or constitutional causes -- compare DEGENERATIVE ARTHRITIS, GOUT, RHEUMATOID ARTHRITIS."
Webster's Third New Int'l Dictionary 123 (unabridged ed 1993). Medical dictionaries defined the term similarly:
"Inflammation of a joint or a state characterized by inflammation of joints."
Stedman's Medical Dictionary 149 (27th ed 2000).
"Inflammation of joints."
Dorland's Illustrated Medical Dictionary 151 (29th ed 2000).
"ARTHRITIS refers to any condition of joints of the limbs or spine associated with inflammatory or structural change. It is distinguished from arthralgia which simply implies joint pain with or without any inflammatory or structural change. The two main categories of arthritis are osteoarthritis, in which the primary change is thought of as mechanical failure of articular cartilage, and rheumatoid arthritis, in which the primary problem is a chronic inflammation of the synovial lining, of joints, tendon sheaths and bursae. * * * Spondarthritis refers to an inflammatory arthritis with involvement of the spine and is often associated with the HLA B27 tissue type."
Black's Medical Dictionary 42 (39th ed 1999).
The definition in Webster's starts with a concept that all parties to this case consider essential to the term "arthritis": "inflammation of a joint." The medical dictionaries that we have consulted include that concept as well. We also find reference to inflammation in the appellate court cases decided before 2001. We conclude that "inflammation of a joint" is a core element of the meaning of the term "arthritis."
Webster's also includes, in its definition of "arthritis," the requirement that inflammation be "due to infectious, metabolic, or constitutional causes." We agree with the parties that those causes operate to exclude traumatic injury as a cause of "arthritis" and that the legislature intended such an exclusion. Before enactment of SB 485, the term "preexisting condition" applied to all conditions that preceded a work-related injury and predisposed a worker to disability or need for treatment. In enacting SB 485, the legislature required that the worker have received prior diagnosis or treatment for all predisposing conditions except "arthritis," presumably because "arthritis" may occur slowly over time as a part of the aging process and thus may not have been immediately diagnosed or treated. There is no indication in the legislative history that the legislature intended to treat traumatically inflicted inflammation of a joint, such as may occur when one sprains an ankle, similarly. The appellate cases decided before 2001 do not demonstrate that medical experts considered traumatically caused inflammation of a joint to be "arthritis." We conclude that a core element of the definition of "arthritis" is that inflammation of the joint occur over time and that the Webster's definition requiring that the inflammation of a joint result from "infectious, metabolic, or constitutional causes" carries that concept.
Both parties suggest an additional element to a correct definition of "arthritis": that the condition results in some breakdown, degeneration, or structural change. The definition of "arthritis" in Black's Medical Dictionary includes that concept:
"ARTHRITIS refers to any condition of joints of the limbs or spine associated with inflammatory or structural change. It is distinguished from arthralgia which simply implies joint pain with or without any inflammatory or structural change. * * *."
Black's Medical Dictionary 42 (39th ed 1999). Respondent also finds that requirement in the Webster's definition, explaining that the requirement that the inflammation of the joints be caused by "infectious, metabolic, or constitutional causes" means that the inflammation must "disrupt the integrity of the joint and lead to its degeneration over time." Expert testimony recounted in appellate cases decided before SB 485 was enacted also referred to "arthritis" as "degenerative." We conclude that a core element of the definition of "arthritis" is that inflammation of a joint result in breakdown, degeneration, or structural change.
Petitioner proffers another element to the definition of "arthritis" for our consideration. She argues that that term should be limited to inflammation of moveable, or what she calls "freely articulating," joints. Petitioner asserts that the facet joints of the back are freely articulating and can be affected by arthritis, but that the intervertebral discs of the spine are not and cannot. Petitioner bases that argument on medical dictionary definitions which, she asserts, "suggest articular or mobile joints" as the usual site for "arthritis." However, the definitions to which petitioner points us are definitions of "osteoarthritis." See Dorland's Illustrated Medical Dictionary 1333 (30th ed 2003) (defining "osteoarthritis" as "characterized by degeneration of the articular cartilage, hypertrophy of bone at the margins, and changes in the synovial membrane"); Stedman's Medical Dictionary 1107 (25th ed 1990) and 1388 (28th ed 2006) (defining "osteoarthritis" as "characterized by erosion of articular cartilage"). Perhaps petitioner is correct in her definition of "osteoarthritis," but the legislature did not limit the term "arthritis" to a particular form of "arthritis" -- "osteoarthritis."
Petitioner also cites decisions of the board for the proposition that the board does not consider intervertebral discs to be joints. However, those cases merely demonstrate that an employer must establish, by expert testimony, that a claimant suffers from inflammation of whatever joint or joints it contends are affected by the arthritic condition. See, e.g., Terry L. George, 61 Van Natta 1539, 1542 (2009) (arthritic condition not proved when medical expert asserted claimant "did not have an 'inflammatory' arthritic back condition"); Brett J. Cameron, 61 Van Natta 1515, 1518 (2009) (arthritic condition not proved when record contains no evidence of "either a joint or inflammation" but only conclusory references to arthritic condition); Danny Kalaveras, 61 Van Natta 964, 967 (2009) (arthritic condition not proved when medical testimony described disc as "desiccated " or "dried up" and not inflamed).
We do not agree with petitioner that the legislature intended to limit "arthritis" to the inflammation of mobile joints or to certain joints in the back and not to others. We cannot find that limitation in the definitions of "arthritis" in use or in the appellate cases that had been decided in 2001.
Neither party proposes that we include other elements in the definition of the statutory term "arthritis," and we decline to do so. We conclude that, when the legislature adopted SB 485, it intended the term "arthritis" to mean the inflammation of one or more joints, due to infectious, metabolic, or constitutional causes, and resulting in breakdown, degeneration, or structural change.
The question remains whether, given that definition, the board erred in deciding that petitioner in this case suffers from "arthritis." That depends, of course, on whether there is substantial evidence in the record to support a conclusion that petitioner has "arthritis" as we have now defined that term. See ORS 656.298(7); ORS 183.482(8)(c)(11); Erck v. Brown Oldsmobile, 311 Or 519, 524, 815 P2d 1251 (1991) (Court of Appeals and this court review agency decisions for legal issues under standards set forth in ORS 183.482(7) and (8)).
The board expressly concluded that the evidence in the record was sufficient to establish that petitioner suffered from the "inflammation of a joint"; the board did not expressly conclude that the evidence was sufficient to establish that that inflammation was due to infectious, metabolic, or constitutional causes or that it resulted in breakdown, degeneration, or structural change. However, respondent presented substantial evidence that petitioner's condition was a result of progressive degeneration that manifested in the erosion of the intervertebral discs in her spine. Although petitioner presented evidence from her treating neurologist that the inflammation of her discs was not damage to a joint and was caused by acute trauma, there was substantial evidence to support a contrary conclusion. See SAIF v. Sprague, 346 Or 661, 674-75, 217 P3d 644 (2009) (affirming board decision when there was substantial evidence in record supporting board's factual findings). Consequently, the board did not err in concluding that petitioner had pre-existing "arthritis" or in denying petitioner's claim for benefits.(12)
The decision of the Court of Appeals and the order of the Workers' Compensation Board are affirmed.
1. Although the term "constitutional" generally is used in judicial opinions to mean of or pertaining to the Oregon or United States Constitutions, we use that term in this opinion to mean of or pertaining to the structure of the body. See Webster's Third New Int'l Dictionary 486 (unabridged ed 2002) (defining "constitutional" as "having to do with, inherent in, or affecting the constitution or structure of body or mind.").
2. ORS 656.283 provides that "any party or the Director of the Department of Consumer and Business Services may at any time request a hearing on any matter concerning a claim," and further provides procedures for that hearing.
3. ORS 656.266(1) provides, in part, that
"[t]he burden of proving that an injury or occupational disease is compensable and of proving the nature and extent of any disability resulting therefrom is upon the worker."
ORS 656.005(7)(a) provides the definition for "compensable injury":
"A 'compensable injury' is an accidental injury, or accidental injury to prosthetic appliances, arising out of and in the course of employment requiring medical services or resulting in disability or death; an injury is accidental if the result is an accident, whether or not due to accidental means, if it is established by medical evidence supported by objective findings, subject to the following limitations:
"(A) No injury or disease is compensable as a consequence of a compensable injury unless the compensable injury is the major contributing cause of the consequential condition.
"(B) If an otherwise compensable injury combines at any time with a preexisting condition to cause or prolong disability or a need for treatment, the combined condition is compensable only if, so long as and to the extent that the otherwise compensable injury is the major contributing cause of the disability of the combined condition or the major contributing cause of the need for treatment of the combined condition."
4. 656.266(2)(a) provides:
"Once the worker establishes an otherwise compensable injury, the employer shall bear the burden of proof to establish the otherwise compensable injury is not, or is no longer, the major contributing cause of the disability of the combined condition or the major contributing cause of the need for treatment of the combined condition."
5. ORS 656.005(24)(a) provides:
"'Preexisting condition' means, for all industrial injury claims, any injury, disease, congenital abnormality, personality disorder or similar condition that contributes to disability or need for treatment, provided that:
"(A) Except for claims in which a preexisting condition is arthritis or an arthritic condition, the worker has been diagnosed with such condition, or has obtained medical services for the symptoms of the condition regardless of diagnosis[.]"
(Emphasis added.)
6. Because we determine that petitioner in this case suffered from "arthritis," we do not need to determine whether she suffered from an "arthritic condition," and we are not called upon to define that term. For simplicity, we apply only the statutory term "arthritis."
7. ORS 656.295(1) provides:
"The request for review by the Workers' Compensation Board of an order of an Administrative Law Judge need only state that the party requests review of the order."
Such review allows the board to
"affirm, reverse, modify or supplement the order of the Administrative Law Judge and make such disposition of the case as it determines to be appropriate."
ORS 656.295(6).
8. ORS 656.298(1) provides:
"Within the time limit specified in ORS 656.295, any party affected by an order of the Workers' Compensation Board * * * may request judicial review of the order by the Court of Appeals."
9. The board expressly decided that petitioner suffered from "inflammation of a joint," but did not reach an express conclusion that that inflammation was due to "infectious, metabolic, or constitutional causes." Barbara L. Hopkins, 60 Van Natta 1034, 1038 (2008)
10. In 2001, Webster's defined "arthritis' as follows:
"[I]nflammation of one or more joints due to infectious, metabolic, or constitutional causes -- compare DEGENERATIVE ARTHRITIS, GOUT, RHEUMATOID ARTHRITIS."
Webster's Third New Int'l Dictionary 123 (unabridged ed 1993). Medical dictionaries defined the term similarly:
"Inflammation of a joint or a state characterized by inflammation of joints."
Stedman's Medical Dictionary 149 (27th ed 2000).
"Inflammation of joints."
Dorland's Illustrated Medical Dictionary 151 (29th ed 2000).
"ARTHRITIS refers to any condition of joints of the limbs or spine associated with inflammatory or structural change. It is distinguished from arthralgia which simply implies joint pain with or without any inflammatory or structural change. The two main categories of arthritis are osteoarthritis, in which the primary change is thought of as mechanical failure of articular cartilage, and rheumatoid arthritis, in which the primary problem is a chronic inflammation of the synovial lining, of joints, tendon sheaths and bursae. * * * Spondarthritis refers to an inflammatory arthritis with involvement of the spine and is often associated with the HLA B27 tissue type."
Black's Medical Dictionary 42 (39th ed 1999).
11. ORS 656.298(7) provides that judicial review of Workers' Compensation Board orders "shall be as provided in ORS 183.482(7) and (8)."
ORS 183.482(8)(c) provides:
"The court shall set aside or remand the order if it finds that the order is not supported by substantial evidence in the record. Substantial evidence exists to support a finding of fact when the record, viewed as a whole, would permit a reasonable person to make that finding."
12. Having concluded that petitioner suffered from pre-existing "arthritis," the board went on to consider whether respondent had established that petitioner's workplace injury was not the major contributing cause of her disability or need for treatment of the combined condition and concluded that it had. Petitioner does not challenge that conclusion in this court. | 2ea74a5be8d1b3c5a38eb3fbd0b4a0112652c5071a344912738036617bd37ae6 | 2010-12-09T00:00:00Z |
7144c53c-9237-4319-9a25-bf8a245da0bb | Estate of Michelle Schwarz v. Philip Morris Inc. | null | null | oregon | Oregon Supreme Court | FILED: December 30, 2010
IN THE SUPREME COURT OF THE STATE OF OREGON
THE ESTATE OF MICHELLE SCHWARZ,
Deceased,
by and through her Personal Representative,
PAUL SCOTT SCHWARZ,
Petitioner on Review,
v.
PHILIP MORRIS INCORPORATED,
nka PHILIP MORRIS USA INC.,
a foreign corporation,
Respondent on Review.
(CC 000201376; CA A118589; SC S053644)
On petitioner on
review's petition for reconsideration filed July 8, 2010.*
Maureen Leonard,
Portland, filed the petition for reconsideration for petitioner on review.
With her were Robert K. Udziela, D. Lawrence Wobbrock, Charles S. Tauman, and
Richard A. Lane.
Sharon A.
Rudnick, Harrang Long Gary Rudnick P.C., Eugene, filed the reply for respondent
on review. With her were William F. Gary and Susan D. Marmaduke.
Before De Muniz,
Chief Justice, and Durham, Balmer, Walters, and Kistler, Justices.**
WALTERS, J.
The petition for
reconsideration is allowed. The former opinion is modified and adhered to as
modified. Respondent on review's statement of costs and disbursements is
allowed in the amounts and on the conditions described in this opinion.
*348 Or 442, 235 P3d 668 (2010).
** Gillette and Linder, JJ., did not participate in the consideration or decision of this
petition for reconsideration.
WALTERS, J.
The matter before the court is
plaintiff's petition for reconsideration of our decision in Estate of
Michelle Schwarz v. Philip Morris Inc., 348 Or 442, 235 P3d 668
(2010). On reconsideration, we clarify that the issue on remand is not whether
defendant is liable for punitive damages, but rather what is the correct amount
of those damages. We also address defendant's statement of costs and
disbursements and allow it in part and disallow it in part. In all other
respects, we adhere to our prior opinion.
At trial of this case, the court
instructed the jury that, to recover punitive damages, plaintiff had to show,
by clear and convincing evidence, that defendant had "'shown a reckless
and outrageous indifference to a highly unreasonable risk of harm and [had]
acted with a conscious indifference to the health, safety, and welfare of
others.'" 348 Or at 447. By awarding punitive damages in any amount, the
jury necessarily found that defendant's conduct was as described and that
defendant was liable for punitive damages. Defendant did not challenge, on
appeal, the sufficiency of the evidence to support that conclusion, and that
conclusion is not subject to retrial on remand. As we explained in our earlier
opinion, id. at 458, the jury was permitted to use evidence of
harm to others to assess the reprehensibility of defendant's conduct and,
working from that factual premise, to determine defendant's liability for
punitive damages, and the trial court did not err in that aspect of its
instruction to the jury.
The trial court also instructed the
jury that, if it found that defendant's conduct was as described, it could
consider various factors, including the likelihood of serious harm and the
degree of defendant's awareness of that harm, and award an amount of punitive
damages not to exceed $300 million. In doing so, the trial court erred in
failing to inform the jury that, while it could use evidence of harm to others
to determine the reprehensibility of defendant's conduct, it could not directly
punish the defendant for that harm. Id. Thus, that error likely affected
the jury's determination of the amount of punitive damages to award and that
was the limited reason that we decided that a new trial was necessary. We
remanded this case to the trial court for a "new trial limited to the
question of punitive damages." Id. at 460. That wording may lack
precision. The logic of our earlier opinion made it plain that the trial
court's instructional error had incorrectly stated the law that governed the
jury's determination of the amount of punitive damages, not the jury's decision
that punitive damages should be awarded. We therefore clarify that, in
remanding for a new trial, we intended to remand for a new trial limited to the
amount of punitive damages.
In our earlier opinion, we designated
defendant as the prevailing party on appeal and awarded defendant its costs on
review. Plaintiff requests that we reconsider our decision awarding costs to
defendant and exercise discretion to deny costs to defendant, or, in the
alternative, order that costs abide the result on retrial, citing ORAP 13.05(4)
(allowing costs to abide the outcome on remand in cases "in which the
party who ultimately will prevail remains to be determined").
We adhere to our ruling awarding
costs to defendant. Defendant was the prevailing party on review by this court
and therefore is entitled to recover the costs it incurred in this court. ORS
20.310(1) (in any appeal to the Court of Appeals or review by the Supreme
Court, court "shall" allow costs and disbursements to the prevailing
party, with some exceptions). As to plaintiff's alternative request that we
provide that the award of costs on review abide the result on retrial under
ORAP 13.05(4), we find that that provision does not apply under the
circumstances presented in this case. The party who ultimately will prevail does
not "remain to be determined." Plaintiff already has obtained a
judgment against defendant, part of which was affirmed on appeal, and, when a
final judgment eventually is entered by the trial court, plaintiff will be the
party who prevails on remand. Although we therefore decline to provide that
the award of costs on review must abide the result on remand, we do think it
appropriate to provide that the effective date of the cost award will be the
effective date of the trial court's judgment on remand. We will determine the
amount of the allowable costs on review, but we will not include that amount in
the appellate judgment. Defendant will be entitled to that sum when the trial
court issues its judgment at the conclusion of this matter on remand.
With regard to the amount of costs
and disbursements on review, defendant filed a statement of those costs and
disbursements seeking the total sum of $561,816.84, plus $638 per day from July
1, 2010, until the letter of credit procured by defendant is released.
Plaintiff filed objections to the cost bill, including an objection that
defendant had waived any claim for costs incurred before the Court of Appeals.
Plaintiff asserted that defendant did not timely submit a claim for those costs
under ORS 20.320 (cost statement must be filed 21 days from the date of the
appellate court's decision) and ORAP 13.05(5)(a) (same; also providing that the
filing of a petition for review or reconsideration does not suspend the time
for filing a cost statement). Plaintiff's objection is well taken, and we
disallow defendant's request for costs that it did not seek within 21 days of
the decision of the Court of Appeals. Those disallowed costs include the transcript
costs ($10,037.80) and costs related to maintaining the letter of credit prior
to the issuance of the Court of Appeals decision. We allow the prevailing
party fee ($100), the filing fee ($140), and the cost of filing briefs in the
Supreme Court ($255.10). We also allow the cost of maintaining the letter of
credit after the Court of Appeals issued its decision ($367,205.82 through June
30, 2010). The total amount of allowed costs is $367,700.92, plus $638 per day
from July 1, 2010, until release of the letter of credit or issuance of the
appellate judgment, whichever occurs first.
The petition for reconsideration is
allowed. The former opinion is modified and adhered to as modified.
Respondent on review's statement of costs and disbursements is allowed in the
amounts and on the conditions described in this opinion. | d37ef463f193fbe05881d488b54ae3bf64e3b5430d11487edc5e4bd478c4ae6a | 2010-12-30T00:00:00Z |
614f56e7-b0a5-4e59-82d8-cf207741cad9 | In Re Millen F. Kneeland | 233 Or. 241, 377 P.2d 861 | null | oregon | Oregon Supreme Court | 233 Or. 241 (1963)
377 P.2d 861
IN RE COMPLAINT AS TO THE CONDUCT OF MILLEN F. KNEELAND
Supreme Court of Oregon.
Submitted December 31, 1962.
Attorney suspended January 16, 1963.
No appearances.
ATTORNEY SUSPENDED.
PER CURIAM.
The acts of the accused in this case are almost identical to those described in In re Floyd D. Moore, 1959, 218 Or 403, 345 P2d 411.
In the instant case the accused is charged in seven causes of complaint. The trial committee found the accused guilty of the causes of complaint which charged the accused of accepting a $1,000 gift from an elderly woman of questionable competency; of preparing wills for her in which accused was designated *242 as a principal beneficiary and of accepting a deed to the home of the same person. The deed reserved to the lady a life estate. In each instance a part of the charge was that the accused did not require the elderly lady to seek independent legal advice before completing the particular transaction. The trial committee recommended a penalty of one year suspension.
The Board of Governors approved the findings of the trial committee but could not agree as to a penalty.
The findings involved in this case are so similar to those in the Floyd Moore case, supra, that we think the penalty recommended by the trial committee should be adopted. It is ordered that the accused be suspended from the practice of law for a period of one year. The Oregon State Bar is awarded judgment for its costs. | 92078916c55a4443a690294e3ea77842087f65fbd721e9a81533bbf4818174a0 | 1963-01-16T00:00:00Z |
e116af0a-26b1-417c-bedc-5271ca90bedb | State v. Mims | 235 Or. 540, 385 P.2d 1002 | null | oregon | Oregon Supreme Court | Reargued September 30, 1963.
Affirmed October 23, 1963.
*541 Hattie Bratzel Kremen, District Attorney, Salem, and Gary D. Gortmaker, Deputy District Attorney, argued the cause and filed briefs for appellant.
Reginald S. Williams, Salem, and Elliott B. Cummins, McMinnville, argued the cause for respondent. On the brief were Osterman & Williams, Salem, and Cummins & Devlin, McMinnville.
Before McALLISTER, Chief Justice, and ROSSMAN, PERRY, O'CONNELL, GOODWIN, DENECKE and LUSK, Justices.
AFFIRMED.
LUSK, J.
The defendant was found guilty by the verdict of a jury of the crime of attempting to obtain money by false pretenses. He filed a motion in arrest of judgment based upon the ground that the facts stated in the indictment did not constitute a crime, ORS 135.630 (4); 136.810. The court allowed the motion and the state has appealed under the authority of ORS 138.060. The indictment reads:
1. The crime of obtaining or attempting to obtain money by false pretenses is defined by ORS 165.205, which, so far as here applicable, reads:
Under this statute it was essential for the indictment to allege that the defendant with intent to defraud the insurance company knowingly made a false proof of loss, that is, of loss in excess of that which he actually sustained and which was caused by one or more of the perils insured against fire, theft, attempted theft, mysterious disappearance, vandalism, or malicious mischief.
2. We find no allegation in the indictment (aside from conclusions, such as "false and fraudulent proof *544 of loss") that the defendant misrepresented the amount of the loss sustained by him. After an indirect averment that a fire occurred at the premises where the insured property was located it is alleged that the defendant represented that at the time of the fire the defendant had on the premises household furniture, etc., "of a value far in excess of the actual value thereof, to wit: * * * $6,771.15" and that in fact the defendant did not at that time "have on said premises and destroyed by said fire articles of household furniture, goods and equipment of the value of $6,771.15 or of any value in excess of $4,451.14, * * *." (Italics added.) No inconsistency is revealed by these allegations nor any falsity. The first relates to the value of all the insured property; the second, to the value of the property that was destroyed by the fire. Both might well be true, for there is no allegation that all the property was destroyed by fire, as in State v. Jaynes, 165 Or 321, 107 P2d 528. Nowhere in the indictment is there found an allegation that the defendant made a false statement of the amount of his loss or that the statement that he did make showed a loss in excess of that which he actually sustained. Nor is any representation of fact pleaded which would induce the insurance company to part with anything of value. See State v. Hammelsy, 52 Or 156, 157, 96 P 865, 17 LRA NS 244, 132 Am St Rep 686, where it is said:
In fact, there is no allegation that the defendant made any statement whatever to the insurance company of the amount of his loss by fire or any of the other perils *545 against which he was insured. He could have admitted all the facts alleged without admitting commission of any crime.
3. Attempting to obtain money by false pretenses is a statutory crime and it may be, as counsel for the state argue, that an indictment in the language of the statute is sufficient. State v. DeGrace, 144 Or 159, 166, 22 P2d 896, 90 ALR 232. Assuming, without deciding, that this is so (but see 2 Wharton's Criminal Law (12th ed) § 1482), the matter is made no better for the state since the pleader has chosen to allege the specific facts relied upon as constituting the crime and, in doing so, has only succeeded in showing that no crime was committed. These specific averments cannot be disregarded as surplusage for, as stated in 2 Bishop's New Criminal Procedure (1913) § 482:
The same rule is thus stated in 4 Wharton's Criminal Law and Procedure (1957) § 1768:
*546 See State v. Leonard, 171 Mo 622, 626, 627, 71 SW 1017, 94 Am St Rep 798; State v. Newman, 29 NM 106, 219 P 794; State v. Massie, 72 W Va 444, 78 SE 382, 47 LRA NS 679; Littell v. The State, 133 Ind 577, 33 NE 417; note, 47 LRA NS 679, 680; 27 Am Jur 670, Indictments and Informations, § 110.
With particular reference to the crime of obtaining money by false pretenses it is said in 35 CJS 871, False Pretenses § 42:
Cook v. State, 162 Ala 90, 50 S 319; Cowan v. The State, 41 Tex Cr 617, 56 SW 751, support the text.
4. It is true that an attack on an indictment made for the first time after verdict is not looked upon with favor and a mere defective statement of the offense charged will be cured by verdict. State v. Peebler, 200 Or 321, 324, 265 P2d 1081; State v. Monk, 193 Or 450, 457, 238 P2d 1110. But that rule has no application where, as here, the indictment charges no offense, State v. Monk, supra. The "defect or imperfection" is not "in a matter of form," ORS 132.590.[1]
5. The accused in a criminal case has a constitutional right "to demand the nature and cause of the accusation against him." Constitution of Oregon, Art. I, § 11. The statute provides that an indictment is sufficient if
The indictment in this case fails entirely to comply with these requirements.
The order allowing the motion in arrest of judgment is affirmed and the cause is remanded to the circuit court for further proceedings in conformity with this opinion.[2]
O'CONNELL, J., dissenting.
In an article by Rollin Perkins in 11 Iowa L Rev 297 (1926) entitled "Absurdities in Criminal Procedure," *548 the author prefaces his thesis with a description of the ancient practice of trial by fire and trial by water. He then concludes that "our criminal trials today are conducted with almost as much emphasis upon form and ceremony as were the ancient trials by ordeal." The result is, as he puts it, the "sacrifice of justice upon the altar of formalism."[1]
The majority opinion participates in this sacrificial rite. I have the same criticism here as I expressed in the dissent in State v. Russell where this court held that there was a material variance between the proof of theft of a steer and an indictment charging the theft of a heifer.[2] There I urged, unsuccessfully, that we discard the hypertechnical rules of criminal procedure and adopt an enlightened view in the administration of criminal law. I again urge it in disposing of the present case.
The sufficiency of an indictment should be tested against the purposes it is intended to serve. The principal purposes of the indictment are (1) to inform the accused of the charge against him so that he may adequately prepare his defense; (2) to enable him to answer a second charge for the same crime by pointing to the specific conduct for which he was previously tried.[3]
*549 The indictment in the present case meets these requirements. Anyone capable of reading the English language would have no difficulty understanding that the indictment in this case not only charges George B. Mims with the crime of attempting to obtain money by false pretenses, but specifically designates the conduct which makes up the elements of the crime. The indictment recites that defendant insured his goods with the Allstate Insurance Company; that on a specified date he did "feloniously and with intent to injure and defraud make and file with the said Allstate Insurance Company * * * a certain proof of loss," and that "the said proof of loss then and there made was neither good and valid but was false and fraudulent, all of which he, the said George B. Mims, then and there well knew, * * *." The indictment further charges that "by means of which false statements and representations and false and fraudulent proof of loss, the said George B. Mims did then and there unlawfully and feloniously attempt to obtain from the said Allstate Insurance Company * * * the sum of $2,320.01." The foregoing portions of the indictment are sufficient to charge the crime of attempting to obtain money by false pretenses. Defendant is informed of the time of the alleged crime, the person from whom the defendant attempted to obtain the money, the amount of money he attempted to obtain, the specific instrumentality (proof of loss) by which he attempted to obtain it, the criminal intent, and the scheme by which defendant attempted to obtain the money, i.e., by falsely claiming in the proof of loss the amount of $2,320.01 more than the actual loss. What more does defendant need to know to prepare his defense?
The majority opinion states that "[n]owhere in the indictment is there found an allegation that the defendant *550 made a false statement of the amount of his loss or that the statement that he did make showed a loss in excess of that which he actually sustained." This strikes me as a startling conclusion in light of the language in the indictment which I have set out above. The majority attempts to drain the meaning out of that language by denominating the charge of a "false and fraudulent proof of loss" as a "conclusion," rather than a statement of fact. The attempt to test the sufficiency of an indictment by inquiring whether it states a "fact" or a "conclusion" is fruitless. A statement of a fact is a statement of a conclusion.[4]
The proper test is whether the statement (whatever it is called) is specific enough to inform the accused of the charge for the purposes already mentioned above. In the present case the charge is clearly specific enough to satisfy these purposes.
The majority opinion contains a more serious fallacy. It applies the rule stated in 2 Bishop's New Criminal Procedure (1913) § 482, to the effect that unnecessary matter which negatives the offense meant to be charge cannot be rejected as surplusage. The part of the indictment which is treated as repugnant to the offense meant to be charged is that which recites that defendant represented that he had on the premises goods of the value of $6,771.15, whereas, in fact, he did not have on said premises and destroyed by fire goods of a value of more than $4,451.14. Admittedly *551 the allegation is incomplete in failing to charge that defendant represented that goods valued at $6,771.15 had been destroyed by fire. The only defect in that part of the indictment is its incompleteness. The majority fallaciously converts the defect of incompleteness into one of repugnancy. The statement in question is in no way inconsistent with the rest of the indictment which, as I have shown, is sufficient to charge the crime. The charge that defendant attempted to obtain $2,320.01 by knowingly filing a false proof of loss is not negated by a recitation that he represented that he had $6,771.15 on his premises and that the fire destroyed no more than $4,451.14. The most that can be said is that the recitation taken alone does not charge a crime. But this defect in failing to state that defendant represented that $6,771.15 was destroyed by fire does not negate the clear charge that he falsely filed a proof of loss by which he attempted to obtain $2,320.01. To negate the latter charge the recitation relied upon by the majority would have to be interpreted to mean that defendant did not represent that $6,771.15 was the value of the goods destroyed by fire. The recitation is not susceptible to this meaning. Consequently the rule of repugnancy relied upon by the majority is not applicable.
The judgment of conviction should be affirmed.
ROSSMAN, J., joins in this dissent.
[1] ORS 132.590 No indictment is insufficient, nor can the trial, judgment or other proceedings thereon be affected, by reason of a defect or imperfection in a matter of form which does not tend to the prejudice of the substantial rights of the defendant upon the merits.
[2] In State v. Eddy, 46 Or 625, 81 P 941, 82 P 707, the court reversed a judgment of conviction for error of the circuit court in overruling a demurrer to the indictment and remanded the cause "for such further proceedings as may be necessary, not inconsistent with this opinion." On motion to modify the mandate the court directed a new trial. The reason for the change in disposition of the case was thus explained:
"As our statute directs that, unless a new trial is ordered by the appellate court, the defendant in a criminal action must be discharged on the reversal of a judgment of conviction (B. & C. Comp. § 1486) [now ORS 138.250], we feel compelled, in order to prevent a failure of justice in the case at bar, to order such a trial, which must, nevertheless, depend upon the discretion of the trial court, so far as it relates to submitting the cause to another grand jury or to the district attorney. The effect of such an order, on reversing a judgment of conviction for error committed in overruling a demurrer to an indictment or to an information, and remanding the cause, is equivalent to a direction to the trial court to sustain the demurrer, and tantamount to sending the cause back for such further proceedings as may be proper, thereby leaving the further prosecution of the action to the discretion of the trial court." 46 Or at 630-631.
Since the decision here is not a reversal of a judgment of conviction, but an affirmance of an order in arrest of judgment, it is not necessary to use the form of direction used in the Eddy case. The trial judge, however, will have discretion on the remand to order the case resubmitted to the grand jury and if a new indictment is returned a new trial, of course, will follow.
[1] Similar criticism of rigid formality in the construction of indictments may be found in Puttkammer, Administration of Criminal Law pp 127-130 (1954); Perkins, Short Indictments and Informations, 15 ABAJ 292 (1929); Scott, Fairness in Accusation of Crime, 41 Minn L Rev 509 (1957) (short form indictment); Note, Criminal Law: Indictment and Information: Sufficiency of Charging a Statutory Offense in the Language of the Statute, 4 UCLA L Rev 132 (1956).
[2] State v. Russell, 231 Or 317, 372 P2d 770 (1962).
[3] State v. Burke, 126 Or 651, 269 P 869, 270 P 756 (1928), dismissed 279 US 811, 49 S Ct 262, 73 L Ed 971; State v. Smith, 182 Or 497, 188 P2d 998 (1948); Puttkammer, Administration of Criminal Law, supra pp. 126, 127.
[4] Puttkammer, Administration of Criminal Law at p. 130, after stating the rule that an indictment must state facts rather than conclusions, comments as follows:
"A weakness in this proposition which apparently was never fully realized lies in the real impossibility of distinguishing between `facts' and `conclusions.' On closer scrutiny what has appeared to be a fact turns out to be only a conclusion resting on remoter `facts,' which are open to the same criticism themselves. * * *" | f329775ba3992bdb79192c18745d14fca6e6bed66e853f4ec7ffe4c637667ba9 | 1963-10-23T00:00:00Z |
fe053661-6abf-46b7-88a9-5dbefad2f6ee | State v. Glenn | 233 Or. 566, 379 P.2d 550 | null | oregon | Oregon Supreme Court | Affirmed March 13, 1963.
Harrison R. Winston, Roseburg, argued the cause and filed a brief for appellant.
Thomas D. O'Dell, Deputy District Attorney, Roseburg, argued the cause for respondent. On the brief was Avery W. Thompson, District Attorney, Roseburg.
Before McALLISTER, Chief Justice, and PERRY, O'CONNELL, DENECKE and LUSK, Justices.
AFFIRMED.
*567 DENECKE, J.
This appeal involves two questions. Was the indictment sufficient to permit the defendant to be convicted as an aider and abettor of others having sexual intercourse with a sixteen-year-old girl? Was there any evidence that the defendant aided and abetted others in having sexual intercourse with this girl?
The indictment charging contributing to the delinquency of a child was as follows:
The court instructed the jury that the defendant would be guilty if he had intercourse or if he aided and abetted others in having intercourse. Aiding and abetting were defined.
1. One who aids and abets another in the commission of a crime is a principal to the crime and shall be indicted and tried as a principal. ORS 161.220. This court has held that one charged by an indictment stating that the defendant raped Miss X can be convicted by proof that defendant did not personally rape Miss X but aided and abetted another in raping Miss X. State v. MacLaren et al, 115 Or 505, 237 P 969 (1925). The same principle was followed in a sodomy case: State v. Weitzel et al, 157 Or 334, 69 P2d 958 (1937). An indictment for contributing to the delinquency of a child presents no different problems in regard to convicting for aiding and abetting than an indictment for rape or sodomy. The defendant here, under the *568 indictment, could have been convicted as an aider and abettor of others having intercourse with the girl.
2. Was there evidence that defendant was an aider and abettor? The jury could have found the following version of what happened: The girl, the defendant, and one other man were riding in the back seat of a Volkswagen. Two male friends of the defendant were in front. The defendant tore off the pants and undergarment of the girl, against her will and despite her struggle. While defendant was doing this, one of the other men held the girl's arms and another, one of her legs. The car was stopped; the others got out. The defendant, against the will of the girl, had intercourse with her. The defendant got out. The girl was weak and frightened. Another man got in and had intercourse with the girl against her will. He got out, a third got in and repeated the performance. The defendant admits taking off the girl's pants. He testified she invited him to. He denied having intercourse with her.
State v. Rosser, 162 Or 293, 86 P2d 441, 87 P2d 783, 91 P2d 295 (1939), defines what is, and what is not, aiding and abetting. The defendant's conduct, particularly in removing the girl's clothing, assisted by the others, and initially overcoming her resistance, is such that a jury could properly find him guilty of aiding and abetting others in having intercourse with the girl.
Judgment affirmed. | d7c56ef34a36be57e4d0e9156c93025c80d8e9bd9a871d371caa96b5976b4adb | 1963-03-13T00:00:00Z |
1c7c9ccf-0c7f-4bb8-96b4-14d3b0bf0371 | Logsdon v. State and Dell | 234 Or. 66, 380 P.2d 111 | null | oregon | Oregon Supreme Court | Reversed March 29, 1963.
*67 Karl T. Huston, Corvallis, argued the cause for appellants. On the briefs were Huston, Thomas & Johnson, Corvallis.
A.R. McMullen, District Attorney, Newport, and Eugene K. Richardson, Newport, argued the cause and submitted a brief for respondents.
Before McALLISTER, Chief Justice, and ROSSMAN, PERRY, GOODWIN and DENECKE, Justices.
REVERSED.
McALLISTER, C.J.
This is a contest over the custody of two children, Howard Logsdon and his sister, Kathleen, whose parents were both killed in an airplane crash. The paternal grandparents appeal from a decree of the circuit court for Lincoln county awarding custody to a maternal aunt.
The Logsdons resided at Newport in Lincoln county, and both parents were killed on June 25, 1961. The boy, Howard, was then seven years old, and his sister, Kathleen, six years old. The paternal grandparents, Elza and Florence Logsdon, who resided in Iowa, came to Newport immediately after the death of their son and daughter-in-law. The record discloses that on June 29, 1961 the grandparents had physical custody of the children at the home of one Harold Mosier in Newport.
On June 29, 1961, Dorothy C. Majors, the Director of the Juvenile Department for Lincoln county filed in the county court of that county a petition alleging that Howard Logsdon was
A like petition was filed as to Kathleen Logsdon.
On the same day the county judge, pursuant to ORS 419.482 (3) entered orders placing the children in the temporary custody of the juvenile court, and caused notice to be given to the interested relatives of a hearing to be held the following day.
On the following day, June 30, 1961, the county court held a hearing and on July 3, 1961 entered an order making both children wards of the court, placing them in the temporary custody of a maternal aunt, Mrs. Chester Coxen, and her husband, and continuing the hearing of the matter until further order of the court.
Notice was given of a further hearing to be held on August 15, 1961, but the record indicates that the hearing was not held. On August 21, 1961 an order was entered continuing the hearing until further order of the court. This order seems to have been the last action taken by the county court.
On September 8, 1961 the grandparents filed a notice of appeal from the county court to the circuit court for Lincoln county, appealing from
A like notice of appeal was filed in the Howard Logsdon case.
On January 29, 1962 the matters came on for hearing in the circuit court for Lincoln county. At that time the parties stipulated concerning the jurisdiction of the court as follows:
It was further stipulated that the two cases should be consolidated for trial.
On February 13, 1962 the circuit court entered a decree awarding custody of both children to Theresa E. Dell, a maternal aunt of the children, and Robert M. Dell, her husband. From that decree the grandparents appeal.
1. Reluctantly we have reached the conclusion that this case must be reversed on procedural grounds. At the outset it clearly appears that the appeal from the county court to the circuit court was taken from a nonappealable order. Appeals from the juvenile court to the circuit court are authorized by ORS 419.561 (1),[1] which allows an appeal only from "a final order of the juvenile court." Before the enactment of ORS 419.561[2] an appeal could be taken "from any permanent or temporary order of the juvenile court to the circuit court." Ch 414 Oregon Laws 1957. A comparison of the two statutes demonstrates a clear legislative intent to permit an appeal in these cases only from a final order of the juvenile court. The right to appeal is statutory and subject to any limitations imposed by the statute conferring the right. McEwen v. McEwen, 203 Or 460, 469, 280 P2d 402 (1955); Inland Nav. Co. v. Chambers, 202 Or 339, 350, 274 P2d 104 (1954); Chebot v. State Industrial Acc. Com., 106 Or 660, 669, 212 P 792 (1923).
*71 2. The notice of appeal from the county court in this case first refers to an oral order made by the court continuing the custody of Kathleen in Mr. and Mrs. Chester Coxen. This obviously was not an appealable order, not only because it was oral, but also because, according to the notice of appeal, it purported only to continue the temporary custody of the children as previously ordered on July 3, 1961.
The notice of appeal next refers to an order entered on August 21, 1961 continuing the hearing. That order, of course, had no semblance of finality and was certainly not appealable. So far as we can ascertain from the record no final order was ever entered by the county court.
It is not necessary to decide whether an appeal could have been taken from the order of July 3, 1961 declaring the children wards of the juvenile court, since the notice of appeal was filed more "than 30 days after the entry of the court's order." ORS 419.561 (3).
3. The parties apparently entertained doubts concerning the jurisdiction of the circuit court and attempted to circumvent the lack of jurisdiction by stipulation. Jurisdiction of the subject matter cannot be conferred by stipulation. Fox v. Lasley, 212 Or 80, 90, 318 P2d 933 (1957); Parmele v. Mathews, 233 Or 616, 379 P2d 868 (March 20, 1963).
In addition to lack of jurisdiction because the cause was not allowed to proceed in the county court to a final order, we also find lack of jurisdiction for a more basic reason. Passing over the sufficiency of the petition filed in the county court, we find no evidence whatever tending to establish that the Logsdon children were children within the jurisdiction of the juvenile court as provided in ORS 419.476 (1).
*72 4. From the evidence in this case it is clear that when the petition was filed in the county court these children were in the actual physical custody of their grandparents and were receiving the best of care. Instead of being abandoned these children had numerous relatives, all apparently anxious to provide them "with the care, guidance and protection necessary" for their "physical, mental or emotional well-being." It was not a question of whether the children would be adequately provided for, but only a question of who should have that privilege. The record discloses no circumstances justifying the intervention of the juvenile court. In Sneed v. Sneed, 230 Or 13, 16, 368 P2d 334, we said:
In this case we find neither allegation nor proof of neglect or other facts to authorize either the juvenile court or the circuit court to declare these children wards of the juvenile court.
If legal action was necessary, this would seem to be an appropriate case for the appointment of a guardian. ORS 126.006 et seq.
The decree of the circuit court is reversed. Costs shall not be allowed in this court.
DENECKE, J., specially concurring.
This case might appear similar to that of Parmele v. Mathews, 233 Or 616, 379 P2d 868, in which I joined in the dissenting opinion. However, I here concur with the majority in the belief that this case is not similar to Parmele v. Mathews. Under the pleadings and issues here involved the circuit court could not act as a probate court to appoint a guardian or as an equity court to award custody in a habeas corpus proceeding. There were no pleadings creating the issues involved either in the appointment of a guardian or the awarding of custody in a habeas corpus proceeding. The only operable pleading was the petition by the County Juvenile Officer alleging that the children were within the jurisdiction of the juvenile court and asking the juvenile court to inquire into the matter.
[1] "ORS 419.561 (1) Any person whose right or duties are adversely affected by a final order of the juvenile court may appeal therefrom. An appeal from a circuit court shall be taken to the Supreme Court, and an appeal from a county court shall be taken to the circuit court."
[2] § 43 ch 432 Oregon Laws 1959. | 24a8ce1605e46e6fc4c2da3ceb1884cf2f437781bc27a92b1413941dc8005479 | 1963-03-29T00:00:00Z |
21693759-0b1f-47d8-992a-a01d0477ec87 | Bolte and Bolte | null | S058330 | oregon | Oregon Supreme Court | FILED: December 2, 2010
IN THE SUPREME COURT OF THE STATE OF OREGON
In the Matter of the Marriage of
JOHN PATRICK BOLTE,
Petitioner on Review,
and
MARY ELIZABETH BOLTE,
Respondent on Review.
(CC 0730310; CA A139055; SC S058330)
En Banc
On respondent on review's petition for attorney
fees and costs filed July 20, 2010; considered and under advisement on August
10, 2010.
Pamela S. Hediger, Evashevski, Elliott, Cihak
& Hediger, P.C., Corvallis, filed the petition for attorney fees for respondent
on review.
J. Michael Alexander, Swanson, Lathen,
Alexander, McCann & Prestwich, P.C., Salem, filed the objection to the
petition for attorney fees.
DURHAM, J.
Costs allowed to respondent on review in the sum
of $8.40. The petition for attorney fees is denied.
DURHAM, J.
This matter is
before the court on the petition for attorney fees and cost bill filed by
respondent on review (wife). Petitioner on review (husband) objects, asserting
that this court lacks authority to award attorney fees and costs to wife and
that, even if such authority exists, the court should decline to those award
attorney fees and costs. For the reasons set out below, we allow costs to wife
and deny the petition for attorney fees.
This is a marriage
dissolution proceeding. Wife appealed the trial court judgment and argued for
increased spousal support. The Court of Appeals modified the support amount
and otherwise affirmed. Bolte and Bolte, 233 Or App 565, 226 P3d 116
(2010). Husband petitioned this court for review of the Court of Appeals decision.
Wife filed a response to the petition. This court denied review. Bolte and
Bolte, 348 Or 523, 236 P3d 151 (2010).
Wife now petitions
this court for an award of attorney fees in the amount of $1,890, representing
the expense of filing her response to the petition for review, and costs in the
amount of $8.40. Because husband's objections challenge this court's authority
to award attorney fees or costs in any amount, we first examine this court's
authority in the circumstances, beginning with wife's cost bill.
ORS 20.310(1) provides:
"In any appeal to the Court of Appeals or
review by the Supreme Court, the court shall allow costs and disbursements to
the prevailing party, unless a statute provides that in the particular case
costs and disbursements shall not be allowed to the prevailing party or shall
be allowed to some other party, or unless the court directs otherwise. If,
under a special provision of any statute, a party has a right to recover costs,
such party shall also have a right to recover disbursements. On the same
terms and conditions, when the Supreme Court denies a petition for review, the
respondent on review is entitled to costs and disbursements reasonably incurred
in connection with the petition for review."
(Emphasis added.) Petitioner does not
challenge the amount of costs requested by wife. Because ORS 20.310(1) authorizes
this court to award costs in this context, we allow wife's cost bill in the
amount of $8.40.
Wife bases her
petition for attorney fees on review on ORS 107.105(5), which provides:
"If an appeal is taken from the judgment or
other appealable order in a suit for * * * dissolution of a marriage * * * and
the appellate court awards costs and disbursements to a party, the court may
also award to that party, as part of the costs, such additional sum of money as
it may adjudge reasonable as an attorney fee on the appeal."(1)
The phrase "the appellate court"
in that statute is broad enough to embrace both the Court of Appeals and this
court. However, the statutory grant of discretionary authority to award
attorney fees applies only in the context of "an appeal" and only for
attorney fees reasonably incurred "on the appeal." The statutory
term "appeal" unquestionably includes an appellate proceeding before
the Court of Appeals. The question here, however, is whether the term
"appeal" in ORS 107.105(5) refers to a proceeding before this court
in which the court denies a petition for review. Although the text of the
statute does not explicitly address that matter, an examination of the
enactment history of the statute and this court's case law answers that
question.
Before 1970, this
court had exclusive jurisdiction over appeals from decrees in suits for
dissolution of marriage. At that time, this court was Oregon's only appellate
court; the Court of Appeals did not yet exist. The pertinent statute at the
time, ORS 107.100(3) (1967), provided:
"If an appeal is taken from the decree or
other appealable order in a suit for dissolution or annulment of the marriage contract,
and the Supreme Court awards costs and disbursements to the prevailing party,
it may also award to that party, as part of the costs, such additional sum of
money as it may adjudge reasonable as an attorney fee on the appeal."
Effective July 1, 1970,
the legislature created the Court of Appeals and gave it exclusive jurisdiction
over, among other matters, "[a]ppeals from judgments, as defined in ORS
19.005, of circuit courts: (A) In suits for divorce * * *[.]" ORS
2.510(2)(d) (1969) (codifying Or Laws 1969, ch 198, § 1). The legislature also provided for discretionary review in this
court of final judgments of the Court of Appeals by means of a petition for
review process. Or Laws 1969, ch 198, § 2 (codified as ORS 2.520 (1969)). In
1977, the legislature expanded the exclusive jurisdiction of the Court of
Appeals to "all appeals." Or Laws 1977, ch 158, § 2 (codified at ORS
2.516 (1977)).
The legislature in
1969 also amended the statute authorizing an award of attorney fees on appeal
in marital dissolution cases by striking the words "Supreme Court"
and inserting the words "appellate court."(2) Or Laws 1969, ch 591, §
283. The amended version of ORS 107.100(3) (1969) provided:
"If an appeal is taken from the decree or
other appealable order in a suit for dissolution or annulment of the marriage
contract, and the appellate court awards costs and disbursements to the
prevailing party, it may also award to that party, as part of the costs, such
additional sum of money as it may adjudge reasonable as an attorney fee on the
appeal."
The creation of the
Court of Appeals, with exclusive jurisdiction over "all appeals," and
the replacement of this court's former jurisdiction over appeals with authority
over a discretionary petition for review process have altered the nature of
this court's function in considering claims of error. This court explained
that change in 1000 Friends of Oregon v. Bd. of Co. Comm., 284 Or 41,
44-45, 584 P2d 1371 (1978):
"The function of this court is no longer to
afford every losing litigant a forum to review errors said to have been
committed at trial or in an administrative hearing. That function is now
placed in the Court of Appeals. Similarly, a party asserting that the Court of
Appeals, in turn, has erred cannot for that reason alone expect further review
in this court. The process must stop somewhere, and for most purposes this is
at the first level of appeal. However, since this court will not grant review
whenever it appears that the Court of Appeals reached a questionable decision,
it follows that a denial of review carries no implication that the decision or
the opinion of the Court of Appeals was correct.
"* * * * *
"* * * [I]t is plain that denial of review
in this or any other case may not be taken as expressing even a slight sign
that this court approves the decision or the opinion of the Court of
Appeals."
The change in this
court's function on review, noted above, has a procedural consequence that goes
beyond the neutrality point discussed in 1000 Friends of Oregon. In U-Cart
Concrete v. Farmers Ins., 290 Or 151, 619 P2d 882 (1980), this court
explained that a denial of review by this court signifies that the court has
declined to entertain an appeal; that denial in no way represents a decision on
an appeal because there is no appeal before the court. Addressing a statute
that entitled a prevailing party to recover costs "on an appeal,"
the court stated:
"When a petition for review is denied, the
respondent has not prevailed 'on an appeal' in this court. Rather, the court
has chosen not to entertain an 'appeal.' There is no basis for awarding costs
'on an appeal.'
"With respect to the matter before us,
therefore, we find there is no judgment of this court to support an award of
costs and there is no appeal before the court. We hold that there is no basis
for an award of costs under the statutes."
Id. at
154-55. Even though U-Cart addressed a claim for costs "on an appeal,"
this court has determined that the analysis in U-Cart applies with equal
force to a petition for attorney fees on "appeal." Polacek and
Polacek, 349 Or ___, ___ P3d ___ (2010) (decided this date) (slip op at 10).
We conclude from the
foregoing that, because this court denied the petition for review, wife cannot
satisfy the requirement that the attorney fees that she seeks pertain to
"an appeal" within the meaning of ORS 107.105(5). As U-Cart
explained, when this court denies a petition for review, the court has declined
to entertain an appeal and there is no appeal before the court. 290 Or at
154-55. Thus, this case presents no occasion for the exercise of judicial
discretion to decide whether to allow attorney fees and there is no reason to
consider the criteria in ORS 20.075(1) that typically inform such a
discretionary choice.(3)
We add one
additional comment. As already noted, we have concluded that ORS 20.310(1)
authorizes this court to award "costs" to the respondent on review
when this court denies a petition for review. ORS 107.105(5) provides that, if
the appellate court in a dissolution of marriage proceeding awards costs to a
party, the court also may award that party an attorney fee "as part of the
costs[.]" Do those statutes, when read together, supply this court with
authority to award an attorney fee to wife upon the denial of husband's
petition for review and the allowance of costs to wife? The answer is no.
Nothing in ORS 20.310(1) provides authority to any court to award an attorney
fee. The phrase, "as part of the costs," in ORS 107.105(5) indicates
the procedural context in which an appellant court may award an attorney fee on
appeal, but it does not transform an appellate attorney fee into an item of
"costs" on appeal. Despite the reference to "costs" in ORS
20.310(1) and ORS 107.105(5), this court may award an attorney fee in this
context only if the legislature has authorized it to do so. That authority
does not currently exist.
Costs allowed to
respondent on review in the sum of $8.40. The petition for attorney fees is
denied.
1. ORS
107.105(5) expressly authorizes "the appellate court" to award
attorney fees in an "appeal" from a judgment regarding dissolution of
marriage. We note that ORS 19.440 creates a rule of interpretation supporting
court authority to award attorney fees "on an appeal," if the
attorney fee statute that pertains to the claim or proceeding does not expressly
authorize or require an award of attorney fees on appeal. Because ORS
107.105(5) expressly authorizes an award of attorney fees on an appeal, the
interpretive rule in ORS 19.440 plays no role in our analysis of this court's
authority to award attorney fees in the context of this case.
ORS 19.440 provides:
"Any statute law of this state that
authorizes or requires the award or allowance of attorney fees to a party in a
civil action or proceeding, but does not expressly authorize or require that
award or allowance on an appeal in the action or proceeding and does not
expressly prohibit that award or allowance on an appeal, shall be construed as
authorizing or requiring that award or allowance on an appeal in the action or
proceeding."
2. ORS
107.105(5), the attorney fee statute under review, has undergone several other
amendments to produce the statutory wording in its present form. First, in
1971, the legislature repealed ORS 107.100 and reenacted the attorney fee
statute as ORS 107.105(3). Or Laws 1971, ch 280, §§ 13, 28. The legislature
renumbered ORS 107.105(3) (1971) as ORS 107.105(4) in 1977, and renumbered the
statute again as ORS 107.105(5) in 1981. Or Laws 1977, ch 847, § 2; Or Laws
1981, ch 775, § 1. Second, in 1983, the legislature eliminated the requirement
that the party receiving an award of attorney fees be the prevailing party. Or
Laws 1983, ch 728, § 2. Third, in 2003, the legislature substituted the term
"judgment" for the term "decree" to conform to other amendments
to other statutes describing the procedure for appeals. Or Laws 2003, ch 576,
§ 109. Those changes are not material to our examination of this court's
authority under that statute to award attorney fees when it denies a petition
for review. We note them here, however, to describe the statute's history
completely.
3. ORS
20.075(1) provides:
"A court shall consider the following
factors in determining whether to award attorney fees in any case in which an
award of attorney fees is authorized by statute and in which the court has
discretion to decide whether to award attorney fees[.]"
The statute then lists eight factors that the court must
consider in deciding, in its discretion, whether to award attorney fees. | 645948a0eda01b89393179b666d52db6551468fac5d0d06137bc6a7f51733b07 | 2010-12-02T00:00:00Z |
88941648-327e-4987-af3e-2fedad549477 | Tupper v. Roan | null | S057373 | oregon | Oregon Supreme Court | FILED: November 12, 2010
IN THE SUPREME COURT OF THE STATE OF OREGON
HEATHER TUPPER,
Petitioner
on Review,
v.
DANETTE ROAN,
DANETTE ROAN,
Third-Party
Plaintiff,
v.
ALAN CLAUDE TUPPER,
as Personal Representative of the Estate of
Jerry Alan Tupper, Deceased,
Third-Party Defendant.
(CC CV0610-0435; CA
A136095; SC S057373)
En Banc
On review from the Court of Appeals.*
Argued and submitted January 8, 2010.
Matthew Whitman, of
Cartwright & Associates, Portland, argued the cause and filed the brief for
petitioner on review. With him on the brief was James R. Cartwright.
Michael J. Morris, of
Bennett, Hartman, Morris & Kaplan LLP, Portland, argued the cause and filed
the briefs for respondent on review. With him on the briefs was Heidi K.
Brown.
GILLETTE, J.
The decision of the
Court of Appeals is reversed. The judgment of the circuit court is reversed,
and the case is remanded to the circuit court for further proceedings.
*Appeal from Clackamas
County Circuit Court, Deanne Darling, Judge. 227 Or App 391, 206 P3d 237
(2009).
GILLETTE, J.
This is a dispute over the proceeds
of a life insurance policy. Plaintiff claimed an interest in the policy proceeds
because she had been married to the decedent at one time and, when she and
decedent divorced, their dissolution decree required the decedent to maintain a
$100,000 life insurance policy naming her beneficiary, as trustee for a child
of the marriage. The decedent had not purchased the required policy at the
time the dissolution decree became final, but he later did purchase the
policy at issue -- a $600,000 life insurance policy naming defendant (not
plaintiff) as the sole beneficiary. The decedent died while that policy was in
force and defendant collected the proceeds. Plaintiff filed the present action
against defendant, seeking imposition of a constructive trust on $100,000 of
the insurance proceeds and alleging theories of unjust enrichment and "money
had and received." On cross motions for summary judgment, the trial court
held that $100,000 of the insurance proceeds was subject to a constructive
trust. Defendant appealed, and the Court of Appeals reversed, holding that the
trial court should instead have awarded summary judgment to defendant. Tupper
v. Roan, 227 Or App 391, 206 P3d 237 (2009). We allowed plaintiff's
petition for review and now hold that, for the reasons that follow, neither defendant
nor plaintiff was entitled to summary judgment. Accordingly, we reverse the
decision of the Court of Appeals and the judgment of the trial court, and
remand the case for further proceedings.
Plaintiff and the decedent, Jerry
Tupper (Tupper), divorced in 2004. The dissolution decree and judgment incorporated
the parties' settlement agreement. The decree awarded custody of the couple's child
to plaintiff, with visitation rights to Tupper, and required Tupper to pay an
amount of child support to plaintiff. In an apparent effort to ensure that
each party would have the financial means to support the child in the event of
the other party's death, the decree and judgment provided:
"(A) So long as either party has a legal
obligation to support any child of the parties, each party shall maintain an
insurance policy insuring his or her life in an amount of not less than
$100,000, naming the other parent as trustee on behalf of any supported child.
"(B) The obligation to maintain this
insurance shall continue so long as either party has a duty to pay child
support as decreed by the court, or an arrearage exists for accrued but unpaid
support.
"(C) The following provisions relate to
procedural aspects of the requirement to maintain insurance:
"(1) During the term of the obligation to
maintain insurance each party shall furnish to the other, upon request, a copy
of the policy or evidence the proper life insurance is in force with the
appropriate beneficiary designation in effect.
"(2) A constructive trust shall be imposed
over the proceeds of any insurance owned by either party at the time of either
party's death if either party fails to maintain insurance in said amount, or if
said insurance is in force but another beneficiary is designated to receive
said funds. The trustee shall make distribution as described herein."
Although the life insurance obligation was expressed in terms
of "maintaining" rather than "purchasing" the described
policy, it appears that Tupper did not own life insurance of any kind at the
time of the dissolution. Neither did Tupper purchase life insurance
immediately thereafter.
Tupper did obtain life insurance in
February 2006, some two years after the dissolution. At that time, he
purchased the policy that is at issue in this case -- a $600,000 United of
Omaha policy naming defendant, who was Tupper's girlfriend, as the sole
beneficiary. At the time of that insurance purchase, Tupper and defendant were
living together and had started a business that generated only enough income to
pay Tupper. According to defendant, the policy was entirely her idea and was
obtained through her efforts "as security for my funds advanced [to the
business] and my dependency and loss of compensation during our
relationship." Tupper, however, was listed as the owner of the policy and
the premiums were debited from his personal bank account.
A few months after Tupper purchased
the policy, he died in an accident, and United of Omaha distributed the policy
proceeds in a lump sum to defendant. When it became apparent that Tupper had
no other life insurance and, thus, had died in breach of the insurance
requirement in the dissolution decree, plaintiff filed the present action
against defendant. In her complaint, plaintiff alleged that (1) Tupper had
been party to a dissolution judgment that required him to maintain a $100,000
life insurance policy naming plaintiff as beneficiary (as trustee for the child);
(2) the dissolution judgment provided for imposition of a constructive trust on
any life insurance policy that Tupper owned when he died, if he died in breach
of the life insurance requirement; (3) Tupper had died in breach of that
requirement; (4) when he died, Tupper owned a $600,000 life insurance policy
that named defendant as the beneficiary; and (5) defendant was aware of
Tupper's insurance obligations to plaintiff at the time that the policy was
purchased. Plaintiff sought to collect $100,000 from defendant, either by
imposing a constructive trust on defendant's insurance proceeds to prevent
"unjust enrichment" or as damages payable on a claim for "money
had and received."
In her answer to plaintiff's
complaint, defendant specifically denied that she had any previous knowledge of
Tupper's obligation under the dissolution decree. Defendant also asserted a
number of affirmative defenses, including an allegation that Tupper's estate,
and not she, was responsible for any liability arising from Tupper's breach of
his obligation under the decree.(1)
Plaintiff moved for summary judgment,
arguing that there was no issue of material fact with respect to the terms in
the divorce decree, Tupper's breach, Tupper's ownership of United of Omaha
policy, or the constructive trust remedy that the divorce decree provided.
Plaintiff acknowledged that, in two cases that involved similar facts,(2)
the Court of Appeals had decided against imposing constructive trusts on the
proceeds of the life insurance policies at issue. She argued, however, that
those cases were distinguishable because the dissolution decrees in those cases
had not specified that a constructive trust would be imposed on any life
insurance policy that the relevant party owned. She claimed that, in her own
dissolution decree, the inclusion of a term specifying that remedy gave her an
immediate equitable interest in the proceeds of "any" life insurance
that Tupper might purchase. She claimed, moreover, that that equitable
interest was superior to any attempt on Tupper's part to designate a different
beneficiary.
Plaintiff submitted a number of
affidavits in support of her motion for summary judgment: (1) her own
declaration stating that, in a conversation with defendant that occurred
shortly after Tupper died, defendant had acknowledged that she knew about
Tupper's life insurance obligation and had told her that Tupper's children(3)
would be "taken care of"; (2) Tupper's father's declaration stating
that, in a conversation between defendant, himself, his wife, and several
others that occurred shortly after Tupper's death, defendant had stated that
Tupper had wanted $100,000 of the proceeds of the life insurance to go to each
of his children; and (3) Tupper's stepmother's declaration, reporting the same
conversation.
Defendant opposed plaintiff's motion
for summary judgment, arguing that plaintiff was required, and failed, to show
that defendant had had notice of Tupper's obligation when the United of Omaha
policy was purchased. Defendant also argued that, because she was not a party
to the divorce decree, she could not be bound by its terms, including the term
that provided for imposition of a constructive trust on any life insurance
policy owned by Tupper if he died in breach of the life insurance requirement.
Defendant also moved for summary
judgment. She argued that, to succeed on either of her claims, plaintiff must
show that she had some legally protected right or interest in the policy in
question. Defendant argued that, because plaintiff had never been named as a
beneficiary of the $600,000 United of Omaha policy (and, in fact, the policy
had not existed at the time of plaintiff's divorce from Tupper), plaintiff
could not make the required showing.
After a hearing, the trial court
denied defendant's motion for summary judgment, granted plaintiff's
cross-motion with respect to the claim for unjust enrichment, and imposed a
constructive trust in plaintiff's favor on $100,000 of the $600,000 that
defendant had received from the policy.(4)
As noted, defendant appealed from the
trial court's judgment, and the Court of Appeals reversed. The court examined
three cases that involved similar attempts by a former spouse to impose a
constructive trust on the proceeds of a decedent's life insurance policy after
the decedent had died in breach of a legal obligation to maintain life
insurance naming the former spouse as beneficiary. Based on those cases, the
court concluded that, to prevail on an unjust enrichment theory against the
person who had been named as the decedent's beneficiary, a plaintiff must prove
both (1) that, by designating another person as his or her beneficiary, the
decedent essentially gave that person property that previously had belonged to
the plaintiff; and (2) that the person named as beneficiary either knew or
should have known of the wrongfulness of the decedent's action. Tupper,
227 Or App at 400-03. Observing that, in the present case, there was evidence
both for and against the latter requirement, the court concluded that plaintiff
was not entitled to summary judgment on her unjust enrichment claim. Id.
at 402-03. The court further concluded that defendant was entitled to
summary judgment on that claim, because plaintiff had not and could not produce
evidence that would satisfy the first requirement, i.e., that plaintiff
previously had had an interest in the policy in question. Id. at 406.
The court added that, for essentially the same reason, defendant was entitled
to summary judgment on plaintiff's "money had and received" claim. Id.
We allowed plaintiff's petition for review to consider whether and how the
equitable concepts of unjust enrichment and constructive trust apply in this
context.
We begin with plaintiff's unjust
enrichment claim, under which she seeks to impose a constructive trust on
$100,000 of the proceeds of decedent's United of Omaha policy. She advances
two theories for imposition of that remedy. Her first theory is couched in the
law of contracts: It focuses on the simple fact that, in the context of the
decedent's dissolution agreement with plaintiff, the decedent stipulated
to imposition of a constructive trust in the event of decedent's breach of the
life insurance term. In plaintiff's view, that stipulated remedy is as binding
as any other contract term would be and, to establish her right to that remedy,
she need only prove the elements set out in the stipulation -- that the decedent
owned the policy in question at the time of his death and that he died in
breach of his obligation to maintain life insurance in the required amount
naming plaintiff as beneficiary and trustee. Plaintiff reasons that
dissolution judgments are to be enforced as contracts, ORS 107.104(2)(a),(5)
and that this court has been amenable to enforcing equitable remedies to which
the parties to a contract have agreed, even when the remedy is one that
otherwise would not be available.(6)
Plaintiff points out, moreover, that
it is the announced public policy of this state that courts "enforce the
terms of settlements [of suits for marital * * *dissolution] to the fullest
extent possible, except when to do so would violate the law or would clearly
contravene public policy." ORS 107.104(1)(b). Plaintiff argues that, far
from contravening public policy, the settlement term at issue here -- requiring
an ex-spouse to obtain life insurance for the benefit of his child and
stipulating to a constructive trust remedy for breach of that term -- is one
that the legislature particularly favors. As evidence of that fact, plaintiff
points to ORS 107.810, which provides:
"It is the policy of the State of Oregon to
encourage persons obligated to support other persons as the result of a
dissolution * * * of marriage * * * to obtain or cooperate in the obtaining of
life insurance adequate to provide for the continued support of those persons
in the event of the obligor's death."
But, in making all of those statutory
policy arguments, plaintiff misses an essential point: The person against whom
she is proceeding is a stranger to the dissolution decree and the stipulation
of remedy. However much the legislature may favor a policy of holding the
parties to dissolution agreements to the terms of their agreements, that
legislative policy does not serve as dispositive authority for imposing the
same terms on a person who is not a party to the agreement.
Plaintiff argues that, in any event,
she is entitled to the same constructive trust remedy under Oregon's common law
of constructive trusts and unjust enrichment. We begin our discussion of
plaintiff's theory by briefly summarizing the common-law principles of unjust
enrichment and constructive trust.
It is important to understand, first,
that the concept of constructive trust does not stand on its own as a
substantive claim, but exists solely as an equitable remedy, available
to divest an individual who has been unjustly enriched of property that he or
she "ought not, in equity and good conscience, hold and enjoy." Marston
v. Myers et ux, 217 Or 498, 509, 342 P2d 1111 (1959). The concepts of
constructive trust and unjust enrichment thus are intertwined: When "the
law employs a constructive trust, the doctrine of unjust enrichment governs
generally the substantive rights of the parties." Barnes v. Eastern
and Western Lbr. Co., 205 Or 553, 597, 287 P2d 929 (1955). See also
Belton v. Buesing, 240 Or 399, 409, 402 P2d 98 (1965) (constructive
trust is "a remedial institution invented by equity to avoid unjust
enrichment in situations where there is no other available equitable
remedy").
Although our cases refer to a
substantive "doctrine" of unjust enrichment, none provide any really
comprehensive exposition of that doctrine. Instead, the cases simply describe
the kinds of actions and circumstances that would constitute unjust enrichment
warranting imposition of a constructive trust, and then observe that the
concept extends to other similar acts and circumstances. Thus, in Suitter
v. Thompson et ux, 225 Or 614, 625, 358 P2d 267 (1961), the court stated
that equity may impress a constructive trust on property
"'obtained through actual fraud, misrepresentations,
concealments, or through undue influence, duress, taking advantage of one's
weakness or necessities, or through any other similar means or under any
other similar circumstances which render it unconscientious for the holder of
the legal title to retain and enjoy the beneficial interest.'"
(quoting John Norton Pomeroy, 4 A Treatise on Equity
Jurisprudence § 1053, 119 (5th ed 1941)) (emphasis added).
We recognize that the foregoing
precedents concern inequitable conduct of a recipient of property, and not
conduct by a grantor or donor. However, other cases have added to the list of
circumstances that might support a claim for unjust enrichment. In Albino
v. Albino, 279 Or 537, 568 P2d 1344 (1977), for example, this court
held that a constructive trust is warranted, even in the absence of the more active
sorts of wrongful behavior identified in Suitter, when a person in a
fiduciary or confidential relationship acquires or retains property in
violation of a duty impressed upon him by that relationship. 279 Or at 550; see
also Pantano v. Obbiso, 283 Or 83, 86, 580 P2d 1026 (1978) (to the same
effect). And in Scoggins v. State Construction, 259 Or 371, 376, 485
P2d 391 (1971), we suggested that even a "mistake" might result in
unjust enrichment justifying imposition of a constructive trust. Among all of
those examples, however, the common thread is the acquisition or retention of
property in a way that is in some sense wrongful or, as Pomeroy would have it, "unconscientious."
An examination of this court's unjust
enrichment cases demonstrates another relevant common-law precept -- that the
constructive trust remedy is not limited to property that remains in the hands
of the party who was directly involved in the wrongful divestment or
retention. In Newton v. Pickell et al., 201 Or 225, 232-33, 269 P2d 508
(1954), for example, this court imposed a constructive trust on a residential
property conveyed as a gift to the defendant by his father, when the father had
entered into a prenuptial agreement promising to convey an undivided half-interest
in the property to his then-prospective wife. The court explained that, by
virtue of the prenuptial agreement, the property had been impressed with a
constructive trust in the prospective wife's favor, which the father had
violated when he wrongfully transferred the property to his son. The court
then went on to explain that
"'[w]herever property, real or personal, which is
already impressed with or subject to a trust of any kind, express or by
operation of law, * * * devolves from [the] trustee to a third person, who is a
mere volunteer * * *, or who is a purchaser with actual or constructive notice
of the trust * * *, then the rule is universal that such heir, devisee,
successor, or other voluntary transferee, or such purchaser with notice,
acquires and holds the property subject to the same trust which before existed,
and becomes himself a trustee for the original beneficiary. * * * It is not
necessary that such transferee or purchaser should be guilty of positive fraud,
or should actually intend a violation of the trust obligation; it is sufficient
that he acquires property upon which a trust is in fact impressed, and that he
is not a bona fide purchaser for a valuable consideration and
without notice.'"
Id. (quoting Pomeroy, 4 Equity Jurisprudence § 1048
at 102).(7)
See also Suitter, 225 Or at 625 (when property has been obtained under "unconscientious"
circumstances, "a court of equity has jurisdiction to reach the property
either in the hands of the original wrongdoer, or in the hands of any
subsequent holder, until a purchaser of it in good faith and without notice
acquires a higher right, and takes the property relieved from the
[constructive] trust"). Thus, when a person possesses property that, in
equity and good conscience belongs to another, the fact that that person is
innocent of any affirmative wrongdoing with respect to the property will not,
standing alone, prevent the equitable owner from obtaining a constructive trust.
A final relevant common-law principle
associated with the rule, and often recited in this court's cases, is that a
constructive trust "must be proved by strong, clear and convincing
evidence." See, e.g., Albino, 279 Or at 550; Clearwater v.
Wagner, 272 Or 491, 495, 537 P2d 532 (1975); Hughes v. Helzer, 182
Or 205, 224, 185 P2d 537 (1947) (all to that effect). Generally, this court
has employed that rule as a shorthand for the proposition that a constructive
trust can attach only to items and money that the evidence clearly identifies
as rightfully "belonging" to the plaintiff, or to the identifiable
products of, or substitutes for, those items and money. Thus, in Clearwater,
the court declined to impose a constructive trust on a defendant's boat, which
the defendant had obtained after a third party, who had defrauded the plaintiff
of $5,000, had conveyed $1,000 to the defendant in an unrelated transaction.
Plaintiff asserted that the boat had been paid for with money that in equity
and good conscience belonged to her. But, after noting that there was no
"inference" of identity between the fraudulently obtained funds and
the wrongdoer's other assets, this court concluded that plaintiff had failed to
carry her burden of proving "by strong, clear and convincing
evidence" that her money had gone into the purchase of the boat. Id.
at 495-96. Similarly, in Pantano, this court considered a plaintiff's
bid to impose a constructive trust on funds from a savings account that his
deceased wife had owned jointly with her sister, on the theory that, over the
years, the wife had secretly and wrongfully taken money from him to fund the
account. After citing the "strong, clear and convincing evidence"
standard, the court rejected the plaintiff's claim on the ground that the plaintiff
could not show "by even a preponderance of the evidence standard that any
specific or definite amount of his money was deposited by [his wife] into the
sisters' joint accounts." 283 Or at 87.
From the foregoing discussion, we can
identify the following elements that a plaintiff must prove in order to prevail
on an unjust enrichment claim in circumstances like those presented here. First,
the plaintiff must show that property or a property interest that rightfully
belongs to her was taken or obtained by someone else under circumstances that
in some sense were wrongful or inequitable. Next, the plaintiff must show that
the person who now possesses the property is not a bona fide purchaser for
value and without notice. Finally, the plaintiff must establish, with
"strong, clear and convincing evidence," that the property in the
hands of that person, i.e., the property upon which she seeks to impose
a constructive trust, in fact is the very property that rightfully belongs to
her, or is a product of or substitute for that property. With those general
principles in mind, we turn to consider whether and how they apply when a
decedent's ex-wife, whom the decedent was under an obligation to name as his
life insurance beneficiary, attempts to acquire insurance proceeds that are in
the hands of a person whom the deceased instead named as his beneficiary.
We begin with the question whether
circumstances like those just described can satisfy the element of wrongfulness
that a claim for unjust enrichment requires. As discussed, our unjust enrichment
cases speak of a range of circumstances that could be deemed wrongful,
including mistake, fraud, coercion, undue influence, duress, taking advantage
of weakness, and violation of a duty imposed by a confidential or fiduciary
relationship. Albino, 279 Or at 550; Scoggins, 259 Or at 376; Suitter,
225 Or at 625. In general, it would seem that a decedent's breach of a
predissolution agreement and court order to name his ex-spouse as a beneficiary
of a life insurance policy for the benefit of a child whom the decedent had an
obligation to support would fall within the required range. In general, then,
we can say that, in these sorts of circumstances, the decedent's conduct has
deprived his or her child of something (the nature of which we have yet
to discuss), under circumstances that are wrongful or inequitable.
But what is the status of the person
who actually is named as the beneficiary, who receives and retains the
insurance proceeds upon which the ex-spouse seeks to impose a constructive
trust? If that person is innocent of any wrongdoing with respect to the
decedent's breach of his obligation under the dissolution decree, is it
wrongful or inequitable for her to retain those proceeds? The cases we
have discussed above, __ Or at __ (slip op at 11-12), suggest that retention of
insurance proceeds in such circumstances may be deemed wrongful and that a
disappointed ex-spouse may reach the proceeds in such person's hands.
Thus far there is no serious
incompatibility between the concepts of unjust enrichment and constructive
trust, on the one hand, and the circumstances of the present case on the other.
But a complication does arise when we consider whether a term in a
dissolution decree that obliges a party to that decree to maintain life
insurance naming the party's ex-spouse as beneficiary can be considered property
for purposes of the concepts of unjust enrichment and constructive trust. Moreover,
there is the necessity, discussed above, of showing that the property upon
which a constructive trust is to be imposed is the same property that was
wrongfully taken, or a direct substitute for or product of that property. __
Or at __ (slip op at 12-13). And there is one further complication: The
answer to whether an agreement to maintain life insurance naming an ex-spouse
as a beneficiary confers "property" on the ex-spouse may depend on
whether it appears that the parties had a particular policy or policies in
mind.
We attack the problem, first, by
considering the simplest case -- a bargained-for obligation to maintain a specified
existing policy that names the ex-spouse as beneficiary. Courts in other
jurisdictions have almost uniformly held that such an obligation confers on the
ex-spouse a vested, equitable property interest in the insurance policy and its
proceeds that is superior to the mere legal right of a subsequently named
beneficiary. See, e.g., Williams v. Williams, 276 Ala 43, 158 So
2d 901 (1963); Carpenter v. Carpenter, 150 Ariz 130, 722 P2d 298 (1985);
Handrahan v. Moore, 332 Mass 300, 124 NE 2d 808 (1955); Bailey v.
Prudential Ins. Co. of America, 124 Ohio App 3d 31, 705 NE 2d 389 (1997) (all
to that effect). See also Lee R. Russ, 4 Couch on Insurance 3d
§§ 64:24 - 64:26, 64-50 - 64-59 (3d ed 2005) (describing effect of divorce
decree requiring party to maintain existing life insurance for the benefit of
the other spouse or of children of the marriage). Generally, those courts have
reasoned that such an agreement destroys the right of the obligated party to
designate a different beneficiary, thereby creating an equitable property
interest in the policy in the other party. We agree with that reasoning, and
with the resulting conclusion that, when a dissolution agreement requires a
party to maintain a specified, existing life insurance policy naming his or her
ex-spouse as the beneficiary, the ex-spouse thereby obtains an equitable
property interest in the policy and its proceeds that is superior to the legal
right of any subsequently designated beneficiary who is not a bona fide
purchaser for value without notice.
On the other hand, there are cases in
which a dissolution agreement does not refer to any particular policy but,
instead, contains a simple promise to obtain some policy in a specified
amount that names the ex-spouse as beneficiary. In some of those cases, courts
have concluded that the ex-spouse does not obtain an equitable property
interest in an insurance policy naming a different beneficiary that the
obligated party later obtained. See, e.g., Larson v. Larson, 226 Ga
209, 173 SE 2d 700 (1970); Foster v. Hurley, 444 Mass 157, 826 NE 2d 719
(2005); Parge v. Parge, 159 Wis 2d 175, 464 NW 2d 217 (1990) (all to
that effect). But see Holt v. Holt, 995 SW 2d 68, 77
(Tenn 1999) (imposing constructive trust on proceeds of later-obtained
insurance policy naming different beneficiary than required under dissolution
agreement); Jones v. Harrison, 250 Va 64, 70, 458 SE 2d 766 (1995)
(same). The reasoning behind that conclusion is simple: Because people
ordinarily are free to purchase as many life insurance policies as they choose,
naming different beneficiaries on each one, there is no necessary connection
between a person's promise to obtain insurance naming an ex-spouse as the
beneficiary with his or her subsequent purchase of a particular policy that
names an entirely different person as the beneficiary. We understand that
reasoning, but need not decide whether, if presented with a case involving only
those facts, we would adopt it.
We reserve that issue because there
are circumstances that fall between those two scenarios -- where, in spite of
the absence of any reference to a particular existing insurance policy,
the dissolution agreement nevertheless draws a clear connection between the
obligated party's promise to purchase an insurance policy naming the ex-spouse
as beneficiary and one or more subsequently obtained policies naming different beneficiaries.
In our view, as a matter of logic, the fact that the policy at issue did not
exist at the time of the dissolution agreement is of little significance if the
dissolution agreement is able in some other way to establish an intent to bind the
obligated party with respect to one or more identifiable subsequently obtained
policies. It follows that an obligation to obtain an insurance policy
naming an ex-spouse as beneficiary may confer an equitable interest in a
later-acquired policy, if the obligation in some fashion clearly identifies that
policy as one of its objects.
We turn to the question whether the
record on summary judgment establishes that element as a matter of law, i.e.,
whether the obligation to obtain insurance naming the ex-spouse as beneficiary is
stated in terms that clearly identify the policy at issue as an object of the
obligation, so that the ex-spouse may be deemed to have an equitable property
interest in that policy. The only relevant evidence in the record with respect
to that element is the wording of the life insurance term in the dissolution
decree.
There are two parts of the provision
that are pertinent. First, there is the broad initial statement that the
decedent is obligated to
"maintain an insurance policy insuring his * * *
life in an amount of not less than $100,000, naming [plaintiff] as trustee on
behalf of [plaintiff's and Tupper's] child."
(Emphasis added.) The second part of the provision that is
relevant states:
"A constructive trust shall be imposed over the
proceeds of any insurance owned by either party at the time of either
party's death if either party fails to maintain insurance in said amount, or if
said insurance is in force but another beneficiary is designated to receive
said funds."
(Emphasis added.)
In our view, the wording of the first
statement by itself does not, as a matter of law, confer on plaintiff any
equitable interest in the policy at issue. The statement does not point to any
specific policy, whether existing at the time of the dissolution
agreement or otherwise. Rather, it refers, generically, to "an"
insurance policy. Neither does the first statement in any way "destroy"
or limit Tupper's right to purchase insurance policies naming other persons as
beneficiaries.
But the second statement is a
different matter. That statement expressly contemplates a failure on Tupper's
part to carry out the obligation to maintain an insurance policy as described
and, where such a failure has occurred, purports to impose a constructive trust
on "any" insurance policy owned by Tupper at the time of his death. The
insurance obligation thus is stated in terms that clearly identify "any"
insurance policy owned by Tupper at the time of death -- including the
$600,000 United of Omaha policy -- as its objects. We conclude that, as a
matter of law, the life insurance provision vests in plaintiff an equitable
interest in the policy at issue.
We turn now to the other element of
her claim that plaintiff asserted and that the cases generally require her to
prove -- viz., that defendant (the decedent's named beneficiary) did not
give valuable consideration for being so named and had notice of the decedent's
obligation to name the plaintiff as beneficiary. With respect to those
considerations, the evidence is mixed. Plaintiff presented three affidavits --
her own and those of Tupper's mother and father -- that averred that defendant
had made statements showing that she had prior notice of Tupper's obligation
under the dissolution decree. But, in her own affidavit, defendant denied
having had prior notice.(8)
Defendant's affidavit also is directed at proving that she paid valuable
consideration for her status as Tupper's beneficiary -- she suggests that the
purchase of an insurance policy naming her as beneficiary was, in some sense, a
repayment for her contribution of funds for the purchase of the home that she
and Tupper shared and for her unpaid work for the business that she and Tupper
had started together. Although that evidence might not be sufficient to
establish for an ultimate trier of fact that defendant paid valuable
consideration to Tupper to be named as his beneficiary, we cannot say that it
is insufficient as a matter of law to create a factual question respecting the
issue. On the summary judgment record as a whole, therefore, defendant's
status as a bona fide purchaser without notice remains an issue of fact.
From the foregoing discussion, we
conclude that neither party was entitled to summary judgment with respect to
plaintiff's unjust enrichment claim. It follows that the trial court erred in
granting plaintiff's motion for summary judgment and that the Court of Appeals
erred in remanding for entry of summary judgment in favor of defendant.
That leaves us to consider
plaintiff's claim for money had and received. As noted, the trial court
declared that claim to be moot after it granted summary judgment on plaintiff's
unjust enrichment claim and imposed the constructive trust that she had
requested. On defendant's appeal, the Court of Appeals rejected plaintiff's
suggestion that she was entitled to summary judgment on her money had and
received claim, and that the imposition of the constructive trust remedy should
be affirmed on that alternate theory. Relying on a definition set out in Powell
et al. v. Sheets et al., 196 Or 682, 251 P2d 108 (1952), the Court of
Appeals announced that an action for money had and received may be maintained
"'whenever one has money in his hands belonging to another, which, in
equity and good conscience, he ought to pay over to that other.'" 227 Or
App at 406 (quoting Powell, 196 Or at 700). It then explained that, for
the same reasons set out in its discussion of plaintiff's unjust enrichment
claim, plaintiff did not and could not establish that she ever had had a
property interest in the insurance policy and proceeds that were the object of
her claim.
We have rejected the Court of Appeals'
conclusion that plaintiff had not and could not show that she had a property
interest in the proceeds of the United of Omaha insurance policy (in fact, we
have concluded that, to the contrary, the dissolution decree conferred on
plaintiff an equitable property interest in that policy as a matter of law). It
follows that the Court of Appeals' reasoning with respect to plaintiff's money
had and received claim rested on an incorrect premise. In the absence of any
other well-developed argument with respect to plaintiff's money had and
received claim, we conclude that defendant was not entitled to summary judgment
on that claim and that the Court of Appeals erred in directing the trial court
to grant defendant's motion. And, because we have rejected the trial court's resolution
of plaintiff's unjust enrichment claim, we also must reject that court's
conclusion that its resolution of that claim rendered moot plaintiff's claim
for money had and received. We so hold. If she elects to do so, plaintiff is
entitled to have her money had and received claim tried along with the unjust
enrichment claim.
The decision of the Court of Appeals
is reversed. The judgment of the circuit court is reversed, and the case is
remanded to the circuit court for further proceedings.
1. Consistent
with that theory, defendant asserted a third-party complaint against the
personal representative of Tupper's estate, claiming reimbursement for any
amounts plaintiff might recover out of the insurance proceeds.
2. The cases are Oregon Pacific State Ins. Co. v. Jackson, 162 Or App 654,
986 P2d 650 (1999), and McDonald v. McDonald, 57 Or App 6, 643 P2d 1280
(1982).
3. Tupper
had another child by a previous wife.
4. The
trial court concluded that, in light of its resolution of the unjust enrichment
claim, plaintiff's claim for money had and received was moot.
5. ORS
107.104(2)(a) provides:
"In a suit for marital * * * dissolution *
* *, the court may enforce the terms set forth in a stipulated judgment signed
by the parties, a judgment resulting from a settlement on the record or a
judgment incorporating a marital settlement agreement:
"(a) As contract terms using contract
remedies."
6. Plaintiff
cites Cash Flow Investors, Inc. v. Union Oil Co., 318 Or 88, 91, 862 P2d
501 (1993) (in contract dispute, court may impose attorney fees as provided in
contract); Illingworth v. Bushong, 297 Or 675, 694, 688 P2d 379 (1984), overruled
on other grounds by Ditommaso Realty, Inc. v. Moak Motorcycles, Inc.,
309 Or 190, 785 P2d 343 (1990) (contracting parties may agree on liquidated
damages where damages would be difficult or impossible to accurately estimate);
Eldridge et al. v. Johnston, 195 Or 379, 407-08, 245 P2d 239 (1952)
(contracts in restraint of trade, providing for injunction against working in
certain field, are enforceable if limited, reasonable, and supported by
consideration).
7. Conversely,
we have stated that,
"'[i]f the trust property, or its substitute or
product, has passed into the hands of a party who obtained the legal title to
it and paid value for it, without notice of the existence of the trust and the
consequent equitable interest of the beneficiary, the equitable interest is cut
off and the legal title holder may retain the property free and clear of any
duty toward the beneficiary.'"
Clearwater v. Wagner, 272 Or 491, 496, 537 P2d
532 (1975) (quoting George C. Bogert, The Law of Trust § 165, 600 (5th
ed 1973)).
8. We
refer here only to the record as it exists on the parties' cross motions for
summary judgment. We express no view on the question whether, under other
facts, constructive notice to a defendant might be sufficient to defeat
defendant's claim of entitlement to the policy proceeds. But see
Suitter, 225 Or at 625 (quoting Pomeroy and suggesting constructive notice
would be sufficient). | 088ee9b52d71a04a0320fab5963334db8a329ca14bc1065e451b8c15af26c7ad | 2010-11-12T00:00:00Z |
bac75549-2c3c-473a-bc48-41ca16a0f5bc | Robinson Et Ux v. Manning | 233 Or. 392, 378 P.2d 277 | null | oregon | Oregon Supreme Court | Reversed and remanded January 30, 1963.
Petition for rehearing denied February 19, 1963.
*393 Ronald K. Ragen, Portland, argued the cause for appellants. With him on the brief were Black, Kendall, Tremaine, Boothe & Higgins and Ferris F. Boothe, Portland.
Clarence A. Potts, Portland, argued the cause for respondents. On the brief were Potts & Davidson and Harold L. Davidson, Portland.
Before McALLISTER, Chief Justice, and ROSSMAN, SLOAN, GOODWIN and LUSK, Justices.
REVERSED AND REMANDED.
ROSSMAN, J.
This is an appeal by the defendants, Olive Robinson Manning, Tom Manning, Everett T. Robinson, and Ann Robinson, from a decree which the circuit court entered in favor of the plaintiffs Thomas Arthur Robinson and Lura M. Robinson, husband and wife. Thomas Arthur Robinson is the father of the defendants-appellants Olive Robinson Manning and Everett T. Robinson. The defendant-appellant Tom Manning is the husband of Olive Robinson Manning, and the defendant-appellant Ann Robinson is the wife of Everett T. Robinson. The plaintiff Lura M. Robinson is the second wife of the other plaintiff, Thomas Arthur Robinson, to whom we may hereafter refer as the father. The latter's first wife, who was the mother of Olive and Everett, died January 15, 1958. August 28, 1958, the father married Lura. During the lifetime of his first wife the latter and he became the owners of two lots in Portland which the complaint describes as having a market value of $35,000. That, apparently, approximates its *394 value. The lots are improved with some old structures to which the witnesses referred as apartments. The property yields an income. The father testified that about a year after his second marriage he became suspicious that Lura had designs upon his property, and shortly, without her knowledge, executed two deeds which he dated back to a time prior to the marriage. They conveyed one of the lots to his daughter and the other to his son. The purpose of this suit is to cancel those deeds. When the father became suspicious of Lura he visited his daughter, Olive, in Olympia, Washington, and told her of his misgivings. Upon the trip he was accompanied by Lura, but she went to the home of her son while he stayed in Olive's home. After the father had told Olive of his mistrust of Lura he expressed his purpose to convey one of the lots to Olive and the other to Everett. He asked Olive to obtain an attorney who could prepare the deeds. According to him, he wished a provision included in the deeds "so if things were right, I could sell at any time I wanted to, that they would deed back to me." He swore that Olive approved. Presently an attorney in Olympia was obtained and the father consulted with him. When the father insisted that the deeds should be dated back to a time prior to the marriage of the father to Lura, the attorney demurred and suggested that the father consult a Portland attorney; he recommended one by name. Lura knew nothing of the above. Shortly the two returned to Portland. After the father and Lura reached Portland the father had the Portland attorney whose name had been given to him by the Olympia practitioner prepare the two deeds which are now under attack. The father swore that Olive was the one who spoke to the attorney. One of the deeds conveys one of the two lots to Olive, and the other conveys the *395 other lot to Everett. Each says, "reserving unto himself the right to collect all rentals from said land, if any there be, for so long as he shall live." Each deed expresses as consideration $10.00 and other good and valuable consideration to him paid by * * *." No money was actually paid.
After the Portland attorney had prepared the deeds they were delivered directly to the father. The latter was then in the home which he maintained upon one of the two lots which we have mentioned. According to the father, he handed the deeds to Olive and the two went to the basement of the house to attend to the execution. He stated that he resorted to the basement so that Lura, who was in the dining room, would not know of the deeds. Although the father was capable of reading, he had Olive read the deeds to him; and at the conclusion of her act in so doing he asked her, so he swore, "Is it in there that I can sell the place any time I want to?" and received the reply, "Oh, yes, Dad." The father then signed the deeds. Although the signing occurred in the latter part of August 1959, the deeds were dated back to February 24, 1958, which was prior to the time he married Lura.
No notary public was present when the father signed the deeds and the father did not acknowledge his signature to the notary public whose certificate and seal appear upon the instruments. The new wife knew nothing of the deeds to the son and the daughter until many days after their execution.
The complaint prays among other demands for relief that both deeds be canceled and that the father be decreed to be the owner of both lots.
The son and the daughter do not concede that they made any false statements to their father. Olive testified that her mother, who was the father's first wife, *396 was "the business manager" of the family and that it was she who prompted the investment in these two lots. She also testified that following the mother's death the father told her (Olive) that in accordance with an understanding that he had with the mother he intended to give to Olive a deed to one of the lots and to Everett a deed to the other. Everett testified:
According to Everett, neither his father nor he ever mentioned again the two lots, and he knew nothing about the deeds until in August of 1959.
The father stated, so Olive swore, that he wished to retain for himself the income of the property during his lifetime. As a witness the father conceded that he had mentioned to Olive a purpose to convey to the son and the daughter the lots, but denied that he did so immediately following the burial service for his first wife. He said he mentioned the subject "around April 1959, April or May." He testified:
The words in the quoted question, "to take care of these deeds," meant the drafting of the deeds.
It will be noticed from the foregoing that the son and the daughter contended that the father wished to convey the property to them and that he announced his intention immediately after the death of his first wife, that is, before his second marriage. Upon the other hand, he insisted that the announcement was made in April or May of 1959, several months after the new marriage.
From the foregoing it will be seen that the father who at that time was disappointed with his new wife, wished to deprive her of any interest in his real property. He owned no other real property than these two lots. In fact, the only other items of property that he *398 owned were an automobile and a trailer; he had paid $2,000 for the trailer. He testified that he had one dollar in a bank. Before his marriage to Lura he had told his prospective bride of his ownership of this real property and of the trailer. Thus, if the wife is deprived of her inchoate dower interest in the real property she will have nothing. In order to bar his new wife of any possible interest in the property he not only signed the deeds but also had them dated back to a time prior to the marriage. Later he seemingly revised his estimation of his new wife and at that time had this suit instituted. Or it may be that the property has enhanced in value and that he wishes this suit to place him in a position to sell it. His son and his daughter seem to believe that he wishes to sell the property, and they have told him that they will retain it for him so that he will have a roof over his head and the income that the property produces.
1-3. We quote the following from Casteel v. King, 201 Or 234, 269 P2d 529:
4. In the case at bar the father did not execute the deeds until Lura had become his wife and had an inchoate dower interest in the two lots. We believe that he wished his son and his daughter to have the lots upon his death. He had an even greater propelling motive that Lura should have no interest in the lots, not even her inchoate dower interest. Under those circumstances he signed the deeds. He concealed his iniquitous purposes as to Lura from her and she knew nothing about the deeds until two or three weeks had passed after their execution. If the father's fraudulent action is sustained, the new wife will fare no better than if she had married a destitute even though he showed her this property before she became his betrothed. We think that the foregoing maxim which governed Casteel v. King, supra, likewise governs this case. The father is not entitled to the aid of a chancellor in helping him to escape from the predicament into which his own iniquitous conduct cast him. A decree will be entered for the defendants. It will not prejudice the rights and inchoate dower of the new wife, Lura.
Reversed and remanded. Neither costs nor disbursements will be allowed to any party. | a788b66917fe2d609c3159e7205f4087ba9e001205c4609a766ef2dcf9c1ea35 | 1963-01-30T00:00:00Z |
09554e70-9b69-42ce-836e-e7f4f3da9b47 | State v. Ashbaugh | null | S057189 | oregon | Oregon Supreme Court | Filed: December 9, 2010
IN THE SUPREME COURT OF THE STATE OF OREGON
STATE OF OREGON,
Petitioner on Review/
Cross-Respondent on Review,
v.
CHARITY ANN ASHBAUGH,
Respondent on Review/
Cross-Petitioner on Review.
(CC C052367CR; CA A131117;
SC S057189 (Control), S057188)
(Consolidated for argument and opinion)
En Banc
On review from the Court of Appeals.*
Argued and submitted November 3, 2009.
Paul L. Smith, Assistant Attorney General, Salem, argued the cause and filed the brief for petitioner on review/cross-respondent on review. With him on the brief was John R. Kroger, Attorney General.
Joshua B. Crowther, Senior Deputy Public Defender, Salem, argued the cause and filed the brief for respondent on review/cross-petitioner on review. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Julia E. Markley and Lynne M. Paretchan, Perkins Coie LLP, Portland, and Chin See Ming, Legal Director, ACLU Foundation of Oregon, Inc., Portland, filed the brief for amicus curiae ACLU Foundation of Oregon, Inc.
GILLETTE, J.
The decision of the Court of Appeals is reversed. The judgment of the circuit court is affirmed.
Kistler, J., concurred and filed an opinion, in which Linder, J., joined.
Durham, J., specially concurred and filed an opinion.
Walters, J., dissented and filed an opinion.
*Appeal from the Washington County Circuit Court, Donald R. Letourneau, Judge. 225 Or App 16, 200 P3d 149 (2008).
GILLETTE, J.
This case concerns a criminal defendant's motion to suppress evidence obtained in a consent search of her purse. Defendant argued to the trial court that suppression was required because her consent to the search was a product of prior conduct on the part of the police that violated her rights under Article I, section 9, of the Oregon Constitution -- specifically, an unreasonable and, therefore, unlawful, seizure of her person. The trial court rejected that argument but, on defendant's appeal, the Court of Appeals remanded for further factfinding, holding that the consent search was causally related to an encounter between defendant and the police and that, "depending on facts that neither party [had] developed at trial," the encounter may have been an unlawful seizure. State v. Ashbaugh, 225 Or App 16, 18, 200 P3d 149 (2008). We allowed both parties' petitions for review and now conclude that the trial court properly determined that defendant's consent to the search did not derive from an unlawful seizure and therefore did not violate Article I, section 9. Accordingly, we reverse the decision of the Court of Appeals and affirm the judgment of the trial court.
The incident at the heart of this case occurred on a summer afternoon in a public park in Beaverton. Two police officers, Barroncliffe and Schaer, were patrolling in the vicinity of the park. They were armed and in uniform, and each was riding a department-issued mountain bicycle. As the two officers rode through the park, they observed defendant and her husband sitting on the ground under a tree. The officers had no reason to suspect defendant and her husband of criminal activity, but they thought it was "unusual" that a middle-aged couple like them would be sitting in that particular park at that time, because the park generally was frequented by children and elderly persons in the middle of the afternoon.
Barroncliffe and Schaer approached the couple and said to them: "Hey, you're not in any trouble, [but] do you have some I.D. we can see?" Both defendant and her husband handed over identification cards, which the officers proceeded to "run"(1) through the police dispatcher. According to both officers, their encounter with defendant and her husband was "relaxed."
After a two-minute wait (during which time the officers, defendant, and defendant's husband engaged in "casual conversation"), the officers learned that defendant's husband was the subject of a restraining order that prohibited him from having contact with defendant. Barroncliffe and Schaer reported what they had learned to defendant and her husband and told them that they were placing defendant's husband under arrest for violating the restraining order. The officers returned defendant's identification to her and then turned to the task of taking defendant's husband into custody.
The officers began that process by handcuffing defendant's husband and requesting by radio a car to transport the husband to jail. While waiting for the car to arrive, they talked with defendant and her husband about the restraining order. In the course of that conversation, defendant told the officers that she knew about the restraining order, that she and her husband were "trying to work it out," and that they were living together. When the car arrived, Barroncliffe and Schaer walked defendant's husband down a pathway and through a break in a chainlink fence that separated the park from the street (a distance of 35 to 50 feet), patted him down for weapons, and then placed him inside the car. Defendant remained under the tree during the approximately five minutes that it took to complete that process.
Barroncliffe and Schaer then returned to the area where defendant was waiting. Schaer told defendant that her husband had asked if she would take his belongings with her. Then (according to Schaer), "something inside of [Schaer] made [him] want to ask if [he] could look in [defendant's] purse." Whatever the source, Schaer surrendered to his impulse and asked defendant "if she had anything illegal in her purse." She replied that she did not. Schaer then asked defendant if he could search her purse and defendant replied, "Yeah, sure." Schaer opened the purse and found a smudged mirror, several clear plastic baggies that each contained a small amount of clear crystalline substance, and some short straws. When asked about what he had found, defendant told Schaer that the substance was methamphetamine; she also made other incriminating statements. Schaer then cited defendant for possession of a controlled substance.
Before her trial on the possession charge, defendant moved to suppress all evidence obtained in connection with the search of her purse. She acknowledged that she had consented to that search, but argued that her consent was the direct product of a prior unlawful "stop," which occurred either when the officers asked her for identification or when the officers approached her a second time, asked her about the contents of her purse, and asked whether she would permit them to search it. Defendant asserted that, in either event, the evidence was obtained through illegal police conduct and must be suppressed.
The trial court rejected both arguments and denied the motion to suppress. After hearing the testimony of the two police officers and the arguments of the parties, the court opined that the issue resolved into two questions: First, could the state show that defendant's consent was independent of, or only tenuously related to, the initial encounter between defendant and the police, which the state had conceded was an unlawful stop?(2) Second, if defendant's consent to the search was independent of that initial stop, was defendant unlawfully seized again when Officer Schaer asked for consent to search her purse? With respect to the first question, the trial court concluded that the unlawful stop did not significantly affect defendant's decision to consent to the search. Concerning the second question, the court held that the request for consent to search was not a seizure at all but, instead, was "properly viewed as mere conversation." The trial court denied defendant's motion to suppress and, after a trial on stipulated facts, defendant was convicted.
On defendant's appeal, a divided Court of Appeals rejected the trial court's analysis and remanded for determination of certain facts that, in its view, were necessary to resolve the case under the proper analysis. The majority agreed with the trial court that the original, concededly unlawful stop did not require suppression of the evidence at issue,(3) but it was less sure about defendant's alternative argument that a separate unlawful stop occurred when Officer Schaer, "prompted only by 'something inside of [him],'" asked defendant if she had anything illegal in her purse and, then, whether she would allow him to search it. Ashbaugh, 225 Or App at 22. Noting that the essential question was whether the latter incident constituted a "stop," the majority sought to answer that question through application of this court's oft-quoted statement from State v. Holmes, 311 Or 400, 813 P2d 28 (1991), that a person is "seized" for purposes of Article I, section 9, of the Oregon Constitution:
"'(a) if a law enforcement officer intentionally and significantly restricts, interferes with, or otherwise deprives an individual of that individual's liberty or freedom of movement; or (b) whenever an individual believes that (a), above, has occurred and such belief is objectively reasonable under the circumstances.'"
Ashbaugh, 225 Or App at 22 (quoting Holmes, 311 Or at 409-10). After observing that the individual's subjective belief appeared to be a necessary element of a seizure under part (b)(4) of the quoted test, and that the trial court had not resolved that issue, the majority remanded the case to the trial court to determine what defendant subjectively had believed at the relevant time. The majority instructed the trial court that, if it found that defendant in fact did believe that her freedom of movement had been restricted when Officer Schaer asked her for consent to search her purse, then it must find that she was seized for constitutional purposes. That was so, in its view, because a reasonable person in defendant's position could have held that belief, fulfilling the objective reasonableness requirement of Holmes part (b). Id. at 25 (citing State v. Toevs, 327 Or 525, 535-36, 964 P2d 1007 (1998)).
A concurring opinion raised a concern about the latter point, questioning whether, to establish "objective reasonableness" for purposes of showing that a person has been seized under part (b) of the Holmes formulation, this court intended to require that a reasonable person would have believed their liberty had been intentionally and significantly restricted, or only that such a person could have held that belief. In the end, the concurrence decided to "take [this court] at its word in Toevs that it is enough to [show] that a reasonable person in defendant's position could * * * believe that the officers significantly had restricted her liberty." 225 Or App at 32 (Brewer, C.J., concurring).(5)
Two judges dissented. The dissent maintained that the majority had erred in remanding for a determination of defendant's subjective state of mind when there was no evidence in the existing record pertaining to that subject and no lawful way of obtaining evidence of that sort, because the state could not compel defendant to testify regarding her state of mind. The dissent summed up its concern in the following terms:
"Admittedly, it is unclear what circumstances the Holmes court had in mind when it interpreted Article I, section 9, to embody a type (b) analysis, but the court could not have contemplated a process where the state is effectively unable to litigate the issue that has been framed by the majority as determinative of the outcome of this case and where the trial court is required to make a finding that is impossible for it to make."
225 Or App at 36 (Edmonds, J., dissenting). As noted, both the state and defendant petitioned for review of the Court of Appeals' decision; we allowed both petitions.
Before this court, defendant argues that the Court of Appeals erred in remanding the case to the trial court for factfinding with respect to whether, when Officer Schaer asked for consent to search her purse, defendant subjectively believed that her liberty had been significantly restricted. She contends that, under a correct interpretation of the Holmes analysis previously described, establishing whether an individual subjectively believes that he or she has been "seized" is unnecessary when a court is able to say that, under the same circumstances, a reasonable person would have held that belief. The state argues, on the other hand, that the Court of Appeals went astray by attempting to apply the Holmes formulation at all, because, in its view, this court has abandoned that formulation and now applies an "objective indicia" test. The state urges that, if an "objective indicia" test is applied to the circumstances here, Officer Schaer's request for consent to search defendant's purse was not a seizure.
As the parties' positions and the several opinions generated in the Court of Appeals reflect, there is considerable confusion about the meaning and continuing viability of the definition of a "seizure" set out in Holmes. The confusion is warranted: Although this court has repeatedly pointed to Holmes as setting out the essential test for when a seizure has occurred, it has not yet successfully differentiated between the two methods for establishing a seizure that are mentioned in that test. Neither has this court attempted to confront the purely practical concerns that an inquiry into a criminal defendant's "subjective belief" (which the Holmes part (b) definition appears to involve) obviously raises. Clearly, there is a need for us to clarify that element of an Article I, section 9, "seizure."
But that issue must come -- if it is to come at all -- later in our review. We begin with defendant's original theory for suppression, viz., that defendant's consent to the search of her purse arose out of an unlawful stop that occurred when, without any reasonable basis for suspecting that she was involved in criminal activity, Barroncliffe and Schaer requested identification from defendant and used the identification that she produced to run a warrants check. Because the state has conceded that the request for identification to check for warrants amounted to an unlawful seizure,(6) the question for this court respecting defendant's original theory is whether, and in what way, the evidence obtained in the search of defendant's purse derived from that unlawful conduct.
In State v. Rodriguez, 317 Or 27, 38-40, 854 P2d 399 (1993), this court observed that, in criminal prosecutions in Oregon, evidence is subject to suppression if it is obtained in violation of the defendant's personal right under Article I, section 9, to be free from unlawful searches and seizures. Based on that observation, we concluded that unlawful police conduct with respect to an individual provides a basis for suppression of evidence seized during a search performed with the consent of that individual in one of two ways: (1) the unlawful police conduct affected the supposed voluntariness of the individual's consent; or (2) the consent actually derived from, or was obtained through "exploitation" of, the prior violation of the individual's constitutional rights.(7) As noted, defendant has never argued that her consent in this case was not voluntary, and that issue therefore need not be considered. That leaves the issue of "exploitation," i.e., whether the consent search in some sense derived from the prior unlawful police stop.
In the present case, the Court of Appeals majority concluded that defendant had failed to shift the burden of proof on the issue of "exploitation" to the state, because the officer's unlawful actions as to defendant
"had no causal relationship with the discovery of evidence; [the] check [of defendant's identification] came back negative, at which point defendant was free to leave. The warrant check that was causally related to the discovery of evidence was the one that police carried out on defendant's husband; that act, a violation of his rights, led to the discovery of the outstanding restraining order, the arrest, and the subsequent events. The violation of defendant's rights simply had no downstream consequences."
225 Or App at 22 (emphasis in original).
In our view, the first sentence of that analysis makes the essential point: Defendant was free to leave -- and the unlawful stop was over as to her -- when the police returned her identification and told her that they were arresting her husband.(8)
Neither can the fact that defendant remained in the vicinity while the officers effected the arrest of defendant's husband -- thereby making herself available for further conversation -- be viewed as causally related to the unlawful request for identification and warrant check. Although defendant could be correct that, in theory, a causal connection might exist between an unlawful stop that has ended and an individual's subsequent consent to a search, the existence of that possibility does not absolve a person seeking suppression of evidence on an "exploitation" theory from the person's burden of identifying an actual factual link. Defendant here has not identified any actual link, and her vague suggestion that the two events are "plausibly related" is insufficient to meet her burden.(9) It follows that the officers' request for identification and use of that identification for a warrants check, which concededly constituted an unlawful stop, cannot serve as a basis for granting defendant's motion for suppression of evidence obtained in the subsequent consent search of her purse.
That brings us to defendant's alternative theory for suppression, viz., that she was subjected to a second seizure when Schaer approached her and questioned her about the contents of her purse. Defendant contends that that seizure was unlawful because, at that time, Schaer had no basis for believing that defendant had engaged in any criminal activity.(10) In fact, the state does not dispute defendant's contention that her consent to the search was the direct product of Schaer's question and request. The state argues, instead, that Schaer's question and request were "mere conversation," not a "seizure."
The issue that the state raises -- whether a putatively unreasonable "seizure" was in fact "mere conversation" with no constitutional implications -- is a familiar one to this court. We long have recognized that, out of the broad range of potential encounters between police and citizens, only some implicate the prohibition in Article I, section 9, against unreasonable "seizures." We have divided police-citizen encounters, very roughly, into three categories: (1) "mere conversation," that is, noncoercive encounters that are not "seizures" and, thus, require no justification under Article I, section 9; (2) "stops," a type of seizure that involves a temporary restraint on a person's liberty and that violates Article I, section 9, unless justified by, for example, necessities of a safety emergency or by reasonable suspicion that the person has been involved in criminal activity; and (3) "arrests," which are restraints on an individual's liberty that are steps toward charging individuals with a crime and which, under Article I, section 9, must be justified by probable cause to believe that the arrested individual has, in fact, committed a crime. The thing that distinguishes "seizures" -- that is, "stops" and "arrests" -- from encounters that are "mere conversation" is the imposition, either by physical force or through some "show of authority," of some restraint on the individual's liberty. State v. Rodgers/Kirkeby, 347 Or 610, 621-22, 227 P3d 695 (2010); see also State v. Warner, 284 Or 147, 161-62, 585 P2d 681 (1978) (to the same effect).
In addition to the foregoing explication of the meaning of the constitutional term "seizure," this court has set out a definition of that term in Holmes. Although we already have quoted that definition, ___ Or at ___ (slip op at 5-6), we do so again for the convenience of the reader:
"[A] 'seizure' of a person occurs under Article I, section 9, of the Oregon Constitution (a) if a law enforcement officer intentionally and significantly restricts, interferes with, or otherwise deprives an individual of that individual's liberty or freedom of movement; or (b) whenever an individual believes that (a), above, has occurred and such belief is objectively reasonable under the circumstances."
Holmes, 311 Or at 409-10.(11)
A full appreciation of the foregoing definition requires that we recognize that it is not the only advice that the court in Holmes provided with respect to determining when a "seizure" has occurred. The court also stated that the determination "require[s] a fact-specific inquiry into the totality of the circumstances of the particular case," id. at 408, and it stressed that,
"[u]nder the[] seizure standards [set out above], law enforcement officers remain free to approach persons on the street or in public places, seek their cooperation or assistance, request or impart information, or question them without being called upon to articulate a certain level of suspicion in justification if a particular encounter proves fruitful. A street or public place encounter does not amount to an Article I, section 9, 'seizure' merely because the encounter may involve inconvenience or annoyance for the citizen and the other party to the encounter is known to be a law enforcement officer. Even physical contact does not transform the encounter into a 'seizure' if it is a normal means of attracting a person's attention (e.g. policeman tapping citizen on the shoulder at the outset to get a citizen's attention). Rather the encounter is a 'seizure' of a person only if the officer engages in conduct significantly beyond that accepted in ordinary social intercourse. The pivotal factor is whether the officer, even if making inquiries [that] a private citizen would not, has otherwise conducted himself in a manner that would be perceived as nonoffensive conduct if it had occurred between two private citizens."
Id. at 410.
As noted, this court's efforts to explain what the constitutional term "seizure" embraces have not yet succeeded: Our various explanations, from Holmes to Rogers/Kirkeby, have left questions unanswered. We shall make a further effort here.
One such question is the one that the state poses -- whether the two-part Holmes definition quoted above remains relevant almost twenty years after it first was announced. The state contends that, after an initial period during which this court seemed to analyze police encounters under both parts of the definition, the court shifted to a pattern in which it quoted, but did not actually address, both parts of the Holmes definition.(12) The state contends that that shift demonstrates that the court has abandoned the two-part Holmes formulation and, it argues, the court now resolves "seizure" questions in terms of whether, looking at the "totality of the circumstances" of the particular case, a police officer's conduct and words significantly interfered with the defendant's freedom of movement. The state suggests, moreover, that the court was correct to shift to a simple "totality of the circumstances" approach, because the "formulaic" and "mechanical" Holmes construct "ignores the complexity and nuance of encounters between law enforcement and individuals."
Before this court, the state also criticizes the Court of Appeals majority's handling of another aspect of Holmes part (b) -- the discussion whether an individual involved in an encounter with police "believes" that his or her liberty has been restricted. That argument fairly characterizes what the Court of Appeals majority said. After concluding that a reasonable person could have believed that his or her liberty had been restricted under the circumstances of the case, and after noting that the trial court had not made any finding as to whether defendant actually held such a belief, the Court of Appeals remanded the case to the trial court to make what it deemed to be the necessary finding concerning that question and, at the same time, seemed to place the burden of establishing defendant's subjective belief on the state. Taking its cue from the Court of Appeals' dissent, the state argues that that approach has placed it in an untenable position -- one of being "effectively unable to litigate [an] issue that has been framed by the majority as determinative." Ashbaugh, 225 Or App at 36 (Edmonds, J., dissenting). That is so, in the state's view, because (1) a defendant cannot be compelled to testify about his or her state of mind and (2) in the absence of such testimony, the defendant's subjective belief that he or she has been seized is presumed -- unfairly -- from the fact that he or she has remained in the presence of the police. The state concludes that, if a citizen's subjective beliefs about an encounter properly determine whether there has been an Article I, section 9, "seizure," then the defendant, rather than the state, should be required to carry the burden of proof with respect to those beliefs.
Defendant, for her part, embraces the idea that Holmes part (b) has a subjective focus, and agrees with the Court of Appeals majority that, for purposes of part (b), the objective reasonableness of an individual's belief that his or her liberty has been significantly restricted must be based on whether a reasonable person could hold that belief. Defendant argues, however, that part (a) of the Holmes test also assesses the circumstances entirely from the affected individual's personal and subjective vantage point -- although, under part (a), the question is not what a reasonable person could believe but "whether, under the totality of the circumstances, a reasonable person would consider the officer's conduct a significant restriction on the person's liberty."(13)
The fact that the parties have advanced such vastly different interpretations of the two-part Holmes formulation might be viewed as a failure by this court in Holmes to articulate its point clearly. But, as we have focused more and more tightly on the words of the Holmes definition of "seizure," it has become increasingly apparent that the problem is not so much with how the idea has been expressed as with the idea itself. Quite simply, we think that at least one component of the Holmes definition is unworkable, and this court since Holmes has proceeded as if the unworkable component were not there. Although that approach has resulted in confusion about the meaning of Holmes, we do not believe that the root problem can be resolved by further effort at clarification. We believe that the problem instead requires a reexamination of the Holmes formulation.
It is evident that, when this court adopted the Holmes definition, it was attempting to define Article I, section 9, seizures primarily in terms of the perceptions of ordinary citizens. That is not surprising: The United States Supreme Court had, at that time, settled on a definition of "seizure," for the purpose of the Fourth Amendment to the United States Constitution, that was couched in terms of a reasonable person's perceptions:
"[A] person has been 'seized' within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave."
United States v. Mendenhall, 446 US 544, 554, 100 S Ct 1870, 64 L Ed 2d 497 (1980) (plurality opinion by Stewart, J. ). See also Florida v. Royer, 460 US 491, 502, 103 S Ct 1319, 75 L Ed 2d 229 (1983) (quoting Mendenhall plurality). This court was aware of the United States Supreme Court's "reasonable person" approach in Mendenhall,(14) but it likely also was aware that courts and academics across the country were struggling with two pertinent issues: (1) how to deal with individual differences between arguably reasonable persons involved in citizen-police encounters;(15) and (2) how to deal with the stated or inferred intentions of police officers in such encounters.(16) We are satisfied that, when this court defined Article I, section 9, "seizures" in Holmes, it intended to use the "reasonable person" construct of Mendenhall but, at the same time, to address and resolve the two concerns arising out of Mendenhall that we have mentioned. Of particular relevance here, we believe that Holmes part (b) was directed at the latter concern.
However, having announced in Holmes part (b), that the existence of a seizure might depend on the subjective impressions of the citizen involved, this court has seemed disinclined to use that aspect of the part (b) formulation in its decisions. Even in Holmes itself, the court glossed over the subject of the defendant's subjective beliefs about his encounter with the police, and concentrated entirely on what a reasonable person would have believed in the circumstances. See Holmes, 311 Or at 411 (concluding that there had been no seizure because a reasonable person would appreciate being stopped and advised of traffic situation and would not believe that associated inconvenience or restriction was significant). And, since Holmes, a disinclination even to mention a suspect's subjective beliefs in connection with a part (b) analysis has been a common pattern in this court's cases. See, e.g., State v. Gerrish, 311 Or 506, 513, 815 P2d 1244 (1991) (holding that police did not seize defendant when they flagged him down to request information because that action not significant restriction upon the defendant's liberty, "nor would a reasonable individual believe that it was"); State v. Hall, 339 Or 7, 19, 115 P3d 908 (2005) (concluding that police seized defendant when they took defendant's identification for warrant check, because reasonable person would not feel free to leave when person is subject of pending warrant check); State v. Thompkin, 341 Or 368, 378-79, 143 P3d 530 (2006) (same).(17)
In the handful of cases in which the defendant's subjective beliefs even are mentioned in connection with a part (b) analysis, this court sometimes has avoided any actual inquiry into the defendant's beliefs by accepting, for the purpose of argument, that the defendant subjectively believed that he had been seized. See, e.g., State v. Ehly, 317 Or 66, 79-80, 854 P2d 421 (1993) (assuming that defendant did not believe that he was free to leave but holding that, in any event, an objectively reasonable person would not share that belief). At other times, the court simply has assumed that a defendant's failure to assert himself shows that he subjectively believed that he had been seized. See, e.g., State v. Dahl, 323 Or 199, 207-08, 915 P2d 979 (1996) (defendant's submission to police order, conveyed telephonically, to come out of his house with his hands up showed that he believed that his liberty had been restricted).
In fact, this court has treated a defendant's subjective belief that his or her liberty has been intentionally and significantly restricted as a separate and necessary element of a Holmes part (b) seizure in only one case -- Toevs.(18) Significantly, Toevs is the case that the Court of Appeals relied on when it remanded to the trial court to determine what defendant subjectively believed.
In Toevs, this court opined that, for purposes of the Holmes formulation, what a defendant subjectively believes is a question of fact to be resolved by the trial court, while whether that belief is objectively reasonable requires an independent assessment of the facts by the reviewing court. 327 Or at 535. In Toevs, this court understood the trial court to have found that the defendant subjectively believed that his freedom of movement had been restricted at the relevant time, and noted that that finding was supported by the record. Id. at 536. This court then proceeded to independently assess whether the defendant's belief was objectively reasonable, and stated its conclusion in that regard in the following terms:
"Under the totality for the circumstances, we conclude that a reasonable person in defendant's position could have believed that the officers significantly had restricted his liberty or freedom of movement."
Id. (emphasis added). The use of the phrase "could have believed" in that sentence clearly is an anomaly. In every other case in which this court has purported to apply Holmes, including those that were issued after Toevs, the court's conclusions have been phrased in terms of what a reasonable person "would" have believed. See, e.g., Hall, 339 Or at 19; Thompkin, 341 Or at 378. The trend, not the anomaly, describes the question correctly. "Would" is correct; "could" was a regrettable misstatement.
For the foregoing reasons, we believe that it is time to abandon forthrightly the subjective component of that part of the Holmes part (b) test -- that is, the part that is concerned with a person's subjective belief that he or she has been seized -- and instead to direct the focus of that part of the definition entirely to an objective standard.(19) A "seizure" of a person occurs under Article I, section 9, of the Oregon Constitution: (a) if a law enforcement officer intentionally and significantly restricts, interferes with, or otherwise deprives an individual of that individual's liberty or freedom of movement; or (b) if a reasonable person under the totality of the circumstances would believe that (a) above has occurred.(20)
Applying that standard to the facts in this case, we conclude that defendant was not seized within the meaning of Article I, section 9, when Schaer recontacted her after putting her husband in a police car, asked her about the contents of her purse, and asked whether she would permit him to search the purse. Although it is possible to restrict a person's liberty and freedom of movement by purely verbal means, there is no evidence that would support a conclusion that that is what happened here. Certainly, the content of Schaer's questions did not cause defendant to be seized: As we repeatedly have observed, even though Schaer asked defendant a question that one private citizen ordinarily would not ask another, defendant does not point to anything about Schaer's words that would be perceived as "show of authority that restrict[ed her] freedom of movement." Rodgers/Kirkeby, 347 Or at 622.
Neither is there any basis for concluding that Schaer's manner or actions involved a "show of authority." Schaer's request was not accompanied by any physical action that could be construed as threatening or coercive -- he did not, for example, position himself and his fellow officer in a way that would suggest to defendant that she was surrounded. See Rodgers/Kirkeby, 347 Or at 627 (illustrating that tactic). In fact, the trial court found that the conversation between Schaer and defendant was "relaxed and nonconfrontational," and we are bound by that finding, because there is evidence in the record to support it. Moreover, the officers had returned defendant's identification to her and left her alone while completing the arrest and transportation of her husband. Thus, while it may have been true that defendant had been unlawfully detained by police some minutes before and had watched a clear show of authority directed at her husband, those circumstances had ended. They did not create the kind of atmosphere that would convey to a citizen that she was not free to go at the later time.
Considering the totality of the circumstances, we conclude that Schaer's actions in asking defendant the questions that he did under the circumstances that existed did not "intentionally and significantly" restrict or interfere with her liberty. We further conclude that an objectively reasonable person in defendant's circumstances would not believe that Schaer had done so. Accordingly, we reject defendant's contention that, in light of the surrounding circumstances, Schaer's questions about the contents of her purse and his request for consent to search the purse amounted to a seizure for purposes of Article I, section 9, of the Oregon Constitution. It follows that, whatever connection there might be between those questions and defendant's consent to the search of her purse, the consent was not the product of an unlawful seizure.
The decision of the Court of Appeals is reversed. The judgment of the circuit court is affirmed.
KISTLER, J., concurring.
I join in the majority opinion in this case. I also agree with the principle stated in Justice Durham's concurring opinion that defendant's voluntary consent provides an alternative basis for affirming the trial court's judgment.
Linder J., joins in this concurring opinion.
DURHAM, J., specially concurring.
I agree with the majority that the trial court correctly denied defendant's motion to suppress the evidence, and that defendant's conviction should be affirmed. However, I do not agree with the majority's explanation of its reasons for affirming defendant's conviction. I would decide this case on narrower and, I submit, simpler grounds.
The only question that this case poses is whether the police officers conducted an unreasonable search when they examined the interior of defendant's purse and saw drug paraphernalia. If that search was lawful, then the officers' subsequent observations supplied them with probable cause to seize the drug evidence.
The state defends the police search here on the ground of consent. A citizen's voluntary consent to a police search is an exception to the requirement of a search warrant. A valid consent confirms, for legal purposes, that the resulting search is reasonable and does not violate the citizen's rights under Article I, section 9 of the Oregon Constitution. State v. Weaver, 319 Or 212, 219, 874 P2d 1322 (1994). Courts must examine the totality of the evidence to determine whether the citizen consented to the search voluntarily, rather that as the result of police coercion, express or implied. State v. Parker, 317 Or 225, 230, 855 P2d 636 (1993).
In this case, two aspects of the trial court record greatly simplify the court's examination of the consent issue. First, defendant admitted that she consented to the search of her purse by the police. Second, defendant also conceded that her consent to the search of her purse was voluntary. The majority and the dissent give almost no attention to those significant admissions. To me, however, those admissions dispose of all or virtually all of defendant's arguments that the search of her purse was unreasonable.
The majority and the dissent focus instead, at agonizing length, on whether the two police officers interfered with defendant's freedom of movement, that is, whether they "seized" her, during either of their two encounters with her in the park. As it turns out, the seizure issue ultimately does not matter in this case, however the court decides it. I will briefly explain why that is so.
In the consent search context, a defendant commonly challenges the voluntariness of consent by pointing to evidence that the police had restrained the defendant's liberty of movement at or before the moment when the alleged consent was granted. A restraint on liberty is relevant to the validity of consent in that kind of case. By establishing that the police first seized the defendant, the defendant can argue that the seizure (and any other coercive circumstances) overcame his or her free will and rendered any subsequent statement of consent involuntary.
That argument, however, is beside the point here because of defendant's concessions, noted above. Even if the police encounter with defendant amounted to a stop or an arrest, the trial court correctly declined to treat it as having a coercive influence on defendant because defendant stipulated that her consent to the search of her purse was voluntary.
One other argument merits discussion. Evidence seized by police will be treated as "fruit of the poisonous tree" and suppressed if the police commit an illegality, such as an invalid stop or arrest, and subsequently exploit that illegality to obtain the disputed evidence. State v. Rodriguez, 317 Or 27, 38, 854 P2d 399 (1993). Under that theory, it is not sufficient that the initial illegality stands in a mere "but for" causal relationship to the seized evidence. Other causal factors can intervene to lead the police to the evidence. Evidence remains "fruit of the poisonous tree" and subject to suppression only if the initial police illegality, when compared to other intervening causal factors, was the reason for the discovery of the evidence by the police. Id. at 39-40; State v. Hall, 339 Or 7, 45, 115 P3d 908 (2005) (Durham, J., concurring in part and dissenting in part).
Defendant argues that the evidence seized here was the result of police officers' exploitation of the unlawful stop or arrest of defendant in their first or second encounter (or both) with her. But the facts do not demonstrate the required sort of exploitation. Rather, according to the evidence, the event that brought the disputed evidence to light was defendant's voluntary consent to a search of her purse. Even if the police encounter with defendant began with an invalid stop or arrest, the facts establish that her voluntary consent exposed the evidence to the police and that the initial stop or arrest did not compel her to consent to the search of her purse.
For the reasons expressed above, the majority reaches a correct conclusion about defendant's exploitation theory, even though my analysis of that theory differs significantly from that employed by the majority. And, as noted, the majority's ultimate answer here -- that the trial court properly denied defendant's motion to suppress evidence -- is correct.
I concur.
WALTERS, J., dissenting.
When uniformed police officers have no reasonable suspicion that a citizen is engaged in criminal activity, do those officers violate Article I, section 9, of the Oregon Constitution when they approach that citizen and, after obtaining her identification and checking for warrants, question her about whether she is committing a crime and whether they can search her purse for evidence of that crime?
I conclude that officers who engage in that conduct seize the citizen in violation of the Oregon Constitution because a reasonable citizen subjected to that inquiry could conclude that the officers' legal show of authority restrained that citizen's liberty. Because the majority reaches the opposite conclusion, without a reasoned basis for doing so, I respectfully dissent.
In this case, the state conceded, and the majority proceeds on the assumption, that the officers seized defendant and violated her rights under Article I, section 9, when, without reasonable suspicion that she was engaged in criminal activity, they approached her, obtained her identification, and checked for outstanding warrants. ___ Or ___ (slip op at 4 n 2, 9 n 6). That conclusion is compelled by this court's decision in State v. Hall, 339 Or 7, 18, 115 P3d 908 (2005). In Hall, an officer requested, obtained, and returned the defendant's identification card and radioed for a warrant check. The court held that, when the officer did so, he restrained the defendant's liberty of movement and seized the defendant because it is "difficult to posit that a reasonable person would think that he or she was free to leave at a time when that person is the investigatory subject of a pending warrant check." Id. at 19.
I do not see a constitutional distinction between subjecting a person to a check for outstanding warrants and subjecting a person to a check for illegal drugs. If a reasonable person in the former position would not feel free to leave, why would a reasonable person in the latter position be more bold?
Furthermore, this court previously has decided that, when the police obtain a citizen's identification and subject him to an investigation for robbery, they seize him. State v. Warner, 284 Or 147, 585 P2d 681 (1978). In Warner, the police approached the defendant to investigate a robbery, and
"this court held that, at the moment that the officer told the defendant to place his identification card on the table and advised the defendant that he was the subject of a criminal investigation [for robbery], the officer had seized the defendant by a show of authority for purposes of ORS 131.615 (1975), amended by Oregon Laws 1997, chapter 866, section 1, and Article I, section 9. [284 Or at 165]." `
Hall, 339 Or at 18 (emphasis added).(1)
In State v. Thompkin, 341 Or 368, 143 P3d 530 (2006), this court applied the rule of Warner and Hall to a person who was the subject of a drug investigation. In Thompkin, the police lawfully stopped a car in which the defendant was a passenger. The court held that the police unlawfully seized the defendant when one officer requested and retained his identification to conduct a records check while another questioned him concerning drugs and weapons. The court said,
"Here, as in Hall, we find it doubtful that a reasonable person in defendant's position would think that he or she was free to leave at a time when that person was the investigatory subject of a pending warrant check and was being questioned about illegal activity."
Id. at 378-79 (emphasis added).
This court's most recent seizure case, State v. Rodgers/Kirkeby, 347 Or 610, 227 P3d 695 (2010), is in accord. In that case, an officer lawfully stopped the defendant, Rodgers, a motorist, to investigate a traffic infraction, obtained and returned his driver's license, and completed a check for outstanding warrants, finding none. Then, without advising the defendant that that investigation had been completed, one officer asked the defendant about the contents of two containers that the officer had observed in the car and whether the officer could search the car, while the other officer stood at the passenger side of the car.
The court held that, although the police had reasonable suspicion to stop the defendant and question him about the traffic violation, they seized him without reasonable suspicion and violated his rights under Article I, section 9, when they engaged in a "show of authority" after the traffic investigation was, or should have been, complete. Id. at 622. In reaching that conclusion, the court first noted that when a police officer uses official authority to stop and question a citizen, the citizen is legally required to obey and "interact with" the police officer. Id. at 623 (citing ORS 811.535 (failure to obey a police officer), ORS 807.570 (failure to carry or present a license), and ORS 807.620 (prohibiting giving false information to police officer)). The police therefore seized the defendant when they stopped him and investigated the traffic violation. When that investigation was complete, the officers did not tell the defendant that he was free to go and therefore continued to seize him. Because they did so without reasonable suspicion that the defendant was involved in criminal activity, the police violated the defendant's rights under Article I, section 9. The court observed that the defendant "had no way of knowing that [the officer's] questions and request to search the car were not part of the traffic investigation and that his cooperation in [the drug] investigation was not required to continue." Id. at 626.
The other defendant in that case, Kirkeby, also a motorist, got out of his car after he was stopped by a deputy and voluntarily produced his driver's license. The deputy knew that the defendant was driving with a suspended license, but did not question him about that violation or issue a citation. Instead, the deputy, concerned for his safety, asked the defendant if he had any weapons. When the defendant denied that he did, the deputy asked if he could conduct a patdown search of the defendant. The defendant agreed and, after conducting the search, the deputy was confident that the defendant was not armed. Nevertheless, the deputy asked the defendant for permission to examine the contents of his pockets. The court held that the "deputy's show of authority that accompanied his request that [the] defendant consent to a pat down and subsequent request that [the] defendant consent to an examination of the contents of [the] defendant's pockets" was "a significant limitation on [the] defendant's freedom of movement" and constituted a seizure under Article I, section 9. Id. at 628.
Here, had the majority applied the reasoning of its prior cases, it would have concluded that defendant was similarly seized and that her rights under Article I, section 9, were similarly violated. Applying Hall, Warner, and Thompkin, the majority would have concluded that defendant was seized because the police obtained her identification and subjected her to a criminal investigation, and it is "difficult to posit that a reasonable person would think that he or she was free to leave at a time when that person is the investigatory subject of a [criminal investigation]," Hall, 339 Or at 19, or "[is] being questioned about illegal activity," Thompkin, 341 Or at 379.
Applying Rodgers/Kirkeby, the majority would have concluded that defendant was seized because, after their initial seizure of defendant, the officers did not tell her that she was free to go, and she "had no way of knowing that [the officer's] questions and request to search [her purse] were not part of the [initial investigation] and that [her] cooperation in [the drug] investigation was not required to continue." 347 Or at 626. Applying Rodgers/Kirkeby, the majority also would have concluded that the officer's "show of authority" in requesting consent to search constituted a seizure. 347 Or at 628.
Instead of reaching any of those conclusions, the majority declares that the officer who questioned defendant did not engage in a "show of authority" that would "convey to a citizen that she was not free to go." ___ Or at ___ (slip op at 23-24). Of the contrary cases that I have cited, the majority attempts to distinguish only Rodgers/Kirkeby. The majority asserts that this case is different from Rodgers/Kirkeby because the officers in this case did not position themselves in a way that "would suggest to defendant that she was surrounded." ___ Or at ___ (slip op at 23).
That distinction fails for two reasons. First, there was no evidence in Rodgers/Kirkeby that the defendant Kirkeby was "surrounded" by the one officer who questioned him, and the defendant in this case was at least as "surrounded" by the two officers who questioned her as was the defendant Rodgers in Rodgers/Kirkeby. This defendant was seated on the ground when two officers who had just arrested and handcuffed her husband continued to question her. If Rodgers, who was at the wheel of a car and could drive it away, was restrained by two officers who stood near the car, then defendant in this case, who was without a similar means of departure, also was restrained by the two officers who stood near her.
Second, although the court in Rodgers/Kirkeby noted the positions of the two officers who questioned the defendant Rodgers in its account of the "totality of the circumstances" that affected him, the court did not take note of the position of the one officer who requested the defendant Kirkeby's consent to search, or comment that the officer had physically restrained him. The court focused, as did the courts in Warner, Hall, and Thompkin, not on the physical, but on the legal "show of authority" that the police exhibited and exerted when they subjected those defendants to questioning. In this case, the officers, like those in Rodgers/Kirkeby and the cases leading up to Rogers/Kirkeby, were in uniform, obtained defendant's identification, and subjected defendant to legal obligations parallel to those that the court found pertinent in Rodgers/Kirkeby. See ORS 811.535 (failure to obey a police officer); ORS 162.247(1)(b) (failure to obey a peace officer); and ORS 162.385 (prohibiting giving of false information for a citation or arrest on a warrant). The officers in this case, like those in Rodgers/Kirkeby, subjected defendant to an investigation for outstanding warrants, and defendant reasonably believed that she was required to cooperate with that investigation. When those same officers continued their criminal inquiry without telling defendant that she was free to go, defendant had no way to know that her cooperation was not required and she was seized.
When the majority declares, instead, that a reasonable person in defendant's circumstances would not believe that the police had restrained her liberty, ___ Or at ___ (slip op at 24), it ignores not only the legal authority that the police exhibited, but also social science research that demonstrates that people subjected to such authority believe that they are required to cooperate with the police and are not free to leave when subjected to questioning.
"[T]he available evidence suggests most people perceive an investigative encounter to be a seizure." Daniel J. Steinbock, The Wrong Line Between Freedom and Restraint: The Unreality, Obscurity, and Incivility of the Fourth Amendment Consensual Encounter Doctrine, 38 San Diego L Rev 507, 556-57 (2001). Empirical studies have shown that several features unique to police-citizen encounters undermine the idea that such encounters are consensual. See Janice Nadler, No Need to Shout: Bus Sweeps and the Psychology of Coercion, 2002 Sup Ct Rev 153, 173 (2002) (features include whether investigator is a legitimately constituted authority). Those studies show that an officer's status as an authority figure leads citizens to believe that their cooperation is required, not requested:
"[T]he listener is likely to conclude that an utterance is in fact a directive, or an order to be followed. For example, citizens generally do not interpret 'Can I please see your license and registration?' as spoken by a police officer as a genuine request; it is a command, and everyone understands this. * * * Importantly, authority figures do not need to employ highly face-threatening language to achieve their goal.
Nadler, 2002 Sup Ct Rev at 188 (citing Thomas Holtgraves, Communication in Context: Effects of Speaker Status on the Comprehension of Indirect Requests, 20 J Exp Psychol: Learning, Memory, & Cognition 1205 (1994)). In a survey of 54 citizens involved in vehicle searches, 49 of whom consented to the search, 47 responded that they were afraid of what might happen should they refuse.
"Their fears included having their trip unduly delayed, being searched anyway, incurring property damage to their car if they refused and police searched anyway, being arrested, being beaten, or being killed. * * *.
"* * * * *
"When asked if they felt the police would have honored their request if they had refused, only one citizen answered 'yes,' and one did not know. All of the remaining respondents (96%) felt that police would not have honored their refusal and would have searched them anyway. Their concerns were apparently well founded: of the five motorists who declined to consent to the search, two reported being searched despite their explicit refusal to consent. Another motorist who refused to consent was not searched but was threatened with future retaliation."
Nadler, 2002 Sup Ct Rev at 202-03 (citing Illya D. Lichtenberg, Voluntary Consent or Obedience to Authority: An Inquiry Into the 'Consensual' Police-Citizen Encounter (1999) (unpublished Ph.D. dissertation, Rutger's University)).
By citing those studies, I do not suggest that this court determine the meaning of the constitutional term "seizure" by engaging in a normative inquiry. What I do suggest is that, in giving effect to that term, this court use a mode of analysis that allows for the fact that our society is not homogenous and that, although some reasonable people may conclude that they are free to walk away from an officer who questions them, others, just as reasonably, may conclude otherwise. The analysis that the court announced in State v Holmes, 311 Or 400, 409-10, 813 P2d 28 (1991), and applied in State v. Toevs, 327 Or 525, 535, 964 P2d 1007 (1998), State v. Juarez-Godinez, 326 Or 1, 6, 942, P2d 772 (1997), State v. Dahl, 323 Or 199, 207-08, 915 P2d 979 (1996), and State v. Ehly, 317 Or 66, 78-79, 854 P2d 421 (1993), was designed to do just that.
That analysis allows a court to ascertain, as it often does in other contexts, the belief or conclusion that a particular citizen had or reached, but to refrain from giving effect to that belief or conclusion if it does not fall within the range of reasonableness. See, e.g., T. R. v. Boy Scouts of America, 344 Or 282, 181 P3d 758 (2008) (factfinder determines whether plaintiff knew that defendant had a role in causing injury; court determines whether that conclusion objectively reasonable); Delgado v. Souders, 334 Or 122, 137, 46 P3d 729 (2002) (factfinder determines whether plaintiff was alarmed and had reasonable apprehension regarding personal safety; court determines whether belief objectively reasonable); State v. Villagran, 294 Or 404, 408, 657 P2d 1223 (1983) (magistrate decides that probable cause to believe search would discover items specified in affidavit and court reviews whether neutral and detached magistrate reasonably could reach that conclusion); State v. Krummacher, 269 Or 125, 137-38, 523 P2d 1009 (1974) (court may not agree with jury's conclusion but must affirm if within realm of reasonableness).
The sole reason that the majority gives for abandoning that Holmes analysis is that "this court has seemed disinclined" to use it. ___Or at ___ (slip op at 19). Although the majority does not assert that the Holmes formulation was unworkable or caused difficulty for the police, I note that that formulation permits the police to subject citizens to criminal inquiry as long as they have reasonable suspicion that the citizens are engaging in criminal activity, and to do so, even without reasonable suspicion, if they directly inform the citizens (and do not engage in contradictory action).
In evaluating whether a person who is confronted by a police officer is seized, a trial court should not engage in the task of deciding whether a hypothetical person with unidentified characteristics and experiences would or would not feel free to leave; it should determine whether, as a matter of fact, the particular defendant believed that she was free to leave, and then, as a matter of law, whether the defendant's belief was within the range of reasonable beliefs. That mode of analysis is well-known to the trial courts and accommodates the diversity of our citizenry.(2)
In deciding that the only reasonable belief that the defendant in this case could have had was that she was free to walk away from the officers who questioned her, this court ignored not only defendant's personal reaction to the situation that she faced, but also the expectations that the law imposed on her and on all citizens who are subjected to police encounters. Even if there were good reasons for the majority to preclude consideration of the former, the majority erred in failing to consider the effect of the latter on the issue of objective reasonableness.
ORS 131.615 permits police officers to stop citizens and request their consent to search, but only when the officers have reasonable suspicion of criminal activity. ORS 162.247, ORS 162.385, and ORS 811.535 require citizens to obey police orders and provide police officers with accurate information. When a uniformed officer approaches a citizen and conducts a criminal inquiry, it is therefore reasonable for the citizen to understand that the officer has the required justification and, thereby, authority to detain the citizen, and it is legally reasonable for the citizen to act accordingly. If an officer approaches a citizen and conducts a criminal inquiry without reasonable suspicion, the citizen does not have any way to know that that suspicion is lacking or that the officer has made an unjustified request that can be ignored. If a citizen refuses to cooperate and is incorrect in doing so, the encounter may escalate and the citizen may violate the law. The law does not encourage a citizen to challenge police authority; it expects the citizen to recognize that authority and behave in accordance. When the citizen remains and submits to police investigation, believing that he or she must do so, he or she acts reasonably.
Although the Oregon legislature may require the citizens of this state to cooperate with legitimate governmental inquiries, those citizens have a concomitant constitutional right to expect that the government will respect their privacy and not subject them to unreasonable scrutiny. See State v. Tanner, 304 Or 312, 321-22 n 7, 745 P2d 757 (1987) (rights under Article I, section 9, defined by privacy one has a right to expect from government). The rights against unreasonable search and seizure that Article I, section 9, guarantees are rights that are held in common by all "the people" of this state -- those who drive its roads, certainly, but also those who sit in its parks and walk its sidewalks as they live their daily lives. When this court permits the police to approach any one person and, without reasonable suspicion of criminal activity, request her identification and conduct a criminal inquiry, it interferes with the rights of all people to be free of unwarranted official scrutiny. I respectfully dissent.
1. Of course, to "run" identification means to have it reviewed by someone -- normally a person located some distance from the place where the identification was tendered to the police -- who is in a position to determine whether the person so identified is the subject, inter alia, of an outstanding warrant or other court order. This verbal specimen of law enforcement argot may be sufficiently enough understood in present day culture that it needs no explanation. It is not, however, the way courts or even the majority of individuals express themselves. We offer our explanation out of a recognition that, if we do not do so from time to time, we shall cause readers to believe what Mark Twain described in his preface to Huckleberry Finn, viz., that "all [our] characters were trying to talk alike and not succeeding."
2. The trial court accepted the state's concession that the police officers had unlawfully stopped defendant when they obtained her identification and ran a record check. The trial court also accepted defendant's concession that her consent to the search of the purse was, in fact, voluntary. We have not been asked by the parties to reexamine either of those premises, and we do not.
3. Like the trial court, the Court of Appeals majority accepted the state's concession that the officers unlawfully seized defendant when they asked for her identification and ran a warrants check. The majority concluded, however, that defendant had failed to establish even a minimal causal connection between that unlawful seizure and her consent to the search of her purse. It noted that the warrant check of defendant's identification "came back negative, at which point defendant was free to leave." 225 Or App at 22.
4. For lack of a better word, we identify the two sections of the Holmes definition as "parts" -- that is, we refer to "part (a)" and "part (b)" of the definition. We do not mean to convey, by our use of that term, that the two sections of the definition set out elements that both must be present. Rather, as the use of the word "or" in the Holmes definition implies, "part (a)" and "part (b)" are alternative methods for establishing, together or alone, that conduct or circumstances constitute a seizure.
5. A second concurring opinion agreed with the majority that the case should be remanded for factfinding on defendant's subjective state of mind, but declined to express any view as to whether a reasonable person could feel detained under similar circumstances. See 225 Or App at 32-33 (Landau, J., concurring).
6. As noted previously, ___ Or at ___ n 2 (slip op at 4), in light of the state's concession, we express no opinion on the issue.
7. In State v. Hall, 339 Or 7, 115 P3d 908 (2005), this court explained the latter theory, sometimes referred to as an "exploitation" theory, in terms of the rationale underpinning Oregon's exclusionary rule and of the state's usual burden, when police misconduct is shown, of proving that evidence is not tainted by the misconduct:
"[E]ven when a defendant's consent is voluntary -- that is, when the defendant's free will has not been overcome by police coercion -- that consent is insufficient to establish the admissibility of evidence from a warrantless search if the state cannot prove that the consent was independent of, or only tenuously related to, any preceding violation of defendant's rights under Article I, section 9. Unless the state is able to make that showing, then the defendant's consent cannot operate to validate a warrantless search because the defendant's consent itself derived from a violation of the defendant's rights under that state constitutional provision. To not require suppression in such circumstances would be inconsistent with the * * * rationale underlying the Oregon exclusionary rule, that is, to place a defendant in the same position as if the government officers had acted within the bounds of the law."
Hall, 339 Or at 27-28 (emphasis in original; citations omitted).
8. Because the first sentence of the Court of Appeals' statement contained the full legal answer to defendant's argument, we need not discuss whether the balance of the quoted statement is correct or adds anything to the analysis.
9. The circumstances that we describe here are notably distinct from those in State v. Ayles, 348 Or 622, 237 P3d 805 (2010), where this court concluded that the existence of a different circumstance -- the police request for consent to search occurred while an illegal detention was ongoing -- was sufficient to establish the requisite minimal factual nexus. Id. at 633-34.
10. Defendant also contends that the existence of a causal connection between that seizure and her decision to consent is beyond dispute. As our analysis will demonstrate, we need not address that theory in this case.
11. In Rodgers/Kirkeby, we stated the definition in slightly different words:
"A person is 'seized' under Article I, section 9, when either (1) a police officer intentionally and significantly interferes with the person's freedom of movement; or (2) the person believes, in an objectively reasonable manner, that his or her liberty of movement has been so restricted."
347 Or at 621-22.
12. We discuss below the cases that the state points to as demonstrating that shift.
13. In fact, defendant contends that whenever this court has stated, in the context of a Holmes analysis, that an "objectively reasonable" person would believe that his or her liberty has been restricted, it has been applying part (a) of the Holmes formulation, rather than part (b). Given that the phrase "objectively reasonable" appears in part (b) of the Holmes formulation, defendant's theory is counterintuitive. The same might be said about another aspect of defendant's interpretation of the Holmes formulation -- her claim that, when part (a) speaks of an officer "intentionally" restricting an individual's liberty, it is not concerned with the police officer's actual intentions, but with what a reasonable person in the suspect's position would believe that the officer intended.
14. The court quoted the "reasonable person" definition elsewhere in Holmes. 311 Or at 413.
15. See, e.g., Tracey Maclin, Black and Blue Encounters -- Some Preliminary Thoughts about Fourth Amendment Seizures: Should Race Matter?, 26 Val U L Rev 243 (1991) (because, historically, "special dynamic" has surrounded encounters between police and black males, court should consider how the race of the person confronted by the police might have influenced his attitude toward the encounter); Wayne R. LaFave, 3 Search and Seizure; A Treatise on the Fourth Amendment § 9.2(h) at 407-08 (2d ed 1987) (briefly discussing and rejecting the possibility that reasonable person standard depends upon the subjective perceptions of the suspect). See also In re J.M., 619 A2d 497, 504-07 (DC App 1992) (Chief Judge Rogers and Senior Judge Mack concurring in part and dissenting in part) (child's perception of police encounter will be different from adults, and that difference should be taken into account when court is confronted with deciding whether police encounter with child was a seizure).
16. See, e.g., Edwin J. Butterfoss, Bright Line Seizures: The Need for Clarity in Determining When Fourth Amendment Activity Begins, 79 J Crim L & Criminology 437, 464-66 (1988) (more realistic to take into account the subjective intent of the police officer because, when police officer does not intend to permit person to leave, person in fact is not free to leave); LaFave, 3 Search and Seizure § 9.2(h) at 407 (briefly discussing propriety of considering subjective intentions of police officers). See also State v. Shy, 373 So 2d 145, 148 (La 1979) (Dennis, J. dissenting) (when police had admitted in their testimony that they would have stopped defendant by force if he had attempted to leave, "it is legalistic, but not realistic, to pretend that an ordinary citizen would be aware of or believe in, much less rely upon the * * * shibboleth" that nothing prevents a person who is approached by police from choosing to walk away).
17. The noted tendency in this court's cases to avoid using or even mentioning the defendant's subjective beliefs in connection with a Holmes part (b) analysis is different from the state's idea that this court has tacitly abandoned the two-part Holmes formulation altogether. The cases do, however, manifest the tendency to remove subjective belief from the part (b) analysis that we have observed.
18. State v. Juarez-Godinez, 326 Or 1, 942 P2d 772 (1997), also appears to treat the defendant's subjective belief as a separate and necessary element of a part (b) analysis. However, Juarez-Godinez is complicated by the fact that the court appeared to employ both a part (a) and a part (b) analysis, without distinguishing between them, and by the further fact that the case involved the seizure of an automobile, not a person. 326 Or at 6-10.
19. We describe our concern so narrowly because we are of the view that one other example of subjective belief might remain relevant: If a person affirmatively (but wrongly) believes that he or she is free to go, his or her consent to a search may be valid. This case does not present the question -- we simply note here that it remains unanswered.
20. The controversy in the present case focuses on the "objective reasonableness" and subjective "belief" aspects of part (b) of the Holmes standard and we have limited our analysis of the standard accordingly. We recognize that, in the eyes of some readers, part (a) of the standard contains a "subjective" element that is susceptible to the same criticisms as is the subjective element of part (b) -- specifically, the reference to law officers "intentionally" restricting a person's freedom of movement. Although our present sense is that the intentionality aspect of part (a) is quite different from the subjective belief aspect of part (b) and serves a different and more defensible purpose, we are open to any argument to the contrary that the state or any other party might wish to make in a future case.
1. In Hall, the court also noted that in State v. Kennedy, 290 Or 493, 624 P2d 99 (1981), a case in which "two police officers approached the defendant as he was preparing to exit the Portland airport and informed him that they had information that he might be in possession of illegal drugs," the court assumed that the police interaction with the defendant was unlawful. Hall, 339 Or at 30-31.
2. The Holmes formulation also benefits the state in that it would permit a court to consider, in deciding whether a citizen was seized, the citizen's acknowledgment that she believed that she was free to leave, and, if that belief is reasonable, to conclude that the citizen was not seized even if a hypothetical reasonable person would, in the majority's view, have believed to the contrary. See State v. Salvador, 237 Or App 424, 431-32 (2010) (Court of Appeals decided that defendant was not seized in part based on his concession "that he felt '100 percent' free to leave the scene.") See also State v. Ford, 310 Or 623, 642-43, 801 P2d 754 (1990) (Carson, C. J., specially concurring) (explaining that test of when "knock and announce" requirements will be excused should have subjective component to ensure that apprehension actually exists). | dbd2d1b221bce570b941d89c12b597d72427422bd980d845a0bcf7a39b5f827e | 2010-12-09T00:00:00Z |
9dedee1f-e5b8-4470-82a0-77f80453c8fa | Durkoop v. MISHLER | 233 Or. 243, 378 P.2d 267 | null | oregon | Oregon Supreme Court | Affirmed January 23, 1963.
*244 Sidney E. Thwing, Eugene, argued the cause for appellants. On the brief were Thwing, Jaqua & O'Reilly, and William G. Wheatley, Eugene.
Kenneth A. Morrow, Eugene, argued the cause for respondent. On the brief were Venn, Mulder & Morrow, Eugene.
Before McALLISTER, Chief Justice, and ROSSMAN, PERRY, GOODWIN and LUSK, Justices.
AFFIRMED.
PERRY, J.
The plaintiff, an adult daughter, brought this action as administratrix of the estate of the deceased for and on behalf of the surviving widow, as sole beneficiary under the provisions of the wrongful death statute, ORS 30.020. From a judgment entered on the jury verdict for the plaintiff, the defendants appeal.
*245 To discuss the several assignments of error it is necessary to set forth the facts of the case.
On April 5, 1961, at approximately 1:20 p.m., Stuart G. Barrett, five feet, eight or nine inches tall, and of the age of 77 years, was found unconscious and in a dying condition in the street. His body lay close to a driveway on the east side of Lawrence street, a street which runs generally north and south in the city of Eugene, Oregon. This driveway, from the curb of the street to the sidewalk, extended six feet 11 inches sloping from the sidewalk to the street level. It was 29 feet wide at the curbline and 25 feet seven inches wide at the sidewalk. The sidewalk was five feet two inches wide. The driveway extending to the east of the sidewalk was divided by a laurel hedge three feet in height.
At the time deceased was found he was on his back, just south of the middle of the driveway, his head to the north three feet three inches from the east curbline, and his feet two inches therefrom. There was a tear in his trousers and grease on the back, front, and both sides of his clothing. There was blood on the driveway near the street, and underneath the body was found a paper sack containing bakery goods and medicine which bore tire tracks. Police officers were called and arrived at the scene at 1:35 p.m.
The deceased lived on the east side of Lawrence street, as do the defendants, his home being a block south of the defendants' home. He had been to the business section of the city, and past midday had had his hair cut.
The defendant, Mrs. Mishler, immediately before 1:20 p.m. of April 5, 1961, backed her car out of her driveway, which is the driveway heretofore described, and drove to town to pick up her husband. She testified *246 positively that she looked back before backing, but was uncertain whether she stopped before passing over the sidewalk. She also testified that as she backed the automobile she did not see, feel or hear anything unusual. She and her husband returned to the scene at approximately the same time that the officers arrived.
The officers examined the defendant's automobile and found the dust on the rear bumper had been disturbed just to the left of center. On the undercarriage the officers found streaks in the dust, threads, a small piece of fresh human tissue, blood, and evidence that the grease around certain fittings had been "apparently rubbed clean." These various items of evidence of disturbance of the undercarriage of the automobile extended the length of the vehicle.
Expert testimony identified the threads as coming from the clothing of the deceased, and the grease on the deceased's clothing as the same as found on the undercarriage of the car. No one testified as to having seen the accident.
The defendants assign as error the trial court's refusal to sustain their motions for a directed verdict and judgment notwithstanding the verdict.
1. It is a well established rule of law that in determining whether the evidence will support a judgment for the plaintiff the evidence must be viewed in a light most favorable to the plaintiff.
The plaintiff alleged the defendant Cornelia W. Mishler was negligent in the following particulars: (1) failure to keep a proper lookout, (2) failure to keep the vehicle under control, and (3) failure to stop her vehicle before crossing the sidewalk. The defendants' motions therefore are to the effect that there is no substantial evidence to support any of *247 these allegations. They cite the general rules of law that negligence is never presumed; cannot be predicated on mere conjecture, guesswork or speculation; there must be a causal connection between the defendants' negligence and plaintiff's injury, and that when the evidence shows two or more equally probable causes of injury, for not all of which defendants are responsible, no action for negligence can be maintained, and rely upon the cases of Lemons et al v. Holland et al, 205 Or 163, 284 P2d 1041, 286 P2d 656; Owens v. Holmes, 199 Or 332, 261 P2d 383; Quetschke, Adm'x v. Peterson and Zeller, 198 Or 598, 258 P2d 128; and Simpson v. Hillman et al, 163 Or 357, 97 P2d 527. From these cases they draw the conclusion that for a jury to find negligence in this case they must resort to speculation.
In Simpson v. Hillman, supra, the evidence disclosed that a child three and one-half years of age was injured in a city street by being struck by an automobile. There was no evidence of lack of control of the vehicle, or driving at an excessive rate of speed, or failure to stop after striking the child. In fact, all of the evidence offered was to the contrary. The only other allegations of negligence were failure to maintain a proper lookout and failure to sound the horn. The duty to sound a horn would only be incumbent upon the driver upon knowledge of the child being in or near the street and therefore would depend upon the requirement of lookout. Owens v. Holmes, supra.
2. This court has often stated that in the absence of a positive legal duty to maintain a vigilant lookout, the duty of lookout is that which would be performed by the reasonably prudent person under the same or similar circumstances. Phillips, Gdn. v. Creighton, *248 Adm., 211 Or 645, 316 P2d 302. Thus, the circumstances existing at the time determine the extent of the duty, and, as pointed out by the court in Simpson v. Hillman, supra, there were no circumstances which would disclose a duty upon the reasonably prudent person to look for or anticipate the presence of the child in the street.
In the case of Quetschke, Adm'x v. Peterson and Zeller, supra, the deceased, while standing out of the path of the vehicle, was run over by the trailer attached to a logging truck after the logging truck had been driven past the deceased. The duty of lookout had therefore been maintained, and since there was no evidence of how the deceased became involved with the trailer of the logging truck after the truck itself had passed, what occurred after defendant had performed his duty would be pure speculation, and would not encompass any of the specifications of negligence alleged by the plaintiff.
In Owens v. Holmes, supra, a child was injured by the operation of a motor vehicle. The principal contention of the plaintiff was that the defendant failed to maintain a proper lookout. There was, however, no evidence in the case that the child was ever in front of or near the front of the vehicle in a position to be seen by the driver, therefore there was no evidence of failure of duty to maintain a proper lookout.
No useful purpose would be gained in discussing the case of Lemons v. Holland, supra. The decision rests upon the same basis as those above discussed.
The matter before us is clearly distinguishable from the cases cited by the defendant.
3. This court has on numerous occasions pointed out that direct evidence is not required to prove a *249 fact; such fact may be established by circumstantial evidence.
There can be no doubt but that a jury could find that the automobile of the defendants passed over the person of the deceased. The disturbance of the dust on the rear of the car, there being none on the front, could lead to the reasonable conclusion that the automobile was backing when it first came in contact with the deceased.
4. It cannot be disputed but that in the use of an automobile, lookout to the rear, while backing, is as necessary in the reasonably careful use of a motor vehicle as lookout when proceeding forward. The statutes require the maintenance of a lookout when driving from a private way into the highway. ORS 483.206.
5. While ORS 483.206 refers to the yielding of the right of way to vehicles then using the highway, implicit therein is the requirement of lookout. Also, ORS 483.222 requires "The driver of a vehicle within a * * * residence district emerging" from a driveway to stop the vehicle before driving onto a sidewalk. This statute requires that the operator, by lookout, must ascertain whether or not pedestrians are on the sidewalk before proceeding. Thus, since in the performance of the duties imposed by statute the driver was required to maintain a lookout, in this case, both for pedestrians on the sidewalk and for motor vehicles in the street, it was for the jury to determine whether a reasonably prudent person would, and should have, in the performance of these duties, observed the deceased before striking him.
The court did not err in denying the motions of defendants.
6. The defendants also assign error in the refusal of the trial court to sustain their objections to evidence *250 offered by plaintiff which disclosed that the deceased in his lifetime rendered personal services which were of benefit to the wife, and in not instructing the jury that the measure of damages was limited to economic loss sustained by the widow from the untimely death of her husband.
7. This action, as previously stated, is brought under the provisions of ORS 30.020. Under this statute the measure of damages is the pecuniary benefit which could reasonably have been anticipated by the beneficiary of the act, in this case the widow, through the continuance of the life destroyed. Hansen v. Hayes, 175 Or 358, 154 P2d 202.
From the brief of the defendants we gather that they construe the words "pecuniary loss" to include only the amount of monetary benefit which would accrue through the earning capacity and thriftiness of the deceased, had his life continued to the end of his life expectancy. In other words, the value of the life lost measured by his earning capacity and thriftiness, based on the probable length of life according to the tables of mortality. If there exist no widow and no dependents, then such a rule has application. Hansen v. Hayes, supra. But, as in this case, when the action is brought for the benefit of the widow, the words "pecuniary benefits" are enlarged in scope to include the value of services which the beneficiary had a reasonable right to expect from the deceased.
This rule has generally been applied in those situations where the deceased was a housewife and had rendered no monetary assistance to the beneficiaries through employment. Prauss v. Adamski, 195 Or 1, 244 P2d 598. However, we see no reason why the same rule should not apply where the deceased's earning power has ceased due to retirement, and he has applied himself to caring for the comfort of his wife through the maintenance of the home. The value of these services may certainly be computed in money's worth.
The judgment of the trial court is affirmed. | dd69a35009a5f5762e1f411df611f4a7f220d39f199fc31fc53e6b0d37469955 | 1963-01-23T00:00:00Z |
aae847e5-9777-49b8-baf9-5dd1ea7f830b | State v. Schwab | null | S058555 | oregon | Oregon Supreme Court | FILED: September 16, 2010
IN THE SUPREME COURT OF THE STATE OF OREGON
STATE OF OREGON,
Respondent on Review,
v.
CYNTHIA LYNN SCHWAB,
Petitioner on Review.
(CC 07C50644; CA
A139336; SC S058555)
En Banc
On petition for review filed on June 16, 2010;*
considered and under advisement on August 18, 2010.
Jedediah Peterson, Deputy Public Defender,
Salem, filed the petition for petitioner on review. With him on the petition
was Peter Gartlan, Chief Defender, Office of Public Defense Services.
No appearance contra.
PER CURIAM
The petition for review is denied.
Kistler, J., concurred and filed an opinion, in
which Gillette, J., joined.
*Appeal from Marion County Circuit Court, Mary Mertens James, Judge. 234 Or App 43, 227 P3d 1182 (2010).
PER CURIAM
The petition for review is denied.
KISTLER, J., concurring.
The court today
denies the petition for review in this case. I concur in that disposition but
write separately to note an unpreserved problem with an instruction that, in
some counties, is being given with increasing frequency.
In this case,
defendant possessed 2.48 ounces of marijuana. Some of the marijuana was
packaged in a way that, as an officer later testified, suggested defendant
possessed the marijuana with the intent to transfer or sell it. The state
charged defendant with delivery, and the trial court instructed the jury:
"Under Oregon law,
possession with intent to deliver constitutes delivery, even where no actual
transfer is shown. An attempted transfer occurs when a person intentionally
engages in conduct which constitutes a substantial step and includes, but [is]
not limited to, possession of a large amount of a controlled substance, not for
personal use, but consistent, instead, with trafficking in controlled
substances."
The second sentence of the trial court's
instruction told the jury that, if it found that defendant possessed "a
large amount of a controlled substance, not for personal use, but consistent,
instead, with trafficking in controlled substances," then an attempted
transfer had occurred.
In my view, that
part of the instruction improperly converted a permissible factual inference
into a mandatory finding. To be sure, if a jury finds that a defendant
possessed a larger amount of a controlled substance than a person ordinarily
would possess for personal use, then the jury may but is not required to infer
that the defendant possessed the controlled substance with the intent to sell
or transfer it.(1)
A judge, however, may not instruct a jury that it must draw that inference.
The United States Supreme Court held over 30 years ago that such an instruction
would violate the Due Process Clause. See Sandstrom v. Montana, 442 US
510, 513, 523-24, 99 S Ct 2450, 61 L Ed 2d 39 (1979) (holding that the instruction
that "[t]he law presumes that a person intends the ordinary consequences
of his voluntary acts" violates due process).
In this case,
defendant objected to the trial court's instruction on a different ground, and
the Court of Appeals correctly resolved the objection that defendant raised. See
State v. Schwab, 234 Or App 43, 48-49, 227 P3d 1182 (2010) (rejecting
defendant's argument that the trial court's instruction failed to require
indicia of trafficking other than possession of a large amount of a controlled
substance). For that reason, I concur in the court's denial of defendant's
petition for review. It is important to recognize, however, that the Court of
Appeals decision in this case and our denial of review are limited to the
objection that defendant raised. Neither the Court of Appeals decision nor our
denial of review should be read as giving unqualified approval to the trial
court's instruction.
Gillette, J., joins in this opinion.
1. The
strength of the inference varies with the amount of the controlled substance
possessed. When the amount of a controlled substance that a defendant
possesses is only slightly more than a person ordinarily would possess for
personal use, other evidence of the defendant's intent may be necessary to
permit a reasonable juror to infer that the defendant possessed the substance
with intent to deliver. Conversely, when a person possesses a substantially
larger amount of a controlled substance than ordinarily would be possessed for
personal use, no other evidence may be necessary to permit a reasonable juror
to infer that the defendant possessed the substance with intent to deliver. | adbad898fdafd96f4fab2657c83826c3c8c6de34d56e945de811c79d45cd4c6a | 2010-09-16T00:00:00Z |
3fc72544-38e0-4d30-87e7-10c083546e44 | Cler v. Providence Health System-Oregon | null | S056715 | oregon | Oregon Supreme Court | FILED: December 30, 2010
IN THE SUPREME COURT OF THE STATE OF OREGON
ALAN AND DEBI CLER,
Petitioners on Review,
v.
PROVIDENCE HEALTH SYSTEM - OREGON,
dba Providence St. Vincent Medical,
Defendants,
and
OREGON HEMATOLOGY ONCOLOGY ASSOCIATES, PC.,
Respondent on Review.
(CC 0401-00189; CA
A130443; SC S056715)
En Banc
On review from the Court of Appeals.*
Argued and submitted September 14, 2009.
Stephen C. Hendricks, Hendricks Law Firm, P.C.,
Portland, argued the cause and filed the brief for petitioners on review.
Janet M. Schroer, Hoffman Hart & Wagner,
LLP, Portland, argued the cause and filed the brief for respondent on review.
With her on the brief was Marjorie A. Speirs.
DURHAM, J.
The decision of the Court of Appeals is
reversed. The judgment of the circuit court is reversed, and the case is
remanded to the circuit court for further proceedings.
Linder, J., dissented and filed an opinion in
which Balmer and Kistler, JJ., joined
*Appeal from Multnomah County Circuit Court, Marilyn
E. Litzenberger, Judge. 222 Or App 183, 192 P3d 838 (2008).
DURHAM, J.
Plaintiff Alan Cler
suffered severe injury to his arm and hand after receiving intravenous
chemotherapy treatment from defendant Oregon Hematology Oncology Associates,
PC. Cler and his wife (plaintiffs) brought this action against defendant,
alleging that one of defendant's nurses had caused Cler's injury by negligently
administering the chemotherapy treatment. During defendant's closing argument,
defense counsel made several factual statements regarding a nurse expert who
did not testify at trial; the statements had no basis in this record. The
trial court overruled plaintiffs' counsel's objections to the statements. The
jury returned a verdict for defendant. On appeal, plaintiffs argued that the
trial court had abused its discretion in allowing defense counsel, during
closing argument, to present facts to the jury regarding the anticipated
testimony of an expert witness that was not in the record. The Court of
Appeals affirmed the trial court's decision. Cler v. Providence Health
System-Oregon, 222 Or App 183, 192 P3d 838 (2008).(1) We allowed plaintiffs'
petition for review and, for the reasons that follow, now reverse and remand
for a new trial.
After Cler was
diagnosed with Hodgkin's Lymphoma, a form of cancer, he opted to undergo
chemotherapy treatment that included the intravenous injection of a drug called
Adriamycin. Adriamycin can cause tissue damage if it leaks out of a patient's
vein and into other tissues. During Cler's first chemotherapy session, an
oncology nurse employed by defendant administered Adriamycin, which leaked from
Cler's vein and caused severe damage to Cler's arm and hand. Plaintiffs filed
this personal injury action, alleging that defendant's nurse had not met the
standard of care required for an oncology nurse in her treatment of Cler. The
case proceeded to jury trial.
At the beginning of
trial, the parties offered opening statements. During her opening statement, defense
counsel told the jury that she would be calling an oncology nurse, a nurse
manager at Oregon Health Sciences University, to testify as an expert witness.
Defense counsel offered a summary of the nurse expert's expected testimony,
namely, that defendant's nurse had met the applicable standard of care for
oncology nurses in administering intravenous chemotherapy treatment and that
several other events and circumstances, all consistent with good care, could
have resulted in the injury that plaintiff suffered.
On the fifth day of
trial, plaintiffs were still presenting their case-in chief. Before plaintiffs
called Cler as their last witness, defense counsel stated to the court,
"Judge, I do have a doctor here, who I would like to be able to get on if
I can." Plaintiffs' counsel objected. After an off-the-record discussion
in chambers, the judge and the lawyers returned to the courtroom, and the judge
addressed the jury: "Jurors, we're going to give [defense counsel] an
opportunity to talk with a couple of her witnesses in the hallway and then
we'll be resuming testimony just shortly." After a short break,
plaintiffs' counsel called Cler to testify. The next day, defendant's oncology
doctor expert testified. Defense counsel did not call a nurse expert to testify
on defendant's behalf at trial.(2)
During closing
argument, plaintiffs' counsel drew attention to defendant's failure to call a
nurse expert:
"Can you imagine this institution, Oregon
Hematology Oncology, and they have not called an independent nurse expert to
justify the care in this case? * * *
"But on a case where we're talking about
nursing care, and everyone agrees * * * when it comes to actually giving the
drugs nowadays, this is nursing duty. Nurses do this. Doctors don't do this.
They don't have an independent nurse expert.
"I mean, can you imagine? Now, there's a
reason. It is probably because they couldn't get a nurse expert who would say
that this was okay care. That's the conclusion that's easy to draw on."
Defense counsel raised no objection to those
statements. Instead, in her closing argument, defense counsel stated:
"Now, one thing I just want to mention
before I forget, [plaintiffs' counsel] said that we didn't even call an
oncology nurse. And I hope you remember that when I started my case, and I
gave my opening statement, I told you that I had [two doctors] and [an oncology
nurse] who is the nurse manager at OHSU and has 20 years' of experience in
oncology. I hope you remember that --"
Plaintiffs' counsel objected that defense
counsel was "close to testifying as opposed to addressing the evidence
that was before the court." The trial court responded: "I'm going
to let her continue * * * in the same vein that you addressed the
evidence." Defense counsel continued by stating that, at one point during
the trial, her nurse expert had been in the courtroom waiting to testify.
After plaintiffs' counsel objected twice more, the trial court asked counsel to
discuss the matter in chambers. Following that discussion, defense counsel
continued her closing argument:
"[The oncology nurse expert] was here on
[the fifth day of trial,(3)]
prepared to testify in the afternoon. She sat in the courtroom all afternoon,
and she didn't get on because [plaintiffs' counsel] was calling Mr. Cler in the
afternoon. She had to leave on the following day. She got on a plane. She
was scheduled to go on vacation. That's why you didn't hear from [her]. She
was prepared to be here. She sat in the courtroom all that afternoon, and
again, she was prepared to testify and would have testified in our case and
supported our case."(4)
In his rebuttal argument, plaintiffs'
counsel addressed defense counsel's comments concerning the failure of the
nurse expert to testify:
"You heard me object to the thing about the
nurse expert. I feel pretty strongly about this. Look, anybody that tries
these cases knows that you better get your most important and your best witness
on.
"Now, you guys sat through the testimony
and you know that we accommodated [defense counsel] by taking two witnesses out
of turn. She had every, every opportunity to get a nurse expert in to testify
in this case. If she didn't want to call that nurse at some particular time,
there's another procedure that's available.
"You can take a witness outside the bounds
of the courtroom and you can do a videotape deposition and set up a camera and
bring it in. You saw -- I don't know if you saw there's a television in the
courtroom for a couple of days. So you can play perpetuated testimony on a TV.
"She had every opportunity under the rules
that we do these cases to get this witness in here, and she did not. So I
think that you still have to conclude there's a reason that she did not."
The trial court gave no special jury
instructions regarding the nurse expert, but did give the jury the standard
instruction that it must decide the case based on the evidence (testimony and
exhibits) presented at trial and that counsel's opening statements and closing
arguments are not evidence. The jury returned a verdict for defendant.
Plaintiffs filed a
motion for a new trial, arguing, among other things, that the trial court had
abused its discretion by permitting defense counsel to present facts in her closing
statement that were not in evidence. The trial court denied plaintiffs'
motion, concluding that the court's failure to sustain the objections that
plaintiffs' counsel made during defense counsel's closing argument "did
not substantially affect plaintiffs' rights" because the statements
"were not probative of the substantive factual issues in the case, nor did
they raise an issue with respect to the credibility of a witness." The
court also noted that plaintiffs' counsel had been able to rebut defense
counsel's statements in rebuttal "by explaining ways in which defendant
could have preserved the expert's testimony for trial and by suggesting that
defense counsel made choices regarding the order in which she called her
experts."
Plaintiffs appealed,
assigning error to the trial court's ruling on plaintiffs' objections to the
statements made in defendant's closing argument. The Court of Appeals agreed
with plaintiffs that the trial court had abused its discretion in allowing
improper argument by defense counsel during closing statements. Cler,
220 Or App at 189. The court concluded, however, that the error did not
substantially affect plaintiffs' rights for three reasons: (1) the trial court
instructed the jury that opening and closing statements are not evidence; (2)
the discussion of plaintiffs' nurse expert "was not even a forkful of the
entire evidentiary pie;" and (3) the trial court, which was in the best
position to evaluate the effect of the improper argument, assessed any
prejudice to plaintiffs as minimal. Id. at 191-92. Accordingly, the
Court of Appeals affirmed the trial court judgment.
On review, the
parties reprise the arguments that they made to the Court of Appeals.
Plaintiffs argue that a trial court abuses its discretion by allowing counsel
to deliberately relate facts not in evidence to the jury during argument, and
that such action is per se prejudicial because it violates the other
party's "right to a fair trial within well-established rules." In
response, defendant argues that a trial court does not abuse its discretion by
allowing counsel to introduce facts not in evidence during argument when those
facts are collateral and when the opposing counsel has "opened the
door" with his or her own improper argument. Defendant further argues
that, on this record, plaintiffs cannot demonstrate that the statements at
issue by defense counsel were sufficiently prejudicial so as to warrant
reversal.
We review a trial
court's decisions regarding control of jury argument for an abuse of
discretion. R.J. Frank Realty, Inc. v. Heuvel, 284 Or 301, 306, 586 P2d
1123 (1978). In general, in presenting closing arguments to the jury, counsel
have "a large degree of freedom" to comment on the evidence submitted
and urge the jury to draw any all legitimate inferences from that evidence. Huber
v. Miller, 41 Or 103, 115, 68 P 400 (1902). However, that freedom is not
without limitations:(5)
One such limitation is that counsel may not make "statements of facts
outside the range of evidence." Id.; see also John H. Wigmore, 6 Evidence
in Trials at Common Law §
1807 (Chadbourn rev 1979) ("[C]ounsel must not make assertions as to facts
of which evidence must have been introduced but has not been or will not be
introduced." (emphasis omitted)); Trial, 88 CJS 353 § 309 (2008)("Counsel must be confined
to the issues and the evidence, and will not be allowed to comment on or state
facts not in evidence or within the issues.").
In closing argument
in this case, over plaintiffs' counsel's objection, defense counsel made four
statements of fact that were not testified to by any witness or otherwise admitted
into evidence: (1) an oncology nurse manager with 20 years of experience had
been prepared to testify on defendant's behalf; (2) the nurse expert had been
waiting in the courtroom to testify on the afternoon of the fifth day of trial;
(3) the reason that the nurse expert did not testify was because plaintiffs'
counsel called a witness that afternoon and the nurse expert had to go on
vacation the following day; and (4) if the nurse expert had testified, she
would have "supported [defendant's] case." Defense counsel had no basis
in the record to offer those statements to the jury in her closing argument.
Defendant submits
that, in this case, the extra-record statements were proper because, during
closing argument, plaintiffs' counsel had commented on defendant's failure to
call a nurse expert, asking the jury to draw the inference that defendant could
not find a nurse expert who would have testified that the nurse who treated Mr.
Cler had acted within the applicable standard of care. According to defendant,
plaintiffs' counsel's comment was improper because plaintiffs' counsel was
aware that the nurse expert had not testified because of scheduling issues. As
a result, defendant concludes, plaintiffs' misleading statements
"provoked" or "invited" defense counsel's statements. We
disagree.
In calling attention
to defendant's failure to call a nurse expert, plaintiffs' counsel invoked the
missing witness inference. In general terms, that inference provides that,
"[w]hen it would be natural under the circumstances for a party to call a
particular witness * * * and the party fails to do so, tradition has allowed
the adversary to use this failure as the basis for invoking an adverse
inference." 2 McCormick on Evidence § 264, at 220 (6th ed 2006). In Bohle v. Matson Navigation Co.,
243 Or 196, 198, 412 P2d 367 (1966), the court approved generally the use of
that inference, holding that the plaintiff's counsel in a personal injury case
should have been allowed to comment in closing argument on the failure of the
defendant to call a doctor who had examined the plaintiff at defendant's
request because "it is a natural inference that he would have been called
if his testimony would help the defendant's case." Id. The
invocation of the missing witness inference by plaintiff's counsel was
consistent with the holding in Bohle. As the trial court acknowledged,
plaintiff's counsel's comments "addressed the evidence" in the trial
record.
If a party believes
that an opponent has invoked the missing witness inference improperly, the
party is not without recourse. The party may timely object, and, if necessary,
move to strike or request a curative jury instruction. If evidence in the record
provides an alternative explanation for a party's failure to call a witness,
that party properly may comment thereon. Trial, 88 CJS 360 § 313 ("It is proper for counsel to
account for the absence of a desired witness where such absence would be a proper
subject for comment by his or her opponent, where the explanation is based
on evidence in the record, but not otherwise." (emphasis added;
footnote omitted)). But a party may not pursue the course of action that
defendant chose in this case: A party may not deprive the court of the
opportunity to rule on the propriety of an opponent's statement by remaining
silent during the opponent's closing argument, and then resorting to self-help
by presenting argument based on facts not in evidence. Here, defense counsel
failed to object to plaintiffs' counsel's use of the missing witness inference
in closing argument. Defense counsel never placed the propriety of plaintiffs'
counsel's statements at issue at trial and that issue is not properly assigned
as error on review.
The Court of
Appeals, in assessing whether the trial court abused its discretion, determined
that jury argument may refer to matters that are within the scope of the issues
and the evidence, but that evidence outside the record may not be suggested by
any means. 222 Or App at 183. For that proposition, the Court of Appeals
cited ORS 40.025(3) (OEC 103(3)), which provides:
"In jury cases, proceedings shall be
conducted, to the extent practicable, so as to prevent inadmissible evidence
from being suggested to the jury by any means, such as making statements or
offers of proof or asking questions in the hearing of the jury."
We agree with the Court of Appeals.
Accordingly, we have no trouble also agreeing with the Court of Appeals that
the trial court abused its discretion by overruling plaintiffs' objections to
defendant's improper argument.
Having concluded
that the trial court abused its discretion in allowing defense counsel's
statements, we turn to the question of whether that error requires reversal.
We will reverse a trial court's judgment only if the trial court's error
substantially affected a party's rights. See ORS 19.415(2) ("No
judgment shall be reversed or modified except for error substantially affecting
the rights of a party.").
In addressing
plaintiffs' contention that defense counsel's statements regarding facts not in
evidence substantially affected plaintiffs' rights, we focus first on the particular
right at issue in this case: the right to require opposing counsel to confine
her closing argument to the jury to facts admitted into evidence and permissible
inferences from those facts. Although not evidence themselves, closing
arguments "are an integral part of trial" that can alter the result
of the trial:
"They provide the attorneys with their final
opportunity to 'persuade the jury to adopt a particular view of the facts.' Ireland
v. Mitchell, 226 Or 286, 295, 359 P2d 894 (1961). It is through closing
arguments that the attorneys are able to fully frame the issues and remind the
jury of evidence that they may have heard days earlier. Further, arguments
give the attorneys a chance to explain the evidence in narrative form. That
narrative function of arguments -- the opportunity to tell the story of the
case -- is essential to effective advocacy, and the ability to do so can alter
the jury's understanding of the evidence and ultimately change the outcome of a
given case."
Charles v. Palomo, 347 Or 695, 705, 227 P3d 737 (2010) (holding that the trial
court's error in denying the plaintiff rebuttal argument substantially affected
the plaintiff's rights). The integrity of closing arguments can only be
ensured when the court requires the parties to limit their arguments to the facts
in evidence and permissible inferences from those facts. See Kuehl v.
Hamilton, 136 Or 240, 249, 297 P 1043 (1931) (noting that "[e]very
litigant is entitled to a fair trial, and this result cannot be achieved if
counsel is permitted to make statements to the jury of facts not testified to
by any witness nor admissible in evidence"). Thus, a party's introduction
of facts not in evidence during closing arguments can substantially affect the
opposing party's rights.
We determine that,
in this case, defense counsel's introduction during closing argument of facts
not in evidence substantially affected plaintiffs' rights. In his closing
argument, plaintiffs' counsel framed his narrative of the case. One aspect of
that narrative involved asking the jury to draw an inference from defendant's
failure to call a nurse expert.(6)
Defense counsel then framed a different narrative of the case, but in doing so,
impermissibly interjected extra-record facts into the case after the parties
had rested. Defense counsel introduced those facts over plaintiffs' counsel's
repeated objections and after an in-chambers discussion between the court and
counsel. In that context, from the jury's perspective, defendant's account of
the absence of the nurse expert would appear to have received the trial court's
imprimatur. Thus, plaintiffs' counsel's ability to rebut defense counsel's
explanation of the nurse expert's absence was weakened substantially.
Moreover, by making
the assertion that the nurse expert "would have supported" defendant's
case, defense counsel supplied, at least in general terms, the testimony of a
witness who was not subject to oath or cross-examination.(7) See ORS
40.320(1) ("Before testifying, every witness shall be required to declare
that the witness will testify truthfully, by oath or affirmation * * *.); Wigmore,
6 Evidence in Trials at Common Law at §1806 (when counsel argues facts not in evidence, counsel becomes a
witness without being subject to cross-examination, in violation of the
fundamental purpose of the hearsay rule). The trial court's admonition to the
jury that the lawyers' arguments "are not evidence" does not overcome
that problem, in our view. That admonition operates on the assumption, noted
above, that the record evidence frames the context within which lawyer
argumentation permissibly may occur. The court's admonition helps the jury
understand that it must not confuse a lawyer's advocacy about the record with
the actual witness testimony and other evidence that the court has admitted
into the record in accordance with the rules of evidence. The comments of
defense counsel to the jury here, however, did not simply convey her view of
the record evidence. Rather, defense counsel characterized for the jury the
purported testimony of a witness who never took the witness stand. That
conduct creates an unacceptable risk that the jury would consider the statement
as that of the unsworn witness and not solely that of the lawyer. ORS
40.025(3) deters the suggestion of inadmissible evidence to the jury by any
means, including through counsel's statements; it does not somehow authorize
that sort of conduct so long as the trial court admonishes the jury that the
statements are not evidence. For that reason, the court's admonition to the
jury does not eliminate the prejudicial effect of the trial court's error.
The assertion that a
nurse expert would have supported defendant's position was material to the
central issue in the case: whether defendant's nurse complied with the
applicable standard of care for oncology nurses. Because defense counsel's
assertion that the nurse expert "would have supported" defendant's
case was not based on evidence in the record, the court's ruling deprived plaintiffs'
counsel of the opportunity to cross-examine that factual assertion or otherwise
rebut defense counsel's factual claim. In light of those circumstances, we
conclude that the trial court's failure to sustain plaintiffs' objections to defense
counsel's comments substantially affected plaintiffs' rights. ORS 19.415(2).
The decision of the
Court of Appeals is reversed. The judgment of the circuit court is reversed,
and the case is remanded to the circuit court for further proceedings.
LINDER, J.,
dissenting.
A common situation
in jury trials, both civil and criminal, is the problem of the so-called
"invited response" or "invited reply." It occurs when one
party, in closing argument, resorts to an improper argument that, if left
unaddressed, could mislead the jury or otherwise encourage the jury to base its
verdict on an impermissible consideration. The other party fails to object
and, to counter the provoking argument, resorts to improper argument in
response. If the party who provoked the exchanges loses and appeals, it often
falls to the appellate court to determine in such a circumstance whether the
"invited response" was error and, if so, whether the error was
prejudicial and warrants a new trial.
In this classic
"invited response" situation, the majority holds that the fact that
one party engages in improper argument does not mean that the opposing party
may do the same in response. Thus, if the "invited response" is
improper in substance, and if there is a timely objection to it, the trial
court must sustain the objection. I agree with that portion of the majority's
holding, which is consistent with this court's precedents and with the better
rule endorsed in other jurisdictions.
The majority takes a
serious misstep in further holding, however, that the provoking argument is
irrelevant in determining whether the error warrants reversal. To the
contrary, the substance of the provoking argument is context for accurately
evaluating the likelihood that the jury's verdict was influenced by an
impermissible consideration. As I will discuss, plaintiffs in this case
invited the jury to draw an unfavorable inference against the defense that the
evidence in the record did not support. In response, defendant, too,
improperly went beyond the evidence in the record. Considered in context,
however, defendant's argument merely offset the improper inference that
plaintiffs had invited the jury to draw. The only "prejudice" to
plaintiffs was that they may have been deprived of the benefit of their own
improper argument. Consistent with our precedents, the considered rule adopted
by other courts, and our constitutional obligation to affirm in the absence of
prejudice, plaintiffs are not entitled to a reversal and a new trial in this
case. For that reason, I dissent.
I begin by recapping
the pertinent facts. In this medical negligence case, the defense in opening
statements to the jury briefly summarized the expected testimony of three
experts it intended to call in support of its case, including that of a nurse
manager of the oncology unit at Oregon Health and Science University. On the
day that the nurse expert was to testify, she was in the courtroom throughout
the afternoon. The defense did not call her that day due to scheduling issues,
however. Because the nurse expert was leaving town the next day on a prescheduled
vacation, the defense did not call her on either of the two remaining days of
trial. By the time the parties presented closing arguments to the jury,
defense counsel had explained to plaintiffs' counsel (as well as to the trial
court) why the nurse expert had not testified. Despite his awareness of that
explanation, plaintiffs' counsel during closing argument told the jury that
"there's a reason" why plaintiffs had not called a nurse witness,
that it was probably because the defense could not find one that would testify
in its favor, and that the jury should so conclude.
Defense counsel did
not object. In her closing argument, after arguing in detail and at length
about the significance of the testimony of each side's experts, defense counsel
noted that she wanted to "mention" something in response to
plaintiffs' counsel's argument about defendant's failure to call an oncology
nurse. Defense counsel reminded the jury that, in opening statements, she had
indicated that she was going to call a nurse expert with 20 years of
experience. Plaintiffs' counsel did not formally object at that point, but did
voice concern to the trial court about where counsel might be headed with her
argument. The trial court indicated that it would let defense counsel continue
"in the same vein" in which plaintiffs' counsel had addressed the
argument. Defense counsel continued by explaining why the nurse expert did not
testify. Plaintiffs' counsel interrupted, objecting (more than once) that
defense counsel was relying on facts not in evidence. The trial court, after
discussing the matter in chambers with counsel, overruled the objection.
Defense counsel completed her explanation to the jury, briefly reminding it
that defendant's nurse expert had been in the courtroom, describing the
scheduling conflict that caused defense counsel not to call the nurse expert,
and stating that the nurse expert otherwise would have "testified in our
case and supported our case."
In plaintiff's rebuttal
argument, plaintiffs' counsel replied to defense counsel's response. Counsel
asserted, without objection, that the defense had "every opportunity"
to put that nurse expert on the stand and explained how the defense could have
deposed or otherwise perpetuated the nurse expert's testimony. Plaintiffs'
counsel concluded by again urging the jury to draw an inference against the
defense from its failure to call a nurse witness. After deliberating, the jury
returned a verdict for the defense.
As plaintiffs
successfully argued to the Court of Appeals, and argue again to this court,
defense counsel, in explaining why the nurse expert did not testify,
impermissibly referred to facts that were not in evidence. See generally
Huber v. Miller, 41 Or 103, 115, 68 P 400 (1902) (a party in closing
argument may not make "statements of facts outside the range of
evidence" or "assume a fact as though proven when no such inference
can be reasonably drawn from the evidence"). In particular, defense
counsel described the scheduling problems that caused her not to call the nurse
expert who, in opening statements, she had said she would call. She also told
the jury that the nurse expert would have testified in support of the
defendant's case. No "evidence" in the record established those
"facts."(1)
When the trial court allowed defense counsel to argue over plaintiffs' timely
objections on that ground, the trial court erred. See generally State v.
Blodgett, 50 Or 329, 342, 92 P 820 (1907) (if one party argues facts not in
evidence and not otherwise admissible, trial court must sustain objection to
that argument, rather than leave the other side to refute the assertions in
reply).
Plaintiffs'
argument, however, was equally improper. In closing argument, after expressing
incredulity at defendant's failure to call a nurse expert, counsel told the
jury that "there's a reason" why defendant did not do so, and it was
"probably because they couldn't get a nurse expert who would say that this
was okay care." After defense counsel explained the scheduling issue that
arose, plaintiffs' counsel in rebuttal advised the jury of ways in which the
defense could have perpetuated the witness's testimony, and urged the jury
again to draw an unfavorable inference against the defense from its failure to
call a nurse expert. Plaintiffs' counsel advanced those arguments knowing that
the defense had a nurse expert that it intended to call and aware of defense
counsel's reasons for not calling her.(2)
In making that
argument, plaintiffs invoked a so-called "missing witness" inference
-- e.g., "[w]hen it would be natural under the circumstances for a
party to call a particular witness, or to take the stand as a witness in a
civil case * * * and the party fails to do so, tradition has allowed the
adversary to use this failure as the basis for invoking an adverse
inference." 2 McCormick on Evidence § 264, 220 (6th ed 2006). For
present purposes, it is not necessary to explore the intricacies of the inference
and when it is properly invoked.(3)
It suffices to observe that the inference does not arise from "the bare
fact that a particular person is not produced as a witness." John Henry
Wigmore, 2 Evidence § 286, 199 (Chadbourn rev 1979); see also Tenny
v. Mulvaney, 8 Or 513, 521-22 (1880) (mere fact that witness was not called
was not sufficient to support inference that witness's testimony would have
been unfavorable to defendants). Rather, it is proper only when the particular
circumstances of a case support it, such as when it would be natural for a
party to call a particular witness, and the party, without explanation, has
failed to do so. See generally Bohle v. Matson Navigation Co., 243 Or
196, 198-99, 412 P2d 367 (1966) (stating general rule). Among the limitations
on the inference is the requirement that the witness in fact be within the
power of the party to produce, both legally and practically. State v.
Hatcher, 29 Or 309, 317-18, 44 P 584 (1896) (party cannot urge adverse
inference from failure to call a witness where record did not show that witness
was within the power of the party to produce); see generally Wigmore, 2
Evidence § 286 at 200-02 (stating limitation and citing representative
cases). If, for example, a person is disqualified as a witness or could not be
called due to illness or some other practical circumstance, the inference is
not permissible. Id. (citing representative cases).(4)
In the
circumstances of this case, plaintiffs' resort to the missing witness inference
was not proper argument. Plaintiffs' counsel invited the jury to draw an
inference that he had no basis to believe was true (i.e., that no nurse
expert was prepared to testify in favor of defendant), and had ample reason to
believe was not true, given defense counsel's explanation in advance of closing
arguments that her nurse expert did not testify due to scheduling issues. No
authority approves of the missing witness inference when the party seeking the
inference has been previously informed -- as plaintiffs' counsel had been here
-- that the defense had not called the witness due to scheduling issues.(5) Analogous cases,
instead, uniformly hold that the inference is not permissible in such a
circumstance. See, e.g., Bender v. Adelson, 187 NJ 411, 433-46,
901 A2d 907 (2006) (where plaintiff knew that defendants had two independent
expert witnesses who were precluded from testifying for procedural reasons, permitting
missing witness inference was error because it "implied an untruth"
and played on jury's ignorance of actual reason why witnesses did not appear;
error required new trial).(6)
By urging the
missing witness inference when it was not a permissible one, plaintiffs
themselves invited the jury to rely on a "fact" -- i.e., the
inferred fact that defense counsel could not find any nurse expert to testify
in its favor -- that was not established by evidence in the record. That is
the essential problem with a missing witness inference in circumstances that do
not adequately support it. See generally Hatcher, 29 Or at 315-16
(counsel's impermissible reliance on missing witness inference resulted in
arguing facts to jury that were not in evidence); Tenny, 8 Or at 521
(same).
The significant
question that this case presents, therefore, is not whether a party may argue
facts or inferences that lack evidentiary support in the record. It is
undisputed that, as a general proposition, a party may not. The significant
question is, instead, whether it is relevant to the analysis that the party was
provoked to do so to respond to an improper argument made by the opposing side.
On that point, the
numerous courts in other jurisdictions that have wrestled with the "invited
response" problem uniformly consider the provoking improper argument
relevant. They differ only on the question: Relevant to what? One line of
authority holds that the provoking argument is relevant to determine whether
the "invited reply" is error at all or, if error, whether the
provoking party is estopped to raise the error on appeal.(7) The other line
of authority rejects the proposition that a provoking improper argument
justifies or precludes appellate review of an improper argument in response;
those courts, however, consider the provoking argument a highly relevant
consideration in determining whether a reversal is warranted. As the United
States Supreme Court has explained in the lead case taking that approach, the
invited response doctrine does not give a party "license to make otherwise
improper arguments" in response to an improper argument; it does, however,
inform whether the "'invited response,' taken in context, unfairly
prejudiced" the opposing side. United States v. Young, 470 US 1,
12, 105 S Ct 1038, 84 L Ed 2d 1 (1985). The
provoking argument is important context for that evaluation, because it informs
whether the response merely offset the misleading nature of the provoking
argument, thus producing "no net effect on the jury's
deliberations." United States v. Mazzone, 782 F2d 757, 763 (7th
Cir), cert den, 479 US 838 (1986). In other words, to assess
whether the jury was "led astray," the substance of the invited
response must be evaluated in the context of the "opening salvo." Young,
470 US at 12; see also Darden v. Wainwright, 477 US 168, 182, 106
S Ct 2464, 91 L Ed 2d 144 (1986) (invited response doctrine does not
"excuse improper comments," but instead seeks to accurately assess
"their effect on the trial as a whole").
Although this court
has not discussed or examined the invited response situation in any depth, our
precedents are in general accord with that latter approach. The cases on point
hold that the fact that one party advances an improper argument to the jury does
not excuse or otherwise make it proper for the opposing party to respond in
kind. See, e.g., Walker v. Penner, 190 Or 542, 553, 227 P2d 316
(1951) ("'[T]he mere fact that counsel for one party has injected improper
matter into the case does not license opposing counsel to commit a similar
wrong'[.]") (quoting Trial, 64 CJ § 300, 281); State v. Blodgett,
50 Or 329, 92 P 820 (1907) (same). But this court also has been unwilling to
reverse such an error, even with timely objection, unless the objecting party
was prejudiced, which depends on "the issue involved and the state of the
evidence." Blodgett, 50 Or at 344; see also Kuehl v. Hamilton,
136 Or 240, 248, 297 P 1043 (1931) (reversal not warranted where closing
argument that placed facts not in evidence before jury did not materially
prejudice the objecting party).
In assessing the
likelihood that the jury's verdict was influenced by an impermissible
consideration, this court has considered the substance of the provoking
improper argument, as well as that of the responding argument. See, e.g.,
McKay v. Pacific Bldg. Materials Co., 156 Or 578, 591-92, 68 P2d 127
(1937) (not reversible error for plaintiff to improperly refer to defendant's
ability to obtain insurance where argument was in response to misleading
suggestion by defense that it could not obtain insurance, when in fact
defendant could do so and had done so); Storla v. S. P. & S. Trans. Co.,
140 Or 365, 369-70, 12 P2d 1009 (1932) (where defense in closing argument urged
jury that verdict would cause defendant "a lot of harm" and
"hard days of toil" knowing that defendant was indemnified by
insurance, court declined to reverse based on responsive argument that verdict
would not cost defendant "one cent").(8) And this court has
endorsed the general observation that "'improper language used in argument
is not ground for reversal, where such language was provoked by the remarks of
counsel for the adverse party'" unless "'it appears quite plainly
that the verdict was influenced thereby.'" Walker, 190 Or at
553-54 (quoting Trial, 64 CJ § 300, 281). That observation is
consistent with the usual experience of courts reviewing invited responses for
prejudice, which is that, when the response is not out of proportion to the
provocation, the two arguments will often counter one another in a way that
does not prejudicially influence the jury's deliberations. See Young,
470 US at 12 (observing that most intermediate courts, in reviewing an invited
response in the context of the argument that provoked it, find no prejudice
justifying reversal as long as the responsive argument is a reasonable reply to
the provocation).(9)
In this case, the
majority takes a very different approach, one that no other jurisdiction or
authority appears to endorse. The majority treats plaintiffs' own improper
provoking argument as irrelevant to the prejudice analysis by deeming it
"not in issue" given defense counsel's failure to object to it. __ Or
at ___ (slip op at 9). That, however, is an inadequate answer. The failure to
object to an improper argument does not make the argument itself proper. See
generally Kuehl, 136 Or at 249 (trial courts, consistently with their
traditional power to properly oversee the arguments of counsel, should
intervene to stop arguments based on facts not in the record, despite the lack
of objection); Zimmerle v. Childers, 67 Or 465, 474, 136 P 349 (1913)
(same).(10)
The failure to object means only that, if the verdict is against the
nonobjecting party, that party generally may not rely on the error as a ground
for reversal on appeal, unless the error qualifies as "plain error."
State v. Montez, 309 Or 564, 601-02, 789 P2d 1352 (1990) (declining to
consider claim of error in closing argument where defendant did not object and
issue was not plain error).
Here, plaintiffs,
who made the initial provoking argument, not defendant, ask this court to
dislodge the jury's verdict and remand this case for a new trial. In keeping
with our constitutional obligation, if plaintiffs are to have that remedy, they
must identify prejudice by demonstrating that defendant's closing argument may
have caused the jury to base its verdict on an impermissible consideration,
rather than on the evidence. Or Const, Art VII (Amended), § 3 (the court must
affirm a judgment on appeal, "notwithstanding any error committed during
the trial," if the judgment "was such as should have been rendered in
the case").
This record does not
support such a conclusion. Even considered in isolation, defense counsel's
argument lacked substance. Defense counsel explained that the defense had been
prepared to call an experienced nurse oncologist, that it did not do so due to
witness scheduling problems, and that the nurse expert would have testified and
"supported [defendant's] case." The only fact among those that had
not already been stated during counsel's opening statements to the jury was the
fact that the nurse did not testify due to scheduling reasons. And it required
no leap of faith or logic for the jury to have concluded, from the fact that
the defense intended to call a nurse expert, which the jury knew, and from the
fact that she was in the courtroom throughout the afternoon on which she was scheduled
to testify, which the jury likely observed, that the testimony of that expert
would support the defense case in some way. Defense counsel's closing argument
related nothing more. In particular, defense counsel relayed nothing of
the actual substance of the testimony that the nurse expert had been expected
to give.
But in all events,
considered in context, the statements did no more than correct the
misrepresentation that plaintiffs' counsel created. That is, defense counsel's
statements neutralized the misleading inference that plaintiffs' counsel
expressly invited the jury to draw -- that the defense could not find a nurse
expert who "would say that this was okay care." When defense counsel
responded to that argument, she did not ask the jury to draw any affirmative
conclusion. Rather, defense counsel expressly referred to plaintiffs'
argument, and explained the circumstances. In context, the only point
of the argument -- and no other point was made -- was to have the jury not
indulge the inference that plaintiffs had invited. As is often true of invited
responses, the net effect of that argument was merely to counter plaintiffs'
own argument and to encourage the jury not to base its verdict on the missing
witness inference.
When, as happened
here, an improper invited response principally served to deprive the provoking
party of the benefit of its misleading argument to the jury, that is not, under
our constitution, a basis on which an appellate court may disturb the jury's
verdict and give the party a new trial. Yet, that is the "prejudice"
identified by the majority, which finds reversible error in this case because
plaintiffs' effort to have the jury draw the missing witness inference was
"weakened substantially" by defendant's response. __ Or at ___ (slip
op at 11). The inference was not a permissible one in this case, and the fact
that plaintiffs may have been deprived of the benefit of their improper
argument is not cognizable "prejudice" and not ground for reversal.(11)
Finally, the relevant
context properly must consider the trial court's instructions to the jury.
Here, the trial court twice instructed the jury that the statements of counsel
were not evidence -- once at the beginning of the trial and again immediately before
closing arguments. The majority is inappropriately dismissive of the value of
those instructions. ___ Or at ___ (slip op at 12). This court generally presumes
that a jury adheres to a trial court's instructions, Wallach v. Allstate
Ins. Co., 344 Or 314, 326, 180 P3d 19 (2008), and does so in "invited
reply" situations. See, e.g., Walker, 190 Or at 554
(considering court's instructions as factor in whether improper invited
response was reversible error). Such an instruction might not cure a highly
prejudicial closing argument, in which counsel extensively argued inflammatory
off-the-record facts that under no circumstance would have been admissible
during the trial. See, e.g., Blodgett, 50 Or at 344 (reversal
for improper argument warranted where argument injected highly inflammatory and
prejudicial material that "no one" would "contend for a
moment" would have been admissible during trial). But this is a far
distance from that circumstance.
For those reasons, I respectfully dissent.
Balmer and Kistler, JJ., join in this dissent.
1. Providence
Health System-Oregon was dismissed from the action and is not a party to this
appeal. All references to "defendant" are to Oregon Hematology
Oncology Associates, PC.
2. The
parties dispute the details of what occurred during the in-chambers discussion
with the judge, as well as the details of the scheduling issues. In our view,
the details surrounding the nurse's failure to testify are not pertinent to the
question before us on review. The pertinent fact is that defendant did not
ultimately call the oncology nurse expert to testify.
3. Although
defense counsel actually referred to the sixth day of trial, her reference to
Mr. Cler and the surrounding context make it clear that she meant the fifth day
of trial.
4. Although
plaintiffs did not object again at this point, we determine that plaintiffs'
earlier objections adequately preserved plaintiffs' argument that defense
counsel was impermissibly arguing facts not in evidence. As the trial court
later observed in its order denying plaintiffs' motion for a new trial,
"after the in-chambers discussion between the [trial court] and counsel,
plaintiffs' counsel may have felt it would be futile to continue with his same
objections."
5. See, e.g., R.J. Frank Realty, 284 Or at 306 (counsel
should refrain from abusive arguments); State Highway Comm'n v. Callahan,
242 Or 551, 558, 410 P2d 818 (1966) (arguments that are "highly
inflammatory * * * and had no reasonable relevance" to the issues in the
case are improper); Bratt v. Smith, 180 Or 50, 60,175 P2d 444 (1946)
(arguments that directly appeal to "passion and prejudice" are beyond
the bounds of legitimate comment on the evidence)
6. The
dissent asserts that we have treated plaintiffs' jury argument as irrelevant to
the analysis of prejudice. We disagree. We have considered the entire record,
including plaintiff's jury argument, to determine whether the trial court's
error "substantially affect[ed] the rights of a party." ORS
19.415(2).
7. The
dissent has determined that plaintiffs' argument to the jury was not proper and
amounted to a misrepresentation. From that premise, the dissent argues that
defense counsel sought only to correct that misrepresentation by referring to
facts that, according to the dissent, the jury likely already knew by, for
example, viewing people sitting in the courtroom during trial and speculating
about how they might testify if called. We decline to consider those
assertions as facts established in the record. Although the dissent cites
several legal propositions with which we have no disagreement, we read the
factual record quite differently; our different reading of the record supports
our disposition here. For example, in our view, plaintiffs' counsel's closing
argument was not a misrepresentation and was not improper. That is so because,
according to the record, the defense had not called a nurse expert witness,
either in person or by introducing an expert's testimony through a deposition.
Nothing compelled plaintiffs' counsel to concur with defense counsel's asserted
reason for not calling the expert witness or the claim that the witness would
have supported defendant's case. The dissent apparently believes that defense
counsel conveyed nothing of the actual substance of the nurse expert's testimony
to the jury but, again, we read the record differently and reach a different
conclusion.
1. For present purposes, I am willing to presume that a description to
the jury of the scheduling problem that arose during the trial is a "fact
not in evidence" within the meaning of that familiar doctrine. It is less
than clear to me, however, whether that is correct. Juries are often apprised
of scheduling issues and other procedural events, if for no other reason than
to explain why continuances, protracted recesses, or other changes to the
expected trial schedule have become necessary. Explaining such circumstances
to a jury is not the kind of information that ordinarily is delivered by sworn
testimony. Cf. United States v. Long, 533 F2d 505, 509 (9th Cir 1976)
(trial court properly advised jury that informant's failure to testify was due
to court's procedural ruling).
2. Although the parties disputed certain facts pertaining to the
scheduling issues at trial, the only pertinent fact for purposes of the issue
on review, which is not disputed, is that plaintiffs' counsel had been
informed, before closing argument, why defense counsel did not call its nurse
expert. In all events, to whatever extent there were factual disputes
pertinent to the issue we must decide, they were implicitly resolved against
plaintiffs by the trial court.
3. The rules limiting the availability of the inference do so because
it so readily invites abuse by counsel. As one commentator has observed:
"Too often the [missing witness] rule is treated as just another weapon
available for the duel between the lawyers. Counsel invoke the inference of
adverse testimony without any concern for the actual content of the evidence
and sometimes even urge an inference known to be false just to gain an
advantage." Robert H. Stier, Jr., Revisiting the Missing Witness
Inference -- Quieting the Loud Voice from the Empty Chair, 44 Md L Rev 137,
155 (1985).
4. The missing witness inference is "always open to explanation"
by the party against whom the inference is invoked. Wigmore, 2 Evidence
§ 285 at 192. The fact that the inference is usually advanced in closing argument
therefore poses problems of fairness and judicial efficiency. As one authority
cautions, "[t]he possibility that the inference may be drawn invites waste
of time in calling unnecessary witnesses or in presenting evidence to explain
why they were not called." 2 McCormick on Evidence § 264 at 223.
The inference also can entail "substantial possibilities of
surprise." Id. Because of those problems, some jurisdictions
require the advance permission of the trial court before arguing the
inference. See, e.g., Thomas v. United States, 447 A2d 52, 58
(DC 1982) (because of dangers of missing witness argument, which essentially
creates evidence from nonevidence, permission of court must be obtained before
inference can be suggested to jury; onus is not on the party against whom an
inference is made to object after the fact).
5. Neither do plaintiffs cite any authority to suggest that their argument
under these circumstances was proper. They rely principally on Bohle,
which merely states the baseline principle that a missing witness inference is
proper when the particular circumstances are such that the inference is
a natural one to draw. 243 Or at 198-99. Beyond that, plaintiffs merely
assert, without elaboration or evident support, that their own closing argument
to the jury was "reasonable and well established under Oregon law."
6. See also Calvin v. Jewish Hosp. of St. Louis, 746 SW2d 602, 605
(Mo App 1988) ("When a witness'[s] testimony is excluded on an attorney's
motion, it is misconduct constituting manifest injustice and thus reversible
error if that attorney requests the jury to draw an adverse inference from his
opponent's failure to produce that witness even though the error is not preserved
for appellate review.").
7. Cases so holding are far too numerous to cite. For representative
civil and criminal cases holding that an invited response is not error, see
Richmond Condominiums v. Skipworth Plumbing, 245 SW3d 646, 668 (Tex Ct
App 2008) (defense counsel's "invited" closing argument not improper
when in response to and confined to the provoking argument of opposing counsel );
United States v. Schwartz, 655 F2d 140, 142 (8th Cir 1981) (under
"doctrine of fair reply," government's reply to defense counsel's
statements in closing "not improper" because defense counsel
"open[ed] the door" on the issue). For representative cases holding
that the provoking party is estopped to claim error on appeal, see Fredrick
v. Dreyer, 257 NW2d 835, 839 (SD 1977) (general rule is that party whose
counsel pursues improper argument and invites reply is estopped to complain); State
v. Hall, 982 SW2d 675, 683-84 (Mo 1998), cert den, 519 US
1083 (1997) (defendant may not provoke reply with own closing argument and then
assert error on appeal to prosecution's comment in response).
8. This court in Storla arguably followed an estoppel rationale.
140 Or at 370 (party who provoked improper argument could not "with good
grace" complain about argument made in response). But the court's
examination of the substance of the two arguments suggests that, in fact, the
court reached the claim of error, but deemed the responsive argument, in the
context of the argument that provoked it, not prejudicial.
9. See generally Trial, 75A Am Jur 2d 63-64 § 470 (2007) ("The
law indulges a liberal attitude toward comments which are a fair retort or
response to the prior argument of opposing counsel. Thus, arguments which are
replies in kind or are provoked by arguments of opposing counsel do not amount
to reversible error.").
10. See also Young, 470 US at 8-10 (trial courts should
promptly intervene and deal with improper arguments by counsel "on both
sides of the table," regardless of lack of objection, to ensure fairness
of the proceedings and adherence to professional standards of conduct).
11. Worth noting is that plaintiffs, in all events, got the final word and
a last chance to encourage the jury to do what it should not do -- draw an
unfavorable inference against the defense from the fact that the defense did
not have the nurse witness. As already described, plaintiffs' counsel argued
in rebuttal that the defense could have called the nurse witness; he explained
-- by going beyond the record -- ways in which the defense could have
perpetuated the nurse witness's testimony despite the scheduling problems, and
he urged the jury a final time to conclude that "there was a reason"
why the defense did not call the nurse witness. Plaintiffs were not entitled
to that inference, but they got a further chance to urge it to the jury,
without objection by the defense, and with the tacit approval of the trial
court. | f6d904d3ef9390fd5bb42aa04eb297c72e245cfe6ec2f24b67ed733cd2a42ea7 | 2010-12-30T00:00:00Z |
52e90bd4-e3c8-49d2-aabd-4d03f7de02a5 | Weaver v. Belleque | null | S058700 | oregon | Oregon Supreme Court | FILED: November 5, 2010
IN THE SUPREME COURT OF THE STATE OF OREGON
RONALD R. WEAVER,
Petitioner/Relator,
v.
BRIAN BELLEQUE,
Superintendent,
Oregon State Penitentiary,
Defendant/Adverse
Party.
(CC
07C23515; SC S058700)
Original proceeding in
mandamus.* Considered and under advisement on November 3, 2010.
Ronald R. Weaver,
Relator, pro se, filed the petition for alternative writ of mandamus and
emergency motion to stay trial court proceedings.
No appearance contra.
Before De Muniz, C.
J., and Gillette, Durham, Kistler, Balmer, and Walters, JJ.**
PER CURIAM
The petition for
alternative writ of mandamus is denied. The emergency motion to stay trial
court proceedings is dismissed as moot.
De Muniz, C. J., concurred
and filed an opinion.
*On petition for
alternative writ of mandamus from an order of the Marion County Circuit
Court,
Jamese Rhoades,
Judge.
**Linder, J., did not
participate in the consideration or decision of this case.
PER CURIAM
The petition for alternative writ of
mandamus is denied. The emergency motion to stay trial court proceedings is
dismissed as moot.
DE MUNIZ, C. J., concurring.
I write to expressly note the mandatory
nature of the obligation imposed by UTCR 5.050 to provide oral argument on
motions filed in civil cases when requested by a party. In Zehr v Haugen, 318
Or 647, 652, 871 P2d 1006 (1994), this court described that obligation in the
following terms:
"UTCR 5.050(1) is expressed in mandatory terms: 'There must be oral argument'
if requested in the form specified. * * * Neither is the rule an empty
gesture. Oral argument is an important way in which counsel communicate to the
court the efficacy of their client's positions, and it is the only opportunity
for the court fully to inform itself through a process of questions and
answers. The trial court erred in refusing plaintiff's request, made in the
form specified in the rule for oral argument."
Nevertheless, in Zehr, this
court did not require reversal for failure to provide oral argument because the
plaintiffs did not demonstrate they were prejudiced by the court's refusal to
grant them oral argument. Id. at 652-53. In this case, it also does
not appear that relator was prejudiced by the failure of one trial court judge to
afford him the opportunity to orally argue pro se on his motion seeking
disqualification of the trial court judge presiding over relator's pending
case. Because the record does not establish prejudice to relator, I join in
the court's decision denying relator's request that this court exercise its
discretion to grant the extraordinary remedy of mandamus relief. I do note,
however, that UTCR 5.050 imposes a mandatory requirement with which trial
courts must comply. | 1ee396e7b19f94e361c12798a3bc5e538898585abde08d1a9e60414f25fb969b | 2010-11-05T00:00:00Z |
76b88aaf-61e3-4815-b733-e8324b49856e | In re Hartfield | null | S058271 | oregon | Oregon Supreme Court | FILED: September 23, 2010
IN THE SUPREME COURT OF THE STATE OF OREGON
In re Complaint as to the Conduct of
SEAN L. HARTFIELD,
Accused.
(OSB No. 08-42; SC S058271)
En Banc
On review of the decision of the trial panel of
the Disciplinary Board.*
Submitted on the record and under advisement on
August 6, 2010.
Linn D. Davis, Assistant Disciplinary Counsel,
Tigard, filed the brief for the Oregon State Bar.
No appearance contra.
PER CURIAM
The accused is publicly reprimanded.
*Trial Panel Opinion, December 23, 2009.
PER CURIAM
In
this lawyer disciplinary proceeding, the Oregon State Bar charged Sean L.
Hartfield (the accused) with violating three provisions of the Oregon Rules of
Professional Conduct (RPC). A trial panel of the Disciplinary Board concluded
that the accused had violated RPC 8.4(a)(4), which makes it professional
misconduct for a lawyer to "engage in conduct that is prejudicial to the
administration of justice," dismissed the other two charges, and publicly
reprimanded the accused.(1)
The accused timely requested review but failed to file an opening brief with
this court. The Bar petitioned for review and filed a brief, but waived oral
argument. We have considered this matter on the record before the trial panel
and on the Bar's brief filed with this court. ORAP 11.25(3)(a). On de novo
review, ORS 9.536(2); Bar Rule of Procedure (BR) 10.6, we conclude that the
accused violated RPC 8.4(a)(4). We publicly reprimand the accused.
Before
turning to our discussion of the issues on review, we draw attention to certain
aspects of this case that bear on this court's procedure on review in this and
similar cases. As noted, the accused timely requested that this court review
the decision of the trial panel pursuant to ORS 9.536(1). That statute
provides, in part:
"The Oregon State Bar or the accused may seek review of
the [disciplinary board's] decision by the Supreme Court. Such review shall be
a matter of right upon the request of either party."
The accused,
however, filed no opening brief, as required by ORAP 11.25(2)(a) and BR
10.5(c), and thus provided the court with no argument or explanation concerning
any objection to or dissatisfaction with the trial panel's decision. Had the
briefing remained in that posture, the court would have considered the matter de
novo, as required by ORS 9.536(2), which provides:
"When a matter is before the Supreme Court
for review, the court shall consider the matter de novo and may adopt, modify
or reject the decision of the disciplinary board in whole or in part and
thereupon enter an appropriate order."
However, the court would have been free to
circumscribe the extent of its review due to the absence of briefing or
argumentation challenging the order on review. As this court observed in a
similar case involving unfocused claims of trial panel error, "[a]lthough
our standard of review remains de novo (ORS 9.536(2)), ordinarily we
will consider the issues for our review to be those framed by the parties'
briefs and arguments." In re Paulson, 346 Or 676, 679 n 3, 216 P3d
859 (2009), adh'd to as modified on recons, 347 Or 529, 225 P3d 41
(2010).
The Bar also
exercised its right under ORS 9.536(1) to request review of the trial panel
decision by this court. The Bar may have believed that it was compelled to do
so by BR 10.5(b), which requires the accused to file the petition if the trial
panel order finds the accused guilty of misconduct, and also provides that
"otherwise, the Bar shall file the petition." As already noted,
although the trial panel order made a finding of misconduct against the
accused, it also dismissed two of the Bar's charges of misconduct. The
dismissal of those two charges may have led the Bar to conclude that it was
obligated by BR 10.5(b) to file the petition. The Bar's brief, however, raised
no challenge to the dismissal of the other two charges. Instead, the Bar
argued that this court on review should affirm the trial panel's finding of misconduct
and sanction in all respects.
The Bar may request
review by this court of a trial panel decision even if, as here, the Bar is
satisfied with the trial panel's decision in all respects. However, this
court's rules permit the Bar to obtain that result by following a more
efficient procedural path than petitioning for review and submitting full
briefing on the case. We take this opportunity to draw attention to those
rules to promote greater efficiency in the administration of similar
disciplinary cases in the future.
ORAP 11.25(3), like
BR 10.5(b), discusses the Bar's procedures for petitioning for review by this
court when the accused fails to file a petition and brief in Bar discipline
cases. However, ORAP 11.25(3) applies "notwithstanding BR 10.5(b)";
that is, this court's rule provides an alternative to the full briefing route that
appears in BR 10.5. ORAP 11.25(3) provides:
"If, notwithstanding BR 10.5(b), an accused
who is required to file a petition and brief fails to do so within the time
allowed under BR 10.5(a), the Bar shall:
"(a) File a petition and brief within the
time allowed for filing an answering brief. The brief shall comply with the
rules governing petitions and opening briefs. At the time the petition and
brief are filed, the Bar shall indicate whether it wishes to waive oral
argument and submit the case on the record, or
"(b) Submit a letter stating that it
wishes the matter submitted to the court on the record without briefing or oral
argument. Notwithstanding waiver of briefing and oral argument under this
paragraph, at the direction of the Supreme Court, the Bar shall file a petition
and brief within the time directed by the court."
(Emphases added.)
ORAP 11.25(3)
entitles the Bar, in cases like the present one, to elect to submit a letter
requesting submission of the case to the court without briefing or oral
argument. If the accused has filed no petition or brief challenging some
aspect of the trial panel's order, and the Bar has elected the submission procedure
set out in ORAP 11.25(3)(b), this court, following the review principle set out
in Paulson, generally will determine that the parties have raised no
argument challenging the trial panel order and conclude that the order should
be affirmed. As noted, the Bar is entitled to employ the alternative procedure
set out in ORAP 11.25(3)(b) notwithstanding any provision in BR 10.5(b).
Having clarified the procedures that govern review by this court in this and
similar cases, we turn to a discussion of the issues in this case.
From
2002 until the latter part of 2008, the accused was in private practice at a
law office in Northeast Portland. The accused first represented Myrtle
Nickerson in 2003 when he handled the probate of her sister's estate. The next
year, the accused began to advise Ms. Nickerson about matters relating to the
declining mental capacity of her husband, Nathan Nickerson. In March 2005,
after Ms. Nickerson's husband had been admitted into an Alzheimer's care
facility, Ms. Nickerson, the couple's financial planner, and the accused
discussed setting up a conservatorship so that Ms. Nickerson could authorize
required minimum distributions from her husband's retirement accounts. Federal
law required Ms. Nickerson's husband to make the distributions annually in
order to avoid federal tax penalties. The accused agreed to handle the
conservatorship pro bono.
On
March 31, 2006, the accused filed a petition in Multnomah County Circuit Court
for the appointment of Ms. Nickerson as conservator for her husband.(2) On June 2,
the court entered a limited judgment appointing Ms. Nickerson temporary
conservator for her husband for the sole and limited purpose of distributing
and transferring his retirement accounts. The accused later filed an amended
petition for conservatorship; in an attached affidavit, he averred that the
conservatorship should not terminate because of the need to make the required
minimum distributions annually. Based on that information, the court issued an
amended limited judgment on October 2, 2006, that did not place scope or
duration restraints on the conservatorship.
Under
ORS 125.470(1), a conservator must file an inventory of the protected person's
assets within 90 days after of the date of the appointment as conservator.
When the accused failed to file an inventory on Ms. Nickerson's behalf, the
court issued a show cause order requiring the accused to appear on March 7,
2007. The accused failed to appear on that date. The trial court called the
accused and told him to appear the next day. The accused appeared and
explained that Ms. Nickerson's husband had recently passed away. The trial
court continued the show cause order to April 3, and ordered the accused to
file an inventory and a final accounting. See ORS 125.475(1)(a)
(conservator shall file an accounting of the administration of the
conservatorship estate within 60 days after the death of the protected person).
The
accused subsequently called the trial court to request a set-over of the show
cause hearing to April 30, 2007. The trial court granted the request, but
orally directed the accused to file a letter with the court acknowledging the
set-over. The accused failed to file the letter as directed and also failed to
appear on April 30. As a result, the trial court issued an order requiring the
accused to appear on May 8 and show cause why he should not be held in
contempt. The court mailed the order to the accused's office. After the
accused failed to appear on May 8, the trial court removed the accused from the
matter, removed Ms. Nickerson as conservator, and appointed another attorney as
successor conservator. That attorney filed an inventory and final accounting
less than 60 days after his appointment as conservator. He also requested $2,530
in attorney fees for his administration of the conservatorship.
The
trial court judge wrote a letter to the Bar outlining her concerns about the
accused's handling of the Nickerson conservatorship matter. Subsequently, the
Bar filed a formal complaint against the accused. At the disciplinary hearing,
the accused acknowledged that he had failed to appear in court as directed on
March 7 and April 30, 2007. He testified that he did not remember the court's
direction to file a letter acknowledging the set-over date, and that he had not
received the contempt order.(3)
The accused testified that he knew that he was supposed to file the inventory
and the final accounting, but that he did not do so because he had concerns
about the accuracy of the financial information that Ms. Nickerson and her
financial advisor had provided to him. The accused explained that he
"didn't want any questions from the court" that might have required
him to explain why he had not filed the inventory and accounting.
The
trial panel concluded that the accused had "engage[d] in conduct that is
prejudicial to the administration of justice," in violation of RPC
8.4(a)(4) because his failure to comply with the court's orders delayed the
court's ability to resolve the Nickerson conservatorship. For the reasons that
follow, we agree that the Bar has proved, by clear and convincing evidence,
that the accused violated RPC 8.4(a)(4).(4)
To
establish a violation of RPC 8.4(a), the Bar must prove that
"(1) the lawyer engaged in 'conduct,' that is, the
lawyer did something that he or she should not have done or failed to do
something that the lawyer should have done; (2) the conduct occurred during the
'administration of justice,' that is, during the course of a judicial proceeding
or another proceeding that was analogous to a judicial proceeding; and (3) the
lawyer's conduct resulted in 'prejudice,' either to the functioning of the
proceeding or to a party's substantive interests in the proceeding."
In re Skagen, 342 Or 183, 213, 149 P3d
1171 (2006) (citations omitted) (standard under identically worded former DR
1-102(A)(4)); Paulson, 346 Or at 683, 683 n 5 (adopting that standard
for RPC 8.4(a)(4)). A lawyer's conduct is prejudicial if "the lawyer
engaged either in repeated acts causing some harm to the administration of
justice or a single act that caused substantial harm to the administration of
justice." Skagen, 342 Or at 214 (citations omitted).
In
In re Gresham, 318 Or 162, 864 P2d 360 (1993), the court detailed how a
lawyer's inaction can prejudice the functioning of a judicial proceeding. In
that case, after filing a petition to probate a will, the lawyer failed to
timely close the estate and did not respond to multiple inquiries from the
trial court. The court in Gresham explained that, by delaying the
transfer of assets to his client and placing an "unnecessary burden on the
judicial system," the lawyer's inaction prejudiced the administration of
justice. Id. at 168; see also In re Jackson, 347 Or 426,
437, 223 P3d 387 (2009) (lawyer violated RPC 8.4(a)(4) when his unpreparedness
at a settlement conference and repeated failure to respond to the arbitrator
"unnecessarily expend[ed] the time of the arbitrator and his staff").
With
those standards in mind, we turn to the accused's conduct in the Nickerson
conservatorship. By failing repeatedly to appear in court for scheduled
hearings, and by failing to file an inventory or an accounting, the accused
unreasonably prolonged the conservatorship proceeding. As in Gresham,
the accused's inaction created an unnecessary burden on court resources. At
the trial panel hearing, the trial court judge testified that the accused's
failure to advance the conservatorship proceedings affected the court's
procedural efficiency and impaired the court's ability to supervise the
conservatorship and protect Mr. Nickerson. In addition, the accused's inaction
harmed the substantive interests of his client and her husband. Because of the
accused's continued failure to file an inventory and final accounting, the
court removed Ms. Nickerson as conservator and the accused as attorney. As a
result, the conservatorship estate incurred unexpected attorney fees. We
conclude that the accused's cumulative inaction during the course of the
conservatorship proceeding prejudiced the administration of justice.
Having
concluded that the accused violated RPC 8.4(a)(4), we must determine the
appropriate sanction. The trial panel issued a public reprimand and the Bar
does not argue that any greater sanction is warranted. Because we find that
the accused has violated a disciplinary rule, a public reprimand is the minimum
sanction that we can impose. In re Newell, 348 Or 396, 413, 234 P3d 967
(2010) (explaining that, under BR 6.1(a), a public reprimand is the minimum
sanction that a court can impose on a lawyer who has violated a disciplinary
rule). We conclude that a public reprimand is consistent with the American Bar
Association's Standards for Imposing Lawyer Sanctions (1991) (amended
1992) and Oregon case law.(5)
The
accused is publicly reprimanded.
1. Because
the Bar does not seek review of the dismissal of the other two charges, we do
not discuss them in this opinion.
2. Initially,
the accused failed to provide an affidavit of personal service on Ms.
Nickerson's husband and failed to serve him via a disinterested third party. See
ORS 125.065(1) (providing that notice of the filing of the conservatorship
petition must be personally served on the protected person); ORCP 7 E
(requiring service by a disinterested third party). The court issued two
notices of deficiency and the accused timely corrected his errors. We
determine that those errors do not tend to prove that the accused violated RPC
8.4(a)(4). Cf. In re Paulson, 341 Or 13, 27, 136 P3d 1087 (2006)
("[N]ot every negligent or unprofessional act * * * gives rise to an
ethical violation[.]").
3. We
need not resolve the factual disputes inherent in the accused's version of the
facts to decide this case.
4. Although
the accused began representing Ms. Nickerson in 2003, the conduct at issue on
review occurred after January 1, 2005, the effective date of the Oregon Rules
of Professional Conduct; therefore,those rules apply here.
5. In
light of this case's procedural posture, an in-depth analysis of our basis for
imposing a public reprimand would not benefit the bench, the bar, or the
public. | 200c8a35598c11c7fc714f228f06a4b152eeb96a360a5221fae275e517e9172f | 2010-09-23T00:00:00Z |
c4861d37-6ff2-48c6-8eb4-50d33776ea49 | State v. Moore/Coen | null | S057820 | oregon | Oregon Supreme Court | FILED: December 16, 2010
IN THE SUPREME COURT OF THE STATE OF OREGON
STATE OF OREGON,
Petitioner on Review,
v.
DOUGLAS CARL MOORE,
aka Dc Moore,
aka Douglas Earl Moore,
Respondent on Review.
(CC CF050356; CA A134343; SC S057820)
STATE OF OREGON,
Petitioner on Review/
Respondent on Review,
v.
EDWIN SHANE COEN,
Respondent on Review/
Petitioner on Review.
(CC 020774FE; CA A135115; SC S058145; S058152)
(Consolidated for argument and opinion)
En
Banc
On
review from the Court of Appeals.*
Argued
and submitted May 7, 2010, at Portland State University, Portland, Oregon.
Matthew
J. Lysne, Assistant Attorney General, Salem, argued the cause for petitioner on
review in both cases. With him on the briefs were John R. Kroger, Attorney
General, Jerome Lidz, Solicitor General, David B. Thompson, and Linda M. Wicks,
Assistant Attorneys General.
Susan
F. Drake, Deputy Public Defender, Office of Public Defense Services, Salem,
argued the cause for respondent on review Douglas Carl Moore. With her on the
brief was Peter Gartlan, Chief Defender.
Jesse
Wm. Barton, Salem, argued the cause and filed the brief for respondent on
review Edwin Shane Coen.
DE
MUNIZ, C. J.
In State
v. Douglas Carl Moore, S057820, the decision of the Court of Appeals is affirmed.
The judgment of the circuit court is reversed, and the case is remanded to the
circuit court for further proceedings.*
In State
v. Edwin Shane Coen, S058145/S058152, the decision of the Court of Appeals
is affirmed. The judgment of the circuit court is affirmed in part and reversed
in part, and the case is remanded to the circuit court for further proceedings.**
*Appeal
from Umatilla County Circuit Court, Jan Wyers, Judge. 229 Or App 255, 211 P3d
344 (2009).
**Appeal
from Jackson County Circuit Court, Patricia Crain, Judge. 231 Or App 280, 220
P3d 423 (2009).
DE
MUNIZ, C. J.
In
these two criminal cases, consolidated for purposes of opinion, each defendant testified at his trial after the trial court had
erroneously admitted incriminating statements that police officers had obtained
from each defendant in violation of Article I, section 12, of the Oregon
Constitution.(1)
In State v. Moore, 229 Or App 255, 211 P3d 344 (2009), the
Court of Appeals concluded that it could not consider defendant's trial
testimony in determining whether the admission of defendant's unlawfully
obtained statement was "harmless error." In State v. Coen, 231 Or App 280, 220 P3d 423 (2009) (Coen II),
the Court of Appeals, citing Moore, concluded that the state could not
introduce defendant's prior trial testimony during his retrial. We allowed the state's petitions for review. For the reasons that
follow, we affirm the decisions of the Court of Appeals in both Moore
and Coen II. Both cases are remanded to the trial court for further
proceedings.
I. FACTS AND PROCEDURAL BACKGROUND
A. State v. Moore
In Moore, a state trooper had observed that defendant was not wearing a seatbelt
while driving this truck and stopped him. During the stop, the trooper
noticed ammunition on the dashboard and asked defendant if there were any
firearms in the truck. When defendant responded affirmatively, the trooper
asked, "What do you have?" Defendant replied, "Just my friend's
gun in the back there." The trooper then asked if it was a pistol or a
rifle, and defendant replied that it was a .22 rifle. When the trooper later
asked defendant for the rifle, defendant retrieved the weapon from behind the
front seat, and also showed the trooper a piece of a disassembled rifle. Upon
checking defendant's driving record and criminal history, the trooper
discovered that defendant had a felony conviction. The trooper then handcuffed
defendant and locked him in the back of the patrol car. The trooper informed defendant
that he was being detained but was not under arrest. Shortly afterward, while
standing in the open doorway of the patrol car, the trooper questioned
defendant about the rifle. Defendant stated that the rifle belonged to a
friend with whom he had been hunting, and that the friend had left the rifle in
the truck for safekeeping. Defendant also stated that he knew he was not
supposed to have a gun and was going to take the rifle out of the truck, but had
forgotten to do so. Defendant subsequently was charged with one count of felon
in possession of a firearm, ORS 166.270.
Before
trial, defendant moved to suppress the statements that he had made while in the
patrol car, arguing that he had either been under arrest or in compelling
circumstances when he made them, and therefore the trooper should have advised him
of his Miranda rights before questioning him. The trial court denied
defendant's motion. At trial, defendant explained that his initial response to
the trooper was a reference to the disassembled rifle piece, and that he did
not know that his friend had left the functional rifle in the truck until he
had turned to retrieve the piece of the disassembled rifle. In closing
arguments, the prosecutor asserted that defendant's explanation at trial was
undermined by the statements that he had made while sitting in the patrol car.
Ultimately, a jury convicted defendant on one count of felon in possession of a
firearm.
Defendant
appealed, assigning error to the trial court's denial of his motion to suppress
and argued that he should have been advised of his Miranda rights before
being questioned. The state responded that Miranda warnings were not
required under those circumstances and, alternatively, that any error was
harmless. The Court of Appeals concluded that the trial court should have
suppressed the statements that defendant had made in the patrol car because
defendant had been under "compelling circumstances," when the officer
questioned him, requiring the officer to give defendant Miranda-like warnings
before questioning. Moore, 229 Or App at 262. In reversing and
remanding for a new trial, the Court of Appeals concluded (1) that under State
v. McGinnis, 335 Or 243, 64 P3d 1123 (2003), it could not consider defendant's
trial testimony to determine whether the admission of defendant's statements
was harmless error, and (2) that the erroneous admission of defendant's pretrial
statements had not been harmless error. Id. at 264-65.
We
allowed the state's petition for review. On review, the state does not dispute
that defendant's pretrial statements were obtained in violation of Article I,
section 12. Rather, the state argues that, under McGinnis, (1) excluding
a defendant's trial testimony from harmless error review is appropriate only
when a defendant's erroneously admitted pretrial statement were "actually
coerced," and (2) an appellate court must consider a defendant's
trial testimony when the state proves that erroneously admitted statements did
not compel defendant's trial testimony. Here, the state asserts that defendant
voluntarily made the erroneously admitted statements; that is, they were not
"actually coerced." In addition, the state argues that the erroneous
admission of defendant's pretrial statements did not compel defendant to
testify at trial because, notwithstanding those statements, defendant
nevertheless needed to testify at trial to explain other statements that he had
made to the trooper and that the trial court had properly admitted. The state
also requests that this court reexamine McGinnis and hold that, when a
defendant testifies voluntarily and admits the truthfulness of statements that
the trial court erroneously admitted at trial, the defendant's trial testimony
may always be used for harmless error review or for rebuttal on retrial.
B. State v. Coen (Coen II)
In
Coen, defendant was charged with second-degree manslaughter and driving
under the influence of intoxicants (DUII) after a head-on automobile collision in
which the driver of one vehicle was killed and defendant, the driver of the
other vehicle, was hospitalized. At the accident scene, the responding
officer, Trooper Allison, noticed a "half rack" of beer on the passenger
side of defendant's vehicle and another box of beer in the back seat. Allison
went to the hospital to question defendant. When he arrived, he spoke with a
doctor who stated that, in his opinion, defendant was intoxicated. Allison
entered defendant's hospital room and noticed that defendant's eyes were
bloodshot, watery, and droopy, and that his speech was slow. Without first giving
defendant Miranda warnings, Allison began to question him. Defendant
stated that he had had two or three beers a few hours before the accident, but
maintained that he was in his lane when the accident occurred. Allison asked
defendant if he would give blood and urine samples. Defendant responded,
"If I had a couple beers and this is turning into a big deal, I think that
I should probably have an attorney, shouldn't I?" Allison told defendant
that he could call an attorney, but that if defendant did so, he would be
arrested. Allison explained, "[T]here's actually two ways this is going
to work, is, you can give it by consent, or I can place you under arrest and
then I get it anyway." Defendant then asked, "If I had a lawyer
here, I'd be under arrest now?" Allison responded affirmatively. Defendant
did not call a lawyer and agreed to provide the samples.
As
the samples were being drawn, Allison continued to question defendant. During
that conversation, defendant appeared to retreat from his earlier statement
that he had remained in his own lane, admitting that, "[The other driver] was
on that corner, I tapered the corner, and then 'bam!'" A chemical
analysis of defendant's blood and urine revealed a blood alcohol content of
.25 percent.
Before
trial, defendant moved to suppress (1) the statements that he had made to
Allison at the hospital and (2) the results of his blood and urine tests. The
trial court denied the motion. Defendant then testified at trial, admitting that
he was an alcoholic and that he had been drinking before the accident. Specifically,
defendant testified that he had consumed 15 or 16 beers in the eight hours
before the collision, but that that was a "normal day." He testified
that he had a high tolerance for alcohol and was not under the influence of
intoxicants at the time of the collision. Defendant further testified that he
had been in his lane and had not caused the collision, stating that when he had
told Allison that he had "tapered the corner," he meant that he
"[took] it low into the corner," to reduce the outward pull on the
truck, but remained inside his lane. A jury convicted defendant on both counts,
and he appealed.
On
appeal, the Court of Appeals concluded that, when Allison told defendant that he
would arrest him if he insisted on contacting a lawyer, the circumstances
became compelling, and that Allison should have given defendant Miranda
warnings. The Court of Appeals also determined that defendant's consent to
give the blood and urine samples was the product of an illegal threat by
Allison and therefore involuntary because, when he made the threat, Allison did
not have subjective probable cause to arrest defendant.(2) Consequently, the Court
of Appeals concluded that the trial court should have suppressed defendant's
pretrial statements and the results of the chemical analysis. The Court of
Appeals also concluded that those errors were not harmless; as a result, it
reversed defendant's convictions and remanded for a new trial. State v. Coen, 203 Or App 92, 125 P3d 761 (2005), rev den, 341 Or 141, 139
P3d 259 (2006) (Coen I).
On
remand, both the state and defendant moved for pretrial rulings on the
admissibility of certain evidence. To prove that defendant had acted with a
reckless mental state, the state offered evidence that defendant had participated
in a DUII diversion program based on a 1992 incident, and that defendant had been
convicted of DUII in 1997.(3)
Specifically, the state sought to show that, at the time of the collision,
defendant knew the risks involved in driving under the influence of intoxicants.
The trial court ruled that evidence of defendant's participation in the diversion
program was admissible, but ordered that defendant's 1997 DUII conviction be
excluded. Defendant, on the other hand, sought to suppress his testimony from
the first trial, arguing that he had testified only to rebut the illegally
obtained statements that he had made to Trooper Allison at the hospital, and which
the trial court had erroneously admitted into evidence in his first trial. The
trial court agreed and ordered that defendant's trial testimony be excluded
from the retrial, reasoning that "[i]t is clear that the defendant only
testified in order to counter the use of the illegally obtained blood draw and
his statements."
The
state appealed. ORS 138.060(1)(c).(4)
The Court of Appeals reversed in part and affirmed in part, concluding that the
trial court had erred in excluding defendant's DUII conviction. However, the Court
of Appeals affirmed the trial court's order excluding defendant's trial
testimony. The court determined that evidence of defendant's past DUII
conviction was relevant to prove defendant's state of mind, rejecting
defendant's argument that OEC 404(4) -- discussed post, at ___, (slip op
at 17-23) -- is unconstitutional because it prevents a court from excluding
evidence that is unfairly prejudicial. Finally, the Court of Appeals
determined that the state's claim that the trial court had erred in suppressing
defendant's prior trial testimony was foreclosed by the Court of Appeals'
recent decision in Moore.
Defendant
and the state both sought review of that decision, and we allowed both
petitions. On review, the state asserts that the Court of Appeals incorrectly
relied on this court's decision in State v. McGinnis to affirm the trial
court's pretrial order suppressing defendant's trial testimony. As in Moore,
the state agrees that defendant's pretrial statements to the trooper were
obtained in violation of Article I, section 12, but asserts that those
statements were not "actually coerced." According to the state,
because defendant's prior trial testimony was not "induced" by the erroneous
admission of "actually coerced" incriminating statements, that
testimony should be admissible on retrial. Defendant, in turn, asserts that
the trial court properly excluded evidence of his prior DUII conviction, and
that the Court of Appeals erroneously decided that issue.
II. DISCUSSION
On review, the state
acknowledges that, in both of these cases, the statements that defendants made
to the police officers were not preceded by Miranda warnings and were
obtained under compelling circumstances, in violation of Article I, section 12,
of the Oregon Constitution. However, as explained above, the state argues that,
unless erroneously admitted pretrial statements were "actually coerced,"
Article I, section 12, permits
their use to establish "harmless error" or as evidence of a
defendant's guilt on retrial when made as part of a defendant's trial testimony.(5) Because the parties
devote the bulk of their briefing to this court's decision in McGinnis,
we begin there.
In McGinnis,
the defendant was charged with selling marijuana to an undercover informant,
Diemer. 335 Or at 245. During the transaction, Diemer had worn a hidden radio
transmitter, known as a body wire, and a police officer recorded the
conversation at a remote location. The trial court admitted the recording into
evidence over the defendant's objection. After its admission, the defendant testified
in his own defense. Although he conceded that he had engaged in a drug
transaction with Diemer, the defendant attempted to portray Diemer as the
seller. The defendant testified at trial that Diemer had wanted to buy back
some marijuana that he previously had sold to the defendant and that the
defendant had complied with Diemer's request. Id. at 246. A jury
convicted defendant of unlawful delivery of a controlled substance for
consideration, former ORS 475.992 (2003), renumbered as ORS 472.840
(2005). Although the Court of Appeals concluded that the body wire evidence
should have been suppressed, it nevertheless affirmed the defendant's
conviction, holding that, because the defendant had testified that he had
engaged in an illegal drug transaction, the body wire evidence was cumulative,
rendering the error, if any, harmless.
On review in this
court, the defendant, relying on Harrison v. United States, 392 US 219,
88 S Ct 2008, 20 L Ed 2d 1047 (1968), contended that the Court of Appeals had erred
in considering the defendant's trial testimony in holding that the defendant had
not been harmed by the erroneously admitted body wire recording. The defendant
argued that this court should adopt a rule precluding consideration of a
defendant's trial testimony in a review for harmless error when the defendant's
testimony had been compelled to rebut illegally admitted evidence.
In considering that
argument, this court observed that the improper use of a defendant's illegally
obtained statements implicates a defendant's testimonial rights and concluded
that
"[t]he rule of Harrison is limited to those
circumstances in which a defendant is compelled to testify at trial as a result
of the Fifth Amendment violation that occurs when an illegally obtained
confession is used against that defendant at trial. Stated otherwise, a
defendant cannot invoke the protection of the Harrison rule unless the
evidence that the defendant sought to rebut by taking the stand was an
inadmissible confession, not evidence of some other kind, even if that
evidence was obtained illegally."
McGinnis, 335
Or at 253 (emphasis in original). The court then stated, "That said, the
United States Supreme Court's rule in Harrison does not preclude this
court from fashioning a different rule under Oregon constitutional or statutory
law. However, we are persuaded by the logic of that Court's rule." Id.
at 253.
This court went on
to hold that the police had violated former ORS 133.724 because
they had not obtained an ex parte court order before using a body wire.
The court determined that the violation of that statute required suppression of
the recording but nevertheless affirmed the defendant's conviction after
conducting a harmless error analysis. The court held that the recorded
statements "were not the product of compulsion by law enforcement." Id.
at 253. Because the recorded statements were "not compelled in any
way," and thus did not implicate the constitution, the court concluded
that there was "no reason to exclude defendant's [trial] testimony from a
review of the record for harmless error." Id. at 254.
Here, although the
Court of Appeals based both of its decisions on McGinnis and, on review,
the parties focus much of their argument on that decision, McGinnis dealt
with a statutory violation, not a constitutional one.(6) Moreover, although McGinnis
involved erroneously admitted incriminating statements, there was no question
in that case that the defendant's wire-recorded statements were voluntarily
made. Thus, although McGinnis concluded that the rule fashioned by the
United States Supreme Court in Harrison was appropriate for "Oregon
constitutional [and] statutory law," that conclusion was broader than the
issue actually before the court. In fact, McGinnis's holding does
not directly address the constitutional question presented in these cases. To answer
that question, we must again examine the nature of the Article I, section 12, right
against compelled self-incrimination and our case law interpreting that provision.
Article
I, section 12, provides, in part, that "[n]o person shall * * * be
compelled in any criminal prosecution to testify against himself." In
Oregon, Article I, section 12, is an independent source for warnings similar to
those required under the Fifth Amendment to the United States Constitution by Miranda
v. Arizona, 384 US 436, 86 S Ct 1602, 16 L Ed 2d 694 (1966). See State
v. Magee, 304 Or 261, 266, 744 P2d 250 (1987) (so stating). Under Article
I, section 12, the police must give a defendant who is in custody Miranda-like
warnings prior to questioning. Id. In addition, Miranda-like
warnings also are required in circumstances that, although they do not rise to
the level of full custody, nevertheless create a "setting which judges
would and officers should recognize to be 'compelling.'" State v.
Smith, 310 Or 1, 7, 791 P2d 836 (1990) (quoting Magee, 304 Or at 265).
When police officers obtain pretrial statements from a defendant in
violation of Article I, section 12, this court has held that such statements
must be excluded at trial in order to restore the defendant to the position that
he or she would have been in if police had not violated that constitutional
right. See State v. Simonson, 319 Or 510, 518-19, 878 P2d 409 (1994)
(adopting rationale from State v. Davis, 313 Or 246, 834 P2d 1008
(1992)).
Recently, in State
v. Vondehn, 348 Or 462, 474, 236 P3d 691 (2010), this court observed that:
"Article I, section 12, affords a
constitutional right to remain silent. That right is, however, subject to
waiver. Because a custodial interrogation is inherently compelling, and to ensure
the validity of a waiver of the right against self-incrimination, Article I,
section 12, requires that the police inform a person subjected to custodial
interrogation that he or she has a right to remain silent and to consult with
counsel and that any statements that the person makes may be used against the
person in a criminal prosecution. Article I, section 12, requires those Miranda
warnings to ensure that a person's waiver is knowing as well as voluntary. If
the police conduct a custodial interrogation without first obtaining a knowing
and voluntary waiver of the suspect's rights, then they violate the suspect's
Article I, section 12, rights. To give effect to those constitutional rights,
the state is precluded from using, in a criminal prosecution, statements made
in response to the interrogation."
The state agrees that it is appropriate to
exclude a defendant's trial testimony on retrial or harmless error review when
that testimony was compelled by the erroneous admission of what the
state refers to as "actually coerced" pretrial statements.(7) However, as noted
above, the state argues that, because in these two cases defendants' pretrial
statements here were not "actually coerced," their trial testimony is
admissible on retrial or available for harmless error review by an appellate
court.
Because the pretrial
statements at issue in McGinnis were not obtained in violation of the
Oregon Constitution, the court had no occasion to determine whether the Harrison
rule should be applied only when pretrial statements are "actually
coerced" as the state claims, or whether the rule is applicable to the
erroneous admission of any statements obtained in violation of Article I,
section 12. In Vondehn, however, the state similarly argued that,
although it was proper to exclude physical evidence derived from statements
obtained by "actual coercion," the "mere failure to provide Miranda
warnings" should not result in the exclusion of physical evidence derived
from such statements. This court rejected the state's argument, holding that:
"It is the Oregon Constitution that requires Miranda
warnings and it is the Oregon Constitution that is violated when those warnings
are not given. When the police violate Article I, section 12, whether that
violation consists of 'actual coercion' or the failure to give the warnings
necessary to a knowing and voluntary waiver, the state is precluded from using
evidence derived from that violation to obtain a criminal conviction."
348 Or at 475-76.
It follows that, in determining whether exclusion of a defendant's trial
testimony on retrial or from harmless error review is warranted, no distinction
should be made under Article I, section 12, between statements unconstitutionally
obtained by "actual coercion" and statements unconstitutionally obtained
through police interrogation not preceded by the constitutionally required
warnings.
We observe, as did
the court in Harrison, that, it is "difficult to unravel the many
considerations" that may lead a defendant to testify at trial. 392 US at 224.
Under our system of criminal justice, there are a variety of ways for a
defendant to respond to erroneously admitted pretrial statements without
testifying in court about those statements. In the usual case, a defendant
decides whether to testify at trial with the advice of counsel and is likely to
consider a variety of factors and circumstances, not just the state's intended
use of his or her pretrial statements. It is that reality that causes us to
reject the use of the terms compelled, induced, or impelled
in describing the connection between erroneously admitted pretrial statements
and a defendant's trial testimony that justifies the suppression of a
defendant's trial testimony.
Given the difficulty
of "unravelling" all the factors that may have contributed to a defendant's
decision to testify at trial -- and because the state has gained an advantage
over a defendant at trial when it unconstitutionally obtains the defendant's
statements and then introduces them into evidence -- we conclude that it is more
appropriate to assume that a defendant's trial testimony is tainted by
the erroneously admitted pretrial statements. Therefore, a defendant's trial
testimony must be excluded on retrial or from harmless error review by an
appellate court unless the court can determine from the record before it that a
defendant's trial testimony did not refute, explain, or qualify the erroneously
admitted pretrial statements.(8)
The standard we have identified using the terms, refute, explain,
or qualify is intended to be applied objectively, taking into account
the substantive content of such testimony under the totality of the
circumstances of the case. With that understanding, we turn to the state's
arguments regarding defendants' testimony here.
A. State v. Moore
In Moore, the
state now concedes that the trial court should have suppressed the
incriminating statements that defendant made to the trooper while he was
handcuffed in the patrol car. The state asserts, however, that admission of those
incriminating statements did not "compel" defendant to testify. The
state argues that a review of the record, including defendant's testimony and defense
counsel's opening and closing statements, confirms that defendant would have
testified regardless of whether his incriminating statements were admitted at
trial. The state argues that, given defendant's position that his initial response to the trooper was a
reference to the disassembled rifle piece, and that he did not know that the
functioning rifle had been left in the truck until he turned to retrieve the
disassembled rifle piece, defendant may have decided to
testify about the statements to suggest that they were the product of confusion
or coercion. The state asserts that defendant "absolutely needed to
testify to 'explain away'" his admissible statement that his
"friend's gun" was in the truck. Defendant responds that the state
is engaging in speculation regarding what defendant would have done if the
trial court had not admitted the incriminating statements. Defendant asserts
that it is just as likely that, instead of testifying, he would have called his
passenger to testify about defendant's initial response to the trooper, because
the passenger was present during that exchange and could testify concerning
defendant's answers.
In his trial
testimony, defendant essentially denied that he knew that the functioning
rifle was in the vehicle. In so testifying, defendant did not in any way admit
that his pretrial statements were true. In this case, because defendant's
trial testimony in and of itself could not support a finding of guilt, we need
not determine whether defendant's testimony refuted, explained, or qualified
the erroneously admitted pretrial statements. That is so because, even
considering defendant's trial testimony as part of our review for harmless
error, it is obvious that the erroneously admitted statements likely affected
the verdict. See State v. Davis, 336 Or 19, 32, 77 P3d 1111 (2003)
(Oregon's constitutional test for affirmance despite error consists of a single
inquiry: Is there little likelihood that the particular error affected the
verdict?). We therefore conclude, albeit for different reasons, that the Court
of Appeals correctly reversed the trial court judgment and remanded for a new
trial.
B. State v. Coen (Coen II)
In Coen II,
the state does not argue that defendant's decision to testify at trial was untainted
by the erroneous admission of his unconstitutionally obtained statements.(9) We therefore conclude
that the Court of Appeals properly affirmed the trial court's suppression of
defendant's previous trial testimony for purposes of retrial.
C. OEC 404(4)
We
now address an issue raised only in Coen II and which is an issue of
first impression for this court. As noted above, the state offered evidence
that defendant had participated in a DUII diversion program for an incident that
occurred in 1992 and had later been convicted of DUII in 1997. According to
the state, that evidence was admissible to prove that defendant had acted with
a reckless mental state at the time of the collision, i.e., defendant knew
of the risks involved in driving under the influence of intoxicants. The trial
court admitted evidence of the diversion program, but excluded evidence of the
1997 DUII conviction. The court concluded that, "[a]lthough the
conviction may be relevant, it is clearly being offered to show defendant's bad
character or propensity[,] since the defendant's prior diversion is already
coming in for state of mind."
On appeal, the state
asserted that OEC 404(4), set out below, precluded the trial court from
engaging in the balancing analysis provided by OEC 403.(10) Defendant
countered that OEC 404(4) is facially unconstitutional because it limits application
of OEC 403 balancing in any way that benefits only the prosecution. Defendant
argued that OEC 404(4) is a "one-sided" rule, and thus
"violate[s] the federal constitutional due process principle that rules of
procedure generally be equally available to the prosecution and to criminal
defendants." According to defendant, in order to comply with due process,
OEC 404(4) must be construed to allow OEC 403 balancing. The Court of Appeals
rejected defendant's arguments. Relying on its prior case law, the Court of
Appeals determined that evidence of a prior DUII conviction is relevant to
demonstrate a defendant's state of mind in a prosecution for vehicular manslaughter,
and that OEC 404(4) does not violate due process. Coen II, 231 Or App
at 284-85.
On
review, defendant again challenges the constitutionality of OEC 404(4), raising
both facial and "as applied" challenges. Defendant argues that OEC
403 codifies a due process principle that ensures that prosecutions are
conducted in a fundamentally fair manner. Defendant argues that OEC 403
balancing serves as a "primary and necessary component" in determining
whether evidence may be admitted without endangering a defendant's right to a
fair trial. According to defendant, because OEC 404(4) omits the use of OEC
403 balancing in criminal prosecutions, OEC 404(4) violates the Due Process
Clause of the Fourteenth Amendment to the United States Constitution.
We
begin our analysis with the text of the rule at issue. OEC 404(4) provides, in part:
"In criminal actions, evidence of other
crimes, wrongs or acts by the defendant is admissible if relevant except as
otherwise provided by:
"(a) [OEC 406 to 412] and, to the extent
required by the United States Constitution or the Oregon Constitution, [OEC
403];
"* * * * *
"(c) The Oregon Constitution; and
"(d) The United States Constitution."
In
determining whether a state rule violates due process, the United States
Supreme Court has stated that the question is whether the rule "offends
some principle of justice so rooted in the traditions and conscience of our
people as to be ranked as fundamental." Patterson v. New York, 432
US 197, 201-202, 97 S Ct 2319, 53 L Ed 2d 281 (1977). According to the Supreme
Court, it is normally "within the power of the State to regulate
procedures under which its laws are carried out, including the burden of
producing evidence and the burden of persuasion, and [the state's] decision in
this regard is not subject to proscription under the Due Process Clause."
Id. (internal quotation marks omitted). The Supreme Court also has observed that,
"[b]eyond the specific guarantees enumerated in the Bill of Rights, the
Due Process Clause has limited operation. We, therefore, have defined the
category of infractions that violate 'fundamental fairness' very narrowly."
Dowling v. U.S., 493 US 342, 352, 110 S Ct 668, 107 L Ed 2d 708 (1990).
This
court previously has stated that OEC 404(4) "clearly qualifies as an
evidentiary change in the law that favors only the prosecution by making the
conviction of a defendant more likely." See State v. Shaw, 338 Or
586, 613, 113 P3d 898 (2005) (declining to apply OEC 404(4) on defendant's
appeal because to do so would violate ex post facto clause of Oregon
Constitution.). That said, however, the text of the rule undermines
defendant's facial challenge. As noted, OEC 404(4) provides that "[i]n
criminal actions, evidence of other crimes, wrongs or acts by the defendant is
admissible if relevant except as otherwise provided by" the state or
federal constitution or by some other statute. Thus, under OEC 404(4),
traditional standards of relevancy are preserved, and in all events, no
evidence may be admitted that would violate state and federal constitutional
standards.
Despite
the constitutional protection expressed in the text of the rule, defendant,
relying primarily on Wardius v. Oregon, 412 US 470, 472, 93 S Ct 2208,
37 L Ed 2d 82 (1973), argues that, to the extent that OEC 404(4) deprives a
defendant "of the same, full use of OEC 403 that the prosecution enjoys,
it violates the due process principle requiring that criminal defendants enjoy
equal access to court procedures that the prosecution enjoys."
In
Wardius, the Supreme Court scrutinized an Oregon statute that required a
defendant to notify the prosecution of any alibi defenses and witnesses. If
the defendant failed to do so, the defendant could not rely on that defense or
those alibi witnesses at trial. The statute did not contain any requirement
that the state provide reciprocal discovery to the defendant of witnesses it
planned to use to refute the alibi defense. Id. The Court explained that it was "particularly suspicious of state
trial rules which provide nonreciprocal benefits to the State when the lack of
reciprocity interferes with the defendant's ability to secure a fair trial."
Id. at 475 n 6. The
Court concluded that the statute impaired the defendant's rights to a fair
trial in violation of the Due Process Clause, stating that "[i]t is fundamentally
unfair to require a defendant to divulge the details of his own case while at
the same time subjecting him to the hazard of surprise concerning refutation of
the very pieces of evidence which he disclosed to the State." Id.
at 476.
In State v. Upton, 339 Or 673, 125 P3d 713 (2005), this court
rejected a Wardius-based argument that was similar to the one
defendant makes here:
"Wardius, however, does not require
that every procedure relating to both a defendant and the state ensure
identical rights in order to satisfy due process. Rather, Wardius
addressed only a narrow procedural requirement that is not at issue here. In Wardius,
the Court held that a statute may not require a defendant -- who has no burden
of proof at trial -- to disclose certain alibi witnesses, when the state had no
comparable obligation to disclose its witnesses. The holding in Wardius,
however, did not establish a constitutional rule that a defendant and the state
must be treated identically in all respects."
Id. at 686-87
(internal citation omitted).
Here, although OEC
404(4) does not expressly provide a reciprocal benefit to a criminal defendant,
a defendant may nevertheless introduce evidence of other crimes or wrongful
acts -- for example, by a victim, codefendant, or other suspect -- under OEC
404(3), which provides:
"Evidence of other crimes, wrongs or acts
is not admissible to prove the character of a person in order to show that the
person acted in conformity therewith. It may, however, be admissible for other
purposes, such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident."
See State v. Cox, 337 Or 477, 98 P3d 1103 (2004) (OEC 404(3) did not preclude
defendant from introducing evidence of other crimes committed by victim to
prove that defendant reasonably believed that he needed to protect himself from
victim). Thus, the fact that the state may introduce evidence of other crimes,
wrongs, or acts by a defendant under OEC 404(4) does not prevent a defendant
from presenting a complete defense, as did the statute under consideration in Wardius.
Finally, as we
understand defendant's "as applied" challenge,(11) he argues that OEC
404(4) is fundamentally unfair because juries may use the evidence admitted
under OEC 404(4) as evidence of the defendant's bad character and "return
a vengeful verdict." However, in Spencer v. Texas, 385 US 554, 87
S Ct 648, 17 L Ed 2d 606 (1967), the Supreme Court rejected a similar due
process challenge to a Texas habitual criminal statute after the trial court
permitted the introduction of evidence concerning defendant's convictions for
the same or a similar offense and provided a limiting instruction to the jury
that it was to consider the other bad acts for noncharacter purpose only. In
so holding, the Court observed that, even though such evidence is generally
recognized at common law to create a potential for prejudice, that possibility
is outweighed for purposes of due process where the evidence is particularly
probative of another fact in issue, such as an element of a crime. Id.
at 561-63.
Here, the state
offered the DUII evidence to prove that defendant had acted with a reckless
mental state, an element of second-degree manslaughter, for which the state had
the burden of proof. Without question, that evidence is relevant for the
purpose for which the state intends to offer it. And it is well settled in
this state that trial courts have the authority to give limiting instructions
to juries that require them to consider evidence only for a particular purpose
or in regard to a particular element, and we have long presumed that juries follow
those instructions. See State v. Thompson, 328 Or 248, 271, 971 P2d
879, cert den, 527 US 1042, 119 S Ct 2407, 144 L Ed 2d 805 (1999)
(jurors are presumed to follow a trial court's instructions). To the extent
the trial court concluded that admission of the evidence would violate the
state or federal constitution, it erred.(12)
Based on the foregoing, we reject defendant's final constitutional claim. The
Court of Appeals correctly reversed the trial court's ruling excluding evidence
of defendant's prior DUII conviction.
In
State v. Douglas Carl Moore, S057820, the decision of the Court of
Appeals is affirmed. The judgment of the circuit court is reversed, and the
case is remanded to the circuit court for further proceedings.
In
State v. Edwin Shane Coen, S058145/S058152, the decision of the Court of
Appeals is affirmed. The judgment of the circuit court is affirmed in part and
reversed in part, and the case is remanded to the circuit court for further
proceedings.
1. The
relevant text of Article I, section 12, is set out below.
2. After
Coen I was decided, this court issued its opinion in State v. Machuca,
347 Or 644, 657, 227 P3d 729 (2010). In that case, this court held that, in
certain circumstances, "for purposes of the Oregon Constitution, the
evanescent nature of a suspect's blood alcohol content is an exigent
circumstance that will ordinarily permit a warrantless blood draw[.]"
Neither party has raised the applicability of that decision here, and we thus
do not address it.
3. ORS
163.125(1) provides, in part:
"Criminal homicide constitutes manslaughter
in the second degree when:
"(a) It is committed recklessly[.]"
In turn, ORS 161.085(9) provides:
"'Recklessly,' when used with respect to a
result or to a circumstance described by a statute defining an offense, means
that a person is aware of and consciously disregards a substantial and
unjustifiable risk that the result will occur or that the circumstance exists.
The risk must be of such nature and degree that disregard thereof constitutes a
gross deviation from the standard of care that a reasonable person would
observe in the situation."
4. ORS
138.060(1)(c) provides:
"The state may take an appeal from the
circuit court to the Court of Appeals from:
"* * * * *
"(c) An order made prior to trial
suppressing evidence[.]"
5. "Harmless
error" requires consideration of a single question: whether there was
little likelihood that the particular error affected the verdict. State v.
Davis, 336 Or 19, 32, 77 P3d 1111 (2003).
6. ORS
136.432, which did not apply when the defendant in McGinnis was
convicted, now provides that a court may not exclude otherwise
admissible evidence solely on the ground that the evidence was obtained in
violation of a statute.
7. In
its brief, the state describes the Harrison rule as requiring a court to
conclude that a defendant's trial testimony was "compelled" by the
erroneous admission of the unconstitutionally obtained statement. However, in Harrison,
the Court used the words "induced" or "impelled" to
describe the connection necessary between the erroneously admitted statements
and a defendant's trial testimony: "Having 'released the spring' by using
the petitioner's unlawfully obtained confession against him, the government
must show that its illegal action did not induce his testimony."
392 US at 225 (emphasis added). As we shall explain, we do not find it
necessary to use the words "induced," "impelled," or
"compelled" in describing the rationale for excluding a defendant's
trial testimony on retrial or from consideration by an appellate court when
reviewing for harmless error.
8. Consistently
with that observation, the rule we announce and apply in these cases is
confined solely to issues involving the erroneous admission of
unconstitutionally obtained pretrial statements. In McGinnis, this
court observed that "the rule of Harrison concerns the consequences
of using a defendant's compelled statements at trial, not the consequences of
using any other illegally obtained evidence." 335 Or at 252.
9. We
note that, on remand, the state did not offer the blood draw evidence at issue
on the first appeal and instead offered evidence of a separate
"medical" blood draw that the trial court concluded was admissible.
The state makes no argument in this court that the admission of either form of
blood draw evidence is pertinent to the resolution of the question now before
us.
10. OEC
403 provides:
"Although relevant, evidence may be
excluded if its probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay or needless presentation of cumulative
evidence."
11. We
describe this aspect of defendant's constitutional challenge as an "as
applied" challenge because, in ordering defendant's DUII conviction
excluded, the trial court concluded that, "[a]lthough the conviction may
be relevant, it is clearly being offered to show defendant's bad character or
propensity since defendant's prior diversion is already coming in for state of
mind." In doing so, the trial court necessarily considered the nature of
the evidence offered by the state and engaged in an analysis specific to the
case in concluding that the admission of the evidence would violate the
constitution.
12. We do not hold that the trial court erred in considering defendant's
argument that admission of the DUII conviction was unfairly prejudicial to the
degree that its admission would violate the state and federal constitutions.
Rather, we hold that the trial court erred in concluding that the evidence
would be unfairly prejudicial and therefore violate the due process clause of
the federal constitution. | 12825c95f089b01e9fcc62c85516076275c7aaa898d666b92ab5ad750c2dcfc3 | 2010-12-16T00:00:00Z |
64ad5ea1-a215-4028-861a-98b69df7bf4c | ZRZ Realty v. Beneficial Fire and Casualty Ins. | null | null | oregon | Oregon Supreme Court | FILED: October 14, 2010
IN THE SUPREME COURT OF THE STATE OF OREGON
ZRZ REALTY COMPANY,
an Oregon corporation,
for itself and as trustee of the ZIDELL REMEDIATION FUNDING TRUST,
an Oregon trust;
ZIDELL MARINE CORPORATION,
a Washington corporation;
TUBE FORGINGS OF AMERICA, INC.,
an Oregon corporation;
and PON EXPLORATION, INC.,
>a Delaware corporation,
fka Zidell Explorations, Inc.,
an Oregon corporation,
Petitioners on Review,
v.
BENEFICIAL FIRE AND CASUALTY INSURANCE COMPANY,
succeeded in interest by J.C. Penney Life Insurance Company, et. al.,
Defendants,
and
CERTAIN UNDERWRITERS AT LLOYD'S OF
LONDON,
and CERTAIN LONDON MARKET INSURANCE
COMPANIES,
aka "Lloyds", including the following defendant companies:
ASSICURAZIONI GENERALI S.P.A.,
INSURANCE COMPANY OF NORTH AMERICA
(UK) LTD.,
COMMERCIAL UNION ASSURANCE COMPANY,
PLC,
EDINBURGH ASSURANCE COMPANY, LTD.,
OCEAN MARINE INSURANCE COMPANY, LTD.,
WORLD AUXILIARY INSURANCE CORPORATION,
LTD.,
CORNHILL INSURANCE COMPANY, LTD.,
DOMINION INSURANCE COMPANY, LTD.,
EAGLE STAR INSURANCE COMPANY LTD,
THE THREADNEEDLE INSURANCE COMPANY
LTD.,
EXCESS INSURANCE COMPANY LTD.,
LONDON & EDINBURGH GENERAL
INSURANCE COMPANY LTD.,
NEW ZEALAND INSURANCE COMPANY, LTD.,
ROAD TRANSPORT & GENERAL INSURANCE
COMPANY, LTD.,
SOUTH BRITISH INSURANCE COMPANY, LTD.,
ULSTER MARINE INSURANCE COMPANY, LTD.,
THE UNITED SCOTTISH INSURANCE COMPANY,
LTD.,
YORKSHIRE INSURANCE COMPANY, LTD.,
HANSA RE & MARINE INSURANCE
COMPANY (UK) LTD.,
LA REUNION FRANCAISE (UK) LTD.,
ECONOMIC INSURANCE COMPANY LTD.,
NORWICH UNION FIRE INSURANCE SOCIETY,
LTD.,
FIREMEN'S INSURANCE COMPANY OF NEWARK
NEW JERSEY,
SWISS UNION GENERAL INSURANCE COMPANY,
LTD.,
LEADENHALL INSURANCE COMPANY, LTD.,
BISHOPGATE INSURANCE COMPANY, LTD.,HOME INSURANCE COMPANY,NIPPON FIRE & MARINE INSURANCE
COMPANY (UK) LTD.,SWITZERLAND GENERAL INSURANCE COMPANY,
LTD.,RIVER THAMES INSURANCE COMPANY, LTD.,ROYAL INSURANCE COMPANY LTD.,BRITISH FIRE INSURANCE COMPANY, LTD.,BRITISH & FOREIGN INSURANCE
COMPANY, LTD.,NATIONAL PROVINCIAL INSURANCE COMPANY,
LTD.,THE SCOTTISH LION INSURANCE COMPANY,
LTD.,SKANDIA MARINE INSURANCE COMPANY (UK),
LTD.,DRAKE INSURANCE COMPANY, LTD.,SPHERE INSURANCE COMPANY, LTD.,SPHERE DRAKE INSURANCE COMPANY PLC,ALLIANCE ASSURANCE COMPANY, LTD.,BRITISH LAW INSURANCE COMPANY, LTD.,
ANDCONTINENTAL ASSURANCE COMPANY OF
LONDON, LTD.,LIVERPOOL MARINE & GENERAL
INSURANCE COMPANY, LTD.,PHOENIX ASSURANCE COMPANY LTD.,FINE ART & GENERAL INSURANCE
COMPANY, LTD.,ANGLO-FRENCH INSURANCE COMPANY, LTD.,BALOISE MARINE INSURANCE COMPANY,
LTD.,BALTICA INSURANCE COMPANY (UK) LTD.,FUJI FIRE & MARINE INSURANCE
COMPANY (UK), LTD.,R.W. GIBBON GROUP,LA PRESERVATRICE GROUP,SWITZERLAND GENERAL INSURANCE COMPANY
(LONDON) LTD.,YASUDA FIRE & MARINE INSURANCE
COMPANY, LTD.,IRON TRADES MUTUAL INSURANCE COMPANY,
LTD.,MINSTER INSURANCE COMPANY LTD.,RELIANCE INSURANCE COMPANY,SIRIUS (UK) INSURANCE PLC,INDEMNITY MARINE ASSURANCE COMPANY, LTD.,LONDON & HULL MARITIME INSURANCE
COMPANY, LTD,AND ASSOCIATED COMPANIES,C.A. PARR AGENCIES, LTD.,SUN INSURANCE OFFICE,MARINE INSURANCE COMPANY, LIMITED,and SUMITOMO MARINE & FIRE
INSURANCE COMPANY, LIMITED,
Respondents on Review.
(CC 9708-06226; CA
A121145; SC S057155)
En Banc
On review from the Court of Appeals.*
Argued and submitted January 6, 2010.
Bruce L. Campbell, Miller Nash LLP, Portland, argued the cause and filed the brief for petitioners on review.
Thomas W. Sondag, Lane Powell PC, Portland, argued the cause and filed the brief for respondents on review. With him on
the brief were John Folawn and Folawn Alterman & Richardson LLP.
Gregg A. McDonald, Portland, filed the brief for amici curiae Schnitzer Steel Industries, Inc., Prescision Castparts
Corp., and Oregon Metals Industries Council.
Gregory L. Baird, Gordon & Polscer, LLP, Portland, filed the brief for amicus curiae Complex Insurance Claims
Litigation Association. With him on the brief were Laura A. Foggan, Kathryn C. Walsh, and Wiley Rein LLP.
KISTLER, J.
The decision of the Court of Appeals is affirmed in part and reversed in part. The case is remanded to the Court of Appeals.
*Appeal from Multnomah County Circuit Court, William
J. Keys, Judge. (Pre-Trial and Trial Rulings); Ellen F. Rosenblum, Judge.
(Judgment and Supplemental Judgment). 222 Or App 453, 194 P3d 167 (2008), modified
on recons, 225 Or App 257, 201 P3d 912 (2009).
KISTLER, J.
This case arises out
of a dispute over insurance coverage for plaintiffs' ship dismantling
business. Before this court, the parties have raised primarily two issues.
The first is whether plaintiffs or defendants had the burden to prove that
environmental damages resulting from the operation of plaintiffs' business were
neither expected nor intended. On that issue, the Court of Appeals held that,
when the insurance policies that defendants issued expressly granted coverage
only for unexpected and unintended damages, plaintiffs had the burden of
proving that their loss came within that coverage. ZRZ Realty v. Beneficial
Fire and Casualty Ins., 222 Or App 453, 472-73, 194 P3d 167 (2008), modified
on recons, 225 Or App 257, 201 P3d 912 (2009). However, the court also
held that, when the insurance policies granted broad coverage subject to an
implied limitation for expected or intended damages, the implied limitation functioned
as an exclusion that defendants had the burden to prove. 222 Or App at 474-75.
The second issue
that the parties have raised involves protection and indemnity policies in
which defendants agreed to indemnify plaintiffs for liability they incurred for
"damages to any harbor, dock, * * * buoy, telegraph cable or other fixed
or moveable thing whatsoever." The Court of Appeals held that the promise
to indemnify plaintiffs for "damages to any * * * other fixed or moveable
thing whatsoever" did not include a promise to indemnify plaintiffs for
damages to the riverbed. Id. at 488-91. Rather, according to the Court
of Appeals, defendants agreed to indemnify plaintiffs only for damage to
artificial structures. Id. We allowed plaintiffs' petition for review
and now affirm the Court of Appeals decision allocating the burden of proof but
reverse its decision regarding coverage for damage to the riverbed.
A. Facts
Plaintiffs
(collectively Zidell) are a group of related companies that began acquiring and
dismantling decommissioned navy and merchant marine ships after World War II.(1) Zidell towed the
decommissioned ships to a site along the Willamette River in Portland (the
Moody Avenue site) where it dismantled the ships for scrap, generally while the
ships were tied to a dock at the site. Dismantling the ships resulted in the
release of pollutants found in, among other places, the ships' paint,
batteries, motors, and fuel tanks. The pollutants included polychlorinated
biphenyls, petroleum products in the form of fuel, lubricating, and hydraulic
oils, and a variety of metals, such as arsenic, cadmium, chromium, lead,
mercury, and zinc. Some of the pollutants were released directly into the
river; others contaminated the land on which Zidell operated its business and,
from there, leached into the groundwater and the river.
Over the years, Zidell
purchased different types of insurance from a variety of insurers. Only two
insurers, Certain Underwriters at Lloyd's of London and Certain London Market
Insurance Companies, remain in this litigation; the others have settled. The
interests of the two remaining insurers are, for the purposes of this appeal,
identical, and we refer to them collectively as London. From 1956 to 1983,
Zidell purchased three types of insurance policies from London that are at
issue in this litigation: comprehensive general liability policies, a form of
marine excess coverage known as bumbershoot policies, and another form of
marine insurance known as protection and indemnity policies. In setting out
the facts, we discuss the comprehensive general liability policies and refer to
the other policies where appropriate.
The comprehensive
general liability policies consisted of primary and excess policies that
provided coverage for damage to property but contained an owned property
exclusion. See Schnitzer Investment Corp. v. Certain Underwriters, 341
Or 128, 138-39, 137 P3d 1282 (2006) (discussing effect of owned property
exclusion on coverage for environmental contamination). From 1956 to 1965,
London issued a series of comprehensive general liability policies that the parties
refer to as the "implied fortuity policies." By their terms, those
policies provided coverage without regard to whether the property damage that
resulted from Zidell's business activities was either expected or intended. One
policy, for example, provided coverage for "any and all liability imposed
by law against the Assured for loss of or damage to or destruction of the
property of others * * * arising from any cause whatsoever out of the
operation" of Zidell's business.
Despite that broad
grant of coverage, the trial court read a limitation into the implied fortuity policies.
Specifically, the trial court ruled that "the general principle that only
'fortuitous' losses will be covered will be deemed a condition of each such
policy, consistent with the holding in A-1 Sandblasting & Steamcleaning
Co. v. Baiden, 293 Or 17, 643 P2d 1260 (1982)." As the trial court
explained, that principle
"limits coverage to those losses that were not
expected or intended for policies between 1957 and January 1, 1968. From
January 1, 1968 until July 1, 1983, the implied fortuity doctrine limits
coverage to those losses that were not intended."(2)
Both parties accept the limitation that the
trial court read into the agreements that they entered into before January 1,
1968.(3)
Starting in 1966,
London began issuing comprehensive general liability policies to Zidell that
the parties refer to as the "express fortuity policies." Those
policies provided coverage only for damages that were both unexpected and
unintended. For example, in one of those policies, London agreed to pay Zidell
"all sums which the Assured shall be obligated to pay by reason of the
liability [i]mposed upon the Assured by law * * * for damages * * * on account
of * * * [p]roperty damage * * * caused by or arising out of [an]
occurrence." The policy defined "occurrence" as an
"accident or a happening or event or a continuous or repeated exposure to
conditions which unexpectedly and unintentionally results in * * * property damage
* * * during the policy period."(4)
In 1994, the Oregon
Department of Environmental Quality (DEQ) issued a notice to Zidell stating
that it was potentially responsible for cleaning up the environmental
contamination resulting from its business at the Moody Avenue site. Zidell
chose to participate in a voluntary clean-up program that DEQ offered and also
requested that London, pursuant to the various policies that it had issued over
the years, defend Zidell and indemnify it for the costs of remediating any
environmental damage that had resulted from Zidell's business. When London
denied that it had any obligation to defend or indemnify Zidell, Zidell brought
this action, alleging breach of contract and also seeking a declaration of
London's obligations under its policies.(5)
Before trial, the
court ruled on summary judgment that London had a duty to defend Zidell in
response to DEQ's notice that Zidell was potentially responsible for cleaning
up the environmental damage resulting from its business. The court also ruled,
on summary judgment, that London bore the burden of proving that Zidell either
expected or intended the environmental damages that resulted from the operation
of its business.(6)
The court explained that its ruling applied to both the express and the implied
fortuity policies.
With those ground
rules in place, the case proceeded to trial on the question of indemnity.
Among other things, the parties and the trial court sought to identify the
specific contaminants that, as a result of Zidell's business, had damaged the
environment over the period of time in which London had insured Zidell. The
trial court also sought to determine, regarding each pollutant, whether Zidell
had either expected or intended the resulting damage.(7) For example, the trial
court found that Zidell had never intended any damage to the environment from
removing anti-fouling paint (paint used to discourage the growth of organisms
on the ships' hulls) but that "Zidell management expected damage to
sediments from [arsenic found in] anti-fouling paint beginning in 1972."
Because 90 percent of the arsenic found at the site came from removing the
anti-fouling paint, the trial court sought to allocate London and Zidell's
respective responsibility for the cost of remediating the damage accordingly.(8)
At the conclusion of
the trial, the court issued lengthy findings of fact and conclusions of law,
which it incorporated in the judgment. In essence, the court found that, for a
number of years, Zidell neither expected nor intended that its business
operations would result in environmental damage; however, the court found that,
beginning in the 1970s, Zidell expected that some of the substances released as
a result of dismantling the ships would damage the soil and also the sediment
in the river.(9)
As a result of those and other findings, the trial court held that London's
policies required it to indemnify Zidell for part of the remediation costs.(10)
As noted, the Court
of Appeals affirmed the trial court's ruling regarding the burden of proof on
the implied fortuity policies but reversed its ruling regarding the burden of
proof on the express fortuity policies. The Court of Appeals reasoned that the
express fortuity policies offered coverage only for unexpected and unintended
damages and that Zidell had the burden to prove that the damages resulting from
its business came within the scope of that coverage. The Court of Appeals also
reversed the trial court's ruling that the protection and indemnity policies that
London had issued covered damages to the riverbed. We allowed Zidell's
petition for review to consider those rulings and begin with the question of
the burden of proof.
B. Burden
of Proof
On appeal, and again
on review, the parties debate whether the trial court correctly allocated the burden
of proof. Both parties start from the proposition that the insured (Zidell)
has the burden to prove coverage while the insurer (London) has the burden to
prove an exclusion from coverage. Compare Stanford v. American Guaranty
Life Ins. Co., 280 Or 525, 527, 571 P2d 909 (1977) (insurer has the burden
to prove an exclusion), with Lewis v. Aetna Insurance Co., 264 Or 314,
316, 505 P2d 914 (1973) (insured has the burden to prove coverage). They
disagree, however, whether the requirement that any damage to the environment
be neither intended nor expected is part of a limited grant of coverage to which
the insured would have to prove entitlement or an exclusion from a broad grant
of coverage for which the insurer would have to prove justification. In analyzing
that issue, we begin with the express fortuity policies and then turn to the
implied fortuity policies.
1. Express
Fortuity Policies
The express fortuity
policies provide coverage for "[p]roperty damage * * * caused by or
arising out of [an] occurrence." They define an occurrence as an
"accident or a happening or event or a continuous or repeated exposure to
conditions which unexpectedly and unintentionally results in * * * property
damage * * * during the policy period." Reading those two provisions
together, London reasons that the express fortuity policies provide coverage
only for unexpected and unintended property damage. London argues that the
parties to an insurance agreement may structure their agreement in different
ways. They may choose to grant limited coverage (coverage only for unexpected
and unintended losses), or they may choose to grant broad coverage subject to
specific exclusions. London contends that, when, as in this case, the parties
choose the former course, the insured has the burden to prove that the loss
comes within the limited coverage that the policy grants. Conversely, if the
parties chose the latter course, London does not dispute that the insurer would
have the burden to prove that the exclusion applies.
Zidell takes a
different tack. It contends that whether the parties choose to grant limited
coverage or broad coverage subject to an exclusion is not dispositive. It
contends that some provisions are, in essence, exclusions while others are, in
essence, grants of coverage. Zidell reasons that courts should designate
provisions according to their essence and without regard to the way that the
parties structure their agreement. Zidell acknowledged at oral argument that
sometimes limited coverage is just that -- coverage for bodily injury, for
example -- and that the insured would bear the burden to prove that the loss
came within the scope of that limited coverage. Zidell contends, however, that
this court's cases support its position that limitations on unexpected and
unintended damages are, in essence, exclusions and should be treated as such.
Zidell's position is
difficult to square with established principles of Oregon contract
interpretation. In drafting the express fortuity policies, the parties chose
to provide coverage only for unexpected and unintended damages. They did not
list expected or intended damages as an exclusion. One of the express fortuity
policies, for example, sets out a list of specific exclusions under the
heading, "THIS INSURANCE IS SUBJECT TO THE FOLLOWING EXCLUSIONS."
(Capitalization in original.) Neither expected nor intended damages is
included on that list of exclusions. To accept Zidell's argument, we would
have to convert what the parties chose to describe as a limitation on coverage
into an exclusion from coverage, even though the parties did not include
"expected or intended damages" as one of the listed exclusions. In
other words, we would have to rewrite the terms of the parties' agreement,
something that courts ordinarily lack authority to do. See Usinger
v. Campbell, 280 Or 751, 755, 572 P2d 1018 (1977) (courts may not rewrite
contracts); Wikstrom v. Davis, 211 Or 254, 268, 315 P2d 597 (1957)
(same); cf. Frick v. Hoag, 277 Or 135, 138, 559 P2d 827 (1977)
(noting that courts have equitable authority to reform contracts in limited
circumstances).
Zidell identifies no
reason why the parties to an insurance contract may not choose either to grant
coverage only for unexpected and unintended damages or to grant broad coverage
subject to an exclusion for expected or intended damages. Cf. Robert E.
Keeton, Insurance Law § 5.2(a) 275 (1971) (describing that decision
as a "draft[er's] choice"). Put differently, there is no reason,
either logically or semantically, why a limitation on unexpected and unintended
damages may not be stated either as a grant of limited coverage or separately
as an exclusion from a broad grant of coverage. Nor are we able to identify some
neutral principle that would allow us to discern which provisions are
essentially grants of limited coverage and which are essentially exclusions
from a broad grant of coverage. If the parties structure their agreement to
provide limited coverage, as they did here, then our cases place the burden on
the insured to prove that the event that triggered the loss came within the
scope of that coverage.
Zidell contends,
however, that three of this court's cases demonstrate that the limitation on
coverage in the express fortuity policies constitutes an exclusion from
coverage. Zidell relies initially on Smith v. Ind. Hosp. Assn., 194 Or
525, 242 P2d 592 (1952), for the proposition that insurers have the burden to
prove policy provisions that are "defensive in character." We agree
with Zidell that Smith stands for the proposition that insurers have the
burden to prove exclusions from coverage. See Stanford, 280 Or at 527
(citing Smith for the proposition that "[t]he insurer has the
burden to prove that the loss is excluded"). However, we do not
read Smith more broadly than that.
In Smith, the
employer's health insurance policy provided coverage to employees for acute
sickness and chronic conditions, subject to separate exemptions. The two
provisions at issue in Smith were an exemption for pre-existing
conditions and one for new employees whose chronic condition "acutely
manifest[ed]" itself within the first six months of work.(11) And the specific
question in Smith was whether the trial court erred in denying the
insurer's motion for a directed verdict on the ground that no reasonable juror
could find that the exemptions did not apply. In the course of resolving that
issue, the court noted that the burden was on the insurer to prove that the
exemptions applied.(12)
The policy in Smith did not provide limited coverage, as the express
fortuity policies do in this case. Rather, the policy in Smith provided
broad coverage subject to specific exemptions or exclusions, and the court's
statement regarding the burden of proof cannot be separated from the issue
before the court in Smith.
Zidell also cites
two cases in which the policies were similar to the express fortuity policies
in this case. See Ledford v. Gutoski, 319 Or 397, 877 P2d 80 (1994); Nielsen
v. St. Paul Companies, 283 Or 277, 583 P2d 545 (1978). In both Ledford and
Nielsen, the insurance policies provided coverage for bodily and
property damage that resulted from an occurrence, which the policies defined as
an "accident, including continuous or repeated exposure to conditions,
which results in bodily injury or property damage neither expected nor
intended." Ledford, 319 Or at 399; Nielsen, 283 Or at 279.
Neither case, however, addressed who had the burden to prove that the damage
was expected or intended; that is, neither case sought to determine whether the
requirement that damages be neither expected nor intended was part of a limited
grant of coverage or an exclusion from a broad grant of coverage. Rather, in
both cases, the question was whether the insurer had a duty to defend the insured,
which entailed determining only whether the conduct alleged in the complaint
necessarily required an inference that the insured had intended the harm.
It is true that, in Nielsen,
the court referred to the definition of occurrence as a "policy provision
excluding intentional harm." 283 Or at 281. However, we hesitate to read
too much into that passing reference, when the issue before the court had
nothing to do with the burden of proof but focused instead on the substantive
question whether the allegations in the complaint filed against the insured
established a duty to defend. The same is true of Ledford. In that
case, the court referred to "various policy provisions excluding coverage
for intentionally-caused injuries" in the course of explaining that the
provision applied only "when the insured intended to cause the particular
injury or harm, as opposed to merely intending the act." 319 Or at 401.
The court made that comment in explaining that, given the allegations in the
complaint, the insurer did not have a duty to defend. The court neither
addressed nor expressed any opinion on whether the limitation on coverage
should be viewed as an exclusion on which the insurer had the burden of proof
or a limitation of coverage on which the insured had the burden of proof. In
short, this court has neither considered nor resolved the issue that this case
presents, and we decline to give off-hand references in our prior cases
controlling significance.(13)
Zidell presses a
broader argument. It contends that "the location of a provision should
not control the assignment of the burden of proof." It reasons that there
is no practical difference between a policy that grants coverage for unexpected
and unintended damages and one that grants broad coverage subject to an
exclusion for expected or intended damages. We agree with Zidell that both
policies insure against the same risk. However, our cases allocate the burden
of production and persuasion based on whether the policy grants limited
coverage or broad coverage subject to an exclusion. We must classify the
limitation one way or another, and we conclude that respecting the parties'
choice is the more appropriate method. Not only does it permit the parties to
structure their agreements in a way that allocates the burden of proof, but it
also avoids putting courts in the difficult position of divining the
"essence" of contractual provisions that logically may serve either
as a grant of limited coverage or an exclusion from a broad grant of coverage.
Accordingly, we hold that, for the express fortuity policies, Zidell had the
burden to prove that the damages were neither expected nor intended.
2. Implied
Fortuity Policies
The implied fortuity
policies present the same question but in a different posture. As noted, the
implied fortuity policies contain a broad grant of coverage without any
requirement that the damages be unexpected and unintended. For instance, one
of the first comprehensive general liability policies that London issued to
Zidell provided coverage:
"From and against all loss which the Assured may
sustain or incur by reason of or in consequence of:
"Any and all liability imposed by law against the
Assured for loss of or damage to or destruction of property of others * * *
sustained or alleged to have been sustained during the currency of this
certificate and arising from any cause whatsoever out of the operations,
activities, work and/or business of the Assured * * *."
By its terms, the policy covered "[a]ny
and all liability imposed by law" without exception. Despite that broad
grant of coverage, the trial court read into that policy, and others like it, a
limitation that the damages that gave rise to the insured's liability be
neither expected nor intended, at least for those policies issued before 1968.
(The court read a less restrictive limitation into the implied fortuity policies
issued in 1968 and afterwards.)
According to the
trial court, the limitation that it read into the implied fortuity policies
derived from what this court described in A-1 Sandblasting and earlier
in Isenhart v. General Casualty Co., 233 Or 49, 377 P2d 26 (1962), as a
"public policy" limitation.(14)
As this court explained in Isenhart, a "public policy"
limitation excludes from coverage an event that otherwise would come within the
policy's terms. See Isenhart, 233 Or at 51-52 ("An action for
assault and battery would fall within this coverage unless, as [the insurer]
asserts, coverage is precluded upon the ground that it would be contrary to
public policy."). For instance, in Isenhart, after reasoning that
"a clause in a contract of insurance purporting to indemnify the insured
for damages recovered against him as a consequence of his intentional conduct
in inflicting injury upon another [wa]s unenforceable" as against public
policy, the court explained that "the insurance policy in the present case
must, in effect, be regarded as excluding such coverage." Id. at
53.
It follows, we
think, both from the terms of the policies themselves and from the reasoning in
Isenhart, that the limitation that the trial court read into the
implied fortuity policies functions as an exclusion. It excludes an event
that, under the literal terms of the policy, otherwise would be covered.(15) See Cimarron Ins.
Co. v. Travelers Ins. Co., 224 Or 57, 61, 355 P2d 742 (1960)
(explaining, in the context of automobile insurance, that "the effect of
an exclusion clause is to deny the protection of the policy to some one who,
but for the denial, would be an insured"). Literally and functionally,
the limitation that the trial court read into the implied fortuity policies
serves as an exclusion from a broad grant of coverage rather than as a grant of
limited coverage.
London, however,
advances two reasons for saying that Zidell bears the burden of proving that
the damages were unexpected and unintended. London argues initially that a
statute in effect until 1967 became part of all the pre-1968 policies and
constituted a limitation on coverage. Alternatively, London contends that, in
bringing a declaratory judgment claim, Zidell assumed the burden of proving
that its damages were unexpected and unintended. We consider each argument in
turn.
Until the
legislature repealed former ORS 736.005(1) in 1967, that statute defined
"insurance" as a:
"contract whereby one undertakes to indemnify another
against loss, damage or liability arising from an unknown or contingent event,
whereby the insured or his beneficiary suffers loss or injury."
See Or Laws
1967, ch 359, § 704 (repealing former ORS 736.005(1)). London
argues that that statute became part of each insurance contract it issued to
Zidell before 1968 and that the statute functioned as a limitation on coverage,
not as an exclusion. We read the former statute differently.
Former ORS
736.005(1) (1965), the statute on which London relies, was enacted as part of a
comprehensive act that the legislature passed in 1917 to regulate the business
of insurance. See Or Laws 1917, ch 203, § 1 (defining insurance); Lovejoy
v. Portland, 95 Or 459, 460-61, 188 P 207 (1920) (describing the 1917 act
that was later codified as ORS chapter 736). The 1917 act "regulate[d]
the conditions under which [the] business [of insurance] may be commenced and
the manner in which it may be conducted." Lovejoy, 95 Or at 461.
Among other things,
"[that act] regulate[d] the organization of the
insurance department, and it prescribe[d] the jurisdiction and define[d] the
powers of the state insurance commissioner. It deal[t] with the mode of
organizing local companies, the admission of foreign companies, the nature of
the investments of local and foreign companies, and examinations and reports of
companies. It contain[ed] various provisions to insure the solvency of
insurance companies, and it afford[ed the] means for excluding companies of
impaired or doubtful solvency."
Id. Only
companies that were engaged in the business of insurance were regulated and
subject to the act's provisions. Former ORS 736.010 (1965).
Former ORS
736.005(1) (1965) was central to that regulatory scheme. It defined
"insurance" and, by extension, identified those companies that were
in the business of insurance and thus subject to both the act's requirements
and the Insurance Department's jurisdiction. See former ORS 736.005(3)(b)
(1965) (defining "company," "corporation," and
"insurance company," as used in the act, as all individuals and
entities engaged "in the business of insurance"); cf. Hall v.
Metropolitan Co., 146 Or 32, 28 P2d 875 (1934) (holding that an annuity did
not constitute "insurance" within the meaning of former ORS
736.005(1) and, for that reason, did not require the Insurance Commissioner to
preapprove the annuity).
Former ORS 736.005(1) (1965) provided a basis for determining which
agreements and companies were subject to the 1917 insurance act. However,
nothing in that definition of insurance, or the larger act of which it was a
part, suggested that the legislature intended either to require that the
definition be part of every insurance agreement or to limit the scope of
available coverage, as London argues. At most, the definition provided a
legislative source from which a substantive "public policy"
limitation could be implied. See A-1 Sandblasting, 293 Or at 22 (noting
that public policy may be found in legislative enactments).(16) We thus disagree with
London's argument that former ORS 736.005(1) (1965) automatically became
part of the insurance policies that London issued and that it served as a
limitation on coverage.(17)
London advances a
second argument. London reasons that, even if it ordinarily would have the
burden to prove that the damages were expected or intended, Zidell assumed that
burden when it included a declaratory judgment claim in its action against
London. Relying on First National Bank v. Malady, 242 Or 353, 408 P2d
724 (1966), and State Farm Fire and Cas. v. Reuter, 299 Or 155, 700 P2d
236 (1985), London contends that, when Zidell alleged in its declaratory
judgment claim that the damages caused by its business operations were
unexpected and unintended, Zidell assumed the burden of proving those facts.
London reads Malady
and State Farm too broadly. More specifically, London's argument
fails to distinguish two related but separate categories of declaratory
judgment actions. In the first category of declaratory judgment actions, the
party that ordinarily would have the burden of proof on a claim or defense
brings a declaratory judgment action to establish its claim or defense. In
that situation, the authorities are unanimous that the plaintiff in the
declaratory judgment action has the same burden of production and persuasion
that it ordinarily would have. See James W. Moore, 12 Moore's
Federal Practice § 57.62[2][c] at 57-134 (3d ed 2009) (stating
proposition); Edwin Borchard, Declaratory Judgments 404 (2d ed
1941) (same); Developments in the Law -- Declaratory Judgments, 62 Harv
L Rev 787, 836 (1949) (same).
In the second
category of declaratory judgment actions, the party that ordinarily would not
have the burden of proof on a claim or affirmative defense brings a declaratory
judgment action either to prove nonliability on a claim or to establish that an
affirmative defense does not apply. In considering that category of
declaratory judgment actions, the authorities have divided over who bears the
burden of production and persuasion. See 12 Moore's Federal Practice
§ 57.62[2][c] at 57-134 (recognizing division of authority). Some
authorities have reasoned that the party that ordinarily would have the burden of
proof retains it, even though that party is now the defendant in the
declaratory judgment action. See, e.g., Borchard, Declaratory
Judgments at 404-09 (in a declaratory judgment action, the burden of
proving operative and affirmative facts rests upon the party that relies upon
them); Travelers Ins. Co. v. Greenough, 88 NH 391, 190 A 129 (1937)
(same). Other authorities, including this court, have reasoned that, when the
parties are transposed, the plaintiff in the declaratory judgment action has
the burden to prove its affirmative allegations, even though it ordinarily
would not have the burden of doing so. See Charles Allen Wright, Arthur
R. Miller, and Mary Kay Kane, 10B Federal Practice & Procedure
§ 2770 at 677-80 (discussing cases) (1998); Malady, 242 Or at 358
(generally adopting that position but leaving room for some variation when the
circumstances warrant it).
London's argument --
that, in alleging a claim for declaratory relief, Zidell assumed the burden to
prove that it neither expected nor intended to cause damage to the environment
-- rests on the assumption that this case comes within the second category of
declaratory judgment actions to which Malady applies. That assumption
is not correct, however. In this case, Zidell alleged two claims for relief
against London. The first claim was for breach of contract; the second sought
a declaration that London had a contractual duty to defend and indemnify
Zidell. As Zidell's parallel claims for relief make clear, this case falls in
the first category of declaratory judgment cases, in which the parties are not
transposed and the burden of proof remains unchanged. For that reason, Malady
provides no help to London.(18)
Similarly, State
Farm, on which London also relies, does not advance its argument. In that
case, the insurer brought a declaratory judgment action to establish an
affirmative defense (issue preclusion) on which it ordinarily would have had
the burden of production and persuasion. 299 Or at 158-60. This court
recognized that the insurer had the burden of proof on that defense, without
regard to whether it either brought an action seeking a declaration that the
defense precluded coverage or waited until the insured sued on the policy and
raised the defense as a bar to the insured's claim. Id. at 166-67 n 9.
Put differently, State Farm fell into the first category of declaratory
judgment actions in which the use of a declaratory judgment action did not affect
the ordinary allocation of the burden of production and persuasion.
It follows from the
foregoing discussion that Zidell's addition of a declaratory judgment claim did
not alter the ordinary allocation of the burden of proof and production.
Zidell retained its usual burden to prove coverage, and London retained its burden
to prove exclusions to that coverage, which, for the implied fortuity policies,
meant that London had the burden to prove that the damages were expected or
intended. Having considered London's arguments, we conclude that the trial
court and the Court of Appeals correctly held that, for the implied fortuity
policies, London had the burden of proving that Zidell either expected or
intended the environmental damages resulting from its business operations.
C. Protection and
Indemnity Coverage
In 1959, London
issued to Zidell the first of several "open cover" marine insurance
policies that provided protection and indemnity (P & I) coverage
for ships that Zidell purchased for scrap and resale.(19) The policy included a
standard form for port risks, which provided that London agreed to indemnify
the Assured:
"if by reason of interest in the Vessel the Assured
shall become liable to pay and shall pay any sum or sums in respect of any
liability, claim, demand, damages, and/or expenses arising from or occasioned
by any of the following matters or things during the currency of this Policy,
that is to say:
"* * * * *
"Loss of or damage to any harbour, dock (graving or
otherwise), slipway, way, gridiron, pontoon, pier, quay, jetty, stage, buoy,
telegraph cable or other fixed or moveable thing whatsoever, or to any goods or
property in or on the same howsoever caused[.]"
The trial court
found that Zidell's ship dismantling and ship repair activities contaminated
the sediment in the river. It concluded that London's promise, in the standard
port risk form, to indemnify Zidell for liability arising from "damage to
any * * * other fixed or moveable thing whatsoever" included a
promise to indemnify Zidell for liability for damage to the sediment in the
Willamette River that Zidell "incurred by reason of its interest in [the
insured ships]." The court explained that
"[t]he condition that liability arise 'by reason of
interest' in a vessel to establish coverage under Zidell's ship dismantling
coverage is satisfied where materials are released from a covered vessel onto
the river such that they end up in the sediments. * * * Once materials are
disassociated from a vessel being dismantled, they come under the crane barge
coverage, and once they hit land, they come under general liability
coverage."
The Court of Appeals
reversed the trial court's ruling, holding that the phrase "damage to any
* * * other fixed or moveable thing whatsoever" did not include damage to
soil or sediment in the river. The court's reasoning consisted of three
steps. First, it noted that almost all the specific items that precede the
phrase "any * * * other fixed or moveable thing whatsoever" are
artificial structures or objects. ZRZ Realty, 222 Or at 490. Second,
it observed that, although "harbour" usually refers to a naturally
occurring feature, it also can refer to an artificial structure and concluded that,
in this context, the word "most likely refers to something that has been
built or constructed." Id. Finally, having determined that all the
specific items that precede the general phrase referred to artificial
structures, it concluded that the general phrase "any * * * other fixed or
moveable thing whatsoever" was similarly limited. Id. at 490-91. The
court reasoned that, at a minimum, river sediment was so dissimilar from the specific
listed items that the general phrase "any * * * other fixed or moveable
thing whatsoever" did not include it. Id.
On review, Zidell
argues that the Court of Appeals read both the specific items and the general
phrase too narrowly. London, for its part, urges us to follow the Court of
Appeals' interpretation of the P & I policy. It also advances an
alternative argument. It contends that, even if Zidell's interpretation is
correct, it is still not liable to indemnify Zidell unless Zidell incurred the
liability in its capacity as the owner of the vessel and in the course of
operating the vessel. In considering those issues, we begin with the question
whether "damage to any harbour, dock (graving or otherwise), slipway, way,
gridiron, pontoon, pier, quay, jetty, stage, buoy, telegraph cable or other
fixed or moveable thing whatsoever" includes damage to the riverbed.
On that question, we
start from the proposition that the Court of Appeals' interpretation of the provision
is plausible. That is, the word "harbour" can refer to both natural
and artificial features, and it is plausible to read the term
"harbour," in context, to refer to artificial features and to read a
similar limitation into the general phrase "any * * * other
fixed or moveable thing whatsoever." The question, however, that Zidell's
argument raises is whether its reading of the provision is also plausible and,
if it is, whether the remainder of the policy resolves the resulting
ambiguity. See Hoffman Construction Co. v. Fred S. James & Co., 313
Or 464, 470, 836 P2d 703 (1992) (describing methodology for interpreting
provisions in insurance policies). If, after considering the remainder of the
policy, two plausible interpretations remain, then we construe the phrase
against the drafter and in favor of the insured. Id.
Ordinarily, we assume
that a nonspecific term in a series, such as "any * * * other fixed or
moveable thing whatsoever," shares the same qualities as the specific
terms that precede it. See Baker v. City of Lakeside, 343 Or 70, 76,
164 P3d 259 (2007) (discussing ejusdem generis rule).(20) In this case, Zidell
starts from the proposition that the list of specific items includes natural
features (harbors), artificial structures (docks, slipways, jetties), and
specific types of property found in ports (buoys and telegraph cables).(21) One plausible reading
of the listed items is that London undertook to indemnify Zidell for liability
arising from damage to various types of property found in ports. Viewed in
that context, the phrase "any * * * other fixed or moveable thing
whatsoever" includes damage to the river sediment. At a minimum, the
broad wording of the general phrase makes Zidell's reading of the provision a
plausible one.
We note that, one
year before London issued the first P & I policy involved in this
case, the United States District Court for the Southern District of Texas held
that essentially the same provision in a P & I policy required the
insurer to indemnify a barge owner for damage to "a number of shore-side
properties" caused by oil spilled from the barge. See Gulf States
Marine & M. Co. v. Norwich Union F. Ins. Soc., 168 F Supp 863, 865 (SD
Tex 1958) (discussed in Alex L. Parks, 2 The Law and Practice of Marine
Insurance and Average 957-58 (1987), as an example of the coverage under
this clause). The Fifth Circuit reversed but not because it disagreed with the
district court's holding. United States F. Ins. Co. v. Gulf States Marine
& Min. Co., 262 F2d 565 (5th Cir 1959). Rather, the Fifth
Circuit noted that, according to the terms of the policy, the P & I
coverage would apply only if there were no other coverage for the loss. Id.
at 568. In that case, however, there was coverage for the damages under a
policy that covered the tug towing the barge. Id. That opinion
provides further support for Zidell's reading of the policy.
In sum, we think
each party's interpretation of the insurance provision is plausible, and we
look to the remainder of the P & I policy that London issued
Zidell to attempt to resolve that ambiguity. In the remainder of the policy,
London undertook to indemnify Zidell for liability that it incurred for a
series of different types of property loss and harm to persons. The port risks
form provides that the underwriters agreed to indemnify Zidell, subject to
certain exceptions, for liability that it incurred for: damage to other
persons' vessels and cargo, whether caused directly by a collision or
indirectly; damage to other vessels and cargo owned by Zidell; the cost of
raising or removing the insured vessel and its cargo should it sink; and
damages resulting from the loss of life and personal injury. Nothing in those
additional covered risks sheds any light on the nature of the specific risk
that the parties chose to cover in the provision at issue here. Cf. St.
Paul Fire & Marine Ins. v. Vest Transp., 666 F2d 932, 940-44 (5th Cir
1982) (explaining that the P & I policy in that case
covered a series of discrete risks). Because the remainder of the policy does
not remove any ambiguity in the meaning of the provision, we interpret the
phrase "any * * * other fixed or moveable thing whatsoever" in favor of
the insured Zidell to include damage to the sediment in the river.
London advances an
alternative argument. It contends that, even if the phrase "any * * *
other fixed or moveable thing whatsoever" includes damage to the riverbed,
the terms of the policy and general principles of marine insurance make clear
that London agreed to indemnify Zidell only for liabilities that Zidell
incurred (1) as the owner of the insured vessel and (2) in the course of
operating the vessel. The argument that London advances raises two issues, and
we consider them separately.
London contends
that, under the terms of the policy, it agreed to indemnify Zidell only to the
extent that Zidell incurred liability as the owner of the insured vessel.
London argues, however, that "Zidell's liability in this case does not
arise by reason of its interest in any vessel; it arises by reason of its interest
in the Moody Avenue site." As we understand London's argument, London
does not dispute that Zidell owned or had an interest in the vessels it
dismantled. Rather, London's first argument rests on the proposition that the
trial court imposed liability on London under the P & I policies
for damages that Zidell incurred in some capacity other than its capacity as
the owner of the vessels. We do not read the trial court's ruling as broadly as
London does.
The third paragraph
of the port risk form provides that London has a duty to indemnify Zidell
"if by reason of interest in the [insured] Vessel the Assured shall become
liable to pay and shall pay any sum or sums in respect of any liability * * *
arising from or occasioned by" a series of specified "matters or
things," one of which is "damage to any harbour, dock, * * * or other
fixed or moveable thing whatsoever." In discussing London's obligation
under that provision, the trial court explained that "[t]he condition that
liability arise 'by reason of interest' in a vessel to establish coverage under
Zidell's ship dismantling coverage is satisfied where materials are released
from a covered vessel onto the river such that they end up in the
sediments." The trial court also explained that, once the materials were
"disassociated" from a vessel being dismantled, different insurance
policies covered the damages.
London has not
explained why the trial court erred in drawing the distinction that it did or
why Zidell's liability for materials released onto the river from its vessels
would not constitute liability that arose by reason of its interest in those
vessels. Nothing that London has offered in its briefs or at oral argument
persuades us that the trial court imposed greater liability on London under the
P & I policies than the terms of those policies warranted.(22)
London raises a
related but separate argument. It contends that, "[w]ith respect to
P & I insurance, a well-established and uniform rule of maritime
law disposes of Zidell's claim -- a rule that requires a causal nexus between a
vessel's operation and the liability for which coverage is sought."
London reasons that, because Zidell was not operating vessels but was instead
scrapping them, Zidell did not incur liability by reason of its operation of a
vessel and therefore cannot come within the terms of the P & I
coverage.
London's argument
construes P & I coverage too narrowly, both generally and in this
case. P & I coverage is essentially marine liability coverage. It
arose initially to provide coverage for liability that an insured vessel
incurred as a result of a collision with another vessel. Parks, 2 Marine
Insurance and Average at 832-33. Since then, coverage has been extended to
liability incurred as a result of a variety of different risks, including liability
resulting from ship building and ship repair. Id. at 839. As Parks
notes in his treatise on marine insurance:
"There are, of course, many different types of protection
and indemnity policies other than the classic form originally intended to cover
collision liabilities which were not then provided by the hull policies. There
are freight, demurrage, and defense associations, and associations covering
shipbuilders' liabilities, ship repairers' liabilities, and the like."
Id. (footnote
omitted.) Contrary to London's argument, P & I policies are not
limited to liability arising from the operation of a vessel; rather, they can provide
coverage for such things as liability arising from building and repairing
ships.
In this case, the
P & I policy that London issued Zidell covers liability arising
from scrapping ships. That policy provides: "Vessels for scrapping
insured subject to -- Hull F.P.A. Cover conditions as attached."
(Emphasis in original.) The attached Hull F.P.A. cover conditions incorporate
an attached standard form for Port Risks, which includes the provision at issue
on review.(23) As
Zidell correctly argues, the P & I policy that London issued in
this case was not limited to liability that Zidell incurred in operating
vessels; it expressly covered liability that Zidell incurred in scrapping ships.
Although London
argues that two cases support its position, they go to the first issue that
London raises, not the second. In the first case, a crane operator on a fixed
offshore platform negligently raised a piece of machinery from a vessel,
injuring one of the vessel's crew members. Lanasse v. Travelers Insurance
Company, 450 F2d 580, 582 (5th Cir 1971). The crane operator was
negligent; the vessel was not. Id. at 583. Although the same entity
(Chevron) owned both the platform and the vessel, it was liable for the crew
member's injuries as the owner of the platform, not as the owner of the
vessel. Id. at 584. The P & I insurance in that case,
however, provided that the insurer would pay only those sums that the assured,
as owner of the vessel, was liable to pay. Id. at 583 n 7 & 584.
Because Chevron did not incur any liability as the owner of the vessel, the
insurer had no obligation to indemnify Chevron under the P & I
policy in that case.
The second case is a
variation on the first. In that case, a vessel towing a barge negligently
caused the barge to hit a bridge and sink. St. Paul Fire & Marine Ins.,
666 F2d at 935. The federal government removed the sunken barge and was
entitled to recover the cost of doing so from the entity that negligently
caused the barge to sink. Id. at 940. Only the towing vessel's owner
was liable to the government for the cost of removing the barge. Id.
The barge's owner incurred no liability to the government. Id. The
court assumed that the same entity (Vest Transportation) owned the towing vessel
and the barge. Id. at 941. When Vest sought to recover under a P &
I policy, the court held that the insurer had agreed to indemnify only the
owner of the barge for the liability it had incurred for the cost of the
barge's removal. Id. Vest, however, had incurred no liability as the
owner of the barge and accordingly could not recover under the P & I
policy. Id. at 941, 945.
Neither of the cases
on which London relies stands for the proposition that an insurer is obligated
to indemnify the assured under P & I coverage only if the assured
incurred liability in the course of operating an insured vessel. Each case
does stand for the proposition that the insurer's obligation in those cases was
limited to indemnifying the assured only to the extent that the assured
incurred liability as the owner of the insured vessel. In this case, the
P & I policy provides that London has a duty to indemnify Zidell
to the extent that Zidell is liable by reason of its interest in the insured
vessels. As explained above, the trial court's findings do not impose any
greater obligation on London than the terms of the policy permit. We find no
error in the trial court's ruling.
D. Proceedings on Remand
Having found that
the trial court erred in allocating the burden of proof to London on the
express fortuity policies, the Court of Appeals reversed the trial court's
judgment, vacated the supplemental judgment awarding Zidell attorney fees, and
remanded the case for a new trial. ZRZ Realty, 222 Or App at 457-58. On
review, Zidell argues that, even if we uphold the Court of Appeals' allocation
of the burden of proof, the Court of Appeals erred in remanding for a new trial
on both the express and implied fortuity polices.(24) Zidell contends that a
new trial is necessary only on the express fortuity policies. Zidell also argues
that the Court of Appeals should have affirmed the "attorney-fee portion
of the judgment as well as the supplemental judgment for attorney fees." London
responds that, under Maxwell v. Port. Terminal RR. Co., 253 Or 573, 456
P2d 484 (1969), the Court of Appeals was correct in "requiring a retrial
as to all policies, and in reversing the fee awards."
We do not read Maxwell
as broadly as London does. The court explained in Brown v. Bonesteele,
218 Or 312, 335, 344 P2d 928 (1959), that "[u]nder appropriate
circumstances this court may remand a case for a new trial on a part only of
the issues raised in the original proceeding." The court consistently has
followed that principle. See Estate of Michelle Schwarz v. Philip Morris
Inc., 348 Or 442, 460, 235 P3d 668 (2010) (remanding for a retrial only on
punitive damages); Western Feed Co. v. Heidloff, 230 Or 324, 349, 370
P2d 612 (1962) (remanding for a retrial only on the defendant's counterclaim); Dunn
v. Henderson, 122 Or 331, 336, 258 P 183 (1927) (upholding determination of
liability and remanding for a trial on damages only).
In Maxwell, this
court recognized an exception to that general rule. The court explained that,
"[i]n the ordinary two-party personal injury case, * * *
evidence of fault can influence the jury's measurement of damages; and the kind
and degree of injuries may influence some jurors in their evaluation of the
evidence on liability." Maxwell, 253 Or at 577. Accordingly, the
court held that a "new trial in a personal-injury case ordinarily should
be a new trial on all contested factual issues." Id.
This case differs
from Maxwell in two respects. Not only was the court careful to limit
its holding in Maxwell to cases tried to a jury, id. at 575, but the
court's reasoning in Maxwell turned on the relationship between
liability and damages in personal injury cases, id. at 577. This case,
by contrast, was tried to the court, and nothing that London has identified
persuades us that the trial court cannot, on remand, fairly limit any retrial
to the express fortuity policies; that is, we see no reason why the trial court
needs to retry London's responsibility to indemnify Zidell under the implied
fortuity policies to determine whether London is also required to indemnify
Zidell under the express fortuity policies. The remand should have been
limited, at least initially, to the question whether, for the purposes of the
express fortuity policies, Zidell either expected or intended that a series of
contaminants resulting from the operation of its business would damage the
environment.(25)
In retrying that issue,
the trial court must determine initially whether it is necessary to supplement
the record; that is, if neither party can establish a specific basis for saying
that the record would have been different if the trial court had placed the
burden of production and persuasion initially on Zidell, then the trial court may
find, based on the existing record, what Zidell expected or intended for the
purposes of the relevant express fortuity policies.(26) If, on either the
existing or a supplemented record, the trial court makes the same findings on remand
that the trial court did initially, then it presumably can reenter the judgment,
with any appropriate adjustment for attorney fees. Conversely, if the trial
court reaches a different conclusion on remand as to when Zidell expected or
intended property damage for the purposes of the express fortuity policies,
then the court also will presumably have to adjust the findings allocating
responsibility for remediating the damage between London and Zidell.
Zidell also argues
that the Court of Appeals erred in reversing the fee award in the judgment and in
vacating the fee award in the supplemental judgment. As we understand the
trial court's rulings on attorney fees, it found that London had a duty to
defend Zidell in response to DEQ's 1994 notice.(27) The trial court also
found that, when Zidell transmitted the 1994 DEQ letter to London, that letter
served as a proof of loss for the purposes of ORS 742.061. Finally, the trial
court found that, because London did not offer to pay Zidell's defense costs
within the period set out in ORS 742.061, that statute authorized Zidell to
recover the attorney fees that it incurred in bringing this action to establish
and enforce London's duty to defend, but not its duty to indemnify.(28)
In the Court of
Appeals, London assigned error to four of the trial court's rulings regarding
attorney fees. The Court of Appeals considered and rejected London's first
assignment of error -- that the 1994 letter was not a sufficient proof of loss.
ZRZ Realty, 222 Or App at 493-95. The Court of Appeals,
however, did not consider the other three assignments of error that London
raised regarding the attorney fees or the two assignments of error concerning
attorney fees that Zidell raised on cross-appeal. Id. at 495, 497. The
Court of Appeals reasoned that it was not necessary to reach those issues. It explained
that, "[b]ecause we reverse and remand for trial on the breach of contract
and declaratory judgment claims, we necessarily reverse the award of attorney
fees in favor of Zidell. ORS 20.220(3)." Id.(29)
On review, Zidell
argues that the Court of Appeals erred in reversing the attorney fee award in the
judgment and in vacating the attorney fee award in the supplemental judgment.
It contends that the Court of Appeals' ruling reversing the trial court's
allocation of the burden of proof on the express fortuity policies had no
effect on the trial court's award of attorney fees. We agree with Zidell. According
to the trial court, it awarded Zidell only those fees and costs that were
attributable to London's breach of its duty to defend.(30) By contrast, the issue
that the trial court must retry on remand -- whether Zidell expected or
intended the damage resulting from its business activity -- is relevant only to
the question whether London has a duty to indemnify Zidell under the various express
fortuity policies that London issued.
This court has long
recognized that "[t]he duty to indemnify is independent of the duty to
defend." Ledford, 319 Or at 403. An insurer may have a duty to
defend its insured, as the trial court found here, but no duty to indemnify. It
follows that, even if the trial court finds on remand that London had no duty
to indemnify Zidell under the express fortuity policies, that ruling would have
no effect on either the trial court's ruling that London had a duty to defend
Zidell in DEQ's enforcement action or the trial court's conclusion that ORS
742.061 authorized Zidell to recover attorney fees it incurred in this action
in establishing and enforcing London's duty to defend. The Court of Appeals
erred in reversing and vacating the fee awards.(31)
That said, we note
that London's eighth assignment of error, which the Court of Appeals did not
reach, contended that trial court erroneously had "awarded Zidell fees its
attorneys incurred on issues other than LPGL Underwriters' duty to
defend."(32)
London also assigned error to the trial court's rulings on the appropriate
hourly rate and a discrete category of activity for which the trial court
allowed fees. Zidell, for its part, raised two assignments of error on
cross-appeal regarding attorney fees. Because we conclude that the Court of
Appeals erred in reversing and vacating the fee awards, it follows that we must
remand this case initially to the Court of Appeals to permit it to consider those
assignments of error. On remand before the Court of Appeals, the parties are also
free to ask the court to consider, if appropriate, those assignments of error
that the court did not reach because it remanded the case for a new trial on
both the express and implied fortuity policies. Because at least some of those
issues must go back to the Court of Appeals for its resolution before the case
returns to the trial court, we remand this case initially to the Court of
Appeals.
The decision of the Court
of Appeals is affirmed in part and reversed in part. The case is remanded to
the Court of Appeals.
1. Some
plaintiffs are either the successors in interest to or assignees of those
companies. That status is not material to the issues on review.
2. The trial court found that, in addition to the pre-1966 comprehensive
general liability policies, London issued protection and indemnity policies
from 1957 through 1983 and bumbershoot policies from 1970 through 1977, none of
which required that property damage be unexpected and unintended. The court
read a fortuity requirement into those policies, as well as into the pre-1966
comprehensive general liability policies.
3. London argued in the Court of Appeals that the same limitation --
expected or intended damages -- should apply to policies issued after January
1, 1968. The Court of Appeals initially rejected that argument, upholding the
trial court's conclusion that only intended damages were excluded. ZRZ
Realty Co., 222 Or App at 481. On reconsideration, it withdrew its ruling
on that issue and left the issue for the trial court on remand. ZRZ Realty,
225 Or App at 265. Zidell has not challenged that ruling on review.
4. The wording in the express fortuity policies is not identical.
However, the parties have not argued that any difference in wording in those
policies affects how the burden of proof should be allocated.
5. Zidell's
third amended complaint included other claims for relief. The trial court,
however, dismissed those claims with prejudice, and Zidell has not challenged
that ruling. Accordingly, we discuss only Zidell's breach of contract and
declaratory judgment claims.
6. As
we understand the trial court's ruling, it used the phrase "burden of
proof" as a shorthand reference to the burden of production and the burden
of persuasion.
7. The trial court explained that, "[t]o establish that [Zidell] intended
third party-property damage [i.e., damage to the river or the
groundwater], the trier of fact will have to find that [Zidell] polluted for
the purpose of causing damage to the Willamette River or groundwater."
(Emphasis in original.) It also explained that "[a] person expects
a result if they act with awareness that the result is substantially certain to
follow." (Emphasis in original.) Neither party has challenged those
definitions in this court, and we express no opinion on them.
8. For example, the trial court found that the vast majority of the
arsenic in the sediment came from anti-fouling paint used before 1950. It
allocated responsibility for remediating 90 percent of the arsenic based on
the number of pre-1950 ships dismantled before 1972 (allocated to London) and
those dismantled after that date (allocated to Zidell). The court also
articulated a principle to allocate the cost of remediating the environmental
damages for the arsenic when the amount of damage for which one party was
responsible marginally increased the remediation costs. The court employed a
similar type of analysis for other contaminants.
9. The court found that Zidell did not expect that its activities would
damage the groundwater.
10. At the time of trial, Zidell had not incurred any recoverable indemnity
costs. The court's findings accordingly established formulas for allocating
responsibility between London and Zidell for those future costs.
11. One paragraph, which was captioned "exemptions," provided
that "[t]he services provided for herein shall not apply to any * * *
condition * * * which definitely existed at the time the afflicted employee
came under the protection of this contract * * *." 194 Or
530 (emphasis and ellipses in original). It also provided a limited exemption
for "chronic conditions." It provided that employees "will not
be entitled to services for chronic conditions * * * until they have been under
the coverage of [this policy] for six consecutive months * * *." Id.
A complementary paragraph, captioned "new employees," provided that
new employees "shall not be entitled to services for chronic conditions *
* * which may acutely manifest themselves during the first six months of
employment * * *." Id. (emphasis in original.)
12. Technically, the reference in Smith to the burden of proof was dictum.
As noted, the issue in Smith arose on a motion for a directed verdict.
Because there was sufficient evidence from which the jury could have found
either for the plaintiff or the defendant, there was no issue regarding who
bore the burden of production. Moreover, because the only issue on review of a
motion for directed verdict was whether the evidence required the jury to find
that the plaintiff's condition came within the exemptions, the burden of
persuasion was not implicated either. In that regard, there was no claim that
the only conclusion a reasonable juror could reach was that the evidence was in
equipoise. Cf. State v. James, 339 Or 476, 483, 123 P3d 251 (2005) (if,
in resolving a motion subject to proof by a preponderance of the evidence, a
court finds the evidence in equipoise, the party bearing the burden of
persuasion loses).
13. We note that the jurisdictions that have considered this issue have
split on it. Compare Travelers Cas. v. Ribi Immunochem Research, 108
P3d 469, 474-75 (Mont 2005) (viewing requirement that damages be neither
expected nor intended as limitation on coverage that the insured had to prove);
Consolidated Edison v. Allstate, 774 NE 2d 687, 690-92 (NY 2002) (same);
Queen City Farms v. Central Nat. Ins. Co., 882 P2d 703, 715-16 (Wash
1994) (same), with State v. CNA Ins. Companies, 779 A2d 662, 671-72 (Vt
2001) (limitation was an exclusion that insurer had to prove); Carter-Wallace
v. Admiral Ins., 712 A2d 1116, 1125-26 (NJ 1998) (same); Cameron Mut.
Ins. Co. v. Moll, 50 SW3d 329, 332 (Mo App 2001) (same).
14. Consistent with its practice in other areas, the court in A-1
Sandblasting sought to ground the public policy limitation either in
legislative enactments or, failing that, in case law. See 293 Or at
22-26 (exploring those sources and noting the difficulty in courts
independently determining public policy).
15. As
we understand the trial court's ruling, the scope of the public policy
exception derives, from 1956 to 1967, from a statute that the legislature
repealed in 1967 and, from 1968 on, from the cases discussed in A-1
Sandblasting. That is why, beginning in 1968, the trial court read a less
restrictive limitation into the implied fortuity policies.
16. That is how, as we understand the trial court's rulings, it regarded
the former statute. In that respect, we note that neither party has challenged
the scope of the public policy limitation that the trial court drew from former
ORS 736.005(1) (1965), and we express no opinion on it.
17. London also argues that the trial court ruled that the former statute
was a limitation on coverage and that, because Zidell has not challenged that
ruling on appeal, that ruling binds Zidell. The difficulty with London's argument
is that it focuses on one of the trial court's rulings without considering the
court's other rulings regarding the scope and nature of the implied fortuity
principle that the trial court read into the pre-1968 insurance policies.
18. Since this court's decision in Malady, other courts have
considered additional factors in allocating the burden of production and
persuasion. See 12 Moore's Federal Practice § 57.62[2][c]
(describing a more flexible approach); Fireman's Fund Ins. Co. v. Videfreeze
Corp., 540 F2d 1171, 1174-76 (3d Cir 1976) (illustrating analysis). Given
our resolution of this issue, we need not decide whether those factors would
apply and, if they did, whether they would affect the analysis.
19. The
1959 policy provided coverage for each ship that Zidell purchased during the
period in which the policy was in force and for which Zidell provided notice to
London. In discussing the P & I policies, the parties discuss
only the 1959 policy and treat it as representative of the P & I
policies that followed. We follow the parties' lead, although we note that the
later policies are not identical.
20. We say "ordinarily" because the relationship between the
specific and general terms can vary depending on the particular wording that
the legislature uses. See Schmidt v. Mt. Angel Abbey, 347 Or 389,
402-07, 223 P3d 399 (2009) (discussing ejusdem generis rule); id.
at 408-10 (Walters, J., concurring) (same).
21. The word "harbour" refers to both naturally occurring and
artificially created harbors. See Webster's Third New Int'l
Dictionary 1031 (unabridged ed 2002) (defining harbor as "a small bay
or other sheltered part of a considerable body of water usu. well protected
either naturally or artificially (as by jetties) from high waves * * * and deep
enough to furnish anchorage for ships"); Robert H. Brown, A Dictionary
of Marine Insurance Terms 171 (4th ed 1975) (defining harbor as "[a]
place either natural or artificial where ships may anchor or lay and be
protected from the open sea"). It is permissible to read that word, as
Zidell does, to refer to natural features as well as artificial ones.
22. The P & I policy includes a "special clause" that applies
to vessels intended for scrapping. It provides:
"In respect of vessel (S) insured hereunder, it is
agreed that this policy also covers the Assured and Affiliated Companies of the
Assured be they Owners, subsidiaries or inter-related Companies and/or as
bareboat Charterers and/or Charterers and/or Subcharterers and/or Operators
and/or in whatever capacity * * *."
The trial court did not have occasion to consider how this
clause affected, if at all, London's obligation to indemnify the assured for
liability occasioned "by reason of interest in the Vessel."
23. The attached Hull F.P.A Cover Conditions is subtitled "Applicable
vessels intended for scrapping."
24. The Court of Appeals decision does not explicitly require a retrial on
both the express and implied fortuity policies. However, that appears to have
been its intent. For example, the Court of Appeals declined to address
London's third assignment of error, which was directed at both the implied and
express fortuity policies, on the ground that it was reversing and remanding
for a new trial on those policies. ZRZ Realty, 222 Or App at 480.
Moreover, Zidell petitioned for reconsideration on the ground that the Court of
Appeals should have remanded for a retrial only on the express fortuity
policies, and the Court of Appeals denied Zidell's petition. ZRZ Realty,
225 Or App at 262.
25. Zidell concedes that, if the trial court erred in placing the burden of
proof on London regarding the express fortuity policies, then the case must be
remanded for a limited retrial. Zidell's concession is well taken. For
example, the trial court found by a preponderance of the evidence that, in
1972, Zidell expected that the arsenic in the anti-fouling paint would cause
property damage. The trial court, however, made no finding as to what Zidell
expected or did not expect for the preceding years. For all that the record
reveals, the trial court could have found that, for 1971 and for each of the
preceding years in which the trial court incorrectly allocated the burden of
production and persuasion, London simply failed to persuade the trial court
that Zidell had expected property damage from the arsenic without also finding
that Zidell in fact had not expected property damage. Given this record, we
agree that the trial court's misallocation of the burden of production and
persuasion requires at least a limited retrial regarding the express fortuity
policies.
26. At trial, the parties discussed what would happen on remand if the
appellate courts reversed the trial court's allocation of the burden of
production and persuasion. Initially, the trial court explained that, in its
view, it could simply retry the issue on the existing record. When London's
counsel suggested that Zidell might have tried its case differently if the
trial court had placed the burden of production and persuasion on Zidell, the
trial court tentatively agreed. Zidell, however, did not identify how it would
have tried its case differently, and we think that it is incumbent on the party
that wants to supplement the record to identify a specific, legitimate reason
for doing so.
27. London argues, and Zidell does not dispute, that only some of the
policies imposed a duty to defend on London and that only some of the London
defendants, the LPGL Underwriters, bore that duty. For ease of reference, we
refer generally to London's duty to defend.
28. On review, neither party challenges the trial court's findings regarding
attorney fees, and we express no opinion on them.
29. ORS 20.220(3) provides:
"When an appeal is taken from a judgment
under ORS 19.205 to which an award of attorney fees or costs and disbursements
relates:
"(a) If the appellate court reverses the
judgment, the award of attorney fees or costs and disbursements shall be deemed
reversed; or
"(b) If the appellate court modifies the
judgment such that the party who was awarded attorney fees or costs and
disbursements is no longer entitled to the award, the party against whom
attorney fees or costs and disbursements were awarded may move for relief under
ORCP 71 B(1)(e)."
30. We express no opinion on the question whether the fee award may have
included fees that Zidell's "attorneys incurred on issues other than LPGL
Underwriters' duty to defend," as London argued before the Court of
Appeals. As explained below, the Court of Appeals did not reach that issue,
and we leave that issue to the Court of Appeals on remand.
31. Because the part of the trial court's judgment that the Court of
Appeals reversed does not relate to the awards of attorney fees, ORS 20.220(3)
did not require the Court of Appeals to reverse and vacate the fee awards.
32. What the trial court included in its fee award is not always clear, in
part because the parties appear to have negotiated and settled on a rolling
basis some, if not many, of the specific charges that give rise to this issue. | 5b7a8828164fc6a27a236b20cb8dc5564a12d7e61fdcbbff1800aac646028e0c | 2010-10-14T00:00:00Z |
452d8a4c-2825-43b4-834d-5ef6051f80ec | Severy/Wilson v. Board of Parole | null | S057031 | oregon | Oregon Supreme Court | FILED: December 23, 2010
IN THE SUPREME COURT OF THE STATE OF OREGON
DONALD SEVERY,
Petitioner
on Review/
Cross-Respondent
on Review,
v.
BOARD OF PAROLE AND
POST-PRISON SUPERVISION,
Respondent
on Review/
Cross-Petitioner
on Review.
(CA
A132525; SC S057031, S057516)
STEVEN R. WILSON,
Petitioner
on Review/
Cross-Respondent
on Review
v.
BOARD OF PAROLE AND
POST-PRISON SUPERVISION,
Respondent
on Review/
Cross-Petitioner
on Review.
(CA
A132856; SC S056674)
(Consolidated
or argument and opinion)
En Banc
On review from
the Court of Appeals.*
Argued and
submitted January 5, 2010.
Ryan T. O'Connor,
Deputy Public Defender, Salem, argued the cause and filed the brief for petitioner
on review/cross-respondent on review Donald Severy. With him on the brief was
Peter Gartlan, Chief Defender, Appellate Division, Office of Public Defense Services.
Andy Simrin,
Portland, argued the cause and filed the brief for petitioner on review/cross-respondent
on review Steven R. Wilson.
Denise G.
Fjordbeck, Attorney-in-Charge, Civil/Administrative Appeals, Salem, argued the
cause and filed the brief for respondent on review/cross-petitioner on review.
With her on the brief was John R. Kroger, Attorney General.
GILLETTE, J.
The decisions of
the Court of Appeals are reversed. The orders of the Board of Parole and
Post-Prison Supervision are reversed, and the cases are remanded to the Board
of Parole and Post-Prison Supervision for further proceedings.
*On judicial review of Final Orders of the Board of Parole and Post-Prison Supervision. 222 Or App 224, 193 P3d 32 (2008). 224 Or App 176, 197 P3d 59
(2008).
GILLETTE, J.
These two parole eligibility cases have
been consolidated in this court for purposes of opinion. They concern the scope
of authority of the Board of Parole and Post-Prison Supervision (board) to
consider for parole persons who had been convicted of aggravated murder and
sentenced to life in prison with a minimum of 30 years imprisonment, but who, 20
years later, are found by the board to be capable of rehabilitation within a
reasonable period of time. In Janowski/Fleming v. Board of Parole, 349 Or ___, ___, ___ P3d ___ (2010) (decided this date) (slip op at 15), we hold that
the board has the authority to override a prisoner's 30-year mandatory minimum
sentence for aggravated murder and to release the prisoner after 20 years in
prison on a finding that the prisoner is capable of rehabilitation within a
reasonable period of time. We also hold that, in such an event, the board must
use the applicable matrix rules in effect at the time of the commission of the underlying
offenses to determine when the prisoner should be released. Id. at __
(slip op at 24). The two cases now before us involve an additional circumstance
not present in Janowski/Fleming, viz., each prisoner was
sentenced by a trial court to two consecutive life sentences with
30-year mandatory minimum terms of imprisonment for aggravated murder.
Nonetheless, each prisoner, after 20 years of imprisonment on the first of the
prisoner's consecutive sentences, was found by the board to be capable of
rehabilitation within a reasonable period of time.
The Court of Appeals concluded that the
outcome of these cases was controlled by this court's decision in Norris v.
Board of Parole, 331 Or 194, 13 P3d 104 (2000), cert den, 534 US
1028 (2001). Given that decision, the Court of Appeals held that when a
prisoner has served 20 years of the first of two consecutive life sentences
with 30-year mandatory minimum terms of imprisonment for aggravated murder and
the board finds that the prisoner is capable of rehabilitation within a
reasonable period of time and consequently converts the terms of the prisoner's
confinement to life with the possibility of parole, that conversion applies
only to the first of the two consecutive sentences. Following this court's
decision in Norris, the Court of Appeals held that such a prisoner must
wait another 20 years before seeking a second rehabilitation hearing that could
result in the conversion of the second sentence. Wilson v. Board of Parole,
222 Or App 224, 228, 193 P3d 32 (2008); Severy v. Board of Parole, 224
Or App 176, 197 P3d 59 (2008) (affirming per curiam in light of Norris
and Wilson).
Both the board and the prisoners sought
review of those decisions, and we allowed their petitions for review. The
facts relevant to our disposition of these cases are procedural and are not in
dispute. In September 1984, prisoner Severy killed his father and brother in
the family home and then set fire to the house to conceal his crimes.(1)
In May 1985, a trial court convicted Severy of two counts of aggravated murder
and one count of arson. The court imposed two consecutive life sentences, each
with a 30-year minimum term of imprisonment, for the aggravated murder convictions,
and a further consecutive 10-year mandatory minimum sentence on the arson
conviction. In October 1985, the board issued an order setting a matrix range
for Severy's crimes of 270 to 376 months' imprisonment. At the same time, the
board set a release date in October 2054 for Severy's consecutive 360-month
mandatory minimum sentences for aggravated murder and his consecutive 120-month
mandatory minimum sentence for arson. In 1990, the board issued an order recalculating
the matrix range for Severy's crimes as 222-280 months' imprisonment, but also concluding
that it had improperly set a release date when it only should have set a review
hearing date and noting that there was no matrix range for those convicted of
aggravated murder. No party sought judicial review of that order.
In February 1985, prisoner Wilson shot
and killed his friend's parents.(2)
In October 1986, a trial court convicted Wilson of four counts of aggravated
murder, merged those four counts into two counts for purposes of sentencing,
and then imposed two consecutive life sentences, each with a 30-year minimum
term of imprisonment. In March 1987, the board conducted a hearing respecting
Wilson's incarceration. It established a matrix range of 240 to 336 months'
imprisonment, set a parole release date in December 2044, and sustained Wilson's
consecutive 30-year mandatory minimum sentences. As it had in Severy's case,
the board later withdrew that part of its order setting a release date as
inconsistent with the aggravated murder statute, set a review date instead, and
withdrew its calculation of a matrix range on the ground that there was no
matrix range for those convicted of aggravated murder. Again, no party sought
judicial review of that order.
After Severy and Wilson had been
incarcerated for 20 years, each sought and was given a hearing under ORS
163.105(2) (1985),(3)
a statute permitting prisoners who had received 30-year mandatory minimum
sentences for aggravated murder to petition for a hearing before the board to
determine whether they were "likely to be rehabilitated within a
reasonable time."(4)
At the conclusion of those hearings, the board unanimously found that each prisoner
had made the requisite showing of likelihood of rehabilitation. In each case, the
board then entered an order converting the terms of the prisoners' confinement on
the first of the two consecutive 30-year mandatory minimum sentences to life
imprisonment with the possibility of parole, as required by ORS 163.105(3)
(1985). And, on the implicit assumption that the prisoners were beginning at
that point to serve the second consecutive 30-year mandatory minimum sentence,
the board informed both Severy and Wilson that they could petition the board
again in 20 years for a change in the terms of confinement for their second
sentences.(5)
Both Severy and Wilson sought administrative review of those orders, arguing,
among other things, that ORS 163.105(3) (1985) directed the board to override
the judicially imposed mandatory minimum sentence for both aggravated
murder sentences upon the board's finding that the prisoner was capable of
rehabilitation within a reasonable time. The board rejected those arguments.
Both Severy and Wilson sought
judicial review of the board rulings in the Court of Appeals, which, as noted,
held in each instance that the case was controlled by this court's decision in Norris.
The board seeks review in Severy's case, arguing that applicable statutes do
not permit the board to override the 30-year mandatory minimum sentences for
aggravated murder and that the Court of Appeals should not have relied on Norris
because, in its view, Norris was wrongly decided. Severy and Wilson
also seek review, contending that the board did have the authority to override
the mandatory minimum sentences for aggravated murder, but likewise contending
that Norris was wrongly decided, albeit in a different way than that argued
by the board.
In Janowski/Fleming, this
court today addresses the issue of the board's authority, under ORS 163.105
(1985), to override a 30-year mandatory minimum sentence and to set a
prisoner's eligibility for release on parole after 20 years if it finds that
the prisoner is likely to be rehabilitated within a reasonable time. ORS
163.105 (1985) required the trial court to impose a 30-year mandatory minimum
sentence for persons who had been sentenced to life imprisonment for aggravated
murder. However, it further provided:
"(2) At any time after 20 years from the
date of imposition of a minimum period of confinement pursuant to subsection
(1) of this section, the State Board of Parole, upon the petition of a prisoner
so confined, shall hold a hearing to determine if the prisoner is likely to be
rehabilitated within a reasonable period of time. The sole issue shall be
whether or not the prisoner is likely to be rehabilitated within a reasonable
period of time. * * *.
"* * * * *
"(3) If, upon hearing all the evidence, the
board, upon a unanimous vote of all five members, finds that the prisoner is
capable of rehabilitation and that the terms of the prisoner's confinement
should be changed to life imprisonment with the possibility of parole, or work
release, it shall enter an order to that effect and the order shall convert the
terms of the prisoner's confinement to life imprisonment with the possibility
of parole or work release. Otherwise, the board shall deny the relief sought
in the petition."
In Janowski/Fleming, we hold that that statute does give
the board authority to make a prisoner who had been sentenced by a court to a
30-year minimum prison term for aggravated murder eligible for release after he
has served 20 years in prison, if it finds that the prisoner is capable of
rehabilitation. Based on that holding, we reject the board's contrary argument
here.
We therefore turn to the question
that is central to these two consolidated appeals: What is the effect of our
holding in Janowski/Fleming on cases in which a prisoner has been
convicted of more than one aggravated murder and in which the trial court
ordered the prisoner to serve consecutive sentences of life in prison with 30-year
mandatory minimum terms of imprisonment? Because the Court of Appeals concluded
that the answer to that question was controlled by this court's earlier
decision in Norris, and because all parties in this case argue that Norris
was wrongly decided, we begin with a brief summary of the facts in Norris
and its principal holdings.
In Norris, the prisoner had committed
two aggravated murders and one attempted murder in 1978. After he was
convicted of those crimes in 1979, the trial court imposed two consecutive life
sentences on the aggravated murder counts, each to be served without the
possibility of parole for 20 years. (Such sentences were authorized under ORS
163.105(2) (1977).) The court also imposed a concurrent 20-year term of
imprisonment on the attempted murder conviction. At the time that Norris committed
his crimes, ORS 163.105(3) (1977) permitted a prisoner who had been convicted
of aggravated murder under ORS 163.105(2) (1977) to seek a hearing before the
board after 15 years of incarceration to determine if he was likely to be
rehabilitated within a reasonable period of time. Subsection (4) of that same
statute provided that, if the board found that the prisoner was capable of
rehabilitation and that the terms of his confinement should be changed to life
in prison with the possibility of parole, the board was required to enter an
order to that effect.(6)
In 1993, after Norris had been
incarcerated for 15 years, he sought and was granted a rehabilitation hearing,
and the board found that he was likely to be rehabilitated within a reasonable
period of time. The board set a release date for July 2018, after Norris had
served the judicially ordered 40 years in prison (i.e., after he had
served two consecutive 20-year mandatory minimum terms). Norris petitioned for
judicial review in the Court of Appeals.
While judicial review was pending, the
board withdrew its order for reconsideration. Ultimately, the board issued an
order on reconsideration making two findings. First, it reiterated its finding
that Norris was capable of rehabilitation within a reasonable time;
consequently, it applied the matrix then in effect and concluded that the
appropriate matrix range for both counts of aggravated murder was 20 to 28 years,
which was less than Norris's judicially ordered 40-year minimum prison term.
Second, it found that it should not alter Norris's minimum term of confinement,
because 20 years for each count was the appropriate sanction for Norris's criminal
conduct and was necessary for the protection of the public.
Norris renewed his petition for
judicial review in the Court of Appeals. Among other things, Norris argued
that, because the board had found him to be capable of rehabilitation, the
minimum terms imposed by the trial court were "nullified" and the
board had to use the matrix system to set a release date. The board, in
response, contended that ORS 163.105(4) required it to make two independent
and coequal findings before it could change the terms of a prisoner's
confinement: "(1) that [the prisoner] was capable of rehabilitation and
(2) that the terms of confinement should be changed to life with the
possibility of parole." Norris, 331 Or at 200 (emphasis added). Alternatively,
the board argued that, even if the issue were unitary and it therefore was
required to change the "terms of [the prisoner's] confinement," it still
had no authority to override the consecutive, 20-year mandatory minimum
sentences. After considering those arguments, the Court of Appeals ruled that
a decision by the board that a prisoner was likely to be rehabilitated within a
reasonable period of time necessarily included a finding that the terms of
confinement must be changed. Norris v. Board of Parole, 152 Or App 57, 66,
952 P2d 1037 (1998). However, the court did not go on to direct the board to
take any particular action. Instead, it remanded the case to the board for
further proceedings. Id. at 66-67. Norris then sought review in this
court.
This court in Norris began by
considering what the board was required to find at a rehabilitation hearing
under ORS 163.105 (1977) and ultimately held "that the legislature
intended that, in a hearing held under ORS 163.105(3) (1977), the Board must find
only whether the prisoner is capable of rehabilitation." Norris,
331 Or at 207. The court then turned to consider the effect of that conclusion
on Norris, who was subject to two consecutive 20-year mandatory minimum
sentences. The court's analysis in that regard was as follows:
"ORS 163.105(4) (1977) requires the Board
to change the 'terms of * * * confinement' to life imprisonment with the
possibility of parole. That subsection does not define that phrase. The word
'terms,' as used in the subsection, could refer to the conditions of his
confinement. See Webster's Third New Int'l Dictionary [unabridged
ed 1993] at 2358 (defining 'terms,' in part, as 'conditions'). Looking to ORS
163.105(2) (1977), however, we conclude that the meaning of 'terms of * * *
confinement' is clear.
"ORS 163.105(2) (1977), the subsection
under which [Norris] was sentenced, provides the sentence for one murder (a single
crime): '[w]hen a defendant is convicted of murder defined as
aggravated murder pursuant to subsection (2) of ORS 163.095 * * *.' (Emphasis
added.) ORS 163.105(2) (1977) is specific regarding the sentence for such a
murder: 'the court shall order that the defendant shall be confined for a
minimum of 20 years without possibility of parole, release on work release,
temporary leave or employment at a forest or work camp.' The imposition of
that specific sentence eventually may trigger the rehabilitation hearing
described in ORS 163.105(3) and (4) (1977). If, at such a rehabilitation
hearing, the prisoner proves by a preponderance of the evidence that the
prisoner is likely to be rehabilitated within a reasonable period of time, then
the Board must change the 'terms of * * * confinement' -- that is, the sentence
imposed under ORS 163.105(2) (1977) for one aggravated murder -- to life with
the possibility of parole or work release.
"Applying that analysis to this case, we
conclude that the Board must change the first of [Norris's] life sentences to
life with the possibility of parole or work release. [Norris] is entitled to
have that change occur retroactively to January 26, 1994, the date that the
Board found him to be capable of rehabilitation. On that date, [Norris] began
serving his second life sentence with a 20-year minimum term of confinement for
his second conviction of aggravated murder. In 2009, 15 years from the date
that he began serving that 20-year minimum term, [Norris] may petition for a
rehabilitation hearing, and that hearing also will be governed by ORS
163.105(3), (4), and (5) (1977). Only if the Board again finds that [Norris]
is capable of rehabilitation within a reasonable period of time, must the Board
change [Norris's] second aggravated murder sentence to life with the
possibility of parole and work release. Only at that point would [Norris] become
eligible for parole.
"In sum, in a rehabilitation hearing under
ORS 163.105 (1977), the only finding that the Board must make is whether the
prisoner is capable of rehabilitation. If the Board finds that the prisoner is
capable of rehabilitation, then the Board must change the prisoner's
aggravated-murder sentence to life with the possibility of parole. In this
case, [Norris] received two life sentences without the possibility of parole
for 20 years, the second sentence to be served consecutively to the first.
Given its finding regarding [Norris's] capability of rehabilitation, the Board
should have changed one of those sentences to life with the possibility of
parole. [Norris] may petition for a second rehabilitation hearing after he
serves 15 years of his second aggravated-murder sentence. ORS 163.105(3)
(1977). Because [Norris] is not eligible for parole unless the Board finds him
capable of rehabilitation at that second hearing, we express no opinion in this
case regarding either the applicability of the matrix or whether the Board
erred in its findings in aggravation."
Norris, 331 Or at 207-08 (emphasis and ellipses in
original).
The board complains that, in the
foregoing passage, the court held, without any explanation or analysis, that
the prisoner's second mandatory minimum sentence began to run the moment that
the board found that he was capable of rehabilitation, and nothing in the
statute or its context suggests that result. The board also criticizes that
passage for concluding, at one point, that the board's "likely to be
rehabilitated" finding means that a prisoner who is subject to two
consecutive mandatory minimum sentences is "entitled" to begin
serving the second sentence, but stating elsewhere that he merely is "eligible"
for parole on such a finding.
The prisoners, for their part, point
out that the plain words of ORS 163.105(3) (1977) required the board to conduct
Norris's rehabilitation hearing 15 years "from the date of imposition of a
minimum period of confinement pursuant to subsection (2) of this section,"
and that the trial court had "imposed" both of Norris's consecutive
sentences on the same date. Under the plain words of the statute, therefore,
the board was required to conduct the rehabilitation hearing for both aggravated
murder sentences at the same time. They argue that the court ignored that
statutory wording entirely when, in the passage quoted above, it required Norris
to wait another 15 years, and to seek a second rehabilitation hearing on the
second aggravated murder sentence, before he could become eligible for parole
under ORS 163.105 (1977).
In addition to the foregoing criticisms
of the court's reasoning in Norris (some of which, as we shall explain,
we find to be well taken), we observe that the court's analysis seems to have
gone astray on another point as well. The court emphasized that, because ORS
163.105(2) (1977) (the subsection under which Norris was sentenced) referred to
a "defendant [] convicted of murder," that statute "provide[d]
the sentence for one murder (a single crime)." Norris, 331
Or at 207 (emphasis by the Norris court). The court also stated, "ORS
163.105(2) (1977) is specific regarding the sentence for such a murder."
Id. From those undisputed points, which have nothing necessarily to do
with the appropriate sentence for multiple counts of aggravated murder,
the court made an illogical leap to the conclusion that a prisoner could
receive a rehabilitation hearing under ORS 163.105(3) and (4) (1977) for only
the first of two consecutive mandatory minimum sentences. Nothing in ORS
163.105(3) or (4) (1977) supports that conclusion. On the contrary, as
discussed, the plain words of ORS 163.105(3) (1977) required the hearing to be
held 15 years after the "imposition of a minimum period of confinement,"
and, as noted, at Norris's sentencing, the trial court "imposed" the
minimum period of confinement for each of the two aggravated murders
simultaneously.
In addition, the court assumed,
without any real analysis, that the phrase "terms of * * *
confinement" as used in ORS 163.105(4) meant "the sentence imposed
under ORS 163.105(2) (1977) for one aggravated murder." Norris,
331 Or at 207. Based on that understanding, the court then concluded that the
board "should have changed one of [Norris's] sentences to life with the
possibility of parole." Id. at 207-08. As we explain below, we now
conclude that that assumption is incorrect.
Although this court makes every
attempt to adhere to precedent, in accordance with the doctrine of stare
decisis, it has, from time to time, found an earlier interpretation of a
statute to be so deficient that it has concluded that some reexamination of the
prior statutory construction was appropriate. See, e.g., Holcomb v.
Sunderland, 321 Or 99, 105, 894 P2d 457 (1995) (reexamination was necessary
because all the stated bases for the decision either did not apply, or were no
longer correct because of later statutory enactments, or provided only marginal
support for the conclusion); see also State v. Sandoval, 342 Or
506, 512-13, 156 P3d 60 (2007) (abrogating earlier case interpreting statute because
it did not examine the words of the statute and it relied on irrelevant parts
of the legislative history). This is such a case: The court's stated bases
for the part of the decision in Norris concerning the timing of
rehabilitation hearings in circumstances such as those faced by Norris (and
Severy and Wilson) do not support its conclusions, are internally inconsistent,
and ignore the words of the statute. We therefore abandon them. We turn to an
examination of the provisions of ORS 163.105 (1985) without regard to the
court's decision in Norris, in an effort to discern how the legislature intended
to deal with prisoners who had been convicted of more than one aggravated
murder and had been sentenced to serve consecutive life sentences with mandatory
minimum terms of imprisonment.
For convenience, we repeat the
relevant parts of ORS 163.105 (1985) here:
"(1) When a defendant is convicted of
aggravated murder as defined by ORS 163.095, the defendant shall be sentenced
to death or life imprisonment pursuant to ORS 163.150. If sentenced to life
imprisonment, the court shall order that the defendant shall be confined for a
minimum of 30 years without the possibility of parole, release on work release
or any form of temporary leave or employment at a forest or work camp.
"(2) At any time after 20 years from the
date of imposition of a minimum period of confinement pursuant to subsection
(1) of this section, the State Board of Parole, upon the petition of a prisoner
so confined, shall hold a hearing to determine if the prisoner is likely to be
rehabilitated within a reasonable period of time. The sole issue shall be
whether or not the prisoner is likely to be rehabilitated within a reasonable
period of time. * * *.
"* * * * *
"(3) If, upon hearing all the evidence,
the board, upon a unanimous vote of all five members, finds that the prisoner
is capable of rehabilitation and that the terms of the prisoner's confinement
should be changed to life imprisonment with the possibility of parole, or work
release, it shall enter an order to that effect and the order shall convert the
terms of the prisoner's confinement to life imprisonment with the possibility
of parole or work release. Otherwise, the board shall deny the relief sought
in the petition."
As we observe in Janowski/Fleming,
subsection (1) is a directive to the trial court; it requires the trial court to
order a defendant who has been sentenced to life imprisonment for aggravated
murder to serve a minimum of 30 years in prison without the possibility of
parole. Janowski/Fleming, ___ Or at ___ (slip op at 7-8). That is, 30
years is the "minimum period of confinement" that the trial court must
impose pursuant to subsection (1). Subsection (2) then describes the timing of
rehabilitation hearings as being "any time after 20 years from the date
of imposition of a minimum period of confinement pursuant to
subsection (1) of this section." (Emphasis added.) Under the plain words
of that subsection, the trigger for the rehabilitation hearing is the
"imposition" of that minimum period of confinement. Only a court
"imposes" a sentence in a criminal case.
In the case of defendants Severy and
Wilson, who each were tried for and convicted of two aggravated murders that
were committed at the same time, the trial court imposed the minimum period of
confinement for both convictions at the same time. And, when the trial court
ordered those minimum periods of confinement to be served consecutively, the combined
mandatory minimum sentence became the "minimum period of confinement"
imposed pursuant to subsection (1).(7)
Stated another way, the date that a trial court orders a defendant who has been
convicted of two or more aggravated murders to serve consecutive 30-year
mandatory minimum sentences is the "date of imposition of a minimum period
of confinement pursuant to subsection (1)." ORS 163.105(2) (1985). And,
because the rehabilitation hearing is to be held "after 20 years from the
date of imposition of a minimum period of confinement," it follows that,
in cases in which the prisoner simultaneously was ordered to serve more than
one consecutive 30-year mandatory minimum sentence under ORS 163.105(1) (1985),
the prisoner is entitled to a rehabilitation hearing on the combined sentences --
his entire "minimum period of confinement" -- after he has served 20
years in prison.
Subsection (3) then brings a
different phrase into play. Under that subsection, if the board unanimously
finds that a prisoner is "capable of rehabilitation," then the board
"shall convert the terms of the prisoner's confinement to life
imprisonment with the possibility of parole." (Emphasis added.) In Norris,
this court acknowledged that the word "terms" in the phrase
"terms of * * * confinement" could refer to the conditions of
the prisoner's confinement, but instead held that the phrase meant the length
of the period of confinement that the trial court had imposed for one aggravated
murder. Norris, 331 Or at 207. Apparently, the court came to that
conclusion solely because the trial court's imposition of a 30-year mandatory
minimum sentence under ORS 163.105(1) (1977) triggered the rehabilitation
hearing referred to elsewhere in the statute. See Norris, 331 Or
at 207 (suggesting that conclusion). However, that analysis ignores the fact
that, in subsection (2), when the statute specifically referred to the sentence
that the trial court imposed for aggravated murder, it used the phrase "period
of confinement." The fact that the legislature chose to use a different
phrase -- viz., "terms of * * * confinement" -- in
subsection (3) suggests that it intended to convey a different meaning. In
this case, we think that the phrase "terms of * * * confinement" in
subsection (3) includes any conditions applicable to a period of confinement,
including a condition stating that parole or any other form of release was
prohibited for a mandatory minimum period and a requirement that certain
periods of confinement be served consecutively. It does not refer to the
sentence that the trial court imposed for one of multiple convictions for
aggravated murder.
The foregoing analytical point is
bolstered by the fact that the issue to be decided at the rehabilitation hearing
is whether the prisoner has met his burden to prove that he is likely to be
rehabilitated within a reasonable period of time. ORS 163.105(2) (1985). That
determination pertains only to personal characteristics of the prisoner;
it does not focus either on the offenses that the prisoner committed or on
which of multiple consecutive sentences he was serving when the hearing
occurred. If the board finds that a prisoner is likely to be rehabilitated
within a reasonable time, it defies logic to conclude that the legislature
intended the board to require the offender to make that precise showing again
20 years later. We hold that, in requiring the board to convert the
"terms of the prisoner's confinement" to life with the possibility of
parole, ORS 163.105(3) (1985) required the board to convert the prohibition on eligibility
for parole (for both consecutive sentences for aggravated murder) to the
possibility of parole.
So much for "terms of
confinement." We turn now to the separate issue of "period of
confinement." In Severy's and Wilson's cases, the trial court imposed consecutive
sentences of life in prison, each with a 30-year period to be served without
the possibility of parole. After Severy and Wilson each had been incarcerated
for 20 years, the board unanimously found that each was capable of
rehabilitation. The board then was required to convert both of Severy's and
Wilson's sentences to life in prison with the possibility of parole. That
"conversion" necessarily eliminated both 30-year mandatory minimum
sentences, but it did not necessarily alter the consecutive nature of the
prisoners' sentences that remain in force. In sum, we conclude that this court
erred in Norris in holding that a prisoner sentenced to consecutive life
sentences with 30-year minimums must wait until he or she has served 20 years
on the second life sentence before the board may decide whether he is capable
of rehabilitation.
As noted, when the board issued the
orders regarding both Severy and Wilson, it properly assumed that this court's
decision in Norris correctly stated the controlling law. Accordingly,
the board did not consider how its decision would affect the second mandatory
minimum that the trial court had imposed on Severy and Wilson. More
specifically, the board did not have occasion to consider whether each prisoner
would still have to serve a reduced mandatory minimum sentence of 20 years for
the second offense or whether the effect of its finding that each prisoner is
capable of rehabilitation meant that the matrix applied immediately. Beyond
that, the board did not have occasion to consider, if the matrix applies
immediately, how the second mandatory minimum should be factored, if at all,
into the matrix determination. Perhaps we could resolve some of those issues
in advance of the board's resolution of them. But we think that the more prudent
course is to remand these consolidated cases to the board so that it may
address those questions in the first instance. The board's orders resolving those
issues may limit, clarify, or sharpen the issues for any further review.
The decisions of the Court of Appeals
are reversed. The orders of the Board of Parole and Post-Prison Supervision are
reversed, and the cases are remanded to the Board of Parole and Post-Prison Supervision
for further proceedings.
1. As we explain in the text below, Wilson committed his crimes in
February 1985. In November 1984, the voters passed an initiative measure
amending ORS 163.105 to include the death penalty as a possible sanction for
aggravated murder. In addition, among other things, that initiative measure
eliminated the preexisting 20-year mandatory minimum sentence that ORS 163.105
(1981) permitted a trial court to impose for certain types of aggravated murder
not at issue here, and included other conforming amendments. By proclamation
of the governor, that measure took effect on December 6, 1984; accordingly, the
1985 version of ORS 163.105 applies to crimes committed after December 6,
1984. That is, the 1985 version of ORS 163.105 applies to Wilson's case.
Severy committed his crimes in
September 1984 and, therefore, the 1981 version of the statute applies to his
case. However, because the 1985 amendments to ORS 163.105 do not affect our
analysis of Severy's case in any way, we will, for convenience, simply refer to
the 1985 version at all times in this opinion.
2. Wilson's codefendant is one of the prisoners involved in Janowski/Fleming,
the companion to this case.
3. We set out the text of ORS 163.105 (1985) later in this opinion.
4. Severy's hearing was held in November 2004; Wilson's was held in
October 2005.
5. In addition, the board reminded Severy that he must serve his
120-month mandatory minimum sentence on the arson conviction after he is
released from incarceration on both aggravated murder convictions.
6. In
all respects relevant to our analysis here, ORS 163.105 (1977) was similar to
ORS 163.105 (1985), the version in effect at the time that Severy and Wilson
committed their crimes. ORS 163.105 (1977) provided:
"(1) When a defendant is convicted of
murder defined as aggravated murder pursuant to subsection (1) of ORS 163.095,
the court shall order that the defendant shall be confined for a minimum of 30
years without the possibility of parole * * *.
"(2) When a defendant is convicted of
murder defined as aggravated murder pursuant to subsection (2) of ORS 163.095,
the court shall order that the defendant shall be confined for a minimum of 20
years without the possibility of parole * * *.
"(3)
At any time after 20 years from the date of imposition of a minimum period of
confinement pursuant to subsection (1) of this section, or at any time after 15
years from the date of imposition of a minimum period of confinement pursuant
to subsection (2) of this section, the State Board of Parole, upon the petition
of a prisoner so confined, shall hold a hearing to determine if the prisoner is
likely to be rehabilitated within a reasonable period of time. The sole issue
shall be whether or not the prisoner is likely to be rehabilitated within a
reasonable period of time. * * *.
"* * * * *
"(4) If, upon hearing all the evidence, the
board finds that the prisoner is capable of rehabilitation and that the terms
of his confinement should be changed to life imprisonment with the possibility
of parole, or work release, it shall enter an order to that effect. Otherwise,
the board shall deny the relief sought in the petition."
7. The board's rules at the time that Severy and Wilson committed their
crimes were consistent with that interpretation. They required the board to
treat consecutive sentences, including minimum sentences, as a unitary term of
imprisonment. OAR 255-35-022(5) (1982) provided:
"For purposes of establishing a parole release date,
the Board shall consider the summed ranges for consecutive sentences as a
single unified range. Any minimum sentences shall be considered as a single
unified minimum." | 440083a6351ed837c38e148359cf0652ce02d6be7f82225f03ff7707bf657736 | 2010-12-23T00:00:00Z |
4d9a8c1a-5ba8-4abf-ac67-404665a8536d | State v. Baker-Krofft | null | S057958 | oregon | Oregon Supreme Court | FILED: August 19, 2010
IN THE SUPREME COURT OF THE STATE OF OREGON
STATE OF OREGON,
Respondent on Review,
v.
NANCY BAKER-KROFFT,
Petitioner on Review.
(CC 06C53978; CA
A135939; SC S057958 (Control))
STATE OF OREGON,
Respondent on Review,
v.
TIMOTHY LEE MCCANTS,
Petitioner on Review.
(CC 06C44334; CA A134846
(Control); SC S058148)
STATE OF OREGON,
Respondent on Review,
v.
CYNTHIA GENEVA WALKER,
Petitioner on Review.
(CC
06C45185; CA A134848)
En Banc
On review from the Court of
Appeals.*
Argued and submitted May 19, 2010, at Ashland
High School, Ashland, Oregon.
Erica Herb, Deputy Public Defender, Salem,
argued the cause and filed the brief for petitioner on review Baker-Krofft.
With her on the brief was Peter Gartlan, Chief Defender, Office of Public
Defense Services.
Ryan T. O'Connor, Deputy Public Defender, Salem,
argued the cause and filed the brief for petitioners on review McCants and
Walker. With him on the brief was Peter Gartlan, Chief Defender, Office of
Public Defense Services.
Inge D. Wells, Senior Assistant Attorney
General, Salem, argued the cause and filed the briefs for respondent on review
State of Oregon. With her on the briefs were John R. Kroger, Attorney General,
and Jerome Lidz, Solicitor General.
KISTLER, J.
In State v. Baker-Krofft, S057958, the decision of
the Court of Appeals and the judgment of the circuit court are reversed.
In State v. McCants/Walker, S058148, the decision of
the Court of Appeals and the judgment of the circuit court are reversed.
*Appeal from Marion County Circuit Court, Thomas
M. Hart, Judge. State v. Baker-Krofft, 230 Or App 517, 216 P3d 335 (2009).
Appeal from Marion County Circuit Court, Albin
W. Norblad, III, Judge. State v. McCants/Walker, 231 Or App 570, 220 P3d 436 (2009).
KISTLER, J.
The question in
these two cases is what constitutes "withhold[ing] necessary and adequate
* * * physical care" within the meaning of ORS 163.205 and ORS 163.200,
two statutes that prohibit first- and second-degree criminal mistreatment. In
both cases, defendants had children under their care who were well fed and
healthy but who lived in homes with potential safety hazards. Following its
precedent, the Court of Appeals held that creating or failing to correct
potential safety hazards in the home constitutes "withhold[ing] * * *
physical care" within the meaning of ORS 163.200 and ORS 163.205. State
v. Baker-Krofft, 230 Or App 517, 523-24, 216 P3d 335 (2009); State v.
McCants/Walker, 231 Or App 570, 584, 220 P3d 436 (2009). We allowed defendants'
petitions for review and now reverse the Court of Appeals decisions.
We summarize the
facts briefly to put the legal issue in context.(1)
In both cases, defendants were arrested and indicted for "withhold[ing]
necessary and adequate physical care" from their dependent children. In
both cases, defendants' children, who ranged in age from five and one-half months to 11 years old,
appeared healthy and well fed. Defendants were arrested "based solely on
the condition of the home." Baker-Krofft, 230 Or App at 520; accord
McCants/Walker, 231 Or App at 572. The conditions in both homes were
similar. Both homes were unusually full of clutter in a way that posed
potential safety hazards. In Baker-Krofft, the house posed specific
fire hazards (such as a space heater sitting on a pile of straw in a chicken
coop in the backyard), did not contain working fire alarms, and was so full of
clutter that it would have been difficult to escape from any fire. 230 Or App at
520, 524. In McCants/Walker, the home was filled with debris, which
included some small items on the floor that posed a potential choking hazard to
the young children who lived in the home. 231 Or App at 573.
In each case,
defendants moved for a judgment of acquittal at the close of the evidence, the
trial court denied the motion, and the trier of fact found that defendants had
"with[eld] necessary and adequate physical care" from their children.(2) Defendants appealed
from the resulting judgments of conviction, and the Court of Appeals affirmed.
In both cases, the Court of Appeals relied on its precedent for the proposition
that "physical care" under ORS 163.200 and ORS 163.205
"'necessarily includes attention to dangers in the body's
environment.'" Baker-Krofft, 230 Or App at 523 (quoting State
v. Damofle/Quintana, 89 Or App 620, 624, 750 P2d 518 (1988)); accord
McCants/Walker, 231 Or App at 580. In Baker-Krofft, the Court of
Appeals held that the "present risk of fire in the home" -- the piles
of flammable material that presented a heavy fuel load and the space heater
placed on top of straw in a chicken coop in the backyard as well as the lack of
smoke alarms -- was "sufficient for the jury to find that defendant failed
to give sufficient attention to her son's bodily safety and well-being."
230 Or App at 523-24. In McCants/Walker, the court noted the growing
number of cases involving ORS 163.200 and ORS 163.205 and set out several
factors to be used in "the assessment of the legal sufficiency of asserted
'dangers in the body's environment.'" 231 Or App at 581-83. After
considering those factors, the court held that "[t]he trier of fact could
reasonably infer that there were multiple choking hazards easily accessible to
children for an extended period of time and that defendants, notwithstanding their
awareness of the attendant risk, had done little, if anything, to rectify that
condition." Id. at 584.
We allowed
defendants' petitions for review to consider whether creating or failing to
correct a safety hazard constitutes "withhold[ing] necessary and adequate
* * * physical care" within the meaning of ORS 163.200 and ORS 163.205.
We begin with the wording of those statutes. ORS 163.200(1) provides, in part:
"A person commits the crime of criminal
mistreatment in the second degree if, with criminal negligence and:
"(a) In violation of a legal duty to
provide care for another person, the person withholds necessary and adequate
food, physical care or medical attention from that person * * *."
ORS 163.205(1) provides, in part:
"A person commits the crime of criminal
mistreatment in the first degree if:
"(a) The person, in violation of a legal
duty to provide care for another person, or having assumed the permanent or
temporary care, custody or responsibility for the supervision of another
person, intentionally or knowingly withholds necessary and adequate food,
physical care or medical attention from that other person * * *."
The state must prove three elements to
establish a violation of those statutes: (1) the defendant acted with the
requisite mental state; (2) the defendant had a duty to provide care for a
person; and (3) the defendant "withh[eld] necessary and adequate food,
physical care or medical attention" from that person.(3)
The issue that these
cases pose is narrow. Defendants do not argue that there was insufficient
evidence to find that they either owed a duty to provide care for their
children or that they lacked the requisite mental state. Nor were defendants
charged with withholding food or medical attention. Rather, defendants were charged
with withholding "necessary and adequate physical care" from their
children and can be convicted only of that charge. See State v. Schoen,
348 Or 207, 213 n 2, 228 P3d 1207 (2010) (noting that a defendant who is
charged with "tamper[ing]" with property cannot be found guilty of
"interfering" with property, when those words provided alternative
definitions of the same criminal act). The question in these cases accordingly
reduces to whether creating or failing to correct potential fire and choking hazards
constitutes "withhold[ing] necessary and adequate * * * physical
care" within the meaning of ORS 163.200 and ORS 163.205.
On that point,
defendants argue that "necessary and adequate * * * physical care"
means "attention that is applied to the body and is sufficient to satisfy
the dependent's essential bodily needs." Defendants reason that the
prohibition against withholding "physical care" does not include a
prohibition against creating or failing to correct "potential dangers in
the dependent's environment." The state, on the other hand, interprets
the statutory prohibition more broadly. It contends that "[t]he plain
meaning of 'withholding necessary and adequate physical care' is to fail to
meet the essential needs of a dependent person * * * with respect to bodily
safety and well-being." The state reasons that potential environmental
dangers are covered by the statutes because "[k]eeping a child safe
necessarily includes protecting him from dangers in his environment."
In analyzing the parties'
arguments, we begin with the statutory text. The operative text of both
statutes makes it a crime to "withhol[d] necessary and adequate * * *
physical care." Because the legislature has not defined those terms, we
look to the dictionary to determine their ordinary meaning. See State v.
Briney, 345 Or 505, 511, 200 P3d 550 (2008). We begin with the phrase
"physical care." In this context, to provide "care" means
to "provide for or attend to needs or perform necessary personal services
(as for a patient or a child)." Webster's Third New Int'l Dictionary
338 (unabridged ed 2002).(4)
The word "physical" modifies "care." "Physical"
means "of, or relating to the body." Id. at 1706. Reading
those two definitions together, we conclude that providing "physical
care" means providing for or attending to another person's bodily needs.
Another statutory
term is relevant. ORS 163.200 and ORS 163.205 impose liability only when a
person with a duty to provide care "withholds" necessary and adequate
physical care "from th[e] person" to whom the duty is owed.
"Withhold" means:
"to desist or refrain from granting, giving, or
allowing : keep in one's possession or control : keep back
< ~ permission>."
Webster's at
2627. As the text of the statutes makes clear, the statutes apply only if the
person with the duty to provide care withholds or keeps back food, physical
care, or medical attention "from th[e dependent] person"; that is,
the statutes rest on the premise that the actor keeps back something (food,
physical care, or medical attention) from a person who would not otherwise be
able to obtain it for him or herself.
Reading those definitions
together, we conclude that a defendant withholds physical care from a dependent
person when the defendant keeps back from the dependent person those physical
services and attention that are necessary to provide for the dependent person's
bodily needs. As noted, the state argues that the statutes reach a broader
range of conduct. It notes that one definition of "care" is
"responsibility for or attention to safety and well being ." Webster's at 338. Focusing on the use of the word
"safety" in that definition, the state reasons that "[k]eeping a
child safe necessarily includes protecting him from dangers in his
environment." It follows, the state concludes, that creating or failing
to correct any and all dangers to the child's safety comes within the
prohibition against withholding necessary and adequate physical care.
The state's
interpretation is difficult to square with the statutes' texts in three
respects. First, it converts the verb "withhold" into
"create" or "fail to correct." Second, it converts a
prohibition against withholding specific services (food, physical care, and
medical attention) into a prohibition against creating any and all risks to a
dependent person's health. Third, it converts a statute that prohibits a
present deprivation of services or attention into one that prohibits creating a
risk of future harm. To be sure, presently withholding necessary and adequate
physical care can impair a child's health and safety. But it does not follow
that every risk of future harm to a child's health or safety that a parent
either creates or fails to correct constitutes withholding physical care. The former
set of risks is far broader than the latter, but the statutory prohibition
extends only to the latter set (or subset) of risks.
Two contextual clues
reinforce that conclusion. ORS 163.200 and ORS 163.205 prohibit withholding
necessary and adequate "food" and "medical attention," as
well as physical care. Both food and medical attention are essential to
maintain bodily health. Grouping physical care together with food and medical
attention suggests that the legislature understood that physical care was
similarly limited to those essential physical services and attention that are
necessary to provide for a dependent person's bodily needs. Cf. White v.
State Ind. Acc. Com., 227 Or 306, 317, 362 P2d 302 (1961) (under the
doctrine of noscitur a sociis, "general words, found in a statute,
may take the color and meaning of words of specific connotation").
Additionally, when
the legislature enacted ORS 163.200 and ORS 163.205 in 1973, it did so against
a backdrop of civil statutes that authorized juvenile courts to take
jurisdiction over children "[w]hose * * * condition or circumstances are
such as to endanger [their] own welfare" and make them wards of the
court. ORS 419.476(1)(c) (1971); see Stevens v. Czerniak, 336 Or
392, 401, 84 P3d 140 (2004) (context includes "'the preexisting common law
and the statutory framework within which the law was enacted'") (quoting Denton
and Denton, 326 Or 236, 241, 951 P2d 693 (1998)). In enacting those civil
statutes, the legislature sought to protect a child's safety while working to
reunite and reintegrate the child, if possible, into the parents' home. See,
e.g., ORS 418.485 (1971) (declaring the policy of the state "to
strengthen family life and to insure the protection of all children either in
their own homes or in other appropriate care"); ORS 419.523(2) (1973)
(providing for termination of parental rights only when the "integration
of the child into the home of the parent or parents is improbable in the
foreseeable future due to conduct or conditions not likely to change").
Under those statutes,
if parents either created unsafe conditions in the home or failed to correct
those conditions, as defendants did here, the juvenile court could take
jurisdiction over the children to protect their safety while the Children's
Services Division, as the agency was then known, worked with the parents to
correct those conditions so that the family could be reunited. The state's
position -- that the legislature also intended to criminalize all conduct that
endangers a child's safety -- does not readily square with the policy expressed
in those civil statutes.
We recognize that
those civil and criminal statutes may overlap in some circumstances. For
example, if a parent intentionally withheld necessary and adequate food from
his child, that conduct could give rise both to juvenile court jurisdiction and
also to criminal liability. As our discussion of the text demonstrates,
however, we do not think that the legislature intended that the phrase
"withhold[ing] necessary and adequate * * * physical care" would
sweep within it all the safety risks within a home that can give rise to
juvenile court jurisdiction. Rather, it left the sort of risks at issue in
these cases to the civil law, with its salutary focus on protecting the child
while working to reunite the family.
We also look to
legislative history to confirm the text and context. See State v. Gaines,
346 Or 160, 172, 206 P3d 1042 (2009) (looking to
legislative history to confirm text). As originally proposed in 1973, Senate
Bill (SB) 780 made anyone who "cruelly mistreats or maltreats any person
over the age of 65 years" guilty of a misdemeanor. Bill File, Special
Committee on Aging, SB 780 (1973). Senator Fadeley introduced the bill in
response to reports of nursing home abuse and to protect the residents of those
facilities. Minutes, Special Committee on Aging, April 9, 1973, 1. Commenting
on the bill as originally proposed, he explained that the "bill doesn't go
as far as the child neglect bill [enacted in 1971 did]." Tape Recording,
Special Committee on Aging, SB 780, April 9, 1973, Tape 4, Side 2 (statement of
Senator Edward Fadeley). He distinguished SB 780 from the child neglect laws,
which he described as making it a crime to leave a child
"unattended at any place where it may be likely to
endanger [the child's] welfare. We weren't going to that. We were talking
about some action or nonaction * * * that resulted in cruel deprivation or the
undue threat of fear."
Id. As Senator Fadeley explained, SB 780 was
intended to focus more narrowly on withholding food and other necessities from
seniors. Id.
The
bill, as drafted, raised vagueness concerns, and Senators Fadeley and Carson
undertook to redraft the bill. Their work produced a bill that is
substantially in the same form as the wording in the current statutes. As
redrafted, the bill applied to dependent persons generally while specifying
more particularly the actions that the bill prohibited -- withholding necessary
and adequate food, physical care, and medical attention. The Senate committee
considered the bill at its next two hearings. No tape recording of those
hearings exists, and the minutes of those hearings do not provide any guidance
on the meaning of the redrafted bill. The only explanation of the redrafted
bill comes from Senator Carson's discussion of the bill before the full Senate.
Before
the full Senate, Senator Carson began by referring to the testimony presented
before the committee about the abuse of the elderly that had taken place in
assisted living facilities. Tape Recording, Senate Floor, SB 780, June 29,
1973, Tape 32, Side 1 (statement of Senator Wallace P. Carson). He then
stated:
"[The bill is] a little different than the
bill that was originally introduced, but I believe it goes to the same point. We
[heard] considerable testimony in committee [about] some of the practices in
some of the homes for the aged, or, in fact, where any citizen of Oregon may be
housed. Sometimes people can hurt other people by intentionally or negligently
withholding adequate food, physical care or medical attention from the people
when they have an affirmative duty to provide that attention. We felt that the
criminal code, if it's a physical abuse thing where somebody actually hits
someone, the criminal code takes care of that [already].
"Where it's nonfeasance rather than
malfeasance, in other words, where it's withholding of some food or some other
thing, the criminal code perhaps did not speak directly to that. * * * The
only difference [between first- and second-degree criminal mistreatment] being
that the second degree is, is a misdemeanor, a Class A misdemeanor that relates
to negligently or unintentionally withholding the services from this
individual and the more serious crime of criminal mistreatment in the first
degree is where one who has an affirmative duty to provide the food, or the
physical care or medical attention intentionally withholds that service."
Id. (emphasis added). Immediately after Senator
Carson's statement, the Senate voted to pass the bill. The House also passed
the bill, and the Governor signed it into law.
We
note two observations regarding the legislative history. First, Senator Carson
explained that persons who have an affirmative duty to provide food, physical
care, or medical attention violate the statutes when, with the requisite mental
state, they "withhol[d] that service." (Emphasis added.)
Senator Carson's explanation that the statutes prohibit withholding specific
services is at odds with the state's position that the statutes criminalize any
and all acts that create or fail to correct a future safety risk. The second
point is related to the first. Nowhere in the available legislative history
does anyone mention creating or failing to correct environmental dangers as the
focus of the bill. Rather, the examples mentioned before either the committee
or the Senate involved the failure to provide essentials, such as food, from
dependent persons. We find nothing in the legislative history to support the
broad reading that the state urges. Rather, the legislative history is
consistent with the narrower view of the statutes that we draw from their text
and context.
Considering
the text and context of ORS 163.200 and ORS 163.205 in light of their legislative
history, we hold that a person withholds necessary and adequate physical care
from a dependent person when the person keeps back from the dependent person those physical services and attention that are necessary
to provide for the dependent person's bodily needs.(5) In this case, the
question is whether creating or failing to correct safety hazards in the home
constitutes withholding adequate and necessary physical care, and we turn to
the facts of the two cases.
In Baker-Krofft, the evidence taken in the light most
favorable to the state showed that some electrical devices and a space
heater positioned on a stack of straw in a chicken coop in the backyard posed
potential fire hazards, that there were no fire alarms in the house, and that
the house was full of clutter that would impede an escape.(6) On the
other hand, it was uncontested that the child was in good health and that the
fire dangers posed only a risk of future harm. Put differently, there was no
evidence from which a reasonable trier of fact could infer that the defendant
in Baker-Krofft had withheld from her child some physical service
necessary to provide for the child's bodily needs, nor was there any evidence
that defendant failed to protect her child from an immediate harm.
In McCants/Walker, the evidence taken in the light most favorable to the
state showed an incredibly dirty home with small pieces of plastic that posed
potential choking hazards within reach of the children. However, the children
were well fed and healthy. No evidence permitted a reasonable inference that
defendants had failed to provide for their children's bodily needs or protect
them from an immediate harm.
This
is not to say that defendants in either case were exemplary parents. It may
well be that, in light of the conditions of defendants' homes and the attendant
risks to their children's safety, the juvenile court could have taken
jurisdiction over the children to protect them while the Department of Human
Services (the successor to the Children's Services Division) worked with
defendants to correct the unsafe conditions in their homes. Those conditions,
however, were not sufficient to give rise to criminal liability under either
ORS 163.200 or ORS 163.205.
In State v. Baker-Krofft, S057958, the decision of the Court of
Appeals and the judgment of the circuit court are reversed.
In State v. McCants/Walker, S058148, the decision of the Court of Appeals
and the judgment of the circuit court are reversed.
1. Because
these cases arise from defendants' motions for judgments of acquittal, we state
the facts in the light most favorable to the state. State v. Casey, 346
Or 54, 56, 203 P3d 202 (2009). The facts are set out more fully in the Court
of Appeals decisions.
2. In
Baker-Krofft, defendant was convicted of violating ORS 163.200. In McCants/Walker,
defendants were convicted of violating ORS 163.205.
3. The
criminal mistreatment statutes differ in two respects, neither of which bears
on the issue on review. The second-degree criminal mistreatment statute
requires proof of criminal negligence and applies only to persons who have a
legal duty to provide care for another. ORS 163.200(1). The first-degree
statute, by contrast, requires proof that the defendant acted knowingly or
intentionally, and it applies not only to persons who have a legal duty to
provide care for another but also to persons who "hav[e] assumed the
permanent or temporary care, custody or responsibility for the supervision of
another person." ORS 163.205(1)(a).
4. Care
is both a noun and a verb. See Webster's at 338 (defining both forms of
the word). Care, used as a noun, means "CHARGE,
SUPERVISION, MANAGEMENT: responsibility for or attention to
safety and well being ." Id. Care, used
as verb, means "to give care" or to "provide for or attend to
needs or perform necessary personal services (as for a patient or a
child)." Id. The former definition focuses on the relationship
between the caregiver and the recipient, while the latter focuses on the nature
of the care that is given or, in these statutes, withheld. Because the latter
definition comes closer to the way in which the legislature used the word, we
quote that definition in text.
5. The
services necessary to maintain a dependent person's bodily health will vary
depending on the person's needs. They may include, for example, periodically
turning a bedridden person who is unable to move on her own so that she does
not develop bed sores or maintaining a child or elderly person's personal
hygiene so that the person does not develop infections or some other illness.
This case does not require us to explore all the types of physical care that
might be required. Rather, the question in this case is limited to whether the
prohibition against withholding physical care includes creating or failing to
correct a safety hazard in the home.
6. At
trial, there was testimony that the child had head lice at some point and that
the house and the child's bedding were filthy. However, because the state
concedes in its brief that "those conditions, by themselves, are
insufficient to support a conviction," we do not consider them. | 8ae2b7cc8cb3e75a409f535195e617624f85f57aa2aaad41d04c9fdaad3cc0f2 | 2010-08-19T00:00:00Z |
52c2dfd1-4102-4285-8ff9-3aadf9e8b771 | State v. Salas-Juarez | null | S058190 | oregon | Oregon Supreme Court | FILED: December 16, 2010
IN THE SUPREME COURT OF THE STATE OF OREGON
STATE OF OREGON,
Respondent
on Review,
v.
LUIS ALBERTO SALAS-JUAREZ,
Petitioner
on Review.
(CC
063530FE; CA A135010; SC S058190)
En
Banc
On
review from the Court of Appeals.*
Argued
and submitted September 13, 2010.
Brian
Patrick Conry, Portland, argued the cause and filed the brief for petitioner on
review.
Joanna
L. Jenkins, Assistant Attorney General, Salem, argued the cause and filed the
brief for respondent on review. With her
on the brief was John R. Kroger, Attorney General.
GILLETTE,
J.
The
decision of the Court of Appeals is reversed.
The judgment of the circuit court is reversed, and the case is remanded
to the circuit court for further proceedings.
*Appeal
from Jackson County Circuit Court, Raymond B. White, Judge. 230 Or App 580, 217
P3d 264 (2009).
GILLETTE,
J.
The
issue in this criminal case is whether the trial court erred in refusing to
allow the jury to hear that a participant in a knife fight that led to murder
charges against defendant had made a threatening statement, earlier in the
evening, about wishing to "slash" someone. After a jury convicted defendant of murder
and attempted murder, he appealed, assigning error to the trial court's ruling
excluding that statement. The Court of
Appeals affirmed defendant's convictions without opinion. State
v. Salas-Juarez, 230 Or App 580, 217 P3d 264 (2009). We allowed defendant's petition for review,
and now reverse the judgment of the trial court and the decision of the Court
of Appeals.
In
the early hours of August 13, 2006, defendant and another man, Russell, engaged
in a fight on a street in Medford with a group of eight people. During that fight, one member of the group, Mark
Lunsford, was fatally stabbed. All
participants in the fight admitted to having been drunk, and each described the
events from his or her own perspective.
Nonetheless, a picture of what happened that evening eventually
emerged. According to Russell, the group
first had crossed paths with him around 2:35 a.m. and had shouted racist
slogans at him, implying that Russell was himself a racist. Russell exchanged words with the group, but
all parties continued walking. A few
minutes later, Russell encountered defendant, a Hispanic man, walking in a
direction that would cause him to encounter the group. Russell stopped defendant and told him that
there were "racist people" nearby.
The content of the rest of Russell's conversation with defendant is in
dispute, but it is undisputed that defendant and Russell soon approached the
group and verbally confronted them.
Defendant, who was wearing a light colored long-sleeved shirt over a
sleeveless white tank top, took off the outer shirt, removed his belt and began
swinging the belt around. One of the
members of the victim's group, Taylor, also took off his belt and began to
swing it around. Russell then pulled out
a knife and began lunging with it.
A
number of witnesses testified that, within moments of the start of the fight, defendant
stabbed Lunsford and chased another of the group, Crowley, lunging at him with
a knife. Crowley testified that he was
able to avoid being stabbed by defendant and eventually punched defendant in
the side of the head, knocking him down.
Another member of the group, Barnett, testified that he threw a rock at
defendant's head to distract him from Crowley, although he was not sure whether
he had hit defendant with it. In any
event, by that time, someone had called for police assistance and the
authorities were on their way. Defendant
ran away, with two other members of the victim's group -- Thomas Lunsford (the
victim's brother) and Ricks -- pursuing him through the streets of
Medford. Police officers had responded
to the emergency call, and defendant ran directly toward them. Thomas Lunsford, on seeing the officers, put
his head down and turned to walk in a different direction. The officers took both defendant and Thomas Lunsford
into custody.
Meanwhile,
Russell had run off in another direction.
His identity was not known to defendant, the victim's group, or the
police. All of the participants in the
fight described the second instigator (Russell) as a white "punk rock guy"
with a shaved head, wearing a black t-shirt with a punk rock band logo on
it.
After
the stabbing, the victim's friends flagged down a car that was passing by. The driver of that car, Vissar, happened to
be a member of a punk rock band that had been playing in the night club where
Russell had spent the evening before the fight.
The police eventually described the second instigator to Vissar, who thought
that the second instigator was Russell.
Vissar remembered Russell because Russell had been dancing by himself in
a conspicuous manner close to the stage during the performance and also had
engaged a couple of the band members in conversation. One of the band members remembered Russell's first
name; another mentioned the name of a band in which Russell had played. With those leads, the police were able to
track Russell down within a few days after the fight.
While
the police were interviewing the band members to discover Russell's identity, one
member of the band, Stewart, told the officers about a statement that Russell
had made at the club regarding the bartender's son, a person who had no
involvement with the later events. The
bartender's son was extremely drunk and belligerent, and was picking fights
with various people over the course of the evening. At one point, Stewart saw the bartender's son
and Russell bump shoulders and exchange glares; the two did not, however,
engage in any actual fight or lengthy verbal exchange. Later, when the band was taking a break,
Russell sat down at a table with Stewart and began making conversation,
complimenting him on the music. Russell
mentioned the incident with the bartender's son. Stewart responded by asking Russell, "Well,
did you just tell him to go [perform an unlikely sexual act]?" Stewart stated that Russell replied that the
bartender's son "was really starting to irritate him and piss him off, and
he wanted to slash him." When Russell
made that statement, Russell lifted his shirt and showed Stewart a knife, which
Stewart described as a black "Rambo-style" fixed-blade knife, about
six to seven inches in total length, in a sheath attached to his belt.
Immediately
after the fight, the police conducted a thorough search of the entire area to
locate the knife that had been used in the stabbing. The officers scoured the area where the fight
took place and retraced the path that defendant had taken when he ran from the
scene. They used a metal detector to search
the ground, and even searched the roof of a nearby building, but did not find a
knife. They did, however, find defendant's
shirt, parts of defendant's belt and belt buckle, Taylor's belt and belt
buckle, and a large rock such as Barnett described throwing.
Several
days later, the police learned Russell's identity and contacted him. Russell initially declined to talk to the
officers; eventually, however, officers were able to interview him. Russell told them about the events leading up
to the fight. His story to that point
was consistent with the other witnesses' descriptions of the events. In describing the fight, Russell admitted
that he had had a knife and that he pulled it out and waved it around. He stated that someone punched him on the side
of the head and knocked him down. While
he was falling or when he was on the ground, something -- which Russell
surmised to be a rock -- landed on the ground nearby. He stood up, heard someone yell, "He's
been stabbed," and ran away. He
stated that he did not stab anyone with his knife. He also stated that he did not see defendant
wield a knife, nor did he see defendant stab anyone.
Officers
obtained a warrant to search Russell's home.
During the search, they found, among other things, a t-shirt and shorts
that appeared to be those that Russell had been wearing on the night of the
fight, together with a folding knife with a black handle. The items were folded neatly and placed
together in a drawer. The clothes had
not been washed. Testing later revealed
that Russell's own blood was on his shorts, but none of the victim's blood was
found on any of Russell's clothing or on the knife. Russell later identified the knife as the one
that he had used in the fight. He
testified that the knife was clipped to the inside of his pocket, and that he
removed it and opened it during the fight.
Defendant
was charged with the murder of Mark Lunsford and with the attempted murder of
Crowley. At the trial, defendant's
theory of the case was that the witnesses were mistaken in identifying
defendant as the stabber, and that Russell was the person who had stabbed Mark
Lunsford and tried to stab Crowley. The
parties agreed that evidence concerning how Russell was identified as the
second individual involved in the fight that night was relevant. The parties also agreed that the fact that
Russell was seen with a knife earlier in the evening of the fight was
relevant. Thus, the state informed the
court that it intended to present the testimony of the band members to explain
how they had helped to lead the police to Russell and to establish that Russell
had a knife, and that Russell also would be called to testify.
Defendant
also wanted to offer Russell's statement about wanting to "slash" the
bartender's son. Defendant contended
that that statement was admissible under OEC 404(3) to show Russell's motive or
intent to kill Mark Lunsford.(1) The state opposed admission of the statement. The trial court ultimately ruled that the
statement did not show motive or intent to kill Lunsford, and therefore was not
admissible.
During
the trial, two band members testified about remembering Russell at the club
that night, describing his enthusiastic dancing in front of the stage and his
apparent enjoyment of the music. Both
band members stated that Russell appeared to be having a good time. In compliance with the trial court's earlier
ruling, the witnesses were not asked and did not testify about the incident
with the bartender's son or Russell's statement. Stewart did testify that Russell
"had a knife on his side that he decided to like flash
me. * * * He just picked his shirt up
like that and drop[ped] it like that."
Stewart then went on to describe the knife.
After
the state completed its direct examination of Stewart, defense counsel argued outside
the presence of the jury that defendant should be entitled to impeach Stewart
by bringing up the incident with the bartender's son. He argued that the defense had never heard before
that moment that Russell appeared to be having fun at the bar, and that he
should be permitted to impeach the statement that Russell was having fun with
the fact that, in that context, Russell had gotten into a confrontation with
the bartender's son and had said that he wanted to "slash" him. The trial court observed that it could not
actually be a surprise to anyone that Russell was having a good time at the bar
and ruled that it was "not proper impeachment."
The
trial progressed. Among other things, the
state presented the testimony of several of the individuals who had been with
the victim at the time of the stabbing who testified that they saw defendant
stab Mark Lunsford, and that, after initially behaving aggressively, Russell
just stood to the side while the fight was taking place. Through cross-examination, defense counsel
was able to draw out the following facts, among others, in support of
defendant's theory of the case:
Although Crowley remembered punching defendant
in the side of the head and Barnett remembered throwing a rock at him,
defendant did not appear to be injured when he was arrested. Moreover, although Russell testified that, in
the course of the brawl, he had been punched in the side of the head, that an
object had hit the ground near him and he had surmised that a rock had been
thrown at him, and that he had been injured, none of the members of the
victims' group remembered fighting with Russell.
Although Barnett testified at the trial that he
saw defendant stab Lunsford, he initially told the police that Russell was the person
with the knife and the person who had stabbed the victim.
Although Thomas Lunsford, the victim's brother,
testified at trial that he saw defendant stab the victim, he initially told a
police officer that he had been walking in front of the rest of the group
before the fight occurred, that he had heard someone yell from behind him that
his brother had been stabbed, and that he rushed back to the group and found
his brother bleeding.
None of the victim's blood was found on
defendant's clothing.
The state presented witnesses who testified
that, two weeks before the fight, defendant bought a knife with a sheath depicting
the Mexican flag and that he wore it on his belt all the time. No such knife ever was found, despite an exhaustive
search. The sheath was not found either,
notwithstanding the fact that defendant's belt and belt buckle were found at
the location of the fight.
Russell admitted to a friend the day after the fight
that he "may have" stabbed someone during the fight, although he was
not sure.
At the conclusion of the state's
case, defendant moved for judgment of acquittal, arguing that the state's
evidence did not prove beyond a reasonable doubt that defendant committed the
charged offenses. The trial court denied
the motion. Ultimately, the jury found
defendant guilty of the murder of Mark Lunsford and of the attempted murder of
Crowley. Defendant appealed his
convictions to the Court of Appeals, which, as noted, affirmed without opinion.
On
review in this court, defendant argues that the trial court erred in excluding
the evidence that Russell had stated, earlier on the evening of the stabbing,
that he wanted to "slash" the bartender's son. Defendant's argument is two-fold: He contends that Russell's statement about
wanting to slash the bartender's son shows that, earlier in the evening,
Russell was in an angry mood resulting from his confrontation with the
bartender's son, and his manifestation of that anger was a desire to resort to
his knife. That, according to defendant,
explains why Russell later instigated a fight against eight other people, and amounts
to a "motive" to use the knife on someone else less than an hour and
a half later. For that reason, he
argues, the statement is relevant and admissible under OEC 404(3). In addition, defendant argues that the
statement about being "irritated" and "pissed off" and
wanting to slash the bartender's son flies in the face of Russell's testimony,
and that of band members Stewart and Vissar, that Russell was in a happy, "mellow"
mood when he was at the club before the fight.
Therefore, defendant asserts, he should have been permitted, under OEC
613, to use Russell's prior inconsistent statement to impeach the testimony of Stewart,
Vissar, and Russell that Russell was having fun at the club.(2)
We
begin at the beginning. As noted, defendant
informed the court in a pretrial hearing that he intended to offer evidence
that Russell had stated that he wanted to "slash" the bartender's
son. Under OEC 402, that evidence was
admissible if it was relevant and not excluded by Oregon evidence rules, by
Oregon statutory and decisional law consistent with those rules, or by
constitutional considerations.(3) The first question, then, is whether that
evidence was relevant.
As
we have often stated, the threshold for admission of evidence on grounds of
relevance is low: "[E]vidence is
relevant so long as it increases or decreases, even slightly, the probability
of the existence of a fact that is of consequence to the determination of the
action." State v. Barone, 329 Or 210, 238, 986 P2d 5 (1999); accord State v. Hampton, 317 Or 251, 255, 855 P2d 621 (1993); OEC 401
(relevant evidence is "evidence having any tendency to make the existence
of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence"). Indeed, in considering that matter, the
inference that the proponent of the evidence wishes to be drawn from the
evidence need not be the necessary, or even the most probable, one. Hampton,
317 Or at 255 n 8.
Thus,
the question is whether Russell's statement increased, even slightly, the
probability that Russell was the person who stabbed Mark Lunsford. Russell responded to an altercation with the
bartender's son by stating he wanted to "slash" that individual. Stewart testified in the offer of proof that
he took Russell's statement seriously enough to alert the bartender, who then
sent her son home in a taxi. One
inference that the jury was entitled to draw from Russell's reaction to the
seemingly minor altercation with the bartender's son was that Russell was in an
angry frame of mind on the night in question.
That may not be the only inference that could be drawn, given the other
evidence of Russell's behavior at the club, but it is a permissible one. Russell's statement, therefore, was at least
some evidence of his general state of mind at the time that he made the
statement.
That
evidence then must be considered together with the evidence that, an hour and a
half later, Russell recruited defendant to confront the victim and his friends
and instigated the fight with them. From
Russell's later actions, the jury further reasonably could infer that Russell's
state of mind was an ongoing one. Put
another way, the jury reasonably could conclude that Russell's general state of
mind on the night in question was such that, when he was offended, he would
respond in anger and with a willingness to "slash" his offender.
Those
inferences, in turn, would make it more probable that Russell slashed at Mark
Lunsford with his knife and less probable that Russell simply stood by while
defendant and the victim's friends were engaged in the fight, as Russell later
claimed. So viewed, the evidence of
Russell's expressed state of mind was relevant to the central dispute in the
case: Which person -- defendant or
Russell -- stabbed Mark Lunsford?
The
evidence being relevant, it was admissible unless excluded by some other rule,
law, or case. OEC 402. As discussed above, defendant claimed that
Russell's statement was admissible under OEC 404(3), while the state claimed
that it was not. That rule
provides:
"Evidence
of other crimes, wrongs or acts is not admissible to prove the character of a
person in order to show that the person acted in conformity therewith. It may, however, be admissible for other
purposes, such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident."
Although defendant, in his argument to the trial court,
implicitly conceded that Russell's statement about wanting to slash the
bartender's son was a "wrong" or an "act" under OEC 404(3),
we do not find it necessary to resolve that issue. Instead, we shall assume that the statement
was an "act" within the meaning of OEC 404(3), and concern ourselves
with whether evidence of that "act" was nonetheless admissible under
the rule. See State v. Hayward, 327 Or 397, 409, 963 P2d 667 (1998) (using
such an approach). We conclude that it
was. Defendant's trial strategy, as we
understand it, was to create a reasonable doubt as to his own guilt by
suggesting to the jury that Russell was the perpetrator. As we have explained, evidence of Russell's
state of mind would permit the jury to conclude, through a short series of
inferences, that Russell stabbed Mark Lunsford.
The evidence of Russell's state of mind thus not only was relevant, it
was critical to defendant's case.
In
arguing to the contrary, the state acknowledges that evidence tending to show that
Russell was "in an angry mood" or had a generalized desire to engage
in violence would be relevant to establish a motive to engage in violence a
short time later. But what the state
fails to acknowledge, and what we think is clear, is that Russell's statement
about wanting to "slash" the bartender's son an hour and a half
before was such evidence. That is, it was evidence from which the jury
reasonably could infer that Russell was generally in an angry or violence-prone
mood -- especially when it is coupled with his later behavior in instigating
the fight with the victim and the victim's friends and recruiting defendant to
join him in that fight.
The
remaining question is whether any error in excluding the statement was
harmless. The state argues that the
tenuous relevance of the statement to defendant's case was rendered negligible
by other evidence. In particular, the
state relies on the fact that defendant admitted that he agreed to go with
Russell to confront the victims, he admitted to provocative words and deeds
with respect to the victim's group, and multiple other witnesses identified
defendant as one of the two instigators of the fight. The state also emphasizes that the jury heard
far more relevant and specific evidence of Russell's motive with respect to the
particular victims in the case. For
example, Russell admitted that he was intoxicated the night of the fight. He admitted that, immediately before the
fight, he engaged in a provocative and heated verbal exchange with the group,
which involved accusations of racism. He
admitted that he was sufficiently provoked by that encounter that he stopped
defendant on the street, described the group as racists, and essentially
recruited defendant to confront them.
The jury also heard evidence that Russell (and defendant) ran at the
group, shouting obscene insults and provoking a fight. Russell himself testified that he was
involved in the fight and that he pulled out his knife and poked at people with
it. The state argues that, given those
circumstances immediately surrounding the fatal fight, whether Russell had a
prior, generalized angry state of mind sheds little light on the question of
who stabbed Mark Lunsford. That is, once
Russell and defendant were in the heat of the battle, Russell's previously
expressed desire to "slash" the bartender's son was of little
probative value in determining who in fact stabbed the victim.
We
think that that argument points precisely the other way. The evidence against defendant, while significant,
was not overwhelming. Given the evidence
that pointed to Russell as the actual perpetrator, we cannot conclude that the
additional evidence of Russell's statement, which suggested an angry state of
mind, would not have tipped the balance toward a reasonable doubt as to
defendant's guilt. The jury could, for
example, reasonably have inferred that the angry state of mind that Russell's
statement suggested persisted over the next hour and a half, and that it
therefore was unlikely that Russell would have "stood by," as he
claimed he did, once the fight began in earnest. Reasonable doubt may be built upon such a
foundation of fact and inference. The
jury should have heard about the statement; its exclusion was not harmless.
The
decision of the Court of Appeals is reversed.
The judgment of the circuit court is reversed, and the case is remanded
to the circuit court for further proceedings.
1. OEC 404(3) provides:
"Evidence
of other crimes, wrongs or acts is not admissible to prove the character of a
person in order to show that the person acted in conformity therewith. It may, however, be admissible for other
purposes, such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident."
2. Defendant also makes various
constitutional arguments that he did not raise in the trial court. We do not consider those unpreserved
arguments in this opinion.
3. OEC 402 provides:
"All
relevant evidence is admissible, except as otherwise provided by the Oregon
Evidence Code, by the Constitutions of the United States and Oregon, or by
Oregon statutory and decisional law. Evidence
which is not relevant is not admissible." | fce08c567064f07f3c64cedff74dfbc943104c6d2bb8b66b8254299ae71d24b7 | 2010-12-16T00:00:00Z |
8112d416-7795-413f-9565-a7c793f4cadc | Palmer v. MURDOCK | 233 Or. 334, 378 P.2d 271 | null | oregon | Oregon Supreme Court | Reversed and remanded January 23, 1963.
Petition for rehearing denied February 13, 1963.
Kenneth A. Morrow, Eugene, argued the cause for appellant. With him on the brief were Venn, Mulder & Morrow, Eugene.
*335 James H. Clarke, Portland, argued the cause for respondents. With him on the brief were Koerner, Young, McColloch & Dezendorf and Wayne Hilliard, Portland.
Before McALLISTER, Chief Justice, and O'CONNELL, GOODWIN, LUSK and DENECKE, Justices.
REVERSED AND REMANDED.
O'CONNELL, J.
This is an action for personal injuries and property damages resulting from a collision between plaintiff's automobile and defendants' truck. Plaintiff appeals from a judgment of involuntary nonsuit entered after plaintiff had made his opening statement and before he had introduced any evidence.
The collision occurred at the intersection of Fifth avenue and Lincoln street in Eugene, Oregon. Plaintiff's complaint alleged various specifications of negligence on the part of defendant and further alleged that defendant had the last clear chance to avoid the injury. In his opening statement counsel for plaintiff admitted that plaintiff was negligent in entering the intersection. However, he contended that defendant discovered that plaintiff was in a position of peril from which he could not extricate himself, and that after such discovery defendant could have avoided the collision by the exercise of ordinary care.
In the opening statement plaintiff's counsel, with the aid of a diagram which he had drawn on a blackboard, stated that evidence would be presented to establish the following facts. Lincoln street runs north and south. It is intersected by Fifth street which runs east and west. Both streets provided for two-way traffic. Neither street contained stop signs or *336 any other traffic signals at the intersection. Plaintiff approached the intersection from the west. Defendant approached the intersection from the south. Plaintiff's counsel gave the following explanation as to the manner in which the collision occurred:
At the conclusion of plaintiff's opening statement defendants moved for a judgment of involuntary nonsuit upon the ground that the facts which plaintiff proposed to prove would conclusively establish that *338 defendant could not have had a last clear chance to avoid the collision since plaintiff's negligence continued up to the point of the collision. In the argument which followed the motion plaintiff's counsel stated:
The trial court gave the following explanation for granting defendants' motion for an involuntary nonsuit:
In response to the court's explanation of its ruling plaintiff's counsel stated:
To this the court responded:
There are numerous reported cases in which the plaintiff's right to go to the jury has been challenged on the ground that the evidence conclusively negatives defendant's last clear chance to avoid the injury.[1] The cases are in conflict. They are difficult or impossible to reconcile even with a particular jurisdiction.[2] Generally the judicial inquiry in these cases as to whether *340 the defendant's chance to avoid the injury was the "last" and the "clear" chance is accompanied by fine calculations as to the relative position and speed of the vehicles, the distance within which defendant could stop his vehicle, the point at which plaintiff was in inextricable peril, and the point at which it was discovered by the defendant. The cases are further complicated by the introduction of the theories of proximate cause and "continuing negligence." The extent to which these calculations are turned to benefit plaintiff or defendant appears to depend in large measure upon the particular court's attitude as to the respective functions of court and jury in negligence cases and the court's attitude toward the defense of contributory negligence.[3]
Because of these confusing elements in the cases they are of little or no value in finding the correct solution to the present case. Moreover, all of the evidence supporting the plaintiff's case was before the court in those cases, whereas in the case at bar we do not know what evidence plaintiff could introduce were the case to be tried.
*341 Treating the present case as if all of the evidence plaintiff could adduce was described in the opening statement, we would have before us a fact situation in which defendant would have a relatively short period of time within which to avoid the injury. According to the opening statement plaintiff first saw defendants' truck when it "was probably about a car length or a little more back of the sidewalk area." The opening statement did not make reference to the width of the sidewalk or the distance between plaintiff's automobile and the crosswalk at the time defendant is alleged to have first discovered plaintiff's perilous situation. The diagram which plaintiff's counsel had drawn on the blackboard indicated the relative position of the two vehicles. However, the trial judge did not see the diagram and it was erased before the issue which is before us was raised by defendants' motion.
In answering defendants' argument on the motion plaintiff's counsel stated "that the sidewalk was eleven feet from the intersection and a car length could be anywhere from eighteen to twenty-four feet back at the time plaintiff hit him." We do not know where these measurements would put defendants' truck with reference to plaintiff's automobile at the time plaintiff was at a point of discovered peril from which he could not extricate himself. We must assume for present purposes that defendant had discovered plaintiff's perilous situation immediately. Still he would have had a relatively short period of time to avoid the collision. It follows from plaintiff's estimate of the speed of defendants' vehicle as fifteen to twenty miles per hour or a little more that Murdock would have had but a few seconds within which to stop or swerve away from plaintiff's automobile. Defendants rely *342 upon Hamilton v. Finch, 166 Or 156, 166, 109 P2d 852, 111 P2d 81 (1941) for the proposition that negligence cannot be predicated upon two seconds of time. There the court quoted from Goodson v. Schwandt, 318 Mo 666, 669, 300 SW 795 as follows:
Assuming that the quoted statement had some value in deciding the question in Hamilton v. Finch, supra, it cannot be accepted as a postulate upon which to exclude a permissible inference of negligence in every case. Many accidents arise out of circumstances which leave the persons involved a matter of seconds to make crucial choices and in many of them the failure to take the proper choice of action may spell negligence. It is possible in some circumstances that a few seconds would afford a defendant a last clear chance to avoid injury to a negligent plaintiff. If we should assume that defendant in the case at bar was twenty-four feet from the crosswalk, it would be necessary to add an estimated width of the crosswalk and the estimated distance from the crosswalk to plaintiff's automobile to arrive at the total estimated distance within which defendant had an opportunity to size up the situation, realize plaintiff's peril, and stop or swerve away to avoid the collision. We do not know what these measurements are (nor did the trial judge). We know little more about plaintiff's relative position and whether he was able to avoid the collision.
The trial court rested its decision on the theory that plaintiff's negligence continued up to the moment of impact. This was predicated upon the assumption *343 that after plaintiff turned his vehicle to the left he turned back to his own side of the street into a position of danger which conduct constituted continuing negligence on his part because "he must have known he could not have avoided the collision under such circumstances of the record at the time." The difficulty in making this assumption is that plaintiff may have had evidence to show that there were other vehicles in the intersection or pedestrians in the crosswalk or other circumstances and, therefore, no other course of action was open to him. The assertion that his negligence "continued" has little meaning. Certainly he was in a position of danger as a result of his own negligence this he admits. The question is whether plaintiff could have introduced evidence to show that he had no way of avoiding a collision with defendants' truck after plaintiff negligently drove into the intersection and that subsequently defendant discovered plaintiff's peril and could have swerved or stopped and thus avoided the collision and resulting injury.
1-3. When the court passes upon a motion for involuntary nonsuit made before presentation of the evidence at trial, plaintiff is entitled to every reasonable conjecture as to what the evidence might show as long as it is not inconsistent with the evidence described in the opening statement. We cannot say that plaintiff could not have presented evidence supporting his theory of last clear chance. Only in rare situations should a case be decided upon the basis of an opening statement.[4] We do not regard this as such a case.
The judgment is reversed and the cause is remanded for a new trial.
*344 LUSK, J., concurring.
I have grave doubt whether the last clear chance doctrine can ever be applied to a case involving a collision between two automobiles in an intersection of streets under circumstances similar to those described in the opening statement of counsel for the plaintiff. Thus it is said in 61 CJS 123, Motor Vehicles § 493:
I agree, however, that this is a question to be determined not on the opening statement of counsel, but after the evidence on behalf of the plaintiff has been received. I, therefore, concur in the result.
McALLISTER, C.J., concurs in this opinion.
[1] For a collection of cases see the footnotes accompanying § 3.47 in 3 Berry, Automobiles (7th ed 1935 and Supp 1947). In all the cases we have examined the trial court's ruling has been made either at close of plaintiff's case or when both plaintiff and defendant have put in their evidence.
[2] "The application of the doctrine has been attended with much confusion. Virtually every possible rule has been adopted, often in a single jurisdiction * * *." Prosser, Torts, p. 292 (2d ed 1955). For example, see the California cases discussed in Garon, Recent Developments in California's Last Clear Chance Doctrine, 40 Calif L Rev 404 (1952); Hale, Last Clear Chance Trend in California, 13 Hastings L J 141 (1961); Comment, Intersectional Collisions and California Last Clear Chance, 1952-1953 UCLA (Intramural Vol) L Rev 27.
[3] "The variety of irreconcilable rules, all purporting to be the same, and the lack of any rational fundamental theory to support them, suggest that the `last clear chance' doctrine is more a matter of dissatisfaction with the defense of contributory negligence than anything else. In its application, it is not infrequent that the greater the defendant's negligence, the less his liability will be. The driver who looks carefully and discovers the danger, and is then slow in applying his brakes, may be liable, while the one who does not look at all, or who has no effective brakes to apply, may not. Recognition of the absurdity of such distinctions has played a considerable part in the extension of the doctrine to new situations." Prosser, Torts, pp. 295-96 (2d ed 1955).
2 Harper & James § 22.14, p. 1256 (1956) suggests that the manner of applying the doctrine of last clear chance may depend upon the judicial attitude towards the idea of comparative negligence and the extent to which compensation and fault should constitute the basis for liability.
[4] Coughlin v. State Bank of Portland, 117 Or 83, 243 P 78 (1926); Lane v. Portland Ry., L. & P. Co., 58 Or 364, 114 P 940 (1911). | d2fd40ae0cc922d3682317a807e8f632fa10f082fe4056cddd5ebc8dcacbb681 | 1963-01-23T00:00:00Z |
71631033-c906-41d5-9aae-d9286083e7bd | McDowell v. Employment Dept. | null | S056569 | oregon | Oregon Supreme Court | FILED: August 5, 2010
IN THE SUPREME COURT OF THE STATE OF OREGON
ROBERT A. MCDOWELL,
Petitioner
on Review,
v.
EMPLOYMENT DEPARTMENT
and KLAMATH COUNTY SCHOOL DISTRICT,
Respondents
on Review.
(Agency
No. 07-AB-1130; CA A136061; SC S056569)
En Banc
On review from the
Court of Appeals.*
Argued and submitted
September 14, 2009.
Elizabeth A. Joffe,
McKanna Bishop Joffe & Arms, LLP, Portland argued the cause and filed the
briefs for petitioner on review.
Cecil A.
Reniche-Smith, Assistant Attorney General, Salem, argued the cause for
respondent on review Employment Department. With her on the brief were John R.
Kroger, Attorney General, and Jerome Lidz, Solicitor General.
No appearance for
respondent on review Klamath County School District.
Deborah G. Weston,
Oregon Law Center, Portland, filed a brief in support of the petition for
review on behalf of amicus curiae Oregon Law Center.
Barbara J. Diamond,
Diamond Law, Portland, filed a brief on the merits in support of petitioner on behalf
of amici curiae Oregon AFL-CIO, AFSCME Council 75, American Federation
of Teachers-Oregon, Clackamas County Peace Officers' Association, Portland Fire
Fighters' Association, Oregon Education Association, and SEIU Local 503, OPEU.
LINDER, J.
The decision of the
Court of Appeals is reversed. The order of the Employment Appeals Board is
reversed, and the case is remanded to the Employment Appeals Board for further
proceedings.
*Petition from Final
Order of the Employment Appeals Board. 222 Or App 170, 193 P3d 989 (2008).
LINDER, J.
In this unemployment compensation
case, the Employment Appeals Board (the board) concluded that claimant was not
entitled to unemployment benefits because he voluntarily left work without good
cause. Claimant, on judicial review of the board's order, challenged that
determination; the Court of Appeals affirmed. McDowell v. Employment Dept.,
222 Or App 170, 193 P3d 989 (2008). As explained below, because we conclude
that claimant voluntarily left work with good cause, we reverse the Court of
Appeals decision and remand to the board.
The facts, as pertinent to the
issues before us, are not challenged.(1)
We therefore describe the facts consistently with those found by the board and
the record that supports the board's findings. See Meltebeke v. Bureau of
Labor and Industries, 322 Or 132, 134, 903 P2d 351 (1995) (where agency's
factual findings are not challenged, those findings are the facts for purposes
of judicial review).
Claimant worked for employer, Klamath
County School District, as a probationary first-year high school language arts
and drama teacher. Less than six months into his job, claimant showed his
senior English classes a 10-minute clip depicting a dramatic monologue from the
film "Glengarry Glen Ross." The clip, which contained some
profanity, was intended as a lesson about language use and misuse. Showing that
film clip to the class violated employer's policy requiring preapproval by the
school principal before teachers may show students films containing profanity.
Employer, however, had not advised claimant of that policy and the policy was
not contained in employer's handbook.
As a result of claimant's action in
showing the film clip, employer placed claimant on administrative leave. On
February 19, 2007, the personnel director for the district informed claimant
that he would be recommending claimant's discharge at the upcoming school board
meeting on March 9, 2007. The personnel director also advised claimant that he
had the option to resign instead of being discharged. The personnel director
did not give claimant any information as to whether he would have the
opportunity to be heard at the board meeting. Claimant sought advice from his
union representative and a union attorney. The union attorney told claimant
that "there was absolutely no chance that the school board would overrule
a recommendation from the district." The union attorney therefore advised
claimant to resign before being discharged. Claimant did so on March 9, 2007, the
day on which the school board would have considered whether to discharge him.
Claimant later sought unemployment
benefits. The Employment Department (department) denied benefits on the ground
that claimant had been "discharged for misconduct." Claimant
requested and received a hearing before an administrative law judge (ALJ). The
employer did not appear at that hearing. The ALJ denied benefits on an alternative
legal basis -- i.e., that claimant had "voluntarily left work
without good cause." Claimant appealed to the board. The board
determined, contrary to the department's determination, that claimant had not
engaged in any misconduct. However, the board further determined, as had the
ALJ, that claimant had not been discharged and, instead, had voluntarily left
work. Consistently with the ALJ's order, the board concluded that, in
voluntarily leaving work, claimant did so without good cause. The board therefore
affirmed the denial of unemployment benefits to claimant.
On judicial review, the Court of
Appeals affirmed. McDowell, 222 Or App at 172. The Court of Appeals
first concluded that the board had correctly analyzed the case as one involving
a voluntary separation from work, not a discharge, reasoning that "[c]laimant,
not employer, ended the employment relationship." Id. at 173. The
court further concluded that the board had correctly determined that claimant
voluntarily left work without "good cause." Id. at 174. The
court reasoned that claimant had a statutory right to a hearing at which he
could have argued against the personnel director's recommendation. Id.
at 174-75. Thus, according to the Court of Appeals, claimant had a reasonable
alternative to voluntarily leaving work. Id. at 175. Claimant
petitioned for review, and we allowed the petition.
On review in this court, claimant argues,
first, that his separation from work should have been analyzed as a discharge
rather than a voluntary leaving -- a so-called "voluntary quit." In
support of that contention, claimant urges that his separation was not
voluntary, because he resigned in the face of an imminent discharge. Alternatively,
claimant contends that, because he left work within 15 days of the date that
employer notified him that he would be discharged for reasons other than
misconduct, ORS 657.176(7) required claimant's separation from work to be
treated as a discharge, even if it would otherwise be considered a voluntary
quit. As an alternative to both of those arguments, claimant urges that, if
his separation from work is adjudicated as a voluntary quit rather than a
discharge, he had good cause for resigning. In particular, according to
claimant, he had no reasonable alternative to leaving work, given the proposed
discharge and the circumstances that confronted him.
We begin with an overview of the legal
standards that apply to this case, which derive from a combination of statutory
provisions and implementing administrative rules. A claimant is disqualified
for unemployment benefits if, as pertinent in this case, the claimant was "discharged
for misconduct connected with work" or "[v]oluntarily left work
without good cause." ORS 657.176(2)(a), (c). Thus, the initial question is
whether the employer discharged the claimant or the claimant voluntarily quit.(2) Under the
department's rules, none of which is challenged here, a separation from work is
a discharge "[i]f the employee is willing to continue to work for the same
employer for an additional period of time but is not allowed to do so by the
employer." OAR 471-030-0038(2)(b). Conversely, the separation from work
is a voluntary quit if "the employee could have continued to work for the
same employer for an additional period of time[.]" OAR
471-030-0038(2)(a). A potential exception to those definitions arises,
however, for an employee who resigns in lieu of being discharged. Even if the separation
from work qualifies as a voluntary quit, it is adjudicated as a discharge if: (1)
the employer has notified an individual that he or she will be discharged on a
specific date; (2) the discharge would not be for work-related misconduct; (3)
the individual voluntarily left work without good cause before the date of the
impending discharge; and (4) the voluntary quit occurs no more that 15 days
before the date of the impending discharge. ORS 657.176(7).(3)
Once that initial issue is resolved, entitlement
to benefits turns on the reasons for the discharge or the voluntary quit. For
a discharge, that focus is on whether the discharge was for misconduct in
connection with work. As used in this context, misconduct is a heightened
standard, one that requires more than mere neglect or ineptness in performing a
person's work. Instead, under the department's rule, "misconduct" requires
"a willful or wantonly negligent violation of the standards of behavior
which an employer has the right to expect of an employee" or "[a]n
act or series of actions that amount to a willful or wantonly negligent
disregard of an employer's interest." OAR 471-030-0038(3)(a).
For a voluntary quit, the focus is on
whether the claimant left work with good cause. Under OAR 471-030-0038(4),
"[g]ood cause for voluntarily leaving work
under ORS 657.176(2)(c) is such that a reasonable and prudent person of normal
sensitivity, exercising ordinary common sense, would leave work. * * * [F]or
all individuals, the reason must be of such gravity that the individual has no
reasonable alternative but to leave work."
Thus, good cause under the rule is an objective standard that
asks whether a "reasonable and prudent person" would consider the
situation so grave that he or she had no reasonable alternative to quitting.
With that legal backdrop in place, we
turn to claimant's first argument -- whether his separation from work properly
should be adjudicated as a discharge or a voluntary leaving. As earlier noted,
the department determined that the employer discharged claimant, and further
determined that the discharge was for misconduct. The board disagreed with the
department's misconduct determination and concluded that the personnel
director's reasons for recommending that claimant be discharged did not satisfy
the legal standard for misconduct. The board did not, however, agree that
claimant's separation from work was a discharge. It determined, instead, that
claimant voluntarily terminated the employment relationship. The Court of
Appeals, as we have described, agreed with the board. Claimant takes issue
with that conclusion, arguing that claimant had no intention of leaving his job,
and did so only after the employer threatened him with a discharge; his leaving,
therefore, was not "voluntary."
We need not resolve that issue to decide
this case, however. There is no dispute that, if claimant was discharged, the discharge
was not for disqualifying misconduct. The board, as we have described, so
concluded. The record amply permits that conclusion. Claimant was unaware of any
policy against showing films containing profanity without first obtaining
permission from the principal. The employer's written policy manual contained
no such policy and the employer did not orally advise claimant of such a
policy. Consequently, claimant's showing of the film was neither a willful nor
wantonly negligent violation of any employer policy. Thus, if claimant's
separation were to be considered a discharge, the discharge would not be for
misconduct, and claimant would be entitled to unemployment compensation. The
department, which did not appear in the Court of Appeals but has done so on
review before this court, does not contend otherwise.
Consequently, the essential dispute
is whether, if claimant's separation was a voluntary quit, claimant left work
with good cause. As we explain below, we conclude that, in these
circumstances, claimant had good cause for resigning when he did. Because of
that conclusion, claimant is entitled to benefits regardless of how we might
resolve the discharge versus voluntary quit issue. We therefore turn to whether,
if claimant quit voluntarily, he did so with good cause.(4)
"Good cause" is a
delegative term that the department has authority to interpret and refine by
rule. Springfield Education Assn. v. School Dist., 290 Or 217, 228-29,
621 P2d 547 (1980). As noted, the general test for good cause under the department's
rule is whether "a reasonable and prudent person of normal sensitivity,
exercising ordinary common sense, would leave work." OAR 471-030-0038(4).
The test further requires that the reason for leaving "be of such gravity
that the individual has no reasonable alternative but to leave work." Id.
In addition to setting out that general test for what constitutes good
cause, the department by rule also has identified particular circumstances or
reasons for leaving work that are not good cause. Pertinent to this case, OAR
471-030-0038(5)(b)(F) states that "[l]eaving work without good cause
includes, but is not limited to: Resignation to avoid what would otherwise be
a discharge for misconduct or potential discharge for misconduct[.]"
(Emphases added.) Thus, the department's policy is that resigning to avoid a
discharge or potential discharge for misconduct is not good cause for
voluntarily leaving work. But that rule is limited to a resignation in lieu of
a discharge or potential discharge "for misconduct." Necessarily,
then, the department has left open the possibility that, when a resignation is
in anticipation of a discharge not for misconduct, the separation from work may
qualify as voluntarily leaving work for good cause.
Here, as discussed, claimant's prospective
discharge, if it had occurred, would not have been for misconduct.
Accordingly, OAR 471-030-0038(5)(b)(F) does not disqualify claimant from
receiving benefits. Claimant's entitlement to benefits therefore turns on the
test for a voluntary quit generally: whether a reasonable person of normal
sensitivity, exercising ordinary common sense, would have considered the
circumstances to be sufficiently grave that he or she had no alternative but to
resign. As we outline below, the board's factual findings, and the evidence in
the record that supports those findings, required the good cause determination
to be resolved in claimant's favor.
On this record, it is beyond dispute
that the consequences of a discharge for claimant were grave. In his testimony
before the ALJ, claimant explained that he quit when he did because he had
"hopes of teaching again one day and to have that on [his] record would be
* * * a kiss of death." Claimant knew, from his experience in the field
of education, that "there's a very serious cloud over anyone who's been
actually fired." Claimant in fact had served on hiring committees in the
past and, in the course of doing so, had observed instances in which the
deciding factor in declining to hire an applicant was a past discharge on the applicant's
record. The board specifically found from that evidence that "[c]laimant
believed that his prospects of finding other work as a teacher would be jeopardized
if he were discharged."(5)
Claimant's belief in that regard
was, moreover, corroborated by his employer. The board found, again based on
claimant's testimony, that when the personnel director told claimant that he was
going to recommend that the school board discharge claimant, the personnel
director also advised claimant that he could resign instead. That advice
signaled the employer's awareness of or sensitivity to the serious professional
stigma that claimant might suffer after a discharge. At a minimum, a
reasonable and prudent person likely would take the employer's comments to be
tacit encouragement to quit in lieu of being discharged to spare the person the
repercussions of a discharge on future employment opportunities.
In concluding that claimant
voluntarily left work without good cause, the board in no way discounted the
strength of claimant's belief that a discharge would be "the kiss of
death" to his future employment. Nor did the board question the
reasonableness of that belief. Rather, the board focused only on the
likelihood of claimant's prospective discharge. The board characterized
claimant as "fac[ing] a mere possibility of discharge." The board
reasoned that, because employer's personnel director had not yet recommended
claimant's discharge to the school board and the school board had not yet voted
to discharge claimant, a reasonable and prudent person would not have left work
rather than face the prospect that the employer "might" discharge him
at some point in the future. The board also reasoned that claimant had legal
remedies available to him to challenge the discharge decision and, as a result,
his discharge was "not a foregone conclusion." In our view, however,
the board's reasoning was flawed.
To characterize claimant as facing
a "mere possibility of discharge" cannot be squared with the facts
found by the board. The board believed claimant's testimony that the personnel
director -- who, by virtue of his position, must be assumed to have had significant
chain-of-command responsibility for hiring and firing decisions -- told claimant
that he would recommend claimant's discharge to the school board at its
upcoming meeting. The board also accepted claimant's testimony that the union's
attorney told him that "there was absolutely no chance that the school
board would overrule a recommendation from the district." The board found
that claimant in fact "believe[d] * * * that he would be discharged by the
employer on March 9." The board did not find that claimant's subjective belief
was unreasonable or suggest that a prudent person exercising ordinary common
sense in claimant's situation -- viz., an employee who was advised by his
union and union attorney that there was "absolutely no chance" that
the school board would not discharge him -- would have believed that his
discharge was a "mere possibility."
Instead, the board's
characterization appears to have been prompted by its view that the evidence
did not establish that the school board in fact would have discharged claimant
on March 9. The board reasoned that claimant had legal rights and remedies to
avoid a discharge, and that a reasonable person would have pursued them before
voluntarily separating from gainful employment. In particular, the board
pointed to ORS 342.835 and stated that "Oregon law provided claimant with
recourse, including the right to be given a copy of the reasons for dismissal,
the right to representation and to be heard by the board, and the right to
appeal a dismissal decision for procedural errors." Later in the
decision, the board emphasized that, under Oregon law, the school district
"could not have discharged [claimant] without a hearing." The Court
of Appeals reasoned similarly, pointing out that claimant had a statutory right
to be heard before the school board would have taken action to discharge
claimant. See McDowell, 222 Or App at 174-75 (ORS 342.835
guarantees claimant a hearing at which he could have argued against the
personnel director's recommendation).
Claimant urges, however, that both
the board and the Court of Appeals were wrong about the predismissal remedies
to which claimant was legally entitled. Claimant, who left his job in the
first year of his employment, was a probationary teacher.(6)
According to claimant, he therefore was not entitled under ORS 342.835(1)(7)
to a predismissal hearing at all. Instead, claimant understands the statute to
provide a probationary teacher with only postdismissal notice and
opportunity to be heard, thus giving him a chance to contest the dismissal only
after the fact. In addition, claimant points out that, under the statute, a probationary
teacher may be dismissed "at any time" and "for any cause
considered in good faith sufficient," thus providing a probationary
teacher with little substantive ground to contest a dismissal at the school
district level. Finally, claimant emphasizes that, under subsection (3) of the
statute, an appeal to circuit court would permit only procedural challenges, so
that a probationary teacher's judicial remedies are particularly limited. See
Henthorn v. Grand Prairie School Dist., 287 Or 683, 692, 601 P2d 1243
(1979) (interpreting ORS 342.835 to provide that the appeal is by writ of
review, which review is limited to the procedures used in the dismissal
process).
To assess whether claimant resigned
with or without good cause, we need not decide if claimant is correct about what
predismissal remedies are available to a probationary teacher
under ORS 342.835(1). Nor need we determine whether, had claimant been offered
a predismissal hearing, his decision to resign when he did would constitute
good cause, given the limited grounds on which he could have contested the
personnel director's discharge decision. Here, it is enough to conclude that the
school district did not offer claimant a predismissal opportunity to be heard.
The board found that claimant was told by the personnel director why the
director would be recommending discharge to the school board. Claimant's
testimony, on which that finding was necessarily based, was that the personnel
director gave him that information orally. As claimant described and the board
found, claimant waited until the last possible moment -- the day of the school
board meeting -- to tender his resignation. Claimant testified that he was
never told anything about whether he could be heard at the school board meeting
in which the discharge decision would be made. Thus, the only conclusion that
is permissible, given the board's findings and the record support for them, is
that the school district did not give claimant the written notice that ORS
342.835(1) requires, which would have triggered his right to a hearing. The
school district instead was prepared to proceed with the discharge decision
without giving claimant any predismissal notice or hearing procedures.(8)
Thus, on this record, the right to a hearing under ORS 342.385(1) was not a
means by which claimant could avoid the discharge. The board's reliance on that
statute in this case therefore was misplaced, as was that of the Court of
Appeals.
Given the board's reasoning, it is
worth emphasizing the objective standard that applies to these cases. When, as
here, an employee is facing a prospective discharge, whether resigning in lieu
of that prospective discharge is for "good cause" depends not on a
hindsight determination of whether, in fact, claimant would have been
discharged by the school board. The issue depends, instead, on whether a
reasonable person facing that prospect of discharge would consider the prospect
so grave a circumstance that resigning was the only reasonable option. That
objective inquiry depends on what claimant in fact knew and reasonably should
have known when he made his decision, not on an assessment of how events in
fact would have played out.(9)
In light of the facts found by the
board, and the record that supports those facts, this case reduces to this:
Claimant believed that being discharged would create serious problems for him
in obtaining future employment. Under the circumstances, that belief was
reasonable, and the board did not conclude otherwise. Claimant also believed,
based on his union's attorney's advice, that the school board would follow the
personnel director's discharge recommendation -- that is, according to the
advice claimant received, there was "absolutely no chance" that the
school district would overrule the personnel director's recommendation. The
school district could legally dismiss claimant, given his probationary status,
at any time and for any good faith reason. Claimant thus could legally contest
his discharge on only the most narrow substantive grounds. And he had no
ability to do so predismissal -- the school district made no overture to
provide him with any dismissal remedies in advance of the meeting in which a
discharge decision would be made. Finally, as the board recognized, claimant's
judicial remedies were very limited -- in a circuit court appeal, he could raise
only procedural objections.
Under those circumstances, would a
reasonable and prudent person, of normal sensitivity and exercising ordinary
common sense, believe that he faced such a grave situation that leaving work
was the only reasonable course for him to take? The only permissible answer to
that question on this record is yes. The board, as a matter of law, given its
findings of fact and its reasoning, was obligated to so conclude. As a result,
the board should have determined that claimant voluntarily left work with good
cause and should have awarded claimant unemployment benefits.
The decision of the Court of
Appeals is reversed. The order of the Employment Appeals Board is reversed,
and the case is remanded to the Employment Appeals Board for further
proceedings.
1. In
the Court of Appeals, claimant successfully challenged two of the board's
findings for lack of factual support in the record. Specifically, claimant
asserted that the board erred by factually finding: (1) that employer's film
policy -- the policy that the employer believed claimant had violated -- was
contained in its employee handbook; and (2) that the school principal, in
addition to employer's personnel director, recommended claimant's discharge.
The court concluded that those findings were not supported by substantial
evidence. McDowell, 222 Or App at 175. The Court of Appeals did not
have to remand to the board for reconsideration, however, because neither
finding was pivotal to the board's resolution of the issues.
2. Among
other reasons why it might matter how the separation is classified, the burden
of proof may differ. No statute specifically assigns the burden of proof on
these issues. The general rule for allocating the burden of proof in
administrative cases is that the burden falls on "the proponent of a fact
or position, the party who would be unsuccessful if no evidence were introduced
on either side." Harris v. SAIF, 292 Or 683, 690, 642 P2d 1147
(1982); ORS 183.450(2) (burden of production in contested cases rests on the
proponent of the fact or position). Long-standing Court of Appeals decisions
hold that a claimant has the burden of proving by a preponderance of the
evidence that, when he voluntarily left work, he did so with "good cause,"
while an employer has the burden of proving that a discharge was for
misconduct. See, e.g., Babcock v. Employment Div., 25 Or App
661, 664, 550 P2d 1233 (1976) (burden of proving claimant's misconduct rests on
the employer); Brotherton v. Morgan, 17 Or App 435, 438-39, 522 P2d 1210
(1974) (burden of proof on claimant to prove good cause for voluntarily
leaving). The allocation of the burden of proof on those issues is not a
dispute in this case.
3. ORS
657.176(7) provides, in part:
"[W]hen an employer has notified an individual that the
individual will be discharged on a specific date and it is determined that:
"(a) The discharge would not be for reasons
that constitute misconduct connected with the work;
"(b) The individual voluntarily left work without
good cause prior to the date of the impending discharge; and
"(c) The voluntary leaving of work occurred
no more than 15 days prior to the date of the impending discharge,
"then the separation from work shall be adjudicated as
if the voluntary leaving had not occurred and the discharge had occurred.
However, the individual shall be ineligible for benefits for the period
including the week in which the voluntary leaving occurred through the week
prior to the week in which the individual would have been discharged."
(Emphasis added.)
For a claimant who leaves work with
good cause, the statute is unnecessary, because that claimant is entitled
to benefits on that basis from the date of her or his separation from work.
Thus, the statute applies only to someone whose voluntary separation is for reasons
other than good cause.
4. Under
the pertinent statutes and administrative rules, were we to conclude that
claimant voluntarily quit without good cause, the analysis would not end with
that conclusion. We would then need to consider whether ORS 657.176(7) (resignation
in lieu of discharge is adjudicated as discharge in certain circumstances) applies.
Here, claimant maintains that it does, and he was entitled to benefits under
it. The department disagrees, arguing that the statute requires an employee to
be notified that the employee will, in fact, be discharged on a date certain,
and here, the personnel director told claimant only that the personnel director
would recommend on a particular date that the school district discharge
claimant. According to the department, such a recommendation does not trigger
the statute. The board, having concluded that claimant's separation from work
was a voluntary quit, and having further determined that he did so without good
cause, should have gone on to consider whether, as claimant urged, he was
nevertheless entitled to benefits under ORS 657.176(7). It did not do so. The
Court of Appeals, having also determined that claimant quit voluntarily without
good cause, should have considered that statute and possibly remanded the case
to the board for that purpose. Because we conclude that claimant's separation
from employment was with good cause, however, the statute does not come into
play.
5. The
employer made no appearance before the ALJ. Thus, no evidence rebuts or
contradicts claimant's testimony in that regard. The board was not obligated
to believe claimant, despite the lack of any contrary evidence, assuming it
could articulate substantial reasons for rejecting claimant's uncontradicted
testimony (e.g., lack of credibility, inherent unbelievability, etc.). See
generally City of Portland v. Bureau of Labor and Ind., 298 Or 104, 116,
116 n 6, 690 P2d 475 (1984) (where credibility of witnesses is concerned, trier
of fact is not necessarily bound by uncontradicted testimony, for trier of fact
may simply not believe a witness). But here, the board did believe
claimant, and found facts consistently with claimant's testimony.
6. See
ORS 342.815(6) ("probationary teacher" is a teacher who is not a
contract teacher); ORS 342.815(3) ("contract teacher" is any teacher
who has been regularly employed by a school district for a probationary period
of three successive school years, and who has been retained for the next
succeeding school year).
7. ORS
342.835 provides, in part:
"(1) The district board of any fair
dismissal district may discharge or remove any probationary teacher in the
employ of the district at any time during a probationary period for any cause
considered in good faith sufficient by the board. The probationary teacher
shall be given a written copy of the reasons for the dismissal, and upon
request shall be provided a hearing thereon by the board, at which time the
probationary teacher shall have the opportunity to be heard either in person or
by a representative of the teacher's choice.
"* * * * *
"(3) If an appeal is taken from any
hearing, the appeal shall be to the circuit court for the county in which the
headquarters of the school district is located and shall be limited to the
following:
"(a) The procedures at the hearing;
"(b) Whether the written copy of reasons
for dismissal required by this section was supplied[.]"
8. The
statute, as our earlier quotation of it reflects, is silent on the timing of
the written notice and opportunity for a probationary teacher to be heard.
Thus, a reasonable person could not know from the terms of the statute itself
the timing of any remedies available to a probationary teacher.
9. In
a footnote in its decision in this case, the board noted that it has
"consistently held that where, as here, a claimant voluntarily leaves work
rather than face the possibility of future discharge, Oregon law requires a
disqualification from benefits." To the extent that the board has
suggested, in this or any other case, that a future discharge must be
"certain" before a resignation to avoid the discharge can qualify as
good cause, such a conclusion would be inconsistent with the "reasonable
and prudent person" standard in place. Under the applicable statutes and
administrative rules, the question must be whether, given the circumstances as
a whole, the situation facing the employee was sufficiently grave that the
employee had no reasonable alternative to leaving employment. The likelihood
of a prospective discharge logically bears on the gravity of the situation.
But the facts that a threatened discharge is less than certain to occur, and
the fact that the discharge, after it occurs, is not irreversible, are not
factors that are dispositive, in and of themselves. | bb66c2cb884c8ab32f69f3c9d69cefb4efb4f0501caf64fff97ff03b441935ed | 2010-08-05T00:00:00Z |
784915fc-9f5f-416a-a1ac-a3caf2c0f824 | Clackamas Cty Assessor v. Village at Main St. Phase II | null | S057858 | oregon | Oregon Supreme Court | Filed: December 9, 2010
IN THE SUPREME COURT OF THE STATE OF OREGON
CLACKAMAS COUNTY ASSESSOR,
Appellant,
v.
VILLAGE AT MAIN STREET PHASE II, LLC,
Respondent.
(TC 4877; SC S057858)
En Banc
On appeal from the Oregon Tax Court.*
Henry C. Breithaupt, Judge.
Argued and submitted September 15, 2010.
Kathleen J. Rastetter, Assistant County Counsel, Oregon City, argued the cause and filed the brief for appellant. With her on the brief was Clackamas County Counsel.
Donald H. Grim, Greene & Markley, P.C., Portland, argued the cause and filed the brief for respondent. With him on the brief was David P. Weiner.
KISTLER, J.
The judgment of the Tax Court is affirmed.
*___ OTR ___ (Sept 1, 2009).
KISTLER, J.
Once a tax assessor has determined the value of property and listed it on the assessment roll, the assessor may not correct the value listed on the assessment roll merely because he or she "would [now] arrive at a different opinion of value." ORS 311.205(1)(b).(1) An assessor, however, may add property to the assessment roll that "has from any cause been omitted, in whole or in part," from the assessment roll. ORS 311.216. The question that this case poses is whether the Clackamas County tax assessor (the assessor) may add, as omitted property, the value of site developments to land already listed on the assessment roll. The Tax Court held that, because the site developments were an integral part of the land listed on the assessment roll, the assessor was not adding omitted property to the roll; he was merely correcting an undervaluation. Clackamas County Assessor v. Village at Main Street Phase II, LLC, __ OTR __, __ (Sept 1, 2009) (slip op at 9). On the assessor's appeal, we affirm the Tax Court's judgment.
Because this case arises on the taxpayer's motion for summary judgment, we state the facts in the light most favorable to the assessor. Bergmann v. Hutton, 337 Or 596, 599, 101 P3d 353 (2004). The taxpayer owns two adjacent parcels of real property in Clackamas County. As of January 1, 2004, the two parcels were bare, undeveloped land, and the assessment roll reflected the value of that undeveloped land.(2) After that time, the taxpayer began developing an apartment complex on the two parcels. In connection with that development, the taxpayer made improvements to the land; it graded the land, added roads, sidewalks, street lights, water and sewer lines, storm drains, electrical services and other utilities, and laid foundations for parking lots. The parties refer to those improvements as the site developments. The taxpayer also began constructing the apartment buildings.
Each year, every county tax assessor must assess and list on the assessment roll the real market value of land within the county separately from the real market value of "all buildings, structures and improvements thereon." ORS 308.215. By statute, "land includes any site development made to the land," such as "fill, grading, leveling, underground utilities, underground utility connections, and any other elements identified by rule of the Department of Revenue." ORS 307.010(1)(a).(3) Because the legislature has specified that "land" includes "any site development," the value for any land listed on an assessment roll should include the value of both the land and the site developments.
In 2005, the assessor physically inspected the taxpayer's property to establish the value of that property for the 2005-06 tax year. At that point, the site developments were substantially complete, and the apartment buildings were approximately 25 percent complete. Although the assessor was aware of the site developments when he inspected the property in 2005, he assigned no value to them. Instead, the assessor established the value of the land for the 2005-06 tax year by a process known as "trending." Specifically, the assessor took the value assigned to the land for the 2004-05 tax year, which reflected only the value of the undeveloped land, and adjusted that value to account for the general trend in real estate prices.(4) The assessor then listed the trended valuation for the land on the assessment roll. The assessor took a different approach for the partially constructed apartment buildings. He specifically appraised the value of those partially constructed buildings and listed that value separately on the assessment roll, as ORS 308.215 requires.
In 2006, the assessor again physically inspected the taxpayer's property to establish the value of the land for the 2006-07 tax year. At that point, the apartment buildings were 40 percent complete. The land (and site developments) remained unchanged since the last physical inspection. The assessor appraised and added the increased value of the apartment buildings to the assessment roll but assigned no value to the site developments. Instead, the assessor again adjusted the previously established value of the land to reflect property value trends for that year.
In 2007, the assessor sought to add the value of the site developments to the assessment roll as "omitted property" under ORS 311.216. Doing so increased the value of the taxpayer's land listed on the assessment roll by approximately one million dollars and increased the tax liability by approximately $18,000. The taxpayer challenged the assessor's action, claiming that the site developments did not constitute omitted property. On cross-motions for summary judgment, the Tax Court ruled in the taxpayer's favor. Relying on its decision in West Foods v. Dept. of Rev., 10 OTR 7 (1985), and a Department of Revenue rule reflecting that decision,(5) the Tax Court reasoned that, if an assessor failed to include the value of property that was "in existence at the time of an appraisal and [was] an 'integral part' of property that was physically appraised," then the assessor had undervalued the appraised property; he had not omitted property from the tax roll. Clackamas County Assessor, __ OTR at ___ (slip op at 9).(6)
On appeal, the assessor argues that the Tax Court's decision in this case and the Department of Revenue rule are inconsistent with the omitted property statute. The assessor notes that ORS 311.216 provides that, "[w]henever the assessor discovers or receives credible information * * * that any real or personal property * * * has from any cause been omitted, in whole or in part, from assessment and taxation on the current assessment and tax rolls," then the assessor shall initiate a process to add the omitted property to the assessment or the tax rolls.(7) (Emphasis added.) The assessor reasons that there is no dispute that, in trending the value of the bare, undeveloped land, he did not assign any value to the site developments. It follows, the assessor concludes, that he omitted part of the land -- the site developments -- from the assessment roll and that, under the plain terms of ORS 311.216, he may add that property to the assessment roll.
Put more generally, relying on the statutory phrase "in part," the assessor contends that the legislature intended to permit an assessor to divide a unit of property into its component parts and, if the assessor can show that the value of any part of the property (even an integral part) is not reflected in the value of the property listed on the assessment roll, then the property has been omitted "in part" from the assessment roll and the value of the component part may be added to the roll.
The taxpayer, for its part, contends that, under ORS 307.010(1)(a), site developments are an integral part of the land. The taxpayer argues that, when, as in this case, the assessor has valued the land and listed the land on the assessment roll, he may not correct the value of the land listed on the roll merely because he failed to attribute any value to an integral part of the land. In so doing, the taxpayer argues, the assessor is not adding omitted property to the assessment roll; he is revaluing the property already listed on the assessment roll. The taxpayer acknowledges that there is some tension between the statutory prohibition on correcting an error in valuation judgment and the statutory authorization to add omitted property to the assessment roll. It reasons, however, that the line that the Tax Court's decision in West Foods and the Department of Revenue's rule draw between those two statutes is a permissible one that gives effect to both statutes.
As we understand the parties' arguments, they turn on an issue of statutory interpretation -- does the statutory authorization to add property to the assessment roll that has been omitted "in part" apply to an integral part of property that is listed on the assessment roll.(8) In answering that question, we begin with the text of ORS 311.216. See State v. Gaines, 346 Or 160, 171-72, 206 P3d 1042 (2009) (setting forth methodology). That statute authorizes an assessor to initiate a process for adding "omitted property" to the assessment roll when the assessor discovers that "any real or personal property * * * has from any cause been omitted, in whole or in part, from assessment and taxation on the current assessment and tax rolls."
The text of ORS 311.216 permits both parties' interpretations. It is possible to read the phrase "in part" narrowly, as the taxpayer does, to refer only to distinct units of property. If, for example, a taxpayer owns two adjacent lots but the assessor lists only one of them on the assessment roll, then the taxpayer's real property has been omitted, in part, from the assessment roll, and ORS 311.216 authorizes the assessor to add the second lot to the roll. It is also possible to read the phrase "in part" broadly, as the assessor does, to permit the assessor to treat an integral part of a single unit of property as property that has been omitted "in part." The text, standing alone, does not resolve the parties' dispute.
The context provides greater insight. Before 1907, the Oregon legislature authorized the Board of Equalization or the tax collector to add omitted property to the assessment and tax rolls without specific notice to the taxpayer. See Oregon & California R.R. v. Lane County, 23 Or 386, 393-97, 31 P 964 (1893) (opportunity to appear at the Board of Equalization sufficient; no additional notice required before the tax collector subsequently added omitted property); Oregon & Washington Mortgage Sav. Bk. v. Jordan, 16 Or 113, 116, 17 P 621 (1888) (so holding regarding the board). In 1907, the legislature enacted the provision that, with some amendments, is now codified as ORS 311.216. Or Laws 1907, ch 267, § 24.(9) Specifically, the 1907 legislature provided that, after giving the taxpayer notice, "the officer having possession of the roll" shall add "any real or personal property [that] has * * * been omitted, in whole or in part, * * * from the assessment roll or the tax roll." Id. The text of Oregon's 1907 omitted property statute is virtually identical to the text of Indiana's 1881 omitted property statute, cf. Reynolds v. Bowen, 36 NE 756, 758, 760-61, adh'd to on recons, 37 NE 962 (Ind 1894) (setting out the text of the Indiana statute and noting that the Indiana legislature reenacted the 1981 statute verbatim in 1891), and we infer from that fact that Oregon modeled its 1907 omitted property statute on Indiana's.(10) See Stevens v. Czerniak, 336 Or 392, 402, 84 P3d 140 (2004) (inferring from similarity between ORCP 36 and FRCP 26 that Oregon had modeled its rule on the federal rule).
It follows that two contextual sources inform our interpretation of Oregon's 1907 omitted property statute. The first consists of the Oregon statutes and cases that preceded that statute's enactment in 1907. See Klamath Irrigation District v. United States, 348 Or 15, 23, 227 P3d 1145 (2010) (context includes preexisting common law and statutory framework). The second consists of the Indiana Supreme Court decisions that interpreted the Indiana statute on which Oregon modeled its 1907 omitted property statute. See State v. Stockfleth/Lassen, 311 Or 40, 50, 804 P2d 471 (1991) (when Oregon adopts a statute from another state, we presume that the Oregon legislature intended to adopt the state supreme court's prior interpretations of that statute). Finally, we consider the 1951, 1971, and 1977 amendments to Oregon's omitted property statute, which expanded the reach of that statute.
Before 1907, the Oregon legislature authorized counties to tax real and personal property. The Codes and General Laws of Oregon, ch XVII, title I, § 2729 (Hill 1887). The legislature directed the assessor for each county to prepare an assessment roll listing the true cash value for all taxable real and personal property. Id., title III, § 2752. After each taxpayer's name, the assessor would list on the assessment roll the description, acreage, and the value for each parcel of real property owned by the taxpayer. Id. § 2776. (Initially, the value listed for real property included the value of both the land and any buildings or improvements on the land. Id.) The assessor also would list a single entry reflecting the total value of the taxpayer's personal property. Id. To enable the assessor to prepare the assessment roll, the legislature required each taxpayer to give the assessor a verified list of all the taxpayer's taxable real and personal property. Id. § 2769. It also authorized the assessor to conduct a sworn examination of each taxpayer. See id. §§ 2759, 2769 (providing procedures and penalties regarding assessor verification of the value of the taxpayer's taxable property).
After the assessor prepared the assessment roll, the Board of Equalization had authority both to adjust the value of the property listed on the roll and also to add omitted property to the roll. Id., title IV, §§ 2778, 2779; see Oregon & Washington Mortgage Sav. Bk., 16 Or at 116 (holding that the board had statutory authority to add omitted property to the assessment roll without notice to the taxpayer). After the board had approved the assessment roll, the county court determined the funds needed for county, state, and school purposes and levied a corresponding tax on the property listed on the assessment roll. Id., title V, §§ 2783, 2784. Later, the county clerk submitted the assessment roll, together with a warrant authorizing the collection of the taxes, to the sheriff, who served as the tax collector. Id., title VI, § 2794. Among other things, the legislature provided that,
"[w]henever the assessor shall have omitted to assess any real or personal property liable to taxation in his county, it shall be the duty of the sheriff, upon discovering such omission, to assess the same and collect the taxes thereon, in like manner as other assessments are made and taxes collected * * *."
Id. § 2831. As noted, neither the board nor the sheriff was required, before 1907, to give the taxpayer notice before adding omitted property to the assessment roll.
Before 1907, two Oregon cases had addressed the board and the sheriff's authority to add omitted property to the assessment or the tax roll. In one case, the assessment roll listed some of the taxpayer's personal property but omitted $68,210 in money, notes, and accounts. Oregon & Washington Mortgage Sav. Bk., 16 Or at 114.(11) In the other case, the assessment roll listed approximately 53,000 acres of the taxpayer's real property but omitted approximately 185,000 acres. Oregon & California R.R., 23 Or at 389. In both cases, the property that had been omitted, in part, was not an integral part of the property that had been listed on the assessment roll. Rather, the partially omitted property in each case was separate from the listed property; it could be valued and transferred independently from the listed property.
Nothing in the Oregon cases that preceded the enactment of the 1907 omitted property statute suggests that the legislature would have understood that the words "in part" should be read as broadly as the assessor urges. Cf. Klamath Irrigation District, 348 Or at 37-38 (looking to Oregon cases that preceded the enactment of a 1905 Oregon statute to determine how the legislature would have understood one of the terms in that statute). That is, nothing in the Oregon cases that preceded the 1907 omitted property statute suggests that the legislature would have understood that the authorization to add property omitted "in part" from the assessment roll included the authorization to add an integral part of the property that was already listed on the roll.
A second contextual source informs our understanding of Oregon's omitted property statute. As noted, the text of Oregon's 1907 statute is virtually identical to the text of the omitted property statute that Indiana enacted in 1881 and reenacted in 1891. Cf. Reynolds, 36 NE at 758, 760-61 (setting out the text of the Indiana statute and recognizing verbatim re-enactment of the 1881 law in 1891). And we presume that the 1907 Oregon legislature, having modeled Oregon's statute on Indiana's, intended to adopt the interpretation that the Indiana Supreme Court had given its statute. See Stockfleth/Lassen, 311 Or at 50 (stating proposition). We turn to that court's decisions.
The Indiana omitted property cases decided before 1907 typically involved personal property, such as notes and similar financial instruments. See, e.g., Reynolds, 36 NE at 759; Florer v. Sheridan, 36 NE 365, 365 (Ind 1894); Florer v. Sherwood, 28 NE 71, 71-72 (Ind 1891); Woll v. Thomas, 27 NE 578 (Ind App 1891). Most of the Indiana cases arose after the administrator of a decedent's estate had filed an inventory of the estate's assets in a probate proceeding. Based on the difference between the inventory filed in the probate proceeding and the personal property listed on the assessment roll, the auditor (the Indiana official charged with determining whether property had been omitted) concluded that the decedent's personal property had been omitted in part from the assessment roll and sought to add that property to the roll.(12) In each of the cases, the question before the court was whether the personal property listed on the assessment roll had been undervalued or whether some personal property had in fact been omitted in part from the assessment roll.
Frequently, that question turned on a factual issue: could the auditor infer that some of the decedent's notes had been omitted from the assessment roll because the aggregate value of the notes listed on the estate inventory was greater than the aggregate value of the notes listed on the assessment roll? The Indiana Supreme Court held that, as a general matter, the answer to that factual question was "no." It explained that the inventory may reflect the face value of the notes while the assessment roll may reflect a lower market value. Florer v. Sherwood, 28 NE at 72. The court held that, to establish that property has been omitted, the auditor "must know of specific loans and of specific credits which have been omitted, and upon which valuations may be placed." Id. Conversely, the court upheld the auditor's determination that some of the decedent's notes had been omitted from the assessment roll when, "after a long and painstaking investigation, [the auditor] found 'distinct, definite, and recognizable articles [of omitted property], which had not been listed and properly appraised for taxation by the assessor.'" Reynolds, 37 NE at 963 (quoting Woll, 27 NE at 580). That finding was sufficient to convince the Indiana Supreme Court that the decedent's notes had been omitted, in part, from the assessment roll, as opposed to having been undervalued.
It follows from the Indiana cases decided before 1907 that, for property to qualify as "omitted property," the property must be "distinct, definite, and recognizable articles, which had not been listed * * * by the assessor." Id. The requirement, stated in the Indiana cases, that the omitted property must be "distinct" from the property listed on the assessment roll is inconsistent with the assessor's position in this case that omitted property includes property that is an integral part of the listed property. Beyond that, none of the Indiana omitted property cases involved property that was an integral part of the property listed on the assessment roll. Given that context and the fact that the Indiana statute authorized the addition of any real or personal property "omitted, in whole or in part," we are persuaded that the 1907 Oregon legislature did not intend for the phrase "in whole or in part" to authorize the assessor to include an integral part of property that the assessor already had listed on the assessment roll.
Since Oregon enacted its omitted property statute in 1907, the legislature has expanded the definition of omitted property on three occasions: 1951, 1971, and 1977. We consider those amendments to understand how they bear on the assessor's argument in this case. In 1951, the legislature amended the omitted property statute to authorize an assessor to add to the assessment roll, as omitted property, "any buildings, structures, improvements or timber on land previously assessed without the same." Or Laws 1951, ch 577, § 1.(13) Textually, the addition of that phrase implies that, without the authority granted by the amendment, the assessor could not add, as omitted property, "buildings, structures, improvements or timber on land previously assessed without the same."
The legislative history supports that understanding. The State Tax Commission (the predecessor to the Department of Revenue) submitted a statement to the House Committee on Taxation in support of the amendment, explaining:
"Under the existing law, real property is defined to include the improvements thereon, and likewise all trees upon the land, and thus an assessment of real property is conclusively presumed to include the improvements and timber located thereon, even though such improvements and timber have not in fact been taken into consideration in making the assessment. By amending the omitted property statute so that it refers specifically to improvements and timber, a way would be provided to add the same to the rolls as omitted property."
Exhibits, House Committee on Taxation, HB 358 (1951). According to the Commission, the additional wording was necessary to avoid the "conclusiv[e] presum[ption]" that the assessor had included the value of any buildings, structures, and timber in the value of the real property listed on the assessment roll.
The State Tax Commission did not explain the source of that "conclusiv[e] presum[ption]," and no Oregon case had addressed that issue before 1951. However, the North Dakota Supreme Court had held in 1930 that, once the assessor listed the value of real property on the assessment roll, the auditor could not add, as omitted property, the value of any building or structure on that property to the value of the real property listed on the assessment roll; that was so even though there was no dispute that the assessor had not included the value of the building or structure in the value of the real property listed on the roll. Marshall Wells Co. v. Foster County, 231 NW 542, 544-45 (1930). As noted, North Dakota had modeled its omitted property statute on Indiana's statute, see id. at 544 (explaining that the North Dakota statute was "almost identical" to the Indiana statute), and the North Dakota Supreme Court relied on the Indiana decisions in Florer v. Sherwood and Woll in reaching its decision in Marshall Wells Co., id. at 544-45. Although the State Tax Commission did not explain the source of its statement -- that, without an amendment permitting it to add buildings, structures, and other improvements on the land as omitted property, the 1907 Oregon statute did not give the Commission that authority -- the North Dakota decision provides one possible source.(14)
In 1971, the Oregon legislature amended the omitted property statute again. The legislature provided that, if a taxpayer failed to report "the addition of any building, structure, improvement, machinery or equipment" in an annual report filed with the assessor, the property "shall be presumed to be omitted property subject to additional assessment as provided in [ORS 311.216]." Or Laws 1971, ch 574, § 3. The Department of Revenue explained its reason for requesting the proposed amendment:
"If an entire building is omitted from the list of additions, it is classified as omitted property when discovered and is subject to assessment and taxation for the entire period since the addition or [for up to five] years.
"Under existing statutes, however, if an addition to an existing building is omitted, then the addition cannot be classified as omitted property and is subject to taxation [in future tax years] only [after it is] discovered by the assessor. This bill would permit additions to buildings to be classified as omitted property and subject to the same penalties that exist for complete buildings."
Exhibits, House Revenue Committee, SB 149 (1971); see also Minutes, House Revenue Committee, May 7, 1971 (noting testimony before the committee to the same effect).
In 1977, the legislature added a second ground for presuming that "any building, structure, improvement, machinery or equipment" constituted omitted property. Or Laws 1977, ch 584, § 1. The legislature provided that, if the cost of that property as of January 1 exceeded the cost stated on the taxpayer's return filed with the assessor, the "excess cost adjusted to reflect its contribution to true cash value" shall be presumed to be omitted property. Id. After the 1971 amendment, an addition to a building, structure, or improvement was presumed to be omitted property if the taxpayer had failed to report it. The 1977 amendment expanded the presumption to apply when the taxpayer's return disclosed the addition of that property but underreported its cost.
A representative from the Department of Revenue explained that the amendment "was addressed to the underreporting of the costs of items of machinery that are added to industrial properties." Minutes, House Revenue and School Finance Committee, SB 119, June 27, 1977, 2 (testimony of Ted De Looze). He testified:
"[U]nder the current practice, between physical appraisals [which were then conducted every six years], the county assessor recei[v]es a real property report from -- in which the taxpayer reports additions and deletions from his plant. Often substantial amounts of value are lost when the taxpayer underreports the addition to the plant, as in cases where the cost of a piece of equipment is recorded but the true value, including the cost of installation, is not reported."
Id. The amendment provided a way to capture underreported value that otherwise would have gone untaxed until the next physical appraisal.
Those amendments expanded the concept of omitted property but did so in different ways. The 1951 and 1971 amendments created limited exceptions to the general rule that a component of property that is an integral part of property already listed on the assessment roll does not qualify as omitted property within the meaning of ORS 311.216. In creating limited exceptions to that general rule, both amendments accept and build on the same understanding of omitted property that we draw from the text and context of the 1907 omitted property statute. Cf. Mastriano v. Board of Parole, 342 Or 684, 693-95, 159 P3d 1151 (2007) (explaining that subsequent legislative amendments were consistent with and did not change earlier understanding of statute). The 1977 amendment took a different tack. It permits, in certain circumstances, assessors to include as omitted property the difference between the reported and the actual cost of certain property.
With that understanding of ORS 311.216 in mind, we turn to the specific property that the assessor sought to add to the assessment roll in this case. As noted, the assessor sought to add the value of site developments -- grading, roads, sidewalks, storm drains, and the like -- to the value of the land listed on the assessment roll. By statute, land includes site developments, ORS 307.010(1)(a), and we infer from that statutory directive that the site developments are an integral part of the land. See OAR 150-307.010(2)(a)(A) (so stating). Indeed, it would be difficult to separate site developments, such as grading, roads, and storm drains, from the land of which they are a part.(15)
It follows that the site developments come within the general rule that we draw from the 1907 statute -- that an integral part of property, which is listed on the assessment roll, does not qualify as omitted property. Moreover, the site developments do not come within any of the three exceptions to that rule, which the legislature enacted in 1951, 1971, and 1977. Indeed, the assessor does not argue that they do. It follows that the statutory premise of the assessor's argument fails; that is, the statutory phrase "in part" does not permit the assessor to add the value of an integral part of property (the site developments) to property (the land) already listed on the assessment roll. Given that conclusion, we have no occasion to consider whether the Department's rule is consistent, in all respects, with the governing statutes. It is sufficient to say that the property that the assessor sought to add as omitted property was an integral part of the land listed on the assessment roll that does not come within the definition of omitted property set out in ORS 311.216.
The judgment of the Tax Court is affirmed.
APPENDIX
ORS 311.216 (2005) provides:
"(1) Whenever the assessor discovers or receives credible information, or if the assessor has reason to believe that any real or personal property, including property subject to assessment by the Department of Revenue, or any buildings, structures, improvements or timber on land previously assessed without the same, has from any cause been omitted, in whole or in part, from assessment and taxation on the current assessment and tax rolls or on any such rolls for any year or years not exceeding five years prior to the last certified roll, the assessor shall give notice as provided in ORS 311.219.
"(2) Property or the excess cost of property, after adjustment to reflect real market value, shall be presumed to be omitted property subject to additional assessment as provided in ORS 311.216 to 311.232 whenever the assessor discovers or receives credible information:
"(a) That the addition of any building, structure, improvement, machinery or equipment was not reported in a return filed under ORS 308.285 or 308.290; or
"(b) That the cost as of January 1 of any building, structure, improvement, machinery or equipment reported in a return required by the assessor under ORS 308.285 or 308.290 exceeds the cost stated in the return.
"(3) If the tax collector discovers or receives credible information or if the tax collector has reason to believe that any property subject to taxation has been omitted from the tax roll, the tax collector shall immediately bring this to the attention of the assessor by written notice."
1. All references to the Oregon Revised Statutes are to the 2005 edition, unless otherwise noted.
2. The assessment roll refers to the list of taxable property that the tax assessor prepares; the tax roll refers to the assessment roll after the county has levied taxes on the listed property and put those taxes on the roll. See ORS 308.210(1) (describing assessment roll); ORS 311.112 (describing tax roll). For ease of reference, we generally refer only to the assessment roll.
3. The parties assume that all the site developments that the taxpayer made to the land constitute "site development[s]" within the meaning of ORS 307.010(1)(a).
4. All property subject to taxation is valued at 100 percent of its real market value unless otherwise provided by law. ORS 308.232. Each year, county assessors are required to conduct "ratio studies" to establish land value growth trends for specific types of property. See ORS 309.200 and ORS 309.203 (describing ratio study requirements). In years when certain taxable property is not physically appraised, the ratio is applied to equalize the property's real market value with comparable property. See ORS 308.233 and ORS 309.203. This process is called "trending." ORS 308.233(2).
5. In West Foods, the assessor had appraised the value of mushroom growing rooms but had not included in that appraisal growing beds contained inside the growing rooms. 10 OTR at 10-11. When the assessor later sought to add the growing beds as omitted property, the Tax Court reasoned:
"[T]he growing rooms were included in the 1973 appraisal. The growing beds were an integral part of the growing rooms and were part of the real property. The growing rooms were valued and placed upon the assessment and tax rolls. The failure of the appraiser to include the beds in the growing rooms resulted in an undervaluation of the growing rooms and not an omission of any 'buildings, structures or improvements' under the statute."
Id. at 11. OAR 150-311.216(2)(b) incorporates, in substantial part, that reasoning.
6. The question in this case is whether the assessor may correct the assessment rolls for two prior tax years. The statutes discussed above bear on that issue; they do not prevent an assessor from assessing the property at its true market value for future tax years, although Article XI, section 11, of the Oregon Constitution (Measure 50) may limit a county's ability to tax the property at its true market value in those future years. See Flavorland Foods v. Washington County Assessor, 334 Or 562, 565, 54 P3d 582 (2002) (generally discussing Measure 50).
7. The text of ORS 311.216 is set out in an appendix to this opinion.
8. In that connection, we note that the Department of Revenue rule on which the Tax Court relied is interpretative, not substantive. See OAR 150-311.216 (listing the statutory authorization for that rule as ORS 305.100); Avis Rent A Car System, Inc. v. Dept. of Rev., 330 Or 35, 41, 995 P2d 1163 (2000) (ORS 305.100 gives the department authority to adopt interpretative, not substantive rules). It follows that the question before us is whether the department's rule is consistent with the statute -- a question that requires us to interpret the statute independently. See Avis, 330 Or at 41 (stating that proposition).
9. As enacted in 1907, the statute provided that, after giving the taxpayer notice:
"Whenever, after the return of the assessment roll to the county clerk by the board of equalization, the officer having the possession of the roll shall discover or receive credible information, or if he has reason to believe that any real or personal property has, from any cause, been omitted, in whole or in part, in the assessment of any year [for the last five years] from the assessment roll or the tax roll, he shall proceed to correct the assessment or tax roll in his hands, and add such property thereto * * *."
Or Laws 1907, ch 267, § 24.
10. Many states have omitted property statutes. Two states -- Indiana and North Dakota -- have omitted property statutes that are virtually identical to the 1907 Oregon statute. Because North Dakota did not enact its omitted property statute until 1925, Marshall Wells Co. v. Foster County, 231 NW 542, 544 (ND 1930), it necessarily follows that Indiana rather than North Dakota was the source of Oregon's statute.
11. The taxpayer acknowledged that the Multnomah County assessor properly included $50,000 in money, notes, and accounts on the assessment roll but contended that the board erred by adding as omitted property $68,120 in notes that, in its view, were subject to taxation in other counties. Oregon & Washington Mortgage Sav. Bk., 16 Or at 114. The court did not resolve that dispute but concluded that the taxpayer had sought the wrong remedy. Id. at 117-18. The taxpayer should have sought a writ of review from the board's decision rather than seeking to enjoin the tax collector from levying on the taxpayer's property. Id.
12. Indiana, like Oregon, did not require an itemized statement of notes, credits, and accounts. Woll, 27 NE at 580. Rather, the assessor made a single entry on the assessment roll for all that personal property. Id. Accordingly, in determining whether property had been omitted, the auditor sometimes inferred from the difference between the aggregate value of the notes listed on the assessment roll and the aggregate value of the notes listed on the inventory for the estate that some notes had been omitted from the assessment roll. See id. (illustrating issue).
13. As amended in 1951, the statute provided:
"Whenever, after the return of the assessment rolls to the county assessor by the board of equalization, the officer having the possession of the roll shall discover or receive credible information, or if he has reason to believe that any real or personal property, or any buildings, structures, improvements or timber on land previously assessed without the same, has from any cause, been omitted, in whole or in part, in the assessment [for the previous five years] from the assessment or the tax roll * * * he shall proceed to correct the assessment or tax roll in his hands * * *."
Or Laws 1951, ch 577, § 1 (new material italicized). That same year, the legislature also directed the assessor to list on the assessment roll the value of the land separately from the value of any buildings, structures, or improvements on the land. Or Laws 1951, ch 542, § 1.
14. Although many states permitted the addition of omitted property and most have a restrictive rule comparable to the one announced by the Tax Court, Oregon, North Dakota, and Indiana had statutes that authorized the addition of "property * * * omitted, in whole or in part * * *." The decisions from those states thus provide a more reliable source for understanding what Oregon's statute permitted before 1951.
15. As noted above, the assessor has not argued that the improvements to the land that the taxpayer made are not site developments within the meaning of ORS 307.010(1)(a). Similarly, the assessor has not argued that the site developments are not an integral part of the land. Rather, in the assessor's view, the fact that site developments may be an integral part of the land is no impediment to his ability to add the value of those site developments to the value of the land listed on the assessment roll. | f572ca5c0c15403eed0b82b21900abff6b169ceeb11ae3cb7eb39f42f7fbefc6 | 2010-12-09T00:00:00Z |
4d29f62e-e570-4854-8b22-5fa0c594ff86 | State v. Portis | null | S058179 | oregon | Oregon Supreme Court | FILED: July 29, 2010
IN THE SUPREME COURT OF THE STATE OF OREGON
STATE OF OREGON,
Respondent on Review,
v.
AISHISH MONIQUE PORTIS,
Petitioner on Review.
(CC
0802300706; CA A143558; SC S058179)
En Banc
On review from the
Court of Appeals.*
Argued and submitted
June 30, 2010.
Jedediah Peterson,
Office of Public Defense Services, Salem, argued the cause for petitioner on
review. With him on the briefs were Peter Gartlan, Chief Defender, and Eric
Johansen, Senior Deputy Public Defender.
Leigh A. Salmon,
Assistant Attorney General, Salem, argued the cause for respondent on review.
With her on the brief were John R. Kroger, Attorney General, and Jerome Lidz,
Solicitor General.
DE MUNIZ, C. J.
The petition for
review is dismissed as moot.
*Appeal from Multnomah
County Circuit Court, Eric J. Bloch,
Judge. 233 Or App 256, 225
P3d 841 (2010).
DE MUNIZ, C. J.
Defendant seeks review of a Court of
Appeals decision concluding that that court lacked jurisdiction over
defendant's appeal of a circuit court judgment. The circuit court had determined
that defendant was not entitled to be considered by the Department of
Corrections (DOC) for increased earned time credit under Oregon Laws 2009, ch
660, §§ 17, 18. State v. Portis, 233 Or App 256, 225 P3d 841 (2010).
We allowed defendant's petition for review and, for the reasons stated below, now
conclude that defendant's claim on review is moot and that we must dismiss her
petition for review.
In 2008, a grand jury indicted defendant
on 62 counts of identity theft. ORS 165.800. In March 2008, pursuant to a
plea agreement, defendant pleaded guilty to five counts of identity theft, and
the trial court dismissed the other counts. On three of the five counts to
which defendant pleaded guilty, the judgment of conviction sentenced defendant to
consecutive terms of 13 months each, for a total of 39 months of incarceration.(1)
The sentences on the remaining two counts were made concurrent. The judgment
also provided that defendant could be considered for any form of reduction in
her sentence for which she was "otherwise eligible at the time of
sentencing."
When defendant committed her crimes,
ORS 421.121(2) (2007) provided that the maximum amount of reduction in a term
of incarceration that could be earned for appropriate institutional behavior (so
called "earned time credit") could not exceed 20 percent of the total
term of incarceration. In 2009, the legislature amended ORS 421.121 to potentially
increase the maximum to 30 percent for inmates not convicted of certain violent
felonies. Or Laws 2009, ch 660, §§ 17, 18 (House Bill (HB) 3508).(2)
Section 18 of the amendment set out the procedure for determining whether an
inmate would be considered for the additional ten percent earned time credit.
In accordance with section 18, the DOC was required to provide notice of the
inmate's potential eligibility for the additional earned time credit to the
inmate and to the victim of the crime, as well as the district attorney, the presiding
judge, and the trial court administrator for the county in which the inmate had
been convicted. On timely objection by the victim or the district attorney,
the court was required to hold a hearing to decide whether to authorize the DOC
to consider the inmate for "a reduction in the term of incarceration under
ORS 421.121 that exceeds 20 percent of the total term of incarceration[.]"
Defendant's crimes were not among
those statutorily excluded from eligibility for the additional earned time
credit. However, upon learning that defendant could claim eligibility for
increased earned time credit under the 2009 legislation, the Multnomah County District
Attorney filed an objection opposing defendant's eligibility for the increased
earned time credit. Following a hearing on the record and in open court, the
trial court found that, given the nature of defendant's crimes, the large
number of victims involved, and the number of counts dismissed as part of her
plea agreement, there was a substantial reason to deny defendant eligibility to
earn the additional ten percent earned time credit available under the 2009
legislation. The trial court thereafter entered a supplemental judgment
providing that defendant "may not be considered" for the additional
earned time credit.
Defendant appealed from the
supplemental judgment and moved for an expedited appeal. The Appellate
Commissioner for the Court of Appeals sua sponte issued an order
requiring defendant to show cause why her appeal should not be dismissed for
lack of jurisdiction.(3)
See State v. Hart, 188 Or App 650, 653, 72 P3d 671 (2003) (only
post-judgment orders that impose a sentence, suspend imposition or execution of
a sentence, or affect probation can be appealed under ORS 138.053(1)).
Defendant and the state each filed responses to the order to show cause. The
Court of Appeals then dismissed the case, concluding that "[t]here is no
right of appeal when the trial court denies eligibility for additional
earned time credit[] to an inmate, because the ruling does not alter the
original judgment." Portis, 233 Or App at 260 (emphasis in
original). Reasoning that "HB 3508, section 18, provides for entry of a
supplemental judgment only when the trial court determines that it is
appropriate to allow the Department of Corrections to consider the
inmate for a sentence reduction," the court held that HB 3508 does not
provide for entry of a supplemental judgment when a trial court determines that
an inmate is ineligible for the additional earned time credit. Id.
(emphases in original). The Court of Appeals therefore remanded the case to
the trial court with instructions to vacate the supplemental judgment and to
reenter its decision as a nonappealable order. Id. at 261. As noted,
we allowed defendant's petition for review.
On review, defendant challenges that
disposition, asserting that an appeal may be taken from a judgment or a
post-judgment order if the order or judgment includes the "[i]mposition of
a sentence." ORS 138.053(1). She argues that the supplemental judgment
rendered by the circuit court in this case "added a term" to her
sentence that was not there before. According to defendant, the circuit
court's conclusion that the DOC may not consider her for the additional earned
time credit, and therefore a sentence reduction, added a new term to her
original sentence. We do not reach that question, however, because, as we
shall explain, defendant's case has become moot. See Yancy v. Shatzer,
337 Or 345, 349, 97 P3d 1161 (2004) (when it becomes clear in the course of a
judicial proceeding that resolving the merits of a claim will have no practical
effect on the rights of the parties, this court will dismiss the claim as
moot.)
During the 2010 special legislative
session, the legislature amended HB 3508 and ORS 421.121 to reduce the
potential maximum earned time credit from 30 percent to 20 percent of an
inmate's total term of incarceration. Or Laws 2010, ch 2, § 5(5) (Senate Bill
(SB) 1007).(4)
The legislature provided, however, that inmates who had already been granted
eligibility for the additional earned time credit would retain them. More specifically,
SB 1007 provides, in part:
"Section 18 [of HB 3508] is amended to
read:
"Sec. 18. (1)(a) Notwithstanding section
49(6), [of HB 3508], and except as provided in paragraph (b) of this
subsection, the amendments to ORS 421.121 by section 17 [of HB 3508] apply to
inmates who were sentenced before July 1, 2009, and are not prohibited by any
other provision of law from obtaining a reduction in the term of incarceration
under ORS 421.121 if, before the effective date of this 2010 Act:
"(A) The court has entered the supplemental
judgment described in subsection (5)(b)[(5)] of this section; or
"(B) The court has, pursuant to subsection
(7)(b) of this section, ordered on the record in open court that the Department
of Corrections may consider the inmate for a reduction in the term of
incarceration under ORS 421.121 that may not exceed 30 percent of the total
term of incarceration in a department institution."
Or Laws 2010, ch 2, § 7. Thus, SB 1007 divides into two
groups those inmates initially identified under HB 3508 as potentially eligible
for the additional earned time credit. One group -- those inmates, who before
the effective date of SB 1007, were determined by a court to be eligible for
additional earned time credit -- retains the benefit of HB 3508. However, a
second group -- those inmates who had not obtained the necessary court approval
before the effective date of SB 1007 -- lost their eligibility for additional
earned time credit under HB 3508. Defendant is in that second group of inmates,
viz., the inmates who no longer are eligible for additional earned time
credit under HB 3508. Before February 17, 2010, the trial court did not
enter a supplemental judgment under subsection (5)(b) determining defendant to
be eligible for additional earned time credit (section 18(a)); and the trial
court did not order on the record in open court that the DOC may consider
defendant for a reduction in her term of incarceration (section 18(b)). Thus, any
decision by this court would have no practical effect on her rights under that law.
For that reason, the petition for review must be dismissed as moot.
The petition for review is dismissed
as moot.
1. Although
defendant is no longer incarcerated, she remains under post-prison
supervision. If we were to agree with defendant's argument that the Court of
Appeals otherwise had jurisdiction over her appeal, and were she to prevail on
the merits of her appeal and be eligible for increased earned time credit, her
term of post-prison supervision would be reduced. Consequently, defendant's
case is not moot based on the fact that she is no longer incarcerated.
2. Or
Laws 2009, ch 660, § 17(2)(a), provided (deleted text in brackets and italics;
new text in boldface type):
"The maximum amount of time credits earned
for appropriate institutional behavior or for participation in the adult basic
skills development program described in ORS 421.084 may not exceed [20] 30
percent of the total term of incarceration in a Department of Corrections
institution."
3. ORS
19.235(3) provides, in part:
"When * * * the appellate court on its own
motion raises the issue whether the decision is appealable, the appellate court
may make a summary determination of the appealability of the decision."
4. Section
5(5) did so by advancing the operative date of Or Laws 2009, ch 660, § 19, from
July 1, 2013, to the effective date of SB 1007, or February 17, 2010. Section
19 provides, in part (deleted text in brackets and italics; new text in
boldface type):
"The maximum amount of time credits earned
for appropriate institutional behavior or for participation in the adult basic
skills development program described in ORS 421.084 may not exceed [30] 20
percent of the total term of incarceration in a Department of Corrections
institution."
5. Subsection
5(b) provides:
"If a notice of objection is not filed with
the court within the time period described in subsection (4) of this section
and the sentencing court determines that it is appropriate to authorize the
department to consider an inmate for a reduction in the term of incarceration
under ORS 421.121 that may not exceed 30 percent of the total term of
incarceration in a department institution, the court shall enter a supplemental
judgment using the form of judgment submitted by the department under subsection
(14)(a) of this section." | f93351da892d11bc0580d41141fde8ddeb27a7f0810c7504db0ad885dbda3651 | 2010-07-29T00:00:00Z |
63130ce8-f315-47fb-8316-cbea83be546a | State v. Sierra | null | null | oregon | Oregon Supreme Court | FILED: December 30, 2010
IN THE SUPREME COURT OF THE STATE OF OREGON
STATE OF OREGON,
Respondent on Review,
v.
JOAQUIN SIERRA,
Petitioner on Review.
(TC 05C40355; CA
A136120; SC S057794)
En Banc
On review from the Court of Appeals.*
Argued and submitted November 8, 2010.
David Ferry, Deputy Public Defender, Salem,
argued the cause and filed the brief for petitioner on review. With him on the
brief was Peter Gartlan, Chief Defender.
Michael A. Casper, Assistant Attorney General,
Salem, argued the cause and filed the brief for respondent on review. With him
on the brief were John R. Kroger, Attorney General, and Mary H. Williams,
Solicitor General.
DURHAM, J.
The decision of the Court of Appeals is affirmed
in part and reversed in part. The judgment of the circuit court is reversed,
and the case is remanded to the circuit court for further proceedings.
*Appeal from Marion County Circuit Court, Terry
Ann Leggert, Judge. 228 Or App 149, 206 P3d 1153 (2009).
DURHAM, J.
This is a criminal
case in which defendant challenges the sufficiency of the evidence to support
his two convictions for the offense of kidnapping in the second degree, ORS 163.225,
and his single conviction for the offense of kidnapping in the first degree,
ORS 163.235.(1)
The Court of Appeals affirmed defendant's convictions. State v. Sierra,
228 Or App 149, 206 P3d 1153 (2009). We allowed defendant's petition for
review and now affirm his conviction for first-degree kidnapping but reverse
his two convictions for second-degree kidnapping.
Because defendant
challenges the trial court's denial of his motion for judgment of acquittal, we
state the facts underlying defendant's conviction in the light most favorable
to the state. See State v. Cervantes, 319 Or 121, 125, 873 P2d
316 (1994) (stating that rule).(2)
On the evening of January 14, 2005, defendant stopped at a truck stop to rest.
The truck stop included a fast-food restaurant and an adjoining convenience
store. The convenience store had front and rear entrances. A "diesel
desk" with a cash register (for transactions involving diesel fuel) was
located at the rear of the store, and behind the diesel desk was a door to the
manager's office. Ordinarily, a cashier would stand behind the diesel desk to
accept payments from customers; in doing so, the cashier would face the store's
front entrance. The dimensions of the area behind the diesel desk were seven and
one-half feet by eight feet. In order to access that area from the store's
rear entrance, a person ordinarily would walk around the front of the diesel
desk and up a short ramp to a raised platform behind the diesel desk.
Derrick, an employee
at the convenience store, received a complaint from a customer that a man had
an open container of alcohol in the men's restroom and had been making
inappropriate sexual comments. Derrick reported the complaint to the shift
manager, who directed Derrick to take care of the problem. Derrick entered the
men's restroom and saw defendant, who was rinsing his face, as well as an open
bottle of beer nearby. Derrick informed defendant that alcohol was not allowed
in the restroom, described the complaint that he had received, and told
defendant that he should leave. Defendant became angry and confrontational,
but Derrick was able to back him out of the restroom without a physical
altercation. At that point, defendant left the store area through the rear
entrance. Derrick, the shift manager, and another employee remained outside
the rear entrance.
Defendant returned
to his truck, where he thought about the confrontation. After a few minutes,
he decided to return to the store in order to scare Derrick and secure an
apology. He grabbed a loaded crossbow and extra bolts (i.e., ammunition
for the crossbow) from his truck, and walked back to the store. When the shift
manager and the other employee saw defendant approach with the crossbow, they
ran into the store and locked themselves inside the manager's office. Derrick
remained outside. Defendant grabbed Derrick's arm, pointed the crossbow at
Derrick's head, and took him inside the convenience store.
Defendant directed
Derrick through the rear entrance, around the front of the diesel desk, up the
ramp, and made Derrick kneel in the middle of the area behind the diesel desk.
Defendant stood in that area, a little to the front of Derrick, in a position
that would permit him to monitor the front and rear entrances. Defendant yelled
insults at Derrick. He told Derrick that the accusations -- i.e.,
Derrick's relation of the customer's complaint -- had hurt him. He threatened
to hurt Derrick and his children, and asked Derrick how he would feel if
defendant hurt Derrick's daughter in the same way that Derrick had hurt him.
At some point, he kicked Derrick in the face, causing a bloody nose.
Jeter and Mintun,
two off-duty employees of a youth correctional facility, had stopped at the
truck stop to eat at the adjoining restaurant. They heard a commotion and went
into the convenience store to see if they could assist. Jeter testified that
he had encountered defendant in the men's restroom earlier in the evening and
that defendant had been "pretty good" with him, but that, when Jeter
entered the convenience store, defendant was "upset" and "out of
control." Mintun attempted to divert defendant's attention so that Jeter
would be able to restrain him. Defendant yelled at Jeter and Mintun to leave.
When they refused, defendant pointed the crossbow at them. He directed them to
come around the front of the diesel desk and up the ramp to the area behind the
diesel desk, and then ordered them to kneel next to Derrick. He then paced
back and forth while yelling and pointing his crossbow at all three
individuals.
Three sheriff's
deputies and an Oregon State Police sergeant arrived at the scene. After some
of the officers peeked through the store's windows and saw defendant behind the
diesel desk pointing the crossbow at the victims, the officers decided to enter
the store to end the situation. When the officers entered, announced their
presence, and ordered defendant to drop his weapon, defendant turned towards
them and pointed the crossbow in their direction. One of the officers shot
defendant.
An 11-count
indictment charged defendant with seven counts of unlawful use of a weapon, one
count of fourth-degree assault (of Derrick), one count of first-degree
kidnapping (of Derrick), and two counts of second-degree kidnapping (of Jeter and
Mintun). Each of the kidnapping counts alleged that defendant "did
unlawfully and knowingly, without consent or legal authority, take [the victim]
from one place to another, with intent to interfere substantially with the
[victim's] personal liberty." The first-degree kidnapping charge, which
pertained to Derrick, alleged, in addition, that defendant acted "with the
purpose of terrorizing * * * Derrick."
The case proceeded
to a jury trial. At the close of the state's case, defendant moved for a judgment
of acquittal on the kidnapping charges. As to the first-degree kidnapping
charge, defendant argued that the evidence was insufficient to show that he had
acted with the purpose of "terrorizing" Derrick. As to the
second-degree kidnapping charges, defendant argued that the state had not
introduced sufficient evidence to prove that he had moved Jeter and Mintun
"from one place to another" or that he had intended to
"interfere substantially with [their] liberty." The trial court denied
the motions for judgment of acquittal, and the jury convicted defendant of all
three kidnapping charges.(3)
On defendant's appeal, the Court of Appeals affirmed in a written opinion. State
v. Sierra, 228 Or App 149, 206 P3d 1153 (2009). Defendant then petitioned
for review, challenging the sufficiency of the evidence as to each of his three
kidnapping convictions.
We begin by
addressing the parties' arguments concerning defendant's second-degree
kidnapping convictions for his actions taken against Jeter and Mintun. ORS
163.225(1), which defines the offense of kidnapping in the second degree,
provides:
"(1) A person commits the crime of
kidnapping in the second degree if, with intent to interfere substantially with
another's personal liberty, and without consent or legal authority, the person:
"(a) Takes the person from one place to
another; or
"(b) Secretly confines the person in a
place where the person is not likely to be found."
ORS 163.225(1)(a) and (b) thus provide
alternative ways for the state to prove the act element of kidnapping. As
noted above, in this case, by alleging in the indictment that defendant did
"take [the victims] from one place to another," the state elected to
proceed on the asportation theory under ORS 163.225(1)(a). Thus, to establish
kidnapping here, the state had to prove that defendant (1) "without
consent or legal authority," (2) took the victims "from one place to
another," (3) "with intent to interfere substantially" with the
victims' "personal liberty." On review, defendant renews his
argument that the state presented insufficient evidence as to the latter two
elements. We first consider whether, viewed in the light most favorable to the
state, the evidence was sufficient to prove the act element of kidnapping,
namely, that defendant took Jeter and Mintun "from one place to
another."
The state and
defendant offer competing understandings as to the meaning of the act element
of kidnapping by asportation. Defendant proposes that that element is
satisfied when a defendant takes the victim either a substantial
distance or to a qualitatively different place. Defendant submits that, as a
general rule, movement within a single structure (such as a home, building, or
car), including room-to-room movement, will not be movement to a qualitatively
different place in terms of interference with a victim's liberty. The state
appears to share defendant's view that the beginning place and ending place
must be qualitatively different, but argues that place-to-place movement
requires only proof that "the defendant moved the victim to a place that
served to limit the victim's freedom of movement and increased the victim's
isolation." The parties both acknowledge, as they must, that, in order to
prove that defendant took a victim "from one place to another," the
state is not required to prove that defendant took the victim a substantial
distance. See State v. Walch, 346 Or 463, 473, 213 P3d 1201
(2009) (holding that legislature did not intend to incorporate a
"substantial distance" requirement into ORS 163.225(1)(a) when it
used the phrase "from one place to another").
Our inquiry does not
begin with a clean slate. This court has considered the meaning of the phrase
"from one place to another" twice before, in State v. Murray,
340 Or 599, 136 P3d 10 (2006) and State v. Walch, 346 Or 463, 213 P3d
1201 (2009). Those decisions provide guidance here. In Murray, the
court explained that the meaning of the phrase "from one place to
another" reduces to an inquiry into the meaning of the word
"place:"
"The question of what is included in the
concept of 'taking' a person 'from one place to another' is, at bottom, an
exercise in metaphysics. The words 'from' and 'to' create no problem here,
because they clearly describe the idea of movement, i.e., of a change of
position. And 'another' simply replicates 'place' -- i.e., the
statutory phrase fairly may be paraphrased as a matter of standard English to
require that a person be moved 'from place to place.' Thus, in the final
analysis, this case comes down to the question of how one is to define the term
'place' for the purposes of ORS 163.225(1)(a)."
340 Or at 603.
Admittedly,
pinpointing the legislature's intended meaning of the word "place"
with precision has proved somewhat vexing. The criminal code does not define
the term, and the dictionary definition provides little assistance. Id. at
603-04 (explaining that the most relevant dictionary definition of
"place" -- "an indefinite region or expanse" -- does little
to clarify the meaning of the term as used in the kidnapping statutes); see
also Walch, 346 Or at 470-73 (considering legislative history). However,
in Murray, 340 Or at 606, the court explained that, as used in the
kidnapping statutes, "the 'place' in which something or someone may be
found and from which that something or someone may be taken is situational and
contextual. It is, among other things, a function of the object to be moved,
as well as a function of the area in which the movement occurs." In Walch,
the court further clarified the significance of the legislature's choice to use
the word "place" within the phrase "from one place to
another:"
"[T]he legislature intended the asportation element to
aid in narrowing the definition of kidnapping * * *. ORS 163.225(1)(a)
requires that the defendant move the victim 'from one place to another' -- not,
for instance, that the defendant simply 'move' the victim or move the victim
'any distance.' The legislature intended the word 'place' to have some
meaning; that is, a kidnapping does not occur by moving the victim any distance
with intent to interfere substantially with his or her personal liberty.
Rather, the movement must be such that it can be said that the victim was moved
from 'one place' to 'another [place].'"
Walch, 346 Or
at 473-74. Thus, under Murray and Walch, a defendant can be said
to have moved the victim from "one place" to "another" only
when the defendant changes the position of the victim such that, as a matter of
situation and context, the victim's ending place is qualitatively different
from the victim's starting place.
Moreover, Murray and
Walch identify an additional requirement contained within the act
element: the taking must not be "only 'incidental'" to another
crime. Murray, 340 Or at 606 ("incidental" asportation is
"not the kind of conduct that the legislature intended to permit to serve
as the basis for a separate kidnapping charge"); Walch, 346 Or at
478 ("kidnapping requires a 'tak[ing]' of the victim 'from one place to
another' that is not '"only incidental"' to another crime.").
This court's previous decisions have recognized that the legislature sought to
prevent prosecutors from charging kidnapping when a defendant's movement of a
victim was only incidental to another crime. See State v. Mejia,
348 Or 1, 7-8, 227 P3d 1139 (2010) (to that effect); Walch, 346 Or at
473 (same). The primary means by which the legislature accomplished that goal
was through the narrowly crafted intent element that requires the state to
prove that the defendant intended to interfere substantially with the victim's
liberty. Id. However, the legislature also crafted the
asportation act element of ORS 163.225(1)(a) with that same overarching goal in
mind. See Walch, 346 Or at 473 ("[T]he wording of the [kidnapping]
statute indicates that the legislature intended the asportation element to aid
in narrowing the definition of kidnapping[.]").
The rules outlined
above explain the divergent outcomes in Murray and Walch. In Murray,
the victim was in the driver's seat of her car when the defendant approached,
instructed her to "[g]et over" and forcibly pushed her from the
driver's seat to the passenger's seat. 340 Or at 601. From there, the victim
escaped by exiting through the passenger side door; defendant then drove the
car away. Id. at 602. The court held that defendant's movement of the
victim was insufficient to satisfy the act element of kidnapping by asportation
because, even assuming that the movement of the victim from driver's seat to
passenger's seat was place-to-place movement, that movement was incidental to
defendant's substantive crime:
"[E]ven if one were to find some sort of asportation in
the events in question, it was only 'incidental' * * * to defendant's theft of
the car and, therefore, not the kind of conduct that the legislature intended
to permit to serve as the basis for a separate kidnapping charge."
Id. at 606; see
also Walch, 346 Or at 479 (explaining that, in Murray, "[t]he
defendant's physical contact with the victim was 'only incidental' to the other
crimes that he committed").
In contrast, Walch
involved nonincidental movement "from one place to another." The
defendant in Walch attacked the victim when she was standing in her
driveway, walking back toward an adjacent house. 346 Or at 466. He began to
strangle her and told her that he wanted her money. Id. After the
victim told defendant that her money was in the house, defendant continued to
drag the victim toward a car, picked her up, and shoved her into the trunk of the
car. After the victim resisted, defendant eventually let her return to the
house. Id. On those facts, the court held that the defendant had taken
the victim "from one place to another:"
"Defendant * * * picked the victim up and shoved her
into a car, a location (and an object) intended to quickly move people a
distance of some miles. * * * Because the context is such that defendant moved
the victim from one place (the open driveway) to a qualitatively different,
more mobile and isolated place (the trunk of a car), we conclude that the
asportation element of the kidnapping statute has been satisfied."
Id. at 476.(4) The court then
concluded that defendant's movement of the victim was not incidental to the
other crimes: After assaulting and robbing the victim, defendant "also
moved the victim about 15 feet to the car, lifted her off the ground,
placed her in the trunk, and tried to shut the trunk lid." Id. at
479 (emphasis in original). In our view, Murray and Walch are
consistent: The former involved only incidental movement of the victim, while
the latter involved non-incidental movement of the victim between two
qualitatively different places.(5)
We pause before
turning to the facts of this case in order to dispel any misconceptions that
may persist as to the meaning the phrase "from one place to another"
as it is used in the kidnapping statutes. First, because the wording selected
by the legislature requires movement from one place to a second, distinct
place, it generally is problematic to suggest or conclude that minimal movement
that effectuates little change in the victim's position -- such as, for
example, movement requiring one to step to the side, or move from a standing
position to a sitting or lying position -- is movement "from one place to
another." Second, because the asportation element is defined in terms of
relative movement, the degree of force or threat used by a defendant to effectuate
the victim's movement ordinarily is not relevant to a determination whether a
victim has been "taken from one place to another." Third, the degree
by which the movement in question increases defendant's control over the
victim, or isolates the victim from the view of others, is relevant to the
determination whether a defendant has moved a victim "from one place to
another" only to the extent that those considerations tend to demonstrate
the qualitative difference between where the victim started ("from one
place") and where the victim was as a result of the defendant's conduct
("another [place]"). See Walch, 346 Or at 482 (When
defendant forced victim from a driveway outside her home into a car trunk,
existence of car trunk is relevant "not because it is a 'secret' place * *
* but because it was "'another' 'place' to which defendant took the
victim[.]").(6)
However, because neither isolation nor control of the victim is required by the
wording of ORS 163.225(1)(a), those considerations cannot be substituted for
the ultimate inquiry whether the victim was moved from one place to another.
With the above
framework in mind, we turn to defendant's conduct towards Jeter and Mintun.
Jeter and Mintun entered the store of their free will in an attempt to distract
or disarm defendant. Defendant's encounter with the pair did not commence
until they were already inside the convenience store. Viewing the evidence in
the light most favorable to the state, the record indicates that defendant
compelled Minton and Jeter to move from some location near the front of the
convenience store to the diesel desk at the rear of the store, around the front
of the diesel desk counter, and up the ramp to the area behind the diesel desk,
a seven-and-one-half foot by eight foot bounded area behind a cashier's desk. He
then ordered them to kneel.
We decline to adopt
defendant's proposed rule that movement of a victim within a single structure
will never be place-to-place movement. However, the
"situation[]" and "context[]" of this case do not allow a
rational fact finder to conclude that defendant's movement of Jeter and Mintun
was from "one place to another." The beginning location (inside a
convenience store, near the front door) and the ending location (inside the
same room, behind a diesel counter near the back of the room) of defendant's
contact with Jeter and Mintun are not "qualitatively different"
locations, such that the movement was the sort of change in position from one
place to another contemplated by the drafters of the kidnapping statute.
Despite the existence of brief physical movements, Jeter and Mintun ended up in
the same room of the same building that they had entered. Defendant positioned
Jeter and Mintun across the room and behind a desk in a kneeling position. In
this context, however, those are changes of position and posture in the same
general place, not a movement of victims to a qualitatively different place.
The facts adduced
here also demonstrate that the movement of Jeter and Mintun was incidental to
-- that is, inherent in, or a chance or minor consequence of -- defendant's
independent crimes of unlawful use of a weapon(7)
or menacing(8)
against those victims. In light of Jeter and Mintun's refusal to leave,
defendant's movement of those two to the area behind the diesel desk was part
of defendant's positioning of his victims in a single location so that he could
point his crossbow at all three of them simultaneously. Like the defendant's
conduct in Murray, defendant's conduct in this instance was "not
the kind of conduct that the legislature intended to permit to serve as the
basis for a separate kidnapping charge."
The foregoing
discussion leads us to conclude that the state introduced insufficient evidence
to prove the two charges of kidnapping in the second degree.(8) As a result, the trial
court erred in denying defendant's motion for judgment of acquittal on those
charges. We reverse the trial court's judgment as to those two charges and
remand the case to the trial court so that that court can enter a judgment of
acquittal as to those charges.
Next, we turn to the
sufficiency of the evidence as to defendant's first-degree kidnapping
conviction for his actions involving Derrick. A defendant commits the offense
of kidnapping in the first degree if the state proves the elements required for
kidnapping in the second degree(9)
and also proves that the defendant acted with additional malevolent purpose
specified in ORS 163.235. In part, ORS 163.235 provides:
"(1) A person commits the crime of
kidnapping in the first degree if the person violates ORS 163.225 with any of
the following purposes:
"* * * * *
"(d) To terrorize the victim or another
person * * *[.]"
With respect to defendant's conviction for
kidnapping in the first degree, the only issue on review is whether the state
presented sufficient evidence for a rational trier of fact to conclude that
defendant kidnapped Derrick with the purpose of "terroriz[ing]" him.(10)
The legislature
enacted ORS 163.235 as part of the Oregon Criminal Code of 1971, which was a
comprehensive revision of Oregon's substantive criminal law. Criminal Law
Revision Commission Proposed Oregon Criminal Code, Final Draft and Report § 99 (July 1970). Although the word
"terrorize" is not defined by statute, the commentary accompanying
the Criminal Law Revision Commission's final draft indicates that the
legislature intended to adopt the word's plain meaning:
"'Terrorize' is defined by Webster's
as meaning 'to fill with terror; to coerce, maintain power, etc. by inducing
terror.' The dictionary defines terror as meaning 'intense fear * * * the
quality of causing dread; terribleness.' Webster's New World Dictionary (Coll
ed 1968). The verb form of the word seems particularly apt for use in a
kidnapping statute; and the American Law Institute indicates that the term was
employed in the Model Penal Code to cover 'vengeful or sadistic abductions
accompanied by threats of torture, death or other severely frightening
experience.' [Commentary, Tent. Draft no. 11 at 18 (1960)]. Section 99 adopts
this view and is concerned with the intent or purpose of the
actor and not with the subjective effect of his actions upon either the person
kidnapped or other persons."
Id. (ellipsis
and brackets in original).
Defendant does not
appear to dispute the applicable definition of "terrorize." Rather,
he disputes whether the foregoing definition applies to his conduct in this
case. He concedes that the evidence may support a conclusion that he kidnapped
Derrick with the purpose of frightening him, embarrassing him, or instilling
some fear in him, but he contends that the evidence is insufficient to support
the conclusion that he acted with the "different and greater" purpose
of terrorizing Derrick.
We disagree. In our
view, the state presented sufficient evidence for a rational juror to conclude
that defendant kidnapped Derrick with the purpose of terrorizing him, i.e.,
with the purpose of filling Derrick with intense fear or dread. Viewing the
evidence in the light most favorable to the state, the evidence establishes
that defendant returned to the store with the express purpose of using a
crossbow in order to coerce an apology from Derrick. Defendant maintained
power over Derrick by pointing a crossbow at his head at close range and
forcing him to kneel in a small, bounded area. Defendant yelled at Derrick,
called him names, threatened to harm Derrick and Derrick's daughter, and kicked
Derrick in the head. From that conduct, a rational juror could have inferred
that defendant's purpose in kidnapping Derrick was to take revenge upon Derrick
for Derrick's earlier comments and actions by causing Derrick to undergo a severely
frightening experience. Accordingly, we affirm defendant's conviction for
kidnapping in the first-degree.
To summarize, we reverse defendant's two convictions for kidnapping
in the second degree and affirm defendant's conviction for kidnapping in the
first degree.
The decision of the
Court of Appeals is affirmed in part and reversed in part. The judgment of the
circuit court is reversed, and the case is remanded to the circuit court for
further proceedings.
1. The
2003 version of ORS 163.225 and ORS 163.235 was in effect at the time that
defendant committed his offenses. Since 2003, the legislature has amended
other portions of ORS 163.225 and ORS 163.235. Those amendments are not relevant
to the disposition of this case.
2. Our
"record on review * * * consist[s] of the record before the Court of
Appeals." ORAP 9.20(5). In this case, that record does not contain the
exhibits submitted by the parties at trial.
3. The
jury also convicted defendant of assault in the fourth degree and five counts
of unlawful use of a weapon. The jury acquitted defendant of one unlawful use
of a weapon charge. The state had dismissed another one of the unlawful use of
a weapon charges prior to trial.
4. Although
the ultimate determination of whether a victim has been taken from "one
place to another" is situational and contextual, we note that one aspect
of a vehicle that distinguishes it from a number of other locations is its
mobile nature. See Walch, 346 Or at 476 (describing a car as "a
location (and an object) intended to quickly move people a distance of some
miles"). The mobile nature of a vehicle was an important aspect of our
holding in Walch that the movement there was from "one place to
another."
5. We
emphasize that our review of the facts in Murray, Walch, and
other related cases is not intended to announce specific factual criteria that
necessarily will dictate the result in other cases. Fact-matching can be a
misleading enterprise. Instead, we take our guidance from the legislature's
specified criteria, that is, whether a defendant has moved a victim "from
one place to another," considered in light of the situation and context in
which that issue arises.
6. As
we stated in Walch, 346 Or at 482 n 11, we again caution here that
"the asportation and confinement elements are not mutually
exclusive." Because, in this case, the state charged asportation and not
confinement, there is no need to consider whether the evidence in this case
would have supported a conviction under the confinement prong of ORS
163.225(1).
7. Pursuant
to ORS 166.220(1), which sets out the offense of unlawful use of a weapon, the
indictment charged that defendant "did unlawfully attempt to use
unlawfully against [Mintun and Jeter] a crossbow, a dangerous weapon."
The jury found defendant guilty of those charges.
8. ORS
163.190(1) provides:
"A person commits the crime of menacing if
by word or conduct the person intentionally attempts to place another person in
fear of imminent serious physical injury."
The state did not charge defendant with menacing in this
case.
9. On
review, the parties also dispute whether the state presented sufficient
evidence for a rational trier of fact to conclude that the state had proved the
intent element -- i.e., defendant's "intent to interfere
substantially" with Jeter and Mintun's personal liberty. Because we
reverse defendant's second-degree kidnapping convictions on the ground that the
state presented insufficient evidence as to the act element, we need not
address the sufficiency of the evidence as to the intent element.
10. Defendant
concedes that the state provided sufficient evidence for a trier of fact to
have convicted defendant of second-degree kidnapping of Derrick. In other
words, he does not dispute that he moved Derrick from one place to another
without Derrick's consent with the intent to interfere substantially with
Derrick's personal liberty. | 56ca5883aa8cb6dcf377de5f86552ac04f63a9435b2b1ce84199383070284d1d | 2010-12-30T00:00:00Z |
11a9d8ad-916f-4de7-90e9-708716277407 | Kloor v. West One Automotive Group, Inc. (Alternative Writ) | null | null | oregon | Oregon Supreme Court | MISCELLANEOUS SUPREME COURT DISPOSITIONS
CERTIFIED QUESTIONS, CERTIFIED APPEALS,
MANDAMUS PROCEEDINGS, AND OTHER MATTERS
October 12, 2010
Kloor v. West One Automotive Group, Inc., dba Hertz Auto Sales (S058709)(alternative writ issued)(348 Or 671). Relator has moved to dismiss the mandamus proceeding in the above-captioned case on the grounds that the underlying matter has been settled and the writ is therefore moot. The motion is granted. Alternative writ of mandamus dismissed. | fac3a02611c661e58ece5f872c06bddf8fb46c3fab98bdd96ad204deb8344a5d | 2010-10-12T00:00:00Z |
2648ccdb-68ff-4881-87fe-56cb9f2011aa | State v. Vondehn | null | S056371 | oregon | Oregon Supreme Court | FILED: July 1, 2010
IN THE SUPREME COURT OF THE STATE OF OREGON
STATE OF OREGON,
Petitioner on Review,
v.
HYATT ROBIN VONDEHN,
Respondent on Review.
(CC
C040956CR; CA A128800; SC S056371)
En banc
On review from the Court of Appeals.*
Argued and submitted
June 10, 2009.
Erin C. Lagesen, Assistant
Attorney General, Salem, argued the cause and filed the brief for petitioner on
review. With her on the brief were John R. Kroger, Attorney General, and Erika
L. Hadlock, Acting Solicitor General.
David J. Celuch,
Portland, argued the cause and filed the brief for respondent on review.
WALTERS, J.
The decision of the
Court of Appeals is affirmed in part and reversed in part. The judgment of the
circuit court is reversed, and the case is remanded to the circuit court for
further proceedings.
Linder, J., filed a
concurring opinion in which Balmer and Kistler, JJ., joined.
*Appeal from Washington
County Circuit Court, Thomas W. Kohl, Judge. 219 Or App 492, 184 P3d 567
(2008).
WALTERS, J.
This criminal case raises two
questions of first impression regarding the right against compelled
self-incrimination in Article I, section 12, of the Oregon Constitution(1)
and the consequences of the failure to give Miranda warnings to a person
who is in custody and subjected to custodial interrogation.
The uncontested facts establish that the
police arrested defendant on a warrant, handcuffed him, and placed him in the
back seat of a patrol car. A police officer then asked defendant two
questions about a backpack that the officer had found in the car in which defendant
had been a passenger. In response, defendant admitted that he owned the
backpack and that it contained marijuana. The trial court suppressed those answers
because the police had failed to administer the required Miranda warnings.
The trial court did not, however, suppress the marijuana, ruling that defendant's
answer to the next question that the officer asked -- whether they could search
the backpack -- was voluntary. Relying on defendant's consent, the officer searched
the backpack, discovered marijuana, gave the required Miranda warnings,
and questioned defendant further. The officer asked defendant where he got the
marijuana, how much marijuana there was, how much defendant had paid for it,
and whether he was a middleman. Defendant responded to each of those
questions, but, after he admitted that he was a middleman, defendant declined
to provide further information and asked for an attorney. The trial court
ruled that defendant's responses to the post-Miranda questions also were
voluntary and that they would be admitted.
In a stipulated facts trial, the
court found defendant guilty of the crimes of delivery and possession of a
controlled substance.(2)
Defendant appealed and claimed as error the denial of his pretrial motions to
suppress the marijuana and his post-Miranda statements.
The Court of Appeals observed that Miranda
warnings are an essential part of the rights granted by Article I, section 12,
and that the exploitation analysis articulated by this court in State v.
Hall, 339 Or 7, 115 P3d 908 (2005), provided the appropriate framework to
analyze the consequences of failing to give those warnings. State v.
Vondehn¸ 219 Or App 492, 501-07,184 P3d 567 (2008). In applying the Hall
analysis, the court concluded that, because the police had obtained both the
marijuana and the post-Miranda statements by exploiting defendant's pre-Miranda
statements, they must be suppressed. Id. at 507-10.
More specifically, the court reasoned
that the police had learned that the backpack belonged to defendant only
through their pre-Miranda questioning and that "[d]efendant's
answers to [the officer's] questions gave [the officer] the information that he
needed to ask defendant for consent to search it." Id. at 508.
Therefore, the Court of Appeals identified a "but-for relationship between
the unconstitutional questioning and defendant's consent to the search." Id.
The court then decided that the state had not demonstrated that the evidence
did not derive from the preceding illegality. The state had not argued to the
trial court that the police inevitably would have discovered the evidence in
the absence of the Miranda violation, and the police had not obtained
the evidence independently of the Miranda violation. The violation
provided the basis for the consent to search, and the consent led to the
evidence. Moreover, there were no intervening circumstances that broke the
causal chain between the Miranda violation and defendant's consent. Because
the Court of Appeals concluded that the police had obtained the marijuana by
exploiting the Miranda violation, it held that the trial court had erred
in denying defendant's motion to suppress. Id.
As to the post-Miranda
statements, the Court of Appeals reasoned that, "but for" the illegal
questioning and search of the backpack, the officer would not have had the
information on which he based his post-Miranda questions. Id. at
509-10. The record did not demonstrate that the police inevitably would have obtained
the later statements, nor did the record demonstrate that the police had obtained
them independently from the earlier violations. Id. at 510. The Court
of Appeals concluded that the trial court had erred in admitting both the
marijuana and the post-Miranda statements and reversed defendant's
convictions. Id. at 509-10.
On review, the state acknowledges
that this court has held that, when a person is in custody, the police must
inform the person of his or her Miranda rights before subjecting
the person to custodial interrogation, and the failure to give the required warnings
necessitates the exclusion of all statements that the person makes in response
to the interrogation. Applying that warning requirement and exclusionary rule
to the facts of this case, the state also acknowledges that defendant was in
custody and subjected to custodial interrogation when the police asked him whether
he was the owner of the backpack and whether the backpack contained marijuana.(3)
Thus, the state concedes, the trial court properly excluded from evidence defendant's
responses to that interrogation -- that he owned the backpack and that it
contained marijuana.
The state contests, however, the conclusion
of the Court of Appeals that the marijuana and the statements that defendant
made after the police administered Miranda warnings must also be
excluded. With respect to the marijuana, the state first contends that,
although the text of Article I, section 12, precludes the admission of coerced
testimony, it does not extend similar protection to uncompelled physical
evidence. Alternatively, the state contends that the rule that requires the
exclusion of statements made without the benefit of Miranda warnings is
a prophylactic rule that reaches beyond the requirements of the constitution
itself and that that rule should not be extended to preclude admission of
physical evidence. The "mere failure," as the state puts it, to give
Miranda warnings does not constitute a constitutional violation and
therefore call for a Hall exploitation analysis. With respect to
the post-Miranda statements, the state contends that the sole test of
their admissibility should be whether they were made voluntarily, an issue that
the Court of Appeals did not reach.
This case, as framed by the state's
arguments, requires that we address the effect of the failure to give Miranda
warnings in two distinct circumstances: (1) when the police commence custodial
interrogation without giving required Miranda warnings and thereafter
obtain incriminating physical evidence; and (2) when, after conducting an initial,
unwarned custodial interrogation, the police give the required warnings and the
defendant makes further incriminating statements. As to the first
circumstance, we hold that when the police conduct custodial interrogation
without obtaining a valid waiver of Article I, section 12, rights, they violate
Article I, section 12, and the derivative physical evidence that they obtain must
be suppressed. As to the second circumstance, we hold that a trial court must exclude
defendant's warned post-Miranda statements unless the state establishes
that, considering the totality of the circumstances, when the police belatedly
administer Miranda warnings, they effectively and accurately informed the
defendant of his or her Article I, section 12, rights. We affirm the decision
of the Court of Appeals in part, reverse it in part, and remand this case to
the trial court for further proceedings.
I. INTERROGATION
WITHOUT MIRANDA WARNINGS
The state begins its argument about the
admissibility of physical evidence obtained without the benefit of Miranda warnings
with the text of Article I, section 12: "[N]o person shall * * * be
compelled in any criminal prosecution to testify against himself." The
state argues that that text does not prohibit the admission of physical
evidence, even physical evidence that is a "fruit" of a defendant's
compelled testimony; it prohibits only compelling a person to "testify."
The state also contends that the text of Article I, section 12, does not
prohibit the state from using a person's compelled statements to investigate a
crime and obtain evidence of the crime; it only creates a right not to have the
statements themselves introduced "in any * * * criminal proceeding."
In support of those arguments, the state directs us to the comparatively
broader wording of other state constitutions and to cases discussing the
common-law privilege against self-incrimination as it was recognized at the
time that Article I, section 12, was adopted.
This court first considered the text
of Article I, section 12, and its history in State v. Cram, 176 Or 577,
160 P2d 283 (1945). The issue in that case was whether the testimony of a
physician as to the alcohol content of a sample of the defendant's blood, taken
from him while under arrest and in custody, violated the defendant's rights
under Article I, section 12.(4)
Id. at 578-79. The court noted that, with two exceptions, all state
constitutions contain provisions against "self-crimination." Id.
at 579. The wording of those provisions varies from prohibitions on "testifying"
and "furnishing evidence" to "being a witness," but the
court observed that the difference in phrasing had not been considered
important in construing their meaning. Id. at 579-80. The court also noted
that the constitutional privilege against self-incrimination had generally been
held to be declaratory of the common-law privilege and that that privilege was
not limited to testimonial utterances, but extended to prevent the compelled
production of documents or chattels. Id. at 581-82 (quoting 8 Wigmore
on Evidence § 2263). The court also quoted Wigmore for the proposition that,
when physical evidence is obtained by means other than compulsion of the
defendant, it is admissible as long as admission does not depend on the
defendant being called upon to make "any act or utterance of his own."
Id. at 582. Finally, the court applied those principles to conclude
that the testimony of the physician about the blood sample did not violate the
defendant's Article I, section 12, rights. Id. at 593. The defendant
had not been compelled to establish the authenticity, identity, or origin of
the blood; those facts were proved by other witnesses. Id.
In State v. Soriano, 68 Or App
642, 646, 684 P2d 1220 (1984), aff'd and opinion adopted, 298 Or 392,
693 P2d 26 (1984), this court again examined the history of the constitutional
right against self-incrimination and again concluded that the differences in
various state constitutional provisions were inconsequential: "The
constitutional language varies, but courts generally treat the basic principle
as the same in all the states." 68 Or App at 646. The Soriano
court also agreed that the word "testify" is not a limit on the protections
that Article I, section 12, affords: "We see no reason to construe the
Oregon Constitution to give protection from testifying but not from furnishing
evidence." Id. at 646-47 n 4.
In Soriano, this court held
that the Oregon Constitution prohibits the state from requiring a witness to
relinquish the Article I, section 12, right against self-incrimination unless
it provides the witness with an alternative that affords the same protection as
the constitution. Id. at 662. The issue in Soriano was whether
Article I, section 12, permits the state to compel the testimony of a witness
in exchange for "use" or "derivative use" immunity without
also extending "transactional immunity." Id. at 644. Use and
derivative use immunity preclude the state from using compelled statements of a
witness and their direct or indirect fruits, such as physical evidence
discovered as a result of the statements, in a prosecution of that witness. Id.
at 644 n 3. Transactional immunity precludes the state from prosecuting the
witness for any offense to which the statements relate. Id. The court
acknowledged that, when a witness provides compelled statements, those
statements may influence a prosecution even if they are not offered in evidence
or used to obtain derivative evidence. Id. at 663. For example, the
statements may affect the discretionary decisions of a prosecutor to bring
charges or to accept a plea bargain. Id. The court held that the state
could not compel the statements of a witness without granting transactional
immunity because, without protecting the witness from all evidentiary and
nonevidentiary use of compelled statements, the state would not afford the
witness the same protection that the constitution confers -- the right to
remain silent. Id. at 662.
Thus, this court has long interpreted
Article I, section 12, to impose no distinction between compelled statements
and physical evidence derived from such statements or between the use of
compelled statements to obtain evidence and as testimony at trial. We reject
the state's argument that we should now impose those limitations on the reach
of Article I, section 12. We turn to the state's alternative argument that, even
if Article I, section 12, requires that physical evidence derived from compelled
statements be excluded from evidence, the same is not true for physical
evidence derived from the "mere failure to provide Miranda warnings."
For an understanding of that
argument, the state directs us to the reasoning of the plurality in United
States v. Patane, 542 US 630, 124 S Ct 2620, 159 L Ed 2d 667
(2004). Although the state acknowledges that we need not defer to the United
States Supreme Court when we interpret the state constitutional right found in
Article I, section 12, see Soriano, 68 Or App at 645-46 (giving
reasons for independent interpretation of state constitutional right against
self-incrimination),(5)
the state finds the logic of the lead opinion in Patane persuasive, and we
would be remiss if we did not consider it. That is particularly so because it
was the Supreme Court that first required, to effectuate the protections
afforded by the Fifth Amendment to the United States Constitution, the warnings
that this court later required to effectuate the protections afforded by
Article I, section 12, known to both courts by the name of the Supreme Court's
decision, Miranda v. Arizona, 384 US 436, 86 S Ct 1602, 16 L Ed 2d 694
(1966).
In Patane, the police arrested
a defendant for violating a restraining order. A detective attempted to inform
the defendant of his Miranda rights, but the defendant interrupted and
asserted that he knew his rights, and the officers did not attempt to complete
the warning. The detective then asked the defendant about a gun. The
defendant said that he did not want to discuss it because he did not want the
detective to take the gun away from him. The detective persisted. The
defendant told him that the gun was in a particular bedroom and gave the
detective permission to retrieve the gun.
The government conceded that the
defendant's answers to the detective's questions were inadmissible under Miranda,
but argued that the failure to complete the Miranda warning did not
require suppression of the gun itself. The plurality, consisting of Justice Thomas, Chief Justice Rehnquist, and Justice Scalia, took the position that, although the admission of "actually
coerced statements" and physical evidence derived from such statements
violates the Fifth Amendment, "a mere failure to give Miranda
warnings does not, by itself, violate a suspect's constitutional rights * * *."(6)
542 US at 641-44. Thus, the plurality reasoned, there was no violation of the
Fifth Amendment to deter and no reason to apply the "fruit of the
poisonous tree" doctrine of Wong Sun v. United States, 371 US 471,
83 S Ct 407, 9 L Ed 2d 441 (1963). Patane, 542 US at 641-42. According
to the plurality, the Miranda rule is a prophylactic rule that sweeps
beyond the actual protections of the Self-Incrimination Clause. Id. at
639. A court must presume that statements made without its protections are compelled,
but there is no need extend that rule to exclude physical evidence obtained as
a result of unwarned statements. Id. at 639-43.
Justices Kennedy and O'Connor
concurred in the result. They reasoned that Miranda was based in large
part on an effort to accommodate concerns about compelled testimony and other
objectives of the criminal justice system. Given the important probative value
of reliable physical evidence, they could not justify exclusion based on "a
deterrence rationale sensitive to both law enforcement interests and a suspect's
rights during an in-custody interrogation." Id. at 644-45.
To address the state's argument that,
in interpreting Article I, section 12, we should adopt the reasoning of the plurality
opinion in Patane, we must examine the nature and purpose of the Miranda
warnings that this court requires and the reasons that statements made
without the benefit of those warnings are excluded from evidence.
In State v. Magee, 304 Or 261,
266, 744 P2d 250 (1987), this court stated that Article I, section 12, "furnishes
an independent basis" for requiring that police administer Miranda
warnings to suspects who are in custody. The prior year, in State v. Smith,
301 Or 681, 725 P2d 894 (1986), the court had discussed the basis for the United
States Supreme Court's Miranda decision and whether similar warnings
were required by the Oregon Constitution. Smith was a divided opinion
that resulted in the affirmance of defendant's conviction on the basis that the
defendant was not in custody when he made the unwarned statements. When the
court then decided Magee, it did not reprise the arguments that it had considered
in Smith or state the rationale for its historic decision.
Since Magee, this court consistently
has held that the Oregon Constitution requires suppression of statements made
without the benefit of Miranda warnings. See, e.g., State v.
Roble-Baker, 340 Or 631, 643-44, 136 P2d 22 (2006) (suppressing unwarned
statements made during custodial interrogation); State v. Smith, 310 Or
1, 7, 791 P3d 836 (1990) (so stating). The full extent of the court's
discussion of the rationale for that rule has been to state that, when a suspect
is subjected to custodial interrogation, warnings are necessary "'because
of the inherent level of coercion that exists in such interrogations.'" State
v. Scott, 343 Or 195, 200, 166 P3d 528 (2007) (quoting State v. Joslin,
332 Or 373, 380, 29 P3d 1112 (2001)); see also State v. Meade, 327 Or 335,
339, 963 P2d 656 (1998). Further, in discussing the requirement that police advise
suspects subjected to custodial interrogation of the right to assistance of
counsel, the court has stated that that particular warning is required because "a
lawyer's presence at a custodial interrogation is one way to ensure the right
to be free from compelled self-incrimination." Meade, 327 Or at
339. A suspect must be informed if an identified lawyer has been retained or
appointed and is seeking to consult with the suspect. Without that information,
the suspect cannot "be said knowingly to have waived his or her right
against compelled self-incrimination under Article I, section 12." Joslin,
332 Or at 383 (citing State v. Haynes, 288 Or 59, 70, 602 P2d 272 (1979)).
In State v. Simonsen, 319 Or
510, 512, 878 P2d 409 (1994), the court followed Haynes and held that the
police had violated the defendant's Article I, section 12, rights when they interrogated
him "without informing him of the fact that he had a court-appointed
lawyer or the fact that the lawyer had asked to consult with defendant before
further interrogation took place." The court then stated that its
rationale for suppressing the statements that the defendant had made during
that interrogation was
"'to preserve * * * rights to the same extent as if the
government's officers had stayed within the law. * * * In the context of a
criminal prosecution, the focus then is on protecting the individual's rights vis-a-vis
the government * * *.
"'This focus on individual protection under
the exclusionary rule, a rule that operates to vindicate a constitutional right
in the courts, supports the constitutional rule * * *. [T]he constitutionally
significant fact is that the Oregon government seeks to use the evidence in an
Oregon criminal prosecution. Where that is true, the Oregon constitutional
protections apply.'"
Id. at 518-19 (quoting State v. Davis, 313 Or
246, 253-54, 834 P2d 1008 (1992)) (alterations in original; internal citations
omitted). In the Davis case that the court in Simonsen quoted,
the court held that evidence obtained in violation of a suspect's rights to
be free of unreasonable search and seizure under Article I, section 9, of the
Oregon Constitution must be suppressed, and explained that, to give effect to constitutional
rights, the government cannot "obtain a criminal conviction through the
use of evidence obtained in violation of [those rights]." Davis, 313
Or at 253.
Davis in turn relied on two
earlier cases -- State v. Davis, 295 Or 227, 666 P2d 802 (1983), and State
v. Isom, 306 Or 587, 761 P2d 524 (1988). In the former case, the court
noted that, although every rule of law is intended to deter contrary conduct
and is successful when it does so, deterrence does not constitute a
constitutional basis for the exclusion of evidence. Davis, 295 Or at
234-35. Instead, the court said, "'[i]n demanding a trial without such
evidence, the defendant invokes rights personal to himself.'" Id.
at 235 (quoting State v. McMurphy, 291 Or 782, 785, 635 P2d 372 (1981).
In the latter case, the court ordered suppression of statements made in
violation of Article I, section 12, because "the state may not prove, over
objection, any crime with unconstitutionally obtained evidence." Isom,
306 Or at 595.
Synthesizing the decisions that we
have reviewed, and applying our own constitutional analysis, we now set out the
basis for the requirement that police inform persons in custody and subjected
to custodial interrogation of the rights afforded by Article I, section 12, and
for excluding statements made without the benefit of those warnings.
Article I, section 12, affords a
constitutional right to remain silent. That right is, however, subject to
waiver. Because a custodial interrogation is inherently compelling, and to ensure
the validity of a waiver of the right against self-incrimination, article I,
section 12, requires that the police inform a person subjected to custodial
interrogation that he or she has a right to remain silent and to consult with
counsel and that any statements that the person makes may be used against the person
in a criminal prosecution. Article I, section 12, requires those Miranda
warnings to ensure that a person's waiver is knowing as well as voluntary. If the
police conduct a custodial interrogation without first obtaining a knowing and
voluntary waiver of the suspect's rights, then they violate the suspect's Article
I, section 12, rights. To give effect to those constitutional rights, the
state is precluded from using, in a criminal prosecution, statements made in
response to the interrogation.
With that understanding, we return to
the state's alternative argument that we should adopt a rule that permits the
admission of physical evidence that the police obtain without the benefit of Miranda
warnings. In making that argument, the state concedes that, if the constitutional
violation at issue results from "actual coercion," then all evidence,
including physical evidence, obtained as a result of the violation must be excluded
from evidence. See Soriano, 68 Or App at 662-65 ("Prohibition
of the use of the fruits of illegal police activity in court is necessary to
vindicate the violated rights"); Patane, 542 US at 644
(acknowledging that Fifth Amendment requires that physical evidence derived
from actually coerced statements must be suppressed); United States v.
Hubbell, 530 US 27, 37-38, 120 S Ct 2037, 147 L Ed 2d 24 (2000) (holding
that Fifth Amendment requires that evidence derived from coerced statements
must be suppressed). So, for example, if the police were to engage in
"actual coercion" to compel the answer to the question "where is
the gun located?," both the answer, "under the bed," and the gun
found in that location would be suppressed. See State v. Miller, 300
Or 203, 709 P2d 225 (1985) (physical evidence derived from an unconstitutional
custodial interrogation must be suppressed unless admissible on some
independent ground).(7)
The state contends, however, that we
should reach a different conclusion when the violation of Article I, section
12, is a "mere failure to provide Miranda warnings" relying on
the reasons persuasive to the plurality in Patane: that such a failure
does not violate a suspect's constitutional rights and that, given the
important value of reliable physical evidence, the Miranda rule should
not be extended to exclude it. It is immediately obvious that the premise of
the state's argument does not hold here. It is the Oregon Constitution that requires
Miranda warnings and it is the Oregon Constitution that is violated when
those warnings are not given. When the police violate Article I, section 12, whether
that violation consists of "actual coercion" or the failure to give the
warnings necessary to a knowing and voluntary waiver, the state is precluded
from using evidence derived from that violation to obtain a criminal
conviction. It follows ineluctably that, when the police violate Article I,
section 12, by failing to give required Miranda warnings, the state is
precluded from using physical evidence that is derived from that constitutional
violation to prosecute a defendant.(8)
It is now incumbent on us to apply
the principles that we have enunciated to the facts of this case. As noted, defendant
was in custody, in the back seat of a patrol car and handcuffed, when the
police subjected him to custodial interrogation. Defendant had the right to
remain silent and to advice of counsel, but the police conducted their custodial
interrogation without obtaining a valid waiver of those rights. When they did
so, the police violated Article I, section 12. That constitutional violation
requires suppression of both the answers that defendant gave in response to,
and the marijuana that the police identified and seized as a result of, that
interrogation.
In response to the police officer's
first unwarned question, the officer learned that the backpack belonged to
defendant. In response to the officer's second unwarned question, the officer
learned that there was marijuana in the backpack. With that relevant
information, the officer then immediately requested consent to search the
backpack and seized the marijuana. In this court, the state makes no argument that
the request for consent to search or the seizure of the marijuana derived from some
source other than defendant's answers to those unwarned questions, nor does the
state argue that, even without defendant's responses, the police inevitably
would have obtained the marijuana. Thus, in this case, we conclude that the
marijuana derived from the violation of defendant's Article I, section 12,
rights, and the trial court erred in failing to exclude it from evidence. We
affirm the decision of the Court of Appeals in that regard.
II. BELATED MIRANDA
WARNINGS
The second question in this case is the
consequence that a violation of Article I, section 12, should have when the
police belatedly administer required Miranda warnings. The state argues
that, after the police give the required warnings, a defendant's statements in
response to further interrogation are admissible as long as they are voluntary.
Defendant argues that the constitutional violation that occurs when the police
fail to give the warnings when initially required necessitates exclusion of all
statements made as a result of the illegality and that that category includes statements
made after belated Miranda warnings, unless the state demonstrates,
under Hall, that, at the time the post-Miranda statements
were made, the taint of the illegality had been attenuated.
Two Supreme Court cases illustrate
the range of factual circumstances that present that issue. In Oregon v.
Elstad, 470 US 298, 105 S Ct 1285, 84 L Ed 2d 222 (1985), the police
contacted a young suspect at his home to arrest him for burglary. Before the
arrest, one officer spoke with the mother, while the other officer mentioned to
the suspect that he felt that the suspect had been involved in the burglary.
The suspect admitted that he had. The officers then placed the suspect under
arrest and took him to the police station where they administered Miranda
warnings and, when the suspect waived his rights, interrogated him. The
defendant was charged with burglary and sought to suppress his post-Miranda
statements as the illegal "fruit" of the Miranda violation.
The Court rejected defendant's argument.
It ruled that the admissibility of any such statement turns "solely on
whether it is knowingly and voluntarily made." Id. at 309. In considering
whether the defendant's post-Miranda statements met those standards, the
Court discounted whatever psychological impact that his unwarned statements
could have had on his later waiver of his Fifth Amendment rights and found the warned
statements admissible because the connection between the defendant's prior
admission and his ultimate decision to cooperate was "speculative and
attenuated at best." Id. at 312-14.
In 2004, the Supreme Court again
explored the issue of belated Miranda warnings in Missouri v. Seibert,
542 US 600, 124 S Ct 2601, 159 L Ed 2d 643 (2004). In that case, the officer
had made a "conscious decision" to withhold Miranda warnings.
The officer conducted the interrogation in the station house, and the
interrogation was "systematic, exhaustive, and managed with psychological
skill." Id. at 616. The defendant made incriminating statements
in response to the interrogation. Then, after a pause of only 15 to 20
minutes, the same officer, in the same place, recited the Miranda
warnings but did not advise the defendant that her prior statements could not
be used. In fact, the officer referenced the defendant's earlier statements
and used them to convince her to repeat her earlier confesson. Justice Souter
wrote for four members of the court and concluded that all of the defendant's
post-Miranda statements must be suppressed, not as the "fruit"
of a prior unlawful act, but because the state had not established that the
belated Miranda warnings were "effective." Id. at 604
(plurality opinion).
The plurality explained its reasoning
as follows:
"Just as 'no talismanic incantation [is] required to
satisfy [Miranda's] strictures,' California v. Prysock, 453 US
355, 359 [101 S Ct 2806, 69 L Ed 2d 696] (1981) (per curiam), it would
be absurd to think that mere recitation of the litany suffices to satisfy Miranda
in every conceivable circumstance. 'The inquiry is simply whether the warnings
reasonably "conve[y] to [a suspect] his rights as required by Miranda."'
Duckworth v. Eagan, 492 US 195, 203 [109 S Ct 2875, 106 L Ed 2d 166]
(1989) (quoting Prysock, supra, at 361). The threshold issue
when interrogators question first and warn later is thus whether it would be
reasonable to find that in these circumstances the warnings could function 'effectively'
as Miranda requires. Could the warnings effectively advise the suspect
that he had a real choice about giving an admissible statement at that
juncture? Could they reasonably convey that he could choose to stop talking
even if he had talked earlier? For unless the warnings could place a suspect
who has just been interrogated in a position to make such an informed choice,
there is no practical justification for accepting the formal warnings as
compliance with Miranda, or for treating the second stage of
interrogation as distinct from the first, unwarned and inadmissible segment."
Id. at 611-12 (alterations in original; footnote
omitted).
The Seibert plurality identified,
in the contrast between Elstad and Seibert, a "series
of relevant facts that bear on whether Miranda warnings delivered
midstream could be effective enough to accomplish their object[.]" Seibert,
542 US at 615. Those facts include: (1) the completeness and detail of
the questions and answers in the first round of interrogation, (2) the
overlapping content of the two statements, (3) the timing and setting of the
first and the second rounds of interrogation, (4) the continuity of police
personnel, (5) the degree to which the interrogator's questions treated the
second round as continuous with the first, and (6) whether the police cautioned
that the earlier unwarned statement could not be used in any subsequent
prosecution. Id. at 615-16.
Justice Kennedy concurred in the
judgment, but his approach to the issue was different. Justice Kennedy opined
that the question-first technique "creates too high a risk that
postwarning statements will be obtained when a suspect was deprived of knowledge
essential to his ability to understand the nature of his rights and the
consequences of abandoning them." Id. at 621 (internal quotation
marks and citation omitted). He concluded that the post-warning statements
should be excluded only when that technique is used deliberately. Id.
at 622. When the police purposely engage in a two-step interrogation, Justice
Kennedy opined, "postwarning statements that are related to the substance
of prewarning statements must be excluded absent specific, curative steps."
Id. at 621. Justice Kennedy explained that curative measures "should
be designed to ensure that a reasonable person in the suspect's situation would
understand the import and effect of the Miranda warning and of the Miranda
waiver[]" and could include, for example, a substantial break in time and
circumstances or an additional warning that the prior unwarned statements would
likely be inadmissible. Id. at 622.
Justice O'Connor, the author of Elstad,
penned the dissent for the four remaining members of the court. She agreed
with the plurality that the test of admissibility should be an objective one
and not determined, as Justice Kennedy urged, by whether the police acted
intentionally:
"A suspect who experienced exactly the same
interrogation as Seibert, save for a difference in the undivulged, subjective
intent of the interrogating officer when he failed to give Miranda
warnings, would not experience the interrogation any differently. Whether
intentional or inadvertent, the state of mind of the police is irrelevant to
the question of the intelligence and voluntariness of respondent's election to
abandon his rights."
542 US at 624-25 (internal quotation marks and brackets
omitted). For Justice O'Connor, the correct issue was whether, under all the
circumstances, the post-warning statements were voluntary. Id. at 628.
Because we analyze the issue under
the Oregon, and not the United States, Constitution, we are not bound by the Court's
decisions in either Elstad or Seibert. Nevertheless, we
find the reasoning in those cases helpful because they focus, as we must, on the
source and purpose for the Miranda requirement and the exclusion of
evidence obtained when Miranda warnings are not given as required.
As our prior discussion indicates, the
Oregon Constitution does not require the exclusion of evidence obtained in the
absence of Miranda warnings to deter illegal police conduct. The Oregon
Constitution requires Miranda warnings to ensure that a waiver of the
rights conferred by Article I, section 12, is knowing as well as voluntary. When
the police fail to give the required warnings, a suspect's responses to their
unwarned questions must be excluded from evidence. When the police then
correct course and give the required warnings, the relevant inquiry must be whether
the belated warnings are effective and accomplish the purpose for which they are
intended. The fact that the police initially violate a defendant's
constitutional rights by failing to give the warnings necessary to a valid
waiver does not preclude a defendant from later validly waiving those rights. If
the state establishes that the police accurately and effectively, although
belatedly, gave the suspect the information necessary to a valid waiver of the
right against self incrimination, then, under the Oregon Constitution, a
suspect's subsequent voluntary statements will be admissible.(9)
In arriving at that conclusion, we adopt the reasoning and the analysis of the Siebert
plurality as our own.
When the police give Miranda warnings
at the time that they are first required, the constitution does not demand that
the state establish that the warnings were effective. The state need only
establish that the police recited the warnings completely and coherently.(10)
The problem that Seibert demonstrates, however, is that when the police question
first and warn later, their exhibition and exercise of authority and violation
of the defendant's constitutional rights may communicate to a defendant, as the
Court believed they did in that case, that, before the defendant will be
released, he or she must answer the questions asked. In that circumstance, the
police not only fail to provide the defendant with the information necessary to
a valid waiver -- that the defendant has a right to remain silent and to confer
with an attorney -- the police also convey a contrary message. In that
situation, when the police later administer Miranda warnings, we cannot assume
that the mere recitation of Miranda warnings is sufficient to serve the intended
informative function.
That being said, we note that Seibert
is at one end of the range of the factual circumstances that present the
issue that we address. Elstad is at the other. Not every instance in
which the police question first and warn later communicates a mixed message.
Whether and to what extent police officers who fail to administer Miranda warnings
before beginning custodial interrogation obfuscate or contradict the
information that Miranda warnings are intended to convey and whether and
to what extent those officers later correct that misinformation are issues that
trial courts must confront and determine. In doing so, courts should consider
all relevant circumstances, including those facts to which the plurality in Seibert
pointed -- the completeness and detail of the questions and answers in the
first round of interrogation, the overlapping content of the statements given
by the suspect, the timing and setting of the first and the second
interrogations sessions, the continuity of police personnel, the degree to
which the interrogator's questions treated the second round of interrogation as
continuous with the first, and whether the police cautioned that the earlier
unwarned statement could not be used in any subsequent prosecution.(11)
In this case, the Court of Appeals used
many, if not all, of those facts in its "fruit of the poisonous tree,"
or "exploitation," analysis. The difference between that court's
analysis and our own is not in the facts considered but in the stick by which we
require that they be measured. In our analysis, the test of the efficacy of
the belated warnings is an objective one. A court considers the factual
circumstances to determine the accuracy and effectiveness of the information
that the police convey; a court does not use those circumstances to attempt to determine
the psychological effect that the particular police course of conduct had on
the particular defendant or whether the initial failure to warn caused the particular
defendant to make the post-Miranda statements.
Although neither party in this case
advocates for the view articulated by Justice Kennedy in Seibert -- that
the admissibility of statements that a defendant makes after Miranda warnings
are belatedly given should be determined by whether the police intentionally
engaged in a two-step interrogation process -- we think it helpful to state explicitly
that we reject that approach. Our focus is not on the subjective intent of the
police but on the objective message that the police actually convey by the
techniques that they use and the warnings that they give. That does not mean,
however, that the deliberateness with which the police act is entirely
irrelevant. In Isom, for instance, the defendant established that the
police had purposely disregarded his request for counsel, and this court did
not hesitate to hold that the statements that he made thereafter were obtained
in violation of Article I, section 12. 306 Or at 595. If the police purposely
obscure the legal and practical significance of a belated Miranda
admonition, as they did in Seibert, it will not be difficult for a court
to determine under the objective test that we describe today that the police did
not accurately and effectively deliver the information necessary to a valid
waiver of Article I, section 12, rights.
Finally, it remains for us to decide
whether the trial court in this case erred in admitting defendant's
post-Miranda statements. To do so we must review the facts in more detail than
initially stated.
This case arose from a routine
roadside stop of a car to investigate a traffic violation and possible driving
under the influence of intoxicants. Defendant was a passenger in the car,
which a friend was driving. Officer Stoneberg made the stop; a second officer,
Officer Espelien, arrived shortly afterward. Stoneberg approached the driver's
side of the car and, as he did, smelled a strong odor of fresh marijuana.
Espelien approached the passenger's side and initially waited near the rear
corner of the car while Stoneberg talked to the driver. Espelien, likewise,
smelled a very strong odor of fresh marijuana. Both officers thought that the
smell was strongest towards the trunk area of the car. Espelien approached
defendant (the passenger) to ask him for identification. Defendant initially
lied about who he was but then gave Espelien the correct information. Espelien
discovered an outstanding warrant for defendant. Stoneberg therefore arrested
defendant, handcuffed him, and had him sit in the back of the patrol car while he
completed his investigation. Stoneberg did not give Miranda warnings to
defendant at that point because he ordinarily does not conduct any kind of
investigation or ask questions of a person arrested on an outstanding warrant.
Stoneberg continued his investigation
of the driver. He asked her if there were any illegal drugs or weapons in the
car. She said no. Stoneberg then asked her for, and the driver gave, consent
to search the car. In the course of the search, Stoneberg opened the car
trunk, at which point the smell of fresh marijuana became even stronger. The
only thing in the trunk was a backpack. According to Stoneberg, the smell from
the backpack "is what really hit [him]" and, upon lifting it, he
could tell that the backpack was not empty. At that point, given the smell and
the weight of the backpack, Stoneberg believed that there was a substantial
quantity of marijuana in it. Stoneberg asked the driver if the backpack was
hers and if he could open it, and she told Stoneberg that it did not belong to
her. He asked her who owned it, and she said she did not know.
Stoneberg then walked to the patrol
car with the backpack, opened the back door, and asked defendant if the
backpack belonged to him. Defendant said yes. Stoneberg asked defendant if
there was marijuana inside, and defendant said yes. Stoneberg asked if he
could search the backpack, and defendant told Stoneberg he could. Stoneberg
then searched the backpack while standing by the patrol car, in defendant's
presence, and found two folded-down grocery bags, each containing fresh
marijuana.
After searching the backpack, Stoneberg
walked over to Espelien and consulted with him. After about five minutes,
Stoneberg went back to the patrol car to ask defendant more questions about the
marijuana. At that point, he gave defendant Miranda warnings. He asked
defendant if he understood his rights, and defendant said he did. Defendant
waived his rights and agreed to answer Stoneberg's questions. Stoneberg asked
defendant several questions about the marijuana. In particular, Stoneberg
asked defendant where he got the marijuana; defendant explained that he had
gotten it in Tualatin the day before. Stoneberg asked how much marijuana was
in each bag; defendant told him that each bag contained about a quarter of a
pound of marijuana. Stoneberg asked how much the marijuana cost; defendant said
that he had paid a total of $2200 for the marijuana. Stoneberg asked defendant
if he was a middleman. Defendant answered yes. Eventually, Stoneberg told
defendant that he would like to know more about his middleman role. In
response, defendant told Stoneberg that he wanted a lawyer. Neither Stoneberg
nor Espelien asked defendant any further questions. The post-Miranda questions
took place intermittently over a 15 to 20 minute time period.
Both officers described their contact
with defendant as conversational in tone. Espelien further described
defendant, once defendant gave his correct identification to Espelien, as
seeming apologetic and even ashamed of the circumstances. Defendant remained
"very cooperative" and willingly answered questions until, when
Stoneberg asked for more information about his role as a middleman, he invoked
his right to counsel.
We now consider all those facts to
determine whether the Miranda warnings, when given, accurately and effectively
conveyed the information necessary to a knowing and voluntary waiver of the
right against self-incrimination. We first observe that there was a marked
difference in the questioning before and after Stoneberg administered the Miranda
warnings. The unwarned questions were routine in nature and consumed less
than a minute of time.(12)
The second warned questions were significantly more detailed and probing. This
was not a situation, like that in Seibert, in which the police conducted
extensive questioning and elicited significant detailed facts in the first
interrogation session and then repeated that questioning post-Miranda.
Second, although Stoneberg posed the
second set of questions shortly after the first set, there was a break in the
questioning. Given that the first set of questions consumed less than a
minute, the five minute break between questions, followed by the Miranda warning,
was an objective indication that the situation had changed and was governed by
new rules. Again, this was not a circumstance, like that in Seibert, in
which both interrogation sessions were protracted and conducted at the police
station. In such a circumstance, a short break between interrogation sessions
would not be of the same import.
Third, although Stoneberg did not
caution defendant that his earlier unwarned statements could not be used in any
subsequent proceeding, neither did he point out to defendant, as did the
officer in Seibert, that defendant had already made incriminating
disclosures that provided all of the information that Stoneberg needed. And in
fact, at least some of the information that Stoneberg had obtained -- that the backpack
contained marijuana -- was obviously discernable from another source -- the odor
of the backpack itself. When an officer does caution a defendant that the
unwarned statements that the defendant made may not be admissible, that caution
may militate (indeed, often will) in favor of finding that the officer's belated
Miranda warnings were effective, but such a caution is not necessary to that
result.
Fourth, although defendant was under
arrest and handcuffed when Stoneberg questioned him and was thus in inherently compelling
circumstances, he was not subjected to additional coercion. The police
conducted their questioning in a conversational tone and it was of short
duration.
The facts that we have outlined lead
us to conclude that the belated Miranda warnings that Stoneberg gave accurately
and effectively communicated that defendant had, from that time forth, a right
to remain silent. We therefore agree with the trial court, although for
different reasons, that defendant's post-Miranda statements should have
been admitted.
The decision of the Court of Appeals
is affirmed in part and reversed in part. The judgment of the circuit court is
reversed, and the case is remanded to the circuit court for further proceedings.
LINDER, J., concurring.
I write separately to explain my
reasons for concurring in the majority decision, both with respect to the
physical evidence that police obtained when defendant, before being given Miranda
warnings, consented to the search of his backpack and with respect to the
statements that defendant made after being given Miranda warnings.
In urging that the marijuana seized
from defendant's backpack should not be suppressed, the state has advanced an
ambitious argument seeking a per se rule that physical evidence is never
subject to exclusion under Article I, section 12, reasoning that the protection
against self-incrimination is directed to testimonial in-court evidence only.
I concur in the majority's rejection of that per se rule. As this court
has described it, our state-law based Miranda rule is "a judicial
means" to secure the guarantee against compelled self-incrimination, one
that this court has devised because it is appropriate for this court "to
specify the procedure by which [Article I, section 12's guarantee against
compelled testimony] is to be effectuated." State v. Mains, 295 Or
640, 645, 669 P2d 1112 (1983).(1)
Thus, the rule is constitutionally grounded, even if Miranda warnings
and waiver of them are procedures that the constitution does not itself
mandate. When those procedural requirements are violated, we properly ask
whether any subsequently obtained evidence, physical or testimonial, is
sufficiently a product of that violation to require suppression along with any
statements made in direct response to unwarned custodial interrogation. And
because the Miranda doctrine is a judicially devised procedural
protection, one this court has adopted as a matter of state law, it falls to
this court to determine whether and under what circumstances to exclude
evidence to serve the objectives of that procedural rule.
The difficulty here is that the
state's argument on review stops with its invitation to adopt a per se
rule of no exclusion. The state does not explore what test this court should
adopt to determine whether and when physical evidence obtained after a Miranda
violation should be subject to exclusion. Because of that omission, I
concur in the result that the majority reaches. I write separately, however,
to identify the limits of the majority's reasoning and to point out the work
that remains for future cases.
The majority announces a
"derives from" test to determine under what circumstances consent to
search, when that consent follows a Miranda violation, must be
suppressed. ___ Or at ____ (slip op at 16). The starting point of such a test
should be the underlying Miranda violation, because the nature and
extent of that violation necessarily bear on whether and to what extent other
evidence that police obtain is connected to that violation.
Here, the investigating officer asked
defendant a total of three questions without first giving Miranda warnings.
The first question was whether defendant owned the backpack. At trial, and
continuing through the layers of appeal, the state has conceded that the
officer was required to give defendant Miranda warnings and obtain a
waiver before asking that question. For present purposes, I will assume that
concession is correct.(2)
The officer's second question was
whether there was marijuana in the backpack. That question was,
quintessentially, interrogation. Any reasonable officer asking if a container
has marijuana in it would know that the question could elicit an incriminating
response -- i.e., an inculpatory or an exculpatory response that the
prosecution might seek to use at trial.(3)
To lawfully ask defendant -- who was under arrest -- that question, the
officer was required to advise defendant of his Miranda rights. The
officer did not do so.
The officer's third question asked if
defendant would consent to a search of the backpack. That was not
impermissible interrogation. Asking for consent to search is a mere request
for permission. The answer either gives permission or it does not; the
response is neither inculpatory or exculpatory (although, to be sure, the
results of the search can be). With apparent unanimity, courts throughout the
country that have considered the question have held that asking for consent to
search is not interrogation within the meaning of the Miranda doctrine.
See, e.g., U.S. v. Smith, 3 F3d 1088, 1098 (7th Cir 1993), cert
den, 510 US 1061 (1994), (so observing; citing representative cases).
Defendant has never contended to the contrary in this case.
Thus, at best for defendant, the Miranda
violation in this case consisted of two short questions, each of which
called for a one word (yes or no) response. In analyzing whether the physical
evidence seized pursuant to defendant's consent was "derived" from
that violation, the majority concludes -- with only brief discussion -- that it
was. ___ Or at ___ (slip op at 16-17). It is unclear what test the majority's
"derived from" test entails. The majority does not explain whether
the test turns on causation, or exploitation, or some other way in which an
initial illegality may be said to "taint" evidence that police gather
after that illegality. Knowing the nature of the "derives from" test
that applies is important. The majority appears to conclude that there is, in
fact, a "derived from" connection between the illegal questioning and
defendant's consent to search in this case, and therefore places the burden on
the state to disprove that connection. ___ Or at ____ (slip op at 17). At the
least, if the state is to have that burden, it must know what it must
disprove. As important, at some point, both litigants and lower courts are
entitled to meaningful guidance as to the analysis that applies. Compare
Wong Sun v. United States, 371 US 471, 487-88, 83 S Ct 407, 9 L Ed 2d 441
(1963) ("but for" causation not enough to establish that consent to
search is the product of a prior illegality) with State v. Hall, 339 Or
7, 34-35, 115 P3d 908 (2005) (defendant need only show a "minimal causal
nexus" between consent to search and prior illegality).
The state's argument, as advanced in
this court, examines none of those issues, however.(4)
Instead, as I have already noted, the state argues only that, as a per se matter,
physical evidence is never subject to suppression under Article I, section 12,
no matter how directly and immediately derivative of a Miranda violation.
In this particular case, given the fact that the state has made no contrary
argument, I am prepared to conclude that, under the particular circumstances of
this case, the officer's request to search was part and parcel of the
impermissible unwarned questioning, at least enough to place the burden on the
state to point to the circumstances that either legally or factually break that
connection. Because the state has not done so, I concur. But it remains for
future cases to explore, in a way that we do not in this case, when evidence
obtained after a Miranda violation properly can be said to "derive
from" that violation.
With respect to defendant's
subsequent, post-Miranda warning statements, the majority essentially
adopts the test articulated by the plurality decision in Missouri v. Seibert,
542 US 600, 124 S Ct 2601, 159 L Ed 2d 643 (2004) (Souter, J.). ___ Or at ___
(slip op at 22). That test asks whether, viewed from the perspective of a
reasonable person, the Miranda warnings that police give after an
initial Miranda violation were effective for purposes of informing a
suspect of his rights and obtaining a knowing and voluntary waiver of those
rights.
I have no objection to that test. I
see, ultimately, little or no difference in the "totality of the
circumstances" analysis used to analyze that issue and the totality of the
circumstances test that has long been in place to analyze the voluntariness of
a confession following prior illegal conduct by police. See, e.g.,
State v. Wolfe, 295 Or 567, 572, 669 P2d 320 (1983) (drawing from totality
of circumstances test in Brown v. Illinois, 422 US 590, 603-04, 95 S Ct
2254, 45 L Ed 2d 416 (1975)).
What is important to emphasize,
however, is the distinctive context in which the Seibert plurality
fashioned that test. The Seibert plurality identified that context in
the very first sentence of the opinion: the case involved what had become, at
least at the time, an increasingly popular "police protocol for custodial
interrogation that calls for giving no warnings of the rights to silence and
counsel until interrogation has produced a confession," after which
warnings are given and police then "lead[] the suspect to cover the same
ground a second time." 542 US at 604. As the plurality noted, "the
reason that question-first [technique] is catching on is as obvious as its
manifest purpose, which is to get a confession the suspect would not make if he
understood his rights at the outset[.]" Id. at 613. The
plurality therefore, throughout its opinion, expressly tied its "effective
waiver" test to the question-first technique of interrogation -- e.g.,
a confession "so obtained" (id. at 611); one obtained through
the use of a "question first and warn later" protocol (id.);
and one in which Miranda warnings are "inserted in the midst of
coordinated and continuing interrogation" (id. at 613). That
distinctive context also was what led the plurality to observe that belated Miranda
warnings might be unlikely to provide a defendant with the knowledge necessary
for a valid waiver, reasoning that it "would ordinarily be unrealistic to
treat two spates of integrated and proximately conducted questioning as
independent interrogations subject to independent evaluation simply because Miranda
warnings formally punctuate them in the middle." Id. at 614.
The plurality in Seibert also
expressly contrasted the circumstances before it with those that had been
involved in Oregon v. Elstad, 470 US 298, 105 S Ct 1285, 84 L Ed 2d 222
(1985), noting that the Court in Elstad had taken care to characterize
the officer's initial failure to give Miranda warnings in that case as
an "oversight." Seibert, 542 US at 614. The plurality
considered the facts in Seibert to be "[a]t the opposite
extreme" and by "any objective measure" to reveal a police
strategy adapted to undermine the effectiveness of the Miranda
warnings. Id. at 616. The plurality observed the "unwarned
interrogation was conducted in the station house, and the questioning was
systematic, exhaustive, and managed with psychological skill. When the police
were finished there was little, if anything, of incriminating potential left
unsaid." Id. In addition, the circumstances of the questioning
did not change in any meaningful way between the initial round of questioning
and the later round. And when police resumed their questioning and asked the
defendant to cover the same ground a second time, they "fostered" the
impression that the later round was a mere continuation of the first by
reminding the defendant of the confession that she had already given them. Id.
As other courts have emphasized in
adopting the equivalent of the Seibert plurality's "effective
waiver" test, an examination of the totality of the circumstances for an
objective person's perception of those circumstances permits no
"bright-line rule." State v. O'Neill, 193 NJ 148, 181, 936
A2d 438, 457 (2007). But because the test focuses on the circumstances as they
would be objectively perceived, we should acknowledge that the danger of
rendering Miranda warnings a nullity is greatest at the Seibert
end of the factual spectrum. Likewise, that danger is at its lowest ebb at the
Elstad end of the factual spectrum, where no question-first technique or
protocol objectively appears to have been at work, where the initial
questioning is minimal and the unwarned statements are more limited and less
detailed than later ones, and where, given what went before the warnings, there
is some substantial break in the circumstances.(5)
The facts of this case readily bring it within the class of cases in which,
objectively, the circumstances of the initial Miranda violation are not
such that they rendered the belated Miranda warnings or defendant's
waiver of his Miranda rights ineffective. The majority reaches the
correct conclusion in that regard.
For those reasons, I respectfully
concur.
Balmer, J. and Kistler, J. join in
this concurrence.
1. Article
I, section 12, provides, in part, that "no person shall * * * be compelled
in any criminal prosecution to testify against himself."
2. Defendant
was convicted under former ORS 475.992 (2003), renumbered as
ORS 475.840 (2005).
3. As
a result of the state's acknowledgement, we do not consider whether the two
questions that the police asked in this case constituted
"interrogation." See State v. Scott, 343 Or 195, 203, 166 P3d
528 (2007) (defining "interrogation" as "conduct that the police
should know [is] reasonably likely to elicit an incriminating response").
When we refer to "custodial interrogation" elsewhere in this opinion,
we mean interrogation that meets the Scott definition.
4. The
defendant had not contested the act of obtaining the blood as an
unconstitutional search or seizure. This case does not present that issue or
the issue discussed by the dissent in State v. Fish, 321 Or 48, 64-71,
893 P2d 1023 (1995) (Gillette, J., concurring in part and dissenting in part)
-- whether physical evidence concerning a person's identity, appearance, or
physical condition implicates Article I, section 12.
5. In
Soriano, the court noted that the common-law rule that no person is
bound to accuse himself first received constitutional status in Virginia in
1776 and that it was not added to the United States Constitution until 1791.
68 Or App at 646. The court explained that "[w]hen the United States
Supreme Court first acted it simply adopted one line of state decisions and
rejected another." Id.
6. The
plurality acknowledged that the Court had held in Dickerson v. United States, 530 US 428, 444, 120 S Ct 2336, 147 L Ed 2d 405 (2000), that Miranda announced
a constitutional rule that could not be altered by Congress, Patane, 542
US at 636, but cited Chavez v. Martinez, 538 US 760, 772-89, 123
S Ct 1994, 155 L Ed 2d 984 (2003) (plurality opinion) for the proposition that
a failure to give those constitutionally required warnings does not violate the
constitution. Patane, 542 US at 641. One of the problems
with the plurality's approach is that Chavez was a case brought under 42
USC section 1983. The plaintiff in that case had not been criminally
prosecuted and, therefore, no evidence, direct or derivative, had ever been
used against him. However, we need not pick and choose here: a plurality
opinion, particularly a plurality opinion addressing a federal constitutional
issue that is not before us, is not controlling, and it therefore stands only
for whatever persuasive power its logic carries.
7. In
Miller, the police found physical evidence when the defendant
handed them the keys to a hotel room. Before the defendant did so, he had told
the police that he did not want to talk to them without a lawyer. The police
had disregarded that statement and continued their questioning. It was then
that the defendant handed over the keys. The court found that the defendant
had asserted, and not waived, his right to counsel under the Fifth Amendment. Id.
at 224.
8. We
note that the result we reach is consistent with that of other state courts
that have decided the same issue under their state constitutions. See, e.g.,
State v. Peterson, 181 Vt 436, 923 A2d 585 (2007) (physical evidence
obtained in violation of Miranda rights must be excluded at trial as
"fruit of poisonous tree"); Commonwealth v. Martin, 444 Mass
213, 827 NE2d 198 (2005) (physical evidence derived from unwarned statements
presumptively excludable from evidence as "fruit" of improper failure
to provide such warnings); State v. Knapp, 285 Wis 2d 86, 700 NW2d 899
(2005) (physical evidence obtained as direct result of intentional Miranda
violation excluded as "fruit of poisonous tree").
9. Voluntariness
of course is always a requirement for admission of a defendant's incriminating
statements. Even warned statements may be inadmissible if they are not
otherwise voluntary. See State v. Montez, 309 Or 564, 572, 789 P2d 1352
(1990) (assessing voluntariness of statements made after warnings were
administered and defendant made "equivocal" remarks regarding request
to consult with attorney).
10. We
acknowledge, of course, that a defendant is entitled to demonstrate (whether by
defendant's own testimony or otherwise) that the defendant's waiver was not
knowing. So, for example, a defendant may demonstrate that he or she did not
understand the warnings due to cognitive or linguistic limitations.
11. We
note that other state courts applying their state constitutions also have used
multi-factor tests to determine the admissibility of post-Miranda statements.
See State v. O'Neill, 193 NJ 148, 180-81, 936 A2d 438 (2007); People
v. Paulman, 5 NY3d 122, 130-31, 833 NE2d 239 (2005); and State v.
Northern, 262 SW3d 741, 763-64 (Tenn 2008).
12. Given
the brevity of the initial three questions that Stoneberg asked, and the one
word answers that defendant gave in reply, the total amount of time involved
for all three questions would have been a matter of perhaps only 30 seconds or
less.
1. I
accept that this court has adopted Miranda warnings as an independent
requirement under Article I, section 12. The pedigree of that doctrine is,
however, uncertain. In the one case in which the court attempted to decide,
consistently with our announced methodology for interpreting original
provisions of our constitution, whether a Miranda-type rule could be
divined from Article I, section 12, three members (of a six member court)
concluded that the answer was no, while three others believed the answer was
yes, but only two believed that the rule could extend to anything other than
formal custody or arrest. See State v. Smith, 301 Or 681, 725 P2d 894
(1986). Since then, without exploring the interpretative basis for an
independent state Miranda rule, this court has, for the most part,
assumed the existence of that rule. See, e.g., State v. Magee,
304 Or 261, 744 P2d 250 (1987) (per curiam decision, with three members
concurring). But see State v. Isom, 306 Or 587, 592, 761 P2d 524 (1988)
("majority of this court has not agreed whether Miranda-type
warnings are required under the Oregon Constitution"); State v. Kell,
303 Or 89, 734 P2d 334 (1987). It may well be that, at some point, in deciding
novel questions about the scope or content of our state Miranda rule,
this court will have to engage in that interpretative exercise. For present
purposes, however, it is unnecessary to do so.
2. It
is worth noting, however, that the issue is potentially a close one. In many
circumstances, when police conducting a field investigation need to ascertain
the owner of property in order to ask for consent to search that property,
their inquiry may not qualify as "interrogation" that must be
preceded by Miranda warnings. Here, the officer needed to determine who
owned the backpack to ask for consent to search it, among other reasons. The
backpack could have belonged to the driver, even though she denied that it
did. It could have belonged to defendant. It could also have belonged to the
driver's parents, who owned the car, or to some other third party. In such a
circumstance, attempting to determine the identity of the owner may potentially
qualify as the kind of routine questioning normally attendant to investigatory
activities, or even to custody and arrest, that does not trigger the
requirement of Miranda warnings. See generally Wayne R. LaFave, 2
Criminal Procedure § 6.7(b) (3d ed 2007) (general investigatory
questions not ordinarily considered interrogation; citing representatives cases).
In an appropriate case, that issue may merit closer attention than it has
received in this case.
3. "Interrogation,"
both for federal and state law purposes, is express questioning, as well as
words or actions on the part of police (other than those normally attendant to
arrest and custody), that the police should know are reasonably likely to
produce an incriminating response, whether inculpatory or exculpatory.
State v. Scott, 343 Or 195, 202, 166 P3d 528 (2007) (adopting test from Rhode
Island v. Innis, 446 US 291, 301, 301 n 5, 100 S Ct 1682, 64 L Ed 297
(1980)).
4. The
state also has not argued on review that the officers had probable cause to
believe that the backpack contained marijuana, based solely on the odor of
marijuana coming from it, and that they could therefore seize and search it
under the automobile exception. See State v. Meharry, 342 Or 173, 149
P3d 1155 (2006) (discussing that exception to the warrant requirement). The
prosecution relied on that theory in the trial court, and the trial court made
an explicit finding that the automobile was mobile at the time of the stop.
Even though the trial court may have relied on that exception as an independent
and alternative ground for its ruling, the state did not raise the automobile
exception in the Court of Appeals. The state therefore cannot (and, as noted,
does not) rely on that exception in this court. See Tarwater v. Cupp,
304 Or 639, 644, 748 P2d 125 (1988) (on review in this court, party may not
argue alternative ground for affirmance of trial court if that argument was not
presented to Court of Appeals).
5. In
a case that falls on the Elstad end of the spectrum, Miranda warnings
themselves will often provide the needed substantial "break" in the
circumstances. In a case that falls on the Seibert end of the
spectrum, Miranda warnings alone may rarely suffice. In such a case,
among other possible attenuating circumstances, advice that the earlier
unwarned statements probably are not admissible against the defendant is a
significant intervening factor that will weigh heavily on the side of rendering
the subsequent warned statements admissible. | 5f47a63ce784b2b1312bba67d159f74506cf9e52b7b932b2152288a3cdba10df | 2010-07-01T00:00:00Z |
4f8d7063-9bed-4b1c-8b25-b6d7de34f7b5 | Kelly v. Hochberg | null | S058035 | oregon | Oregon Supreme Court | FILED: November 18, 2010
IN THE SUPREME COURT OF THE STATE OF OREGON
MIKE KELLY,
Petitioner on Review,
v.
SAMUEL ISRAEL HOCHBERG,
Respondent on Review.
(CC 06CV0508; CA A136949; SC S058035)
En Banc
On review from the Court of Appeals.*
Argued and submitted September 14, 2010.
W. Eugene Hallman,
Pendleton, argued the cause for petitioner on review. Jeffry A. Long, Jeffry
Long & Associates, Lake Oswego, filed the brief for petitioner on review.
James M. Callahan, Callahan & Shears,
P.C., Portland, argued the cause and filed the brief for respondent on review.
W. Eugene Hallman, Pendleton, filed a
brief for amicus curiae Oregon Trial Lawyers Association.
Jeff J. Payne, Assistant Attorney
General, filed a brief for amicus curiae State of Oregon. With him on
the brief were John R. Kroger, Attorney General, and
Mary H. Williams, Solicitor General.
Susan D. Marmaduke, Portland, filed a
brief for amicus curiae Oregon Association of Defense Counsel.
BALMER, J.
The decision of the Court of Appeals and
the judgment of the circuit court are affirmed.
*Appeal from Josephine County Circuit
Court, Thomas M. Hull, Judge. 231 Or App 155, 217 P3d 699 (2009).
BALMER, J.
This case requires us to determine
the scope of immunity under ORS 105.682, the "recreational immunity"
statute,(1)
as applied to a motorcycle accident on a road traversing Bureau of Land
Management property. The accident occurred when plaintiff, while riding his
motorcycle as part of a motorcycle rally, collided with an automobile.
Plaintiff brought an action against Josephine County alleging negligent
maintenance of Cedar Flat Road where the accident occurred. The road, however,
was owned and maintained by the federal Bureau of Land Management (BLM). By
the time plaintiff's attorney realized his mistake, the two-year statute of
limitations for tort actions against the federal government had passed. Plaintiff
then brought this malpractice action against his attorney for failing to bring
a timely negligence action against BLM. The trial court granted summary
judgment for defendant on the ground that, even if defendant had filed a timely
action against BLM, that action would have been unsuccessful because BLM was
immune from liability under ORS 105.682. The Court of Appeals affirmed. Kelly
v. Hochberg, 231 Or App 155, 217 P3d 699 (2009). We allowed plaintiff's
petition for review and, for the reasons set forth below, affirm the decision
of the Court of Appeals and the judgment of the trial court.
We take the facts from the Court of
Appeals opinion and the record. Plaintiff attended the Iron Horse Rodeo, a
motorcycle rally near the town of Williams in Josephine County. One of the
planned activities at the rally was the Poker Run, an event in which riders departed
from the Lake Selmac campground and collected cards at several intermediate
stops before returning to the lake to compare hands. The winner received a pot
of money based on the entry fees paid by the participants. Plaintiff paid the
entry fee and set out to collect the required cards.
The first leg of the Poker Run, from
Lake Selmac to Williams, followed Cedar Flat Road. Owing to the checkerboard
pattern of federal land ownership in that portion of the state, Cedar Flat Road
sometimes is on BLM property and sometimes is on Josephine County property. Where
the road crosses BLM property, the road is owned and maintained by BLM.
According to BLM documents in the record, BLM allows use of the road year round
for access to BLM property for administrative and commercial purposes, such as BLM
management activities, logging, and grazing. Some portions of the road at
higher elevations are closed in winter because of snow. Additionally, BLM has
opened its land in the area, including Cedar Flat Road, to the public for
recreational purposes. BLM's Western Oregon Transportation Management Plan
(TMP), which controls BLM's road management for the area, provides that the
public may use Cedar Flat Road "for vehicle access to recreate on public
lands." The TMP also states that BLM considers Cedar Flat Road to be a "private
government road." While riding his motorcycle on that road, plaintiff
collided with an automobile and suffered injuries.
Plaintiff retained defendant to
represent him, and defendant filed an action in state court on plaintiff's
behalf, naming as defendants the other driver and Josephine County, which, as
noted, defendant mistakenly believed owned Cedar Flat Road. The complaint
alleged that plaintiff's accident was caused, in part, by the county's negligent
maintenance of the roadway that had allowed vegetation to obscure plaintiff's
ability to see oncoming traffic. Josephine County successfully moved for
summary judgment in the underlying action because BLM, rather than the county,
owned and maintained the road where the accident occurred. By the time defendant
realized that BLM owned the road, the two-year statute of limitations for
federal tort claims had passed. Plaintiff then brought this legal malpractice
action against defendant.
Defendant moved for summary judgment,
arguing that, even if he had named BLM in the original negligence action and had
filed the action in federal court, BLM would have been immune from tort
liability under Oregon's recreational immunity statute.(2)
That statute grants a landowner immunity from tort liability for personal
injuries when the landowner "permits any person to use the land for
recreational purposes" without charge. ORS 105.682(1).(3)
Defendant asserted that BLM had opened Cedar Flat Road to the public for
recreational purposes, without charge, and that plaintiff was using the road
for a recreational purpose under ORS 105.672(5)(4)
when he was injured. For that reason, defendant argued, BLM was immune from
liability. Accordingly, defendant was not liable for legal malpractice because,
even if he had timely filed a federal court action against BLM on behalf of
plaintiff, plaintiff would not have been able to recover any damages against
BLM. The trial court granted defendant's motion, finding that the Poker Run
was within the ambit of the statute because the entire activity -- including
participating in the event, riding the motorcycle, collecting the cards, and
comparing them with other participant's poker hands -- was "intended to
and had a recreational purpose."
Plaintiff appealed, arguing that
riding his motorcycle on Cedar Flat Road as part of the Poker Run was "travel"
and therefore could not be a "recreational purpose." As noted, the
Court of Appeals affirmed. After examining the text of ORS 105.672(5), the
court determined that plaintiff's motorcycle riding as part of the Poker Run
had a recreational purpose. The court observed that the statute included
several other forms of travel in the list of outdoor activities that are "recreational
purposes," such as hiking, boating, and waterskiing. Kelly, 231 Or
App at 160-61. Additionally, the court noted that ORS 105.688(1)(b) defines
the land subject to recreational immunity as including "[a]ll roads"
and "rights of way," and if, as plaintiff argued, all travel was
excluded from the definition of the term "recreational purposes,"
then "the references to roads and rights of way have no discernible
purpose." Id. at 161.
On review, plaintiff renews the
arguments that he made before the Court of Appeals. He first asserts that
riding a motorcycle is travel and that all travel is outside the recreational
purposes contemplated by the legislature. According to plaintiff, this court's
decision in Liberty v. State Dept. of Transportation, 342 Or 11, 148 P3d
909 (2006),(5)
stands for the proposition that "recreational purposes" include only activities
that are recreational in and of themselves and not activities that have a "recreational"
purpose but also have an additional purpose such as transportation from one
place to another. Because riding a motorcycle, driving a car, or riding a
bicycle have a purpose in addition to recreation (i.e., travel),
plaintiff contends that those activities are not within the meaning of "recreational
purposes" in ORS 105.672(5). Plaintiff distinguishes between an ordinary
understanding of recreation, which would apply to a Sunday drive in the car, and
the more narrow intention of the legislature in the immunity statute, which
limits "recreational purposes" to activities that are not dual-purpose.
Plaintiff also contends that the
Court of Appeals erred because determining motorcycle riding to be a "recreational
purpose" within the meaning of the statute would lead to absurd results.
Plaintiff asserts that Cedar Flat Road is a "public road" because BLM
has opened the road for "commercial, administrative, and recreational
access." If plaintiff's motorcycle riding is a "recreational
purpose" in this case, plaintiff argues, then any traveler who subjectively
enjoys the act of riding or driving would be unable to bring a negligence action
for injuries occurring on any public highway. Finally, plaintiff suggests that
if the use of motorcycles, bicycles, or automobiles on roads can be a
recreational purpose, then the law would, in effect, treat a leisure driver and
a commuter involved in identical accidents differently based solely on the
individual driver's state of mind at the time of the accident. In plaintiff's
view, the legislature did not intend to create such "anomalous results"
(plaintiff's characterization), nor did it intend to create a subjective test
for determining what activities are "recreational purposes."
Defendant responds that the Court of
Appeals correctly held that BLM would be immune from liability in the
circumstances at issue here. Defendant argues that BLM expressly opened its
property for recreational use; that the Poker Run, beginning and ending at the Lake
Selmac campground, had a recreational purpose; and that plaintiff's sole reason
for being on BLM property was to participate in the Poker Run and related recreational
events. Defendant also disputes plaintiff's claim that the Court of Appeals
decision leads to absurd or anomalous results. Defendant notes that this case
does not present the question of recreation on a public road at all; rather, he
argues, BLM is akin to a private landowner that allows the public to use its
land, including its roads, for limited purposes. Defendant distinguishes "public
roads," which under state law are open for all lawful uses, and BLM roads,
which BLM opens only for uses permitted by the agency and retains the authority
to close if BLM so decides. Although BLM permits the public to use Cedar Flat
Road for access to recreate on BLM property, the agency can revoke the public's
access at the agency's discretion, whereas owners of public roads do not have
that ability. Therefore, according to defendant, this case does not raise the
question whether owners of public roads are immune from tort liability related
to recreational use of those roads.
Because this is a legal malpractice
action, the first issue is whether plaintiff would have been successful had he
filed a timely tort action against BLM in federal court. See Harding v.
Bell, 265 Or 202, 205, 508 P2d 216 (1973) (plaintiff in legal malpractice
action "must show that he would have won the first suit as one step in
order to win the second one" (citation omitted)). Under the Federal Tort
Claims Act, "[t]he United
States [is] liable * * * in the same manner and to the same extent as a private
individual under like circumstances." 28 USC § 2674. Thus, if a private
individual would have been immune under ORS 105.682 in this case, then so would
BLM. See O'Neal v. United States, 814 F2d 1285, 1287 (9th
Cir 1987) (stating liability
standard under FTCA as applied to BLM). We turn to the question whether BLM
would have been immune under ORS 105.682, based on the facts set out above.
As noted, ORS 105.682 confers limited
immunity on landowners that permit others to use their land for "recreational
purposes." The dispute between the parties here is over the meaning of
the term "recreational purposes," and whether plaintiff's
participation in the Poker Run was such a purpose. ORS 105.672(5) provides:
"'Recreational purposes' includes, but is
not limited to, outdoor activities such as hunting, fishing, swimming, boating,
camping, picnicking, hiking, nature study, outdoor educational activities,
waterskiing, winter sports, viewing or enjoying historical, archaeological,
scenic or scientific sites or volunteering for any public purpose project."
As a reading of that statute demonstrates,
it does not actually define the term "recreational purposes,"
but, rather, it illustrates what the term means by providing an open-ended list
of "outdoor activities" that are "included" within the term
"recreational purposes." Examining the outdoor activities that the
statute lists, travel emerges as a common characteristic of several of the
named activities. Hiking and boating are forms of travel, for example, and scenic
or historic sites may be "view[ed]" and "enjoy[ed]" through
the act of traveling. The enumerated examples thus indicate that the fact that
an outdoor activity involves travel is not a basis for excluding that
activity from the definition of "recreational purposes." Moreover,
the legislature included the terms "roads" and "rights of way"
in the definition of the areas to which recreational immunity applies. ORS
105.688(1)(b). Although a person certainly may hike on a road, nothing in the
statute suggests that hiking is the only outdoor activity on a road that would
qualify as a "recreational purpose" within the meaning of ORS
105.672(5). Rather, it appears that recreational purposes can include other
modes of moving from one place to another -- that is, traveling -- on a road, as
long as the other requirements of the statute are met. See Coleman v.
Oregon Parks and Recreation Dept., 221 Or App 484, 489, 190 P3d 487 (2008),
rev'd on other grounds, 347 Or 94, 217 P3d 651 (2009) (applying immunity
under ORS 105.682 to mountain biking).
Here, there is little question that
the Poker Run, as a whole, was recreation. Although it involved travel by
motorcycle on a road, it was, as the name of the event made clear, a poker
game, with an entry fee, the collection of a number of playing cards, and the
comparison of one's hand with those of other players to see who would win the
jackpot. It was quintessentially a game -- the kind of "play," "diversion,"
or "entertainment" that comes within the ordinary definition of "recreation."
See Webster's Third New Int'l
Dictionary 1899 (unabridged ed 2002) (defining "recreation").
Accordingly, plaintiff's ride on the BLM road was not a means of accessing
recreation -- the card game -- but rather his activity of riding to collect the
cards was part and parcel of the recreational purpose itself.
Plaintiff misinterprets this court's
decision in Liberty when he asserts that motorcycle riding is not a
recreational purpose because it can have an end other than recreation, such as
travel. In Liberty, this court identified two nonexclusive traits of
the enumerated outdoor activities in ORS 105.672(5): (1) they take place
outdoors, and (2) the activities are recreational in and of themselves, i.e.,
none of the specified activities, with the possible exception of hiking, "is
solely a means to a different recreational activity." 342 Or at 20-21. Liberty
does not stand for the categorical proposition that only activities that
can be nothing other than recreation can come within the meaning of ORS
105.672(5). Rather, Liberty illustrates the application of ejusdem
generis to the specific question of statutory interpretation at issue in
that case: Is crossing land for the purpose of reaching a separate parcel of
land, where one intended to recreate, a "recreational purpose"? The
reason that crossing land solely to access a recreational site is not within
the statute is because the act of crossing does not share the characteristic of
being recreational and is instead only a means to access recreation. As
noted, plaintiff here had already traveled to and arrived at the site of the
recreational activity -- he had gained "access" -- before the Poker
Run began. His purpose in traveling on BLM land when the accident occurred was
not to gain access to the site, but instead was to participate in the Poker
Run, i.e., it was recreational.
Plaintiff also asserts that, if BLM
is immune from liability on the facts here, then immunity would attach any time
a driver or passenger in a vehicle is subjectively enjoying himself or herself
while traveling on any public highway. We disagree. The extent to which
recreational immunity would apply to activities on Oregon's public roads is not
before us in this case. The road here is one that BLM policy treats as a
private government road, which BLM has opened for recreational, administrative,
and commercial purposes; it is not a public thoroughfare. See O'Neal,
814 F2d at 1287 (applying Oregon recreational immunity statute to bar recovery
by hunters injured when driving on BLM logging road); compare Seyler v. United
States, 832 F2d 120, 122 (9th Cir 1987) (holding that Idaho recreational
immunity statute did not bar recovery for accident on Bureau of Indian Affairs
road because road was a "public thoroughfare").
Plaintiff's motorcycle accident did
not occur on a public road. Oregon law defines a "public road" as "a
road over which the public has a right of use that is a matter of public
record." ORS 368.001(5) (emphasis added). Although access to public
roads may be restricted, the reasons for imposing such restrictions are limited
to public safety concerns and protecting the road itself from damage. ORS
810.030. Here, the record demonstrates that Cedar Flat Road is not a "public
road" but is, instead, designated by BLM as a "private government
road." BLM's Western Oregon Transportation Management Plan (TMP) states
that "[p]ublic use of BLM roads is allowed or not allowed by BLM policy or
administration decision and not by right." The TMP notes that BLM
"is not a public road authority and cannot dedicate public roads" and
that BLM roads do not fit the criteria for public roads established by the
United States Secretary of Transportation.
Regarding Cedar Flat Road, the TMP
states that public use of the road is limited to "casual use for vehicle
access to recreate on public lands."(6)
Moreover, federal regulations make clear that BLM may close roads on its
property in order to meet its management objectives, whenever certain broad
criteria are met. 43 CFR 8364.1.(7)
In contrast to roads that are "public roads" under Oregon statutes,
BLM could close Cedar Flat Road if it determined that the use of the road by
the public was hindering BLM management objectives. Because there is no public
right of use and BLM may close its roads to meet management objectives, Cedar
Flat Road is not a "public road." See Otteson v. United States,
622 F2d 516, 518-19 (10th Cir 1980) (distinguishing Forest Service road from
public thoroughfare based on Forest Service's ability to close the road for
management purposes); O'Neal, 814 F2d at 1287 (same); compare Seyler,
832 F2d at 122 (recovery not barred by Idaho recreational immunity
statute, where federal agency lacked authority to exclude use of road for any
lawful purpose).
We conclude that plaintiff had
a recreational purpose when he entered BLM's property on Cedar Flat Road as a
participant in the Poker Run. Had defendant timely filed a negligence action on
behalf of plaintiff in federal court, BLM would have been able to assert
immunity from tort liability under ORS 105.682. The trial court correctly
granted defendant's motion for summary judgment on plaintiff's legal
malpractice claim.
The decision of the Court of
Appeals and the judgment of the circuit court are affirmed.
1. All
citations are to the current version of the recreational immunity statute.
Although the statute has been amended by the legislature since the events
giving rise to this action, those amendments are not material to our
analysis.
2. Under the Federal Tort Claims Act, the federal government is liable "in
the same manner and to the same extent as a private individual under like
circumstances * * *." 28 USC § 2674. Such claims may only be brought in
federal court. 28 USC § 1346(b). The Ninth Circuit has applied Oregon's
recreational immunity statute to bar recovery in tort actions against BLM. See
O'Neal v. United States, 814 F2d 1285 (9th Cir1987) (BLM not liable for
injuries sustained when plaintiffs used BLM road for a recreational purpose).
3. ORS
105.682(1) provides:
"[A]n owner of land is not liable in
contract or tort for any personal injury, death or property damage that arises
out of the use of the land for recreational purposes, gardening, woodcutting or
the harvest of special forest products when the owner of the land either
directly or indirectly permits any person to use the land for recreational
purposes, gardening, woodcutting or the harvest of special forest products.
The limitation on liability provided by this section applies if the principal
purpose for entry upon the land is for recreational purposes, gardening,
woodcutting or the harvest of special forest products, and is not affected if
the injury, death or damage occurs while the person entering land is engaging
in activities other than the use of the land for recreational purposes,
gardening, woodcutting or the harvest of special forest products."
4. ORS
105.672(5) provides:
"'Recreational purposes' includes, but is
not limited to, outdoor activities such as hunting, fishing, swimming, boating,
camping, picnicking, hiking, nature study, outdoor educational activities,
waterskiing, winter sports, viewing or enjoying historical, archaeological,
scenic or scientific sites or volunteering for any public purpose
project."
5. In Liberty, this court held that crossing land for the purpose of
reaching a separate parcel of land, where one intended to recreate, was not a
"recreational purpose." 342 Or at 21.
6. "Casual use" is defined by regulation as "activities ordinarily
resulting in no or negligible disturbance of the public lands, resources, or
improvements." 43 CFR 2801.5(b).
7. 43 CFR 8364.1(a) provides:
"To protect persons, property, and public
lands and resources, the authorized officer may issue an order to close or
restrict use of designated public lands." | 4cc600a13cedc892db1b1d052f4def8d7115842fe409d7e474232aa07af1c506 | 2010-11-18T00:00:00Z |
bf80556c-5a29-4ff9-a423-6ded21368d0c | Polacek and Polacek | null | S058307 | oregon | Oregon Supreme Court | FILED: December 2, 2010
IN THE SUPREME COURT OF THE STATE OF OREGON
In the Matter of the Marriage of
PEGGY ANN POLACEK,
Respondent on Review,
and
GARY MICHAEL POLACEK,
Petitioner on Review.
(CC 15-05-13716; CA
A138599; SC S058307)
En Banc
On respondent on review's petition for attorney
fees filed June 30, 2010; considered and under advisement on August 10, 2010.
Jeffrey E. Potter, Eugene, filed the petition
for attorney fees for respondent on review and the reply to petitioner on
review's objections.
Andrey B. Filipowicz, Law Offices of Jeffery M.
Leving, Ltd., Chicago, filed the objections to respondent on review's petition
for attorney fees and a request for findings. With him on the filings was
George W. Kelly.
DURHAM, J.
The petition for attorney fees is denied.
DURHAM, J.
This matter is
before the court on the petition of respondent on review (mother) for an award
of attorney fees for her lawyer's services in opposing father's petition for
review in this court. Father has filed objections. For the reasons set out
below, we deny the petition.
Father and mother
were married and had three children, but separated in 2005. In 2006, the
parties stipulated to a judgment dissolving their marriage and awarding sole
custody of the children to mother. One year after entry of the judgment,
father filed a motion under ORS 107.135(1)(a) to modify the judgment.(1) The trial court
conducted a hearing and denied father's motion.
Father appealed.
The Court of Appeals, in a written opinion, affirmed. Polacek and Polacek,
232 Or App 499, 222 P3d 732 (2009). In a separate order, the Court of Appeals
granted mother's petition for attorney fees, in the full amount requested, for
services rendered in the appeal to the Court of Appeals.
Father petitioned
for review in this court. Mother filed a response opposing the petition. This
court denied review. Polacek and Polacek, 348 Or 414, 233 P3d 817
(2010).
Mother has now filed
a petition for attorney fees to recover the cost of her lawyer's services,
totaling $4,260, in opposing the petition for review. Mother asserts that
father acted in bad faith in petitioning this court for review. In his
objections to the petition for attorney fees, father argues generally that he
filed his petition for review in good faith and supported the petition with
relevant (if not ultimately persuasive) legal authority. Father's objections
do not challenge the court's authority to award attorney fees or the
reasonableness of the services rendered and the hourly rate charged by mother's
lawyer.
This court
ordinarily resolves disputed claims for attorney fees by addressing the
objections filed under ORAP 13.10(6) ("Objections to a petition shall be
served and filed within 14 days after the date the petition is filed."). See
Kahn v. Canfield, 330 Or 10, 13-14, 998 P2d 651 (2000) ("[W]hen an
attorney fees petition comports with the requirements of ORAP 13.10(5), * * *
our inquiry into the request generally will be limited to the objections that
are filed by the party opposing the petition."). ORAP 13.10(9) identifies
an exception to that rule:
"In the absence of timely filed objections
to a petition under this rule, the Supreme Court * * * will allow attorney fees
in the amount sought in the petition, except in cases in which:
"* * * * *
"(b) The Supreme Court * * * is without
authority to award fees."
Because authority to award attorney fees is
a prerequisite to awarding the attorney fees sought in mother's petition, we
turn first to that question even though father's objections do not question the
court's authority to award the requested attorney fees.
Of the potentially
available sources of authority, see Lehman v. Bradbury, 334 Or 579, 54
P3d 591 (2002) (discussing sources of judicial authority to award attorney
fees), only a statute could permit or require an award of attorney fees in the
context of this case.(2)
Two statutes pertain to this court's authority to award the attorney fees
sought in the petition. ORS 107.135(8) is a part of the statute that authorized
father's motion to modify the dissolution judgment. That subsection provides:
"In a proceeding under subsection (1) of
this section, the court may assess against either party a reasonable attorney
fee and costs for the benefit of the other party. If a party is found to have
acted in bad faith, the court shall order that party to pay a reasonable
attorney fee and costs of the defending party."
ORS 107.135(8)
authorizes the trial court to award attorney fees in this case. That statute
is silent, however, regarding the authority of an appellate court to award
attorney fees on appeal or review from a trial court proceeding under ORS
107.135(1).
The legislature has
addressed that potential gap in judicial authority by enacting ORS 19.440,
which provides:
"Any statute law of this state that
authorizes or requires the award or allowance of attorney fees to a party in a
civil action or proceeding, but does not expressly authorize or require that
award or allowance on an appeal in the action or proceeding and does not
expressly prohibit that award or allowance on an appeal, shall be construed as
authorizing or requiring that award or allowance on an appeal in the action or
proceeding."
In Williams v. Cabinet Masters, Inc., 335 Or 49, 57 P3d 145 (2002), this court construed
ORS 19.440 in a proceeding involving a claim by the defendants for attorney
fees incurred in successfully opposing plaintiffs' petitions for review. A
statute, ORS 36.425(4)(b), required the trial court to award attorney fees to
the defendants, but subsection (5)(b) of that statute limited the potential
award to ten percent of the amount claimed in the complaint. The question on
appeal was whether and how the cap on attorney fees applied to the defendants' claim
for attorney fees. This court stated in regard to ORS 19.440:
"That statute is an interpretive rule that directs
courts to 'construe' certain statutes that provide for 'the award or allowance
of attorney fees' to authorize 'that award or allowance' to include fees incurred
on appeal. We agree with defendants that ORS 19.440 requires us to construe
the statutory authorization for the award of attorney fees found in ORS
36.425(4)(b) also to allow the award of attorney fees incurred 'on an appeal in
the action or proceeding.'
"* * * * *
"* * * As noted, ORS 19.440 applies only when another
statute requires 'the award or allowance of attorney fees' but the other
statute fails to specify whether 'that award or allowance' applies to trial or
appellate court fees. In such circumstances, ORS 19.440 instructs courts to
interpret the statute to authorize 'that award or allowance on an
appeal.' ORS 19.440 uses the phrase 'that award or allowance' three times.
The relative pronoun 'that' makes it apparent that each use of the phrase 'that
award or allowance' refers to the initial phrase in ORS 19.440 of 'the
award or allowance of attorney fees' authorized by another attorney fee
statute, rather than to any new or different 'award or allowance' separately
authorized by ORS 19.440. ORS 19.440 thus is not, standing alone, a source of
law for an award of attorney fees on appeal; attorney fees on appeal can be
awarded under ORS 19.440 only to the extent that another statute authorizes
'the award or allowance' of fees."
Id. at 54-55
(footnote omitted; emphases in original). Williams noted that ORS
19.440 was part of a legislative amendment adopted in 1981 that had modified
dozens of statutes relating to attorney fee claims by inserting the existing words
"at trial and on appeal" after the words "a reasonable attorney
fee." Id. at 55 n 2 (discussing Oregon Laws 1981, chapter 897).
After noting the array of statutes that were subject to that type of amendment,
the court stated:
"Nothing in ORS 19.440 or chapter 897 suggests that the
legislature intended to change in any substantive way the existing statutes
that authorized an award of fees, other than to permit recovery of a party's
appellate attorney fees as authorized and as limited by the underlying attorney
fee statute."
Id.
We interpret ORS
19.440 (as construed in Williams) and ORS 107.135(8) together to
determine this court's authority to award attorney fees to mother after this
court has denied father's petition for review. The question presented here
concerns the legislature's intent in extending the trial court's authority to
award attorney fees, ORS 107.135(8), to an appellate court "on an
appeal," ORS 19.440.
When construing a
statute, our goal is to determine the legislature's intent in enacting the
statute. In doing so, we begin with the statutory text and context, which are
the best evidence of the legislature's intent. State v. Gaines, 346 Or
160, 171, 206 P3d 1042 (2009) ("[A]s this court and other authorities long
have observed, there is no more persuasive evidence of the intent of the
legislature than 'the words by which the legislature undertook to give
expression to its wishes.'" (Quoting prior case law; citation omitted.)).
Where the words in a statute have acquired a well-defined legal meaning, we
apply that legal definition. Bergerson v. Salem-Keizer School District,
341 Or 401, 143, 144 P3d 918 (2006). A statute's context includes other
provisions of the same or other related statues, the pre-existing statutory
framework within which the statute was enacted, and prior opinions of this
court interpreting the pertinent statutory wording. Wal-Mart Stores, Inc.
v. City of Central Point, 341 Or 393, 397, 144 P3d 914 (2006); Dept. of
Transportation v. Stallcup, 341 Or 93, 99, 138 P3d 9 (2006).
The legislature
enacted what is now ORS 19.440 in 1981. Or Laws 1981, ch 897, § 107 (enacting
ORS 19.220, renumbered as ORS 19.440 (1997)). The legislature did not
specifically define the term "appeal" in that statute, but that term had,
and still has, a well-defined legal meaning. When the legislature acted in
1981, a legal dictionary defined "appeal" to mean "[r]esort to a
superior (i.e., appellate) court to review the decision of an inferior (i.e.,
trial) court or administrative agency. * * * " Black's Law Dictionary
88 (5th ed 1979).(3)
Both this court and
the Court of Appeals are a "superior" court within that definition.
However, we must review other contextual sources to determine whether the
legislature intended the phrase "on an appeal" in ORS 19.440 to refer
to a proceeding that consists only of a party's unsuccessful effort to petition
this court for review.
ORS 2.516 grants
exclusive jurisdiction over all appeals (except in two circumstances not
relevant here) to the Court of Appeals. That statute provides:
"Except where original jurisdiction is
conferred on the Supreme Court by the Oregon Constitution or by statute and
except as provided in ORS 19.405 and 138.255, the Court of Appeals shall have
exclusive jurisdiction of all appeals."
ORS 2.520 authorizes
a party aggrieved by a Court of Appeals decision to petition this court for
review as provided by the rules of the Supreme Court. That statute provides:
"Any party aggrieved by a decision of the
Court of Appeals may petition the Supreme Court for review within 35 days after
the date of the decision, in such manner as provided by rules of the Supreme
Court."
The Oregon Rules of
Appellate Procedure (ORAP), to which ORS 2.520 refers, make it clear that this
court has the inherent authority to decide, in its discretion, whether to allow
or deny a petition for review. ORAP 9.07 sets out a lengthy list of factors
that this court may consider in deciding whether to allow a petition for
review, but provides that this court retains complete discretion to allow or
deny a petition for review:
"The Supreme Court considers the items set out below to
be relevant to the decision whether to grant discretionary review. * * * They
are neither exclusive nor binding. The court retains the inherent authority
to allow or deny any petition for review."
(Emphasis added.)
This court's rules
consistently refer to appellate litigation as "on review," not
"on appeal," after a party has filed a petition for review of a
decision of the Court of Appeals. See, e.g., ORAP 9.17(1) ("After
the Supreme Court allows review, the parties to the case on review may file
briefs on the merits of the case * * *."); ORAP 9.20(2) ("If the
Supreme Court allows a petition for review, the court may limit the questions
on review."); ORAP 9.20(5) ("The record on review shall consist of
the record before the Court of Appeals."). Those references in the
appellate rules suggest that a distinction exists between appellate litigation
"on review" and "on appeal," but they do not explicitly
rule out the possibility that a matter pending "on review" is in some
sense also "on an appeal." This court's case law supplies a helpful resolution
of that conundrum.
In U-Cart
Concrete of Eugene, Inc., v. Farmers Ins., 290 Or 151, 619 P2d 882 (1980),
the plaintiff lost at trial and before the Court of Appeals, and filed a
petition for review in this court. The defendants filed a response to the
petition, urging this court to deny it. This court denied review.
The defendants then
filed a bill of costs and disbursements, seeking a prevailing party fee of $75
and $32.50 for the expense of printing their response. To determine its
authority in the circumstances, the court examined three pertinent statutes.
The first, ORS
20.010 (1979), authorized an award of costs to the prevailing party in the
judgment or decree. The second, ORS 20.070(1) (1979), stated the amount of
costs allowable to the prevailing party "on an appeal" in this court
or the Court of Appeals as $75. The third, ORS 20.100 (1979), authorized an
award of costs, in the discretion of the court, if the statutes failed to
provide for the allowance of costs in the particular action, suit, or
proceeding.
The court assumed,
without deciding, that ORS 20.100 (1979) applied and stated, "we exercise
the discretionary power not to allow costs in this instance." Id.
at 154. Explaining the basis for that conclusion, the court determined that,
on denial of a petition for review, the respondent has not
"prevailed," and the court's action does not constitute a decision
"on an appeal."
"In a case in which this court affirms or
reverses a judgment, there is a prevailing party and a judgment to support the
award of costs. In denying a petition for review, we neither affirm nor
reverse a judgment. We do not even implicitly decide that the respondent's
position is correct or that the Court of Appeals properly decided the case.
"When a petition for review is denied, the
respondent has not prevailed 'on an appeal' in this court. Rather, the court
has chosen not to entertain an 'appeal.' There is no basis for awarding costs
'on an appeal.'
"With respect to the matter before us,
therefore, we find there is no judgment of this court to support an award of
costs and there is no appeal before the court. We hold that there is no basis
for an award of costs under the statutes."
Id. (citation
omitted).
U-Cart is pertinent to our interpretation of ORS 19.440 because the court
concluded that the key phrase "on an appeal" did not include a
determination by this court to deny review.(4)
This court decided U-Cart on November 18, 1980, just months before the
legislature enacted the predecessor of ORS 19.440. As noted, we assume that
the legislature was aware of this court's interpretation of the phrase "on
an appeal" when it used those words in the predecessor to ORS 19.440.
Nothing in the text, context, or legislative history of ORS 19.440 leads us to
think that the legislature, in using that phrase, meant something different
than what this court stated in U-Cart.
On the basis of the
foregoing discussion, we conclude that the legislature's intent regarding the
applicability of ORS 19.440 in this context is clear. That statute does not
authorize this court to award attorney fees to mother. Her lawyer's services,
principally the preparation and filing of a brief urging this court to deny the
petition for review, were not rendered "on an appeal" within the
meaning of ORS 19.440.
We recognize that,
as a consequence of our interpretation of ORS 19.440, mother may not look to
father to recover the cost of her lawyer's services in this court. If the
legislature wishes to alter this court's authority to award attorney fees in
that context, it may revisit that question whenever it desires.(5)
The petition for
attorney fees is denied.
1. ORS
107.135(1)(a) provides, in part:
"(1) The court may at any time after a
judgment of * * * dissolution of marriage * * * is granted, upon the motion of
either party and after service of notice on the other party in the manner
provided by ORCP 7, and after notice to the Division of Child Support when
required under subsection (9) of this section:
"(a) Set aside, alter or modify any portion
of the judgment that provides * * * for the custody, parenting time,
visitation, support and welfare of the minor children and the children
attending school, as defined in ORS 107.108 * * *."
2. To
determine this court's authority to award attorney fees, we examine the
pertinent statutes, not the procedural rules adopted by this court that guide
or control appellate litigation concerning claims for attorney fees. Some of
this court's appellate court rules of procedure might be read (erroneously, in
our view) as a source of substantive entitlement to attorney fees. For
example, ORAP 13.10(4) provides:
"When the Supreme Court denies a petition
for review, a petition for attorney fees for preparing the petition for review or
a response to the petition for review shall be filed in the Supreme Court."
That rule, however, "governs the procedure for
petitioning for attorney fees[.]" ORAP 13.10(1). Statutory authority to
award the attorney fees requested here must be found elsewhere.
3. The
current edition of that legal dictionary provides a similar definition. An
"appeal" is:
"[a] proceeding undertaken to have a decision
reconsidered by a higher authority; esp., the submission of a lower court's or
agency's decision to a higher court for review and possible reversal * * *."
Black's Law Dictionary
112 (9th ed 2009).
4. U-Cart
recognized implicitly that a proceeding on review in this court may ripen into
an appeal if the court grants review. The court in that circumstance will
either affirm or reverse a judgment and one party will prevail:
"In a case in which this court affirms or
reverses a judgment, there is a prevailing party and a judgment to support the
award of costs."
Id. at 154. This case, however, is not in that
procedural posture.
5. For
example, ORS 20.310(1) specifically addresses this court's authority to award
costs and disbursements in connection with the denial of a petition for
review. That subsection provides, in part:
"In any appeal to the Court of Appeals or
review by the Supreme Court, the court shall allow costs and disbursements to
the prevailing party, unless a statute provides that in the particular case
costs and disbursements shall not be allowed to the prevailing party or shall
be allowed to some other party, or unless the court directs otherwise. * * * On
the same terms and conditions, when the Supreme Court denies a petition for
review, the respondent on review is entitled to costs and disbursements
reasonably incurred in connection with the petition for review."
(Emphasis added.) Although this case does not call for a
detailed interpretation of ORS 20.310(1), that statute demonstrates that, when
the legislature desires to grant this court authority to order the
reimbursement of certain litigation expenses to a party after the denial of a
petition for review, it knows how to do so. | 43e42df203c679cf6b99b670e36289bd6f4d49991c3261d278b25ef61923fd1a | 2010-12-02T00:00:00Z |
24d7ae36-4280-4ae1-861e-9477d26579ea | In re Snyder | null | S056998 | oregon | Oregon Supreme Court | FILED: May 27, 2010
IN THE SUPREME COURT OF THE STATE OF OREGON
In re: Complaint as to the Conduct of
SCOTT M. SNYDER,
Accused.
(OSB Case No. 08-19;
SC S056998)
En Banc
On review of the decision of a trial panel of the
Disciplinary Board.
Argued and submitted March 1, 2010.
Kevin Keaney, Portland, argued the case and filed
the brief for the accused.
Susan Roedl Cournoyer,
Assistant Disciplinary Counsel, Oregon State Bar, argued the cause and filed
the brief for the Oregon State Bar.
PER CURIAM
The accused is
suspended from the practice of law for 30 days, effective 60 days from the date
of the filing of this decision.
PER CURIAM
In this lawyer disciplinary
proceeding, the Oregon State Bar charged the accused with four violations of
the Oregon Rules of Professional Conduct (RPC). A trial panel of the
Disciplinary Board found the accused guilty of three of the charged offenses
and imposed a sanction of a 60-day suspension. The accused seeks review of
that decision. ORS 9.536(1); Bar Rules of Procedure (BR) 10.1 and 10.3. The Bar,
for its part, asks this court to find that the accused also committed the
fourth alleged violation. See BR 10.5(c) (permitting the Bar to urge
rejection of any part of trial panel decision in answering brief). On de
novo review, ORS 9.536(2); BR 10.6, we affirm the trial panel's findings that the accused committed three of the charged violations. We reject the Bar's
contention that it proved by clear and convincing evidence that the accused
committed the fourth charged violation. Finally, we conclude that a 30-day suspension
from the practice of law is an appropriate sanction.
All of the accused's alleged
violations arose out of his representation of a single client, Cohn. Cohn is a
Florida resident who happened to be in Portland, Oregon, in January 2005, when
he slipped and fell on some ice on the sidewalk outside the Marriott Hotel, where
he was staying. Cohn was injured and sought medical treatment. In June 2005,
Cohn asked the accused to represent him in suing the Marriott, the City of
Portland, and Multnomah County. In response, the accused sent Cohn an e-mail
with various documents attached, which the accused told Cohn needed to be
filled out for the representation to begin. Cohn filled out the forms and
returned them a few days later. Cohn also mailed the accused his medical
records.
The accused took several actions on
Cohn's behalf almost immediately: He sent tort claim notices to the city and
county; he sought ownership information from the Marriott; and he placed the
Marriott on notice of a potential claim. The accused sent Cohn copies of those
notices. The accused also began exchanging e-mails with Cohn to set up an
in-person meeting in Portland in August, when Cohn would be back in Oregon. In
the course of that e-mail exchange, Cohn mentioned that he could not find a
copy of his medical records (he had either misplaced them or sent the accused
the originals) and asked the accused to provide him with a copy.
The two met in Portland on August 23,
2005. During that meeting, the accused explained to Cohn his conclusion that
the city and county would not be liable for Cohn's injuries because, under the
Portland City Code, the Marriott, as the owner of the adjacent property, was
responsible for the condition of the sidewalk on which Cohn had slipped and
fallen. The accused did not provide Cohn with the requested copy of his
medical records either before or at the meeting.
After Cohn returned to Florida, Cohn
again asked the accused for a copy of his medical records, again explaining
that he could not find his copy. The accused did not respond to that request.
The accused later testified that he assumed that Cohn could assemble another
set of his medical records by requesting them from each of his providers.
However, the accused did not advise Cohn of that assumption or tell Cohn to ask
the providers for copies. The accused finally provided Cohn with copies of his
medical records in September 2007, more than two years after Cohn's first
request and well after this disciplinary action was underway.
Meanwhile, the accused received
responses from the city and the county denying liability, and from the
Marriott, asking for more information to permit it to better assess the claim.
The accused did not reply to those responses or send copies to Cohn. The
Marriott sent a second request for information in October 2005 and a third in
February 2006. Cohn's health insurer also sent the accused two letters in late
2005, asking for more information about Cohn's claim and asserting a recovery
right related to medical expenses. The accused never responded to any of those
requests; neither did he communicate with Cohn to tell him about any of those letters
or send him copies of them.
In November 2005, Cohn wrote the
accused a letter to update the accused on the status of his injury. Cohn told
the accused that he believed himself to be medically stationary at that time
(that is, that his injury was not amenable to further treatment), but he also informed
the accused that he was depressed and suicidal as a result of his injuries. Cohn
asked the accused to do whatever was possible to expedite the case and he asked
for a status report with time frames. He also enclosed more recent medical
reports. There is some indication in the record that the accused and Cohn had
a telephone conversation sometime in November, but the accused did not
memorialize that conversation in any notes and neither Cohn nor the accused
could remember what they discussed. In any event, the accused did not take any
action in the case in response either to Cohn's letter or to the conversation.
The accused later explained that he
did not move forward with the litigation or negotiations after Cohn asked him
to do so in the November letter, because he did not think Cohn's condition was
stationary at that time. However, there was no evidence that the accused took
any steps to ascertain whether Cohn's condition had changed or become
stationary. For example, the accused never talked to Cohn's health care
providers, nor did he ask for any other medical records. Moreover, the accused
did not advise Cohn that, in his opinion, nothing could be done on the case at
that time because Cohn's condition was not stationary.
Cohn sent an e-mail to the accused to
two different addresses on February 10, 2006, stating his understanding that he
would know within six months whether the Marriott would make a reasonable
offer. When a copy of that e-mail to one of the accused's addresses came back
as undeliverable, Cohn also faxed a copy of the e-mail to the accused's
office. The accused did not respond to those requests for information. The
accused later explained that he was in Africa at the time of those e-mails. He
had not notified Cohn that he would be unavailable and he did not set up
automated responses to phone calls or e-mails advising callers or senders that
he was away. The accused also later stated that the fax must have been filed
in his absence, because he never saw a copy of it.
In any event, the accused did not
communicate with Cohn or do anything to further the case after he returned from
his trip.(1)
On July 14, 2006, Cohn sent the accused an angry letter, giving the accused
until July 31 to reply. Cohn again outlined his understanding from the initial
conversation that the accused would file a lawsuit if Cohn had not received a
reasonable settlement offer from the Marriott within six months of his becoming
medically stationary, and that it would take about a year to adjudicate the
case. He noted in the letter that he had telephoned the accused on July 10,
and that the accused had not responded to that call or to any other
communication from Cohn in eight months.
The accused responded to that letter
with a brief e-mail on July 22, advising Cohn that he would write shortly and
acknowledging that he had received the July 10 phone call, but explaining that
he had not yet answered it because another client had been killed by a drunk
driver, and the accused was assisting the client's family with the aftermath of
that event.
The accused did send a letter to Cohn
on July 26, formally responding to Cohn's letter. The tone of the accused's
letter was confrontational and accusatory. In that letter, the accused
provided Cohn with his first status report of the case. He advised Cohn that
both the city and the county were immune from liability for his injuries. The
accused reviewed the medical records that Cohn had provided to him, pointing to
the fact that those records indicated that Cohn had had some kind of accident
several years before the fall and had been injured in a traffic accident
shortly after the fall. The accused suggested that Cohn had hidden that
information from him, and told Cohn that those injuries would make any recovery
from the Marriott more difficult. The accused told Cohn that it would take a
lawsuit to get any money out of the Marriott and suggested that it would be
expensive to bring the case to trial. He asked Cohn for $500 for costs before
going forward and gave Cohn a deadline of August 18 to make a decision.
In response, Cohn wrote a letter to the
accused terminating the lawyer-client relationship. Three months later, Cohn
filed a Bar complaint against the accused, stating, among other things, that
the accused had failed to return his file and that he had contacted five other
lawyers who all had declined to represent him because of the short time frame
before the expiration of the statute of limitations. Cohn never filed suit
against the Marriott and did not recover any damages for his injuries.
The Bar asked the accused for a
response to Cohn's complaint. In his response, the accused stated that, after
taking the case, he had discovered a number of problems with the case that
would make Cohn's claims harder to prove and that would probably necessitate a
lawsuit, rather than negotiations, to persuade the Marriott to pay damages. He
also had concluded that Cohn's situation would not become stationary before the
statute of limitations expired. The accused did not acknowledge that he had
not communicated with Cohn between August 2005 and July 2006 or that he had not
investigated whether any of the problems that he had identified actually were
impediments to the case. He did admit that he had not asked his client for
records relating to the motor vehicle accident, and that he had not asked him
whether he still was seeing a physician for his injuries.
The Bar charged the accused with
violating four Rules of Professional Conduct: RPC 1.4(a) ("A lawyer shall
keep a client reasonably informed about the status of a matter and promptly
comply with reasonable requests for information."); RPC 1.4(b) ("A
lawyer shall explain a matter to the extent reasonably necessary to permit the
client to make informed decisions regarding the representation."); RPC 1.3
("A lawyer shall not neglect a legal matter entrusted to the
lawyer."); and RPC 1.15-1(d) ("[A] lawyer shall promptly deliver to
the client or third person any funds or other property that the client or third
person is entitled to receive[.]").
After a hearing on the matter, the
trial panel issued an opinion in which it found that the accused had committed
three of the four charged violations (discussed below) and suspended the
accused from the practice of law for 60 days. As noted, the accused now seeks
review of that decision in this court.
Here, the accused contends that his
failure to communicate with Cohn showed poor business sense, but it did not
amount to an ethical violation. He also argues that, in any event, the 60-day
suspension was too severe. The Bar asserts that the trial panel correctly
found that the accused violated RPC 1.4(a), RPC 1.4(b), and RPC 1.15-1(d). In
addition, the Bar contends that there is clear and convincing evidence that the
accused neglected a legal matter in violation of RPC 1.3. Finally, the Bar
argues that a 60-day suspension is appropriate. We begin by considering the
charged ethical violations.
The Bar alleges that the accused
violated RPC 1.4(a), which provides that "[a] lawyer shall keep a client
reasonably informed about the status of a matter and promptly comply with
reasonable requests for information." Relatedly, the Bar also alleges
that the accused violated RPC 1.4(b), which provides that "[a] lawyer
shall explain a matter to the extent reasonably necessary to permit the client
to make informed decisions regarding the representation." The Bar
contends that the accused violated both those rules by failing to communicate
with Cohn for at least eight months. Specifically, the accused did not inform
Cohn that the Marriott's claims department had sent him three requests for
information about the claim. In addition, although the accused claims to have
made a tactical decision neither to acknowledge nor respond to the Marriott's
requests, he never informed Cohn about that decision. Neither did the accused
inform Cohn about correspondence that he had received from Cohn's health
insurer, asserting recovery rights that could have affected the amount that
Cohn ultimately might have received on his claim. Furthermore, although the
accused had concluded that Cohn was not medically stationary (notwithstanding
Cohn's contrary belief) and that it was therefore premature to commence
settlement negotiations with the Marriott, the accused did not inform Cohn of
that conclusion. Finally, the accused failed to respond to Cohn's repeated
phone calls and e-mails asking for information about the case. In fact, until
the accused finally responded to Cohn's urgent messages and letter about the
case in July 2006, Cohn had been completely uninformed about of the status of
his case.
The accused does not dispute any of
the foregoing facts. Instead, he contends that, if the Bar and the trial panel
had a "realistic understanding of trial practice," they would see
that his actions amounted to no more than "[l]ess-than stellar customer
relations." In support of that position, the accused asserts that, during
the eight-month period between the accused's last communication with Cohn in
November 2005 and his July 2006 response to Cohn's letter threatening to
terminate the representation, Cohn had to have understood the status of the
case. That is, Cohn had to have known that the Marriott had made no settlement
offer, because Cohn would have had to be consulted about it. In conclusion,
the accused argues that there is no bright line concerning how long a lawyer
can go without communicating with a client or how many client phone calls a lawyer
can fail to return before the failure amounts to an ethical violation. Here,
according to the accused, he clearly did not drop below the standard of what a
reasonable lawyer would have done in his circumstances because, he contends,
Cohn was not actually harmed by the accused's failures.
The accused displays a fundamental
misunderstanding about what the Rules of Professional Conduct require. RPC 1.4
requires lawyers to maintain reasonably adequate communication with their
clients by keeping clients informed about the status of their matters, by complying
with reasonable requests for information, and by explaining matters to the
extent reasonably necessary to permit clients to make informed decisions. Although
RPC 1.4 is a relatively new rule in Oregon, a lawyer's duty to communicate with
clients was a part of the diligence requirement of former Disciplinary
Rule (DR) 6-101(B), which dealt with neglect of a legal matter. In considering
alleged violations of that rule, this court held that failing timely to
communicate good or bad news to the client constituted a violation of that
rule, In re Coyner, 342 Or 104, 108, 149 P3d 1118 (2006), as did failing
to keep a client informed about the status of the case, In re Bourcier,
325 Or 429, 432-33, 939 P2d 604 (1997). The court also observed, in a case in
which a lawyer did not write any letters to his client about the case and
failed to return his client's phone calls or respond to the client's requests
for progress reports, that neglect of a client and procrastination are
violations of professional responsibility. In re Geurts, 290 Or 241,
245-46, 620 P2d 1373 (1980).
In this case, we have no difficulty
concluding that the accused's failure to communicate with Cohn went well beyond
"bad customer relations" and violated RPC 1.4(a) and (b). The
accused failed to discharge his professional responsibility to keep his client
reasonably informed about the status of the case when he did not apprise Cohn
about communications with the Marriott, Cohn's health insurer's assertion of
recovery rights, or his own judgment that settlement negotiations should not be
(and therefore had not been) commenced. He also failed to discharge his
professional responsibility to respond to reasonable requests for information
when he ignored Cohn's repeated requests for updates and information about the
case and for confirmation of Cohn's understanding of how the case would
proceed. Those requests were reasonable in substance and timing.
Finally, the accused failed to
discharge his professional responsibility to explain the case to Cohn to the
extent reasonably necessary to permit Cohn to make informed decisions about
it. Although "not every failure to respond to a client's requests [for
information] also constitutes a failure to explain a matter sufficiently,"
In re Koch, 345 Or 444, 455, 198 P3d 910 (2008), a lawyer is required to
consult with a client and to discuss concerns that a claim may lack merit or
should not be pursued. Geurts, 290 Or at 246 n 6 (that a client's claim
lacks merit "cannot excuse a failure promptly to consult with the client
and discuss this conclusion with him"). Here, the accused did not inform
Cohn that he did not believe that Cohn was medically stationary and that,
therefore, settlement negotiations were premature, or that Cohn's case was much
weaker than he previously had believed because of Cohn's other injuries. Those
conclusions are precisely the kind of information that a client needs to know
in order to make informed decisions about the case. We find that the Bar has
proved by clear and convincing evidence that the accused violated RPC 1.4(a)
and (b).
The Bar also contends that the
accused violated RPC 1.3, which provides that "[a] lawyer shall not
neglect a legal matter entrusted to the lawyer." Neglect is "the
failure to act or the failure to act diligently." In re Magar, 335
Or 306, 321, 66 P3d 1014 (2003). An isolated incident of negligent conduct
does not establish neglect; rather, unethical neglect exists when there is a
course of neglectful conduct in the representation of a client. Id.; Bourcier,
325 Or at 433.
The Bar argues that the accused
neglected Cohn's legal matter by failing to take any action to "meaningfully
investigate or advance" Cohn's claims after his initial activity in
mailing notices to various opposing parties. The Bar points out that the
accused failed to advocate for Cohn's interests when he ignored requests for
information from the Marriott and Cohn's insurer, and that he took no steps to
investigate concerns raised by Cohn's medical records. The Bar argues that
this court has found unethical neglect in other cases under similar
circumstances. For example, in In re Knappenberger, 337 Or 15, 24, 90
P3d 614 (2004), this court found that a lawyer had violated former DR
6-101(B) (predecessor of RPC 1.3) when, over the course of several months, he
failed to read or respond to correspondence dealing with several significant
events in a case he was handling for his client, and failed even to check on
the status of the case despite inquiries from the client. And in In re
Dugger, 299 Or 21, 697 P2d 973 (1985), this court found that a lawyer
unethically neglected a client for two years when, after filing a construction
lien for his client, he determined that the case lacked merit but did not
inform the client of that conclusion, did not take any other action in the
case, and did not return the client's phone calls.
Whether the accused violated RPC 1.3 in
his representation of Cohn is a close question. However, on balance, we agree
with the trial panel that the accused's conduct with respect to Cohn's matter
does not rise to the level of an ethical violation. The accused worked on the
case in July and August 2005. There is evidence in the record that he may have
reviewed the file in November 2005 and April 2006, although he did not
memorialize any work done at those times. The trial panel found that the
accused had made a strategic decision not to take any action in the case
because of Cohn's medical instability, and that the accused's lack of action in
the case reflected that strategic decision. We accept that assessment. In
addition, during the hearing on these charges, the accused put forth a tactical
justification for not replying to the correspondence from the Marriott and
Cohn's insurer. Those factors differentiate this case from Knappenberger
and Dugger, although the facts in Dugger are close. The
distinction between this case and Dugger lies in Dugger's failure, even
after he determined to abandon his client's cause, to so inform the client. We
hold that the Bar has not shown by clear and convincing evidence that the
accused violated RPC 1.3.
Finally, the Bar charged the accused
with violating RPC 1.15-1(d), because he failed to return Cohn's file
materials, including his medical records, promptly upon request. RPC 1.15-1(d)
provides that "[a] lawyer shall promptly deliver to the client or third
person funds or other property that the client or third person is entitled to
receive." A lawyer's case files are "property" of the client
that must be returned. See In re Worth, 336 Or 256, 270, 82 P3d
605 (2003) (lawyer violated predecessor of RPC 1.15-1(d) when he failed to
return client files when requested to do so); In re Devers, 317 Or 261,
265, 855 P2d 617 (1993) (same). The accused does not challenge the trial
panel's finding that he failed promptly to return Cohn's files and medical
records. We find that the Bar proved by clear and convincing evidence that the
accused violated RPC 1.15-1(d).
Having found that the accused
violated RPC 1.4(a), RPC 1.4(b), and RPC 1.15-1(d), we turn to the appropriate
sanction. In so doing, we consider the following factors in deriving a
presumptive sanction: (1) the ethical duty violated; (2) the lawyer's mental
state; and (3) the actual or potential injury caused by the misconduct. In
re Jackson, 347 Or 426, 440, 223 P3d 387 (2009); American Bar Association's
Standards for Imposing Lawyer Sanctions (1991) (amended 1992) (ABA
Standards) 3.0(a)-(c). We then consider whether any aggravating or mitigating
circumstances justify an adjustment to that presumptive sanction. Jackson,
347 Or at 440-41; ABA Standard 3.0(d). Finally, we consider the appropriate
sanction in light of this court's case law. Jackson, 347 Or at 441.
The accused in this case violated his
duty to his client to act with reasonable diligence and promptness in
communicating with and representing his client, ABA Standard 4.4. The accused
also violated his duty to preserve his client's property when he failed
promptly to return Cohn's files and records. ABA Standard 4.1.
We turn to the accused's mental
state. A lawyer acts negligently when he fails to "heed a substantial
risk that circumstances exist or that a result will follow" and that
failure "is a deviation from the standard of care that a reasonable lawyer
would exercise in the situation." ABA Standards at 7. A lawyer acts
knowingly if he acts with "the conscious awareness of the nature or
attendant circumstances of the conduct but without the conscious objective or
purpose to accomplish a particular result." Id. A lawyer acts
intentionally when he acts with "the conscious objective or purpose to
accomplish a particular result." Id. The trial panel found that
the accused acted negligently in failing to communicate with Cohn but knowingly
in failing to return Cohn's files and records.
The Bar argues that the record
establishes that the accused acted knowingly in failing to communicate with
Cohn, insofar as the accused knew that he had not returned his client's phone
calls; he knew that he had not answered e-mails; he knew that he had not
informed his client regarding the status of the case; he knew that he had not
explained that his change of strategy as a result of his new impressions of the
facts; and he knew that he had not disclosed to Cohn his opinion that Cohn was
not medically stationary and that Cohn's other injuries would complicate his
case.
In addition, the Bar contends that, although
the record supports the trial panel's finding that the accused acted knowingly
in failing to return Cohn's files and records, there also is evidence to
suggest that the accused acted intentionally to deprive Cohn of those
materials. Specifically, the Bar points to the accused's testimony at the
hearing in this proceeding suggesting that he did not respond to Cohn's
repeated requests for copies of his medical records because Cohn could have
obtained them himself from his medical providers. The accused also testified
that he did not provide the case file upon Cohn's request because he assumed that
he would eventually provide it to another lawyer who might take over the
representation.
We agree with the Bar that the
accused acted knowingly with respect to his violations of RPC 1.4(a) and (b). That
is, the accused had to have been consciously aware of that he was not
responding to Cohn's phone calls, letters, and e-mails. Even accepting the
accused's explanation for his failure to respond to Cohn's February 2006 e-mails
and fax, the accused had to have been aware that he had ignored Cohn's numerous
other efforts to communicate with the accused. In addition, given that Cohn's
inquiries almost always included references to his understanding that recovery,
or at least litigation, was imminent, we find that the accused was aware that
he had not informed his client about either the status of the case or his own
reassessment of the strategy that they would pursue.
However, we disagree with the Bar's
assertion that the accused acted intentionally with respect to his failure to
return Cohn's records and files. The accused's testimony at the hearing in
this proceeding reveals that he knew that he was obligated to return the case
file to Cohn. Moreover, the accused's testimony reveals that he was consciously
aware that Cohn had asked for copies of his medical records and for the case
file and that the accused had not sent them. Clearly, the accused acted
knowingly. However, our de novo review of the record does not convince
us that the accused acted with "the conscious objective or purpose to
accomplish a particular result," beyond the necessary consequence that the
client would not have the records.
We turn to the question of injury.
The ABA Standards define "injury" as follows:
"'Injury' is harm to a client, the public, the legal
system, or the profession which results from a lawyer's misconduct. The level
of injury can range from 'serious' injury to 'little or no' injury; a reference
to 'injury' alone indicates any level of injury greater than 'little or no'
injury."
ABA Standards at 7. The accused has contended throughout
this proceeding that Cohn did not suffer any injury to his case as a result of
the accused's inaction, because, in his response to Cohn's July 2006 letter, he
offered to initiate a lawsuit if Cohn would advance $500 in filing fees and, in
any event, at the time that Cohn terminated the representation, the statute of
limitations had not yet run. That argument misses the point. The accused's
failure to communicate prevented Cohn from taking other measures to pursue his
claim and, together with the accused's failure to return the medical records
and client files, left Cohn in the difficult position of trying to find new
counsel only a few months before the statute of limitations expired. Moreover,
even if Cohn ultimately would not have been able to recover against the
Marriott, Cohn clearly suffered anxiety and frustration from the accused's lack
of communication and failure to respond to his requests for the files and
records. Client anguish, uncertainty, anxiety, and aggravation are actual
injury under the disciplinary rules. See In re Paulson, 346 Or
676, 717, 216 P3d 859 (2009), adh'd to as modified on recons, 347 Or
529, 225 P3d 41 (2010) (anguish and uncertainty are actual injury); In re
Jones, 312 Or 611, 618, 825 P2d 1365 (1992) (client anxiety and aggravation
are actual injury); In re Arbuckle, 308 Or 135, 140, 775 P2d 832 (1989)
(same). We find that the accused's actions caused actual injury to his client.
The ABA Standards provide that a
suspension is the presumptive sanction for the accused's violations. ABA Standard
4.12 provides that "[s]uspension is generally appropriate when a lawyer
knows or should know that he is dealing improperly with client property and
causes injury or potential injury to a client." In addition, ABA Standard
4.42(b) indicates that suspension is appropriate when "a lawyer engages in
a pattern of neglect and causes injury or potential injury to a client."
Having determined preliminarily that
suspension is the appropriate sanction, we consider any aggravating or
mitigating circumstances that would affect our sanction determination. We find
two aggravating circumstances: the accused committed multiple offenses, ABA
Standard 9.22(d), and he has substantial experience in the practice of law, ABA
Standard 9.22(i).(2)
In mitigation, we find that the accused did not have a prior disciplinary
record, ABA Standard 9.32(a); that he did not have a selfish or dishonest
motive, ABA Standard 9.32(b); and that he cooperated with the disciplinary
proceedings, ABA Standard 9.32(e).
On balance, we conclude that a
suspension of some term is appropriate in this case. We turn to a review of
our case law to help us determine the duration of that suspension. The Bar
points us to three cases that we agree are pertinent to our analysis:(3)
In re Knappenberger, In re Dugger, and In re Geurts.
In Knappenberger, the lawyer
had violated former DR 6-101(B) (neglect of a legal matter) by failing
to respond to correspondence regarding significant developments in the case and
by failing to check on the status of the case despite numerous inquiries from
his client. The court found that the lawyer had acted negligently in
committing that violation, and that the misconduct did not result in as serious
an injury as in other cases. However, the accused's neglect caused the client
anxiety and frustration and deprived him of the opportunity to respond to
developments in the case. In addition, the aggravating circumstances in that
case outweighed the mitigating factors. The court suspended the lawyer for 60
days for that violation. 337 Or at 33.
In Dugger, the lawyer filed a
construction lien on behalf of his client and then determined that the case
lacked merit. However, he did not inform the client of that conclusion for
over two years, he did not take any other action in the case, and he did not
return the client's phone calls. This court found that that conduct violated former
DR 6-101(A)(3) (neglect of a legal matter). In addition, the court found
that the lawyer misrepresented to his client that he had filed an action to
foreclose the lien, in violation of former DR 1-102(A)(4). Moreover,
the court found that, after the disciplinary proceeding commenced, the lawyer
failed to promptly and affirmatively respond to Bar inquiries in violation of former
DR 1-103(C) (setting out such a requirement). The court concluded that a 63-day
suspension was appropriate in that case. 299 Or at 29-30.
Finally, in Geurts, the court found
that, over a period of two years, the lawyer failed to respond to 10-12
telephone calls and two letters from the client, and did not respond to 17
telephone calls and three letters from the opposing party concerning a
settlement offer. The court imposed a 30-day suspension for the lawyer's
neglect of his client's claim in violation of former DR 6-101(A)(3). In
doing so, however, the court observed that it recently had begun to treat
lawyer misconduct that involved neglect and procrastination more seriously than
it had in the past, and emphasized that merely because, in Geurts, it
concluded that a 30-day suspension was appropriate, "this should not be
misunderstood to mean that substantially stronger disciplinary measures may not
be applied to future violations of [former] DR 6-101(A)(3)." 290
Or at 246.
We have been unable to find a case
involving the knowing failure to return client property that did not also
involve much more serious misconduct than was present here. Nonetheless, as we
discussed above, a suspension of some term also is appropriate for that
violation.
We think that, in this case, taking
into consideration this court's case law and the aggravating and mitigating
circumstances, a 30-day suspension is warranted. The accused's behavior was perhaps
most similar to that of the lawyer in Knappenberger. The court there imposed
a 60-day suspension for a single violation charging neglect of a legal matter.
Here we have found that the accused committed three separate ethical violations,
but in Knappenberger, the aggravating factors clearly outweighed the
mitigating factors. The lawyer in Dugger was suspended for 63 days for three
violations of the disciplinary rules, one of which involved a misrepresentation
to a client. And, as noted, the court suspended the lawyer in Geurts for
30 days for neglecting his client over a two-year period.
In selecting a sanction, we conclude
that a sanction of 30 days is appropriate. The accused's actions, although
justifying a suspension, were not as serious as those in the cases on which the
Bar relies. In our view, a suspension of 30 days strikes the appropriate
balance.
The accused is suspended from the
practice of law for 30 days, effective 60 days from the date of the filing of
this decision.
1. The
accused claimed to have looked at the file in April but had no notes
memorializing that activity.
2. The
trial panel also found that the accused's refusal to acknowledge the wrongful
nature of his conduct is an aggravating circumstance in this case. ABA
Standard 9.22(g). As this court has observed, however, an accused in a bar
disciplinary proceeding has a right to defend himself vigorously against
disciplinary charges, In re Davenport, 334 Or 298, 321, 49 P3d 91, modified
on recons, 335 Or 67, 57 P3d 897 (2002), and we are reluctant to punish a
lawyer for "defend[ing] against accusations respecting his or her personal
character and professional responsibility." Id. In this case, it
is sufficient to note that the existence of this aggravating circumstance is
not pivotal to our analysis.
In addition, the Bar argues for
another aggravating factor, viz., that the accused acted with a dishonest
or selfish motive. ABA Standard 9.22(b). The Bar theorizes that the only
explanation for the accused's failure to return Cohn's files was a desire to
hide the fact that he had not responded to the Marriott's requests for
information. The record does not support that conclusion.
3. The
Bar cites three other cases as well, but we do not find those cases helpful,
because the lawyer's conduct in those cases was substantially more egregious
than that of the accused's here. | 32cf87aa812cde12fbf6cd61bd894838ce910cfe544be156b92bd7cbb6291a4d | 2010-05-27T00:00:00Z |
e4af7744-04da-4826-870e-9bd4050d5dc5 | State v. Willis | null | S057879 | oregon | Oregon Supreme Court | FILED: July 29, 2010
IN THE SUPREME COURT OF THE STATE OF OREGON
STATE OF OREGON,
Respondent on Review,
v.
DANA JO WILLIS,
Petitioner
on Review.
(CC
CFH060180; CA A134794; SC S057879)
En Banc
On review from the
Court of Appeals.*
Argued and submitted
May 18, 2010, at North Medford High School, Medford, Oregon.
Garrett A. Richardson,
Multnomah Defenders, Inc., Portland, argued the cause for petitioner on review.
Erika L. Hadlock,
Senior Assistant Attorney General, Salem, argued the cause and filed the brief
for respondent on review. With her on the brief were John R. Kroger, Attorney
General, and Jerome Lidz, Solicitor General.
GILLETTE, J.
The decision of the
Court of Appeals is reversed. The judgment of the circuit court is reversed,
and the case is remanded to the circuit court for further proceedings.
*Appeal from Umatilla
County Circuit Court, Jeffrey M. Wallace,
Judge. 230 Or App 215, 213 P3d
1286 (2009).
GILLETTE, J.
This is a criminal case in which
defendant was convicted after a jury trial of the crime of unlawful possession
of a controlled substance -- in this case, methamphetamine. Defendant appealed
her conviction to the Court of Appeals, asserting that the trial court erred in
admitting a scientific report authored by a state police criminalist that
identified a particular substance seized from defendant as methamphetamine.
(The criminalist was not present to testify.) The state conceded that the
admission of the report without supporting testimony from the criminalist was
error, but asserted that the error was harmless. The Court of Appeals agreed
and affirmed defendant's conviction. State v. Willis, 230 Or App 215,
213 P3d 1286 (2009). We allowed defendant's petition for review and, for the
reasons that follow, now reverse the decision of the Court of Appeals and the
judgment of the trial court.
We take our statement of facts from
the opinion of the Court of Appeals:
"Officer Washburn of the Hermiston Police Department
went to a convenience store to investigate a report that some people had not
paid for food that they had eaten. Upon arrival, Washburn saw defendant and
two other people at the store and, after a brief encounter, arrested defendant
for disorderly conduct. After advising defendant of her Miranda rights
and before taking her to the police station, Washburn asked defendant if she
had any contraband. Defendant briefly hesitated and then said, 'Yes, she had
some stuff.' Washburn removed defendant's handcuffs in the presence of another
officer. Defendant reached under her sweatshirt and into her bra and pulled
out a vial and a bindle of marijuana. It appeared to Washburn that the vial
was a Chanel perfume container; however, Washburn had not seen perfume in the
crusted and dried form that he saw in the vial, and it was his belief, 'not
absolute,' that the vial contained crystal methamphetamine. The [Oregon State
Police crime] laboratory report later identified the contents of the vial as
methamphetamine. [At her trial, d]efendant sought to exclude the laboratory
report, asserting that admission of the report without also producing its
author violated her Sixth Amendment right to confront witnesses. The trial court
admitted the report over defendant's objection.
"Washburn testified at trial that he
recognized the substance in the vial as methamphetamine. At the time of the trial,
Washburn had been a police officer for 14 years and had had extensive training
as a drug recognition expert and training relating to drug-impaired drivers and
methamphetamine labs. Most of the training pertained to methamphetamine. In
1998 and 1999, when he was with the Hillsboro Police Department, Washburn had
received awards for making the most arrests in the State of Oregon for
drug-impaired driving."
Id. at 217-18. A jury convicted defendant of unlawful
possession of a controlled substance, methamphetamine.
Defendant appealed her conviction to
the Court of Appeals, arguing that, under this court's decision in State v.
Birchfield, 342 Or 624, 157 P3d 216 (2007), admission of the laboratory
report without requiring the author of the report to testify concerning it was
reversible error. The state conceded that admission of the report without the
supporting testimony was error, but urged the Court of Appeals nonetheless to
affirm defendant's conviction because, the state asserted, the error in
admitting the report was harmless. The Court of Appeals agreed with the
state. It reasoned:
"[A]side
from an undeveloped challenge in closing argument, defendant did not seriously
dispute whether the substance in the vial was methamphetamine. * * * In the
overall context of the case, including Washburn's testimony that the vial,
concealed in defendant's bra, contained methamphetamine and defendant's
admission to Washburn that she had contraband, and in the absence of an attempt
on defendant's part to contend that the contents of the vial was anything other
than methamphetamine, * * * [citation omitted], we conclude that there is
little likelihood that the admission of the report affected the jury's verdict,
and that the error was harmless * * *."
Willis, 230 Or App at 223. As noted, we allowed
defendant's petition for review.
In this court, the parties focus not
on whether there was a Birchfield error -- as noted, the state conceded that
point -- but on whether the error was harmless. As a preliminary matter, we
focus on two separate statements by the Court of Appeals on which the state
relies. The state first points to the Court of Appeals' statement that,
"aside from an undeveloped challenge in closing argument, defendant did
not seriously dispute whether the substance in the vial was
methamphetamine." The state also endorses the Court of Appeals'
observation that there was no "attempt on the part of defendant to contend
that the contents of the vial [were] anything other than methamphetamine."
We respectfully disagree with both of
those statements. It is true that the defendant did not give a great deal of
attention to the identification of the contents of the vial, either in her
closing argument or elsewhere in the trial. However, she did contest that
identification, most notably in the following statements by her lawyer in
closing argument:
"Is [the evidence that the jury had heard,
including the unexplained laboratory report] enough? Is that enough for you
the jury to believe -- to know, to know beyond a reasonable doubt that that was
the substance tested and that that was the result of the test?
"Is that enough for you ladies and
gentlemen, to know beyond a reasonable doubt that the proper tests were done,
that the error rate of those tests performed did not fall outside of accepted
tolerances for these tests?
"Is that enough for you to know, ladies and
gentlemen, in sum, [that] the white junk in the bottle is methamphetamine? Is
that enough?"
In our view, the quoted statements establish that defendant
made an issue of each element of the charged offense, including the identity of
the alleged controlled substance. The Court of Appeals' characterization of
defendant's argument thus was mistaken.
We also take issue with the second
part of the reasoning of the Court of Appeals on which the state relies, i.e.,
that court's assertion that there was no "attempt on the part of defendant
to contend that the contents of the vial [were] anything other than
methamphetamine." Defendant was not required to contend that the vial's
contents were "anything other" than methamphetamine; defendant bore
no burden of proof or persuasion in the proceeding. She was entitled to
content herself with arguing that the state had not proved by the requisite
degree of persuasiveness that the contents of the vial were what they
were alleged to be. The contrary statement of the Court of Appeals thus was improper.
With those preliminary observations in mind, we return briefly to a review of
our decision in Birchfield.
In Birchfield, this court held
that a statute, ORS 475.235 (2001), which made criminalist reports like that
involved in this case prima facie evidence of the criminalist's findings
and gave criminal defendants the right to subpoena and cross-examine the
criminalist who authored the report, denied defendant his right of confrontation
under Article I, section 11, of the Oregon Constitution. Birchfield, 342
Or at 631-32.(1)
Because the law on that point is clear, we agree with the parties that the
trial court's contrary ruling in the present case was error. The remaining issue
is whether the error is one that requires reversal of the trial court's judgment
or whether, instead, the error was "harmless" -- i.e., whether
this court is of the opinion "that the judgment of the court appealed from
was such as should have been rendered in the case." Article VII
(Amended), section 3, of the Oregon Constitution.
Under Article VII (Amended), section
3, of the Oregon Constitution, an appellate court must "affirm a
conviction, notwithstanding any evidentiary error, if there is little
likelihood that the error affected the verdict." State v. Gibson,
338 Or 560, 576, 113 P3d 423, cert den, 546 US 1044 (2005). The court's
inquiry
"must focus 'on the possible influence of the error on
the verdict rendered, not whether this court, sitting as a fact-finder, would
regard the evidence of guilt as substantial and compelling.' * * * That inquiry
requires us to examine the nature of the error that occurred below and the
context of that error. * * * If the particular issue to which the error pertains
has no relationship to the jury's determination of its verdict, then there is
little likelihood that the error affected the verdict."(2)
Id. (citations omitted).
In the present case, the indictment
charged that defendant,
"on or about October 17, 2005, in Umatilla County,
Oregon, did unlawfully and knowingly possess methamphetamine, a schedule II
controlled substance * * *."
Such possession is a Class C felony. ORS 475.894. Both
parties appear to recognize -- and we agree -- that the specification in the
indictment that the controlled substance that defendant possessed was
"methamphetamine" required the state to prove beyond a reasonable doubt
that the substance in the vial seized from defendant was, in fact,
methamphetamine and not some other substance.
The state relied on the following
evidence to prove the identity of the substance in the vial: (1) The fact that
defendant produced the substance in response to Washburn's question whether she
possessed "contraband"; (2) the appearance of the substance itself; (3)
Officer Washburn's "belief" (which he admitted was "not
certain") that the substance that he saw in the vial was methamphetamine;
and (4) the laboratory report that declared that the substance was, in fact,
methamphetamine. As already noted, defendant properly and timely objected to
admission of the laboratory report without the supporting testimony of the
criminalist who had prepared it, but that objection was erroneously overruled.
When the erroneous ruling is examined
in context, its significance is apparent: The report went to "the heart
of * * * the case." State v. Davis, 336 Or 19, 34, 77 P3d 1111
(2003) (using that description to explain why certain evidentiary error is not
harmless). The state had no witness who could affirmatively identify the
substance in the vial as methamphetamine. Defendant's verbal act in giving up
the substance established only that it was "contraband." The only
witness even to suggest that the substance was methamphetamine was Officer
Washburn, and he admitted that he was not sure. The substance was not
self-identifying, as certain other substances might be -- the substance could have
been methamphetamine, but it also could have been, inter alia, cocaine,
or heroin, or a harmless white crystalline substance. Without the laboratory
report, that was all the evidence that the state had. We certainly cannot say
that the evidence that the substance was methamphetamine was overwhelming.
In light of the other evidence in
this case, a chemical analysis was necessary to establish the identity of the
substance in the vial in a persuasive way, which presumably is why the state
offered the laboratory report. Science either can turn suspicion into probability,
or it can establish that the substance was not the specific controlled
substance alleged in the indictment (or, indeed, was not a controlled substance
of any kind). Any juror would wish to have the scientific answer, and could be
expected to give it weight. Far from being able to say, on this record, that
there was "little likelihood" that any error in admitting the
laboratory report "affected the verdict," we conclude that there was
a high likelihood that the improperly received report did affect the
verdict. The error was not harmless.(3)
The contrary conclusion of the Court of Appeals was incorrect.
The decision of the Court of Appeals
is reversed. The judgment of the circuit court is reversed, and the case is
remanded to the circuit court for further proceedings.
1. The
Supreme Court of the United States reached a similar conclusion under the Sixth
Amendment in Melendez-Diaz v. Massachusetts, 557 US ___, 129 S Ct 2527,
174 L Ed 2d 314 (2009).
2. The
foregoing statement of the law does not purport to establish a separate or
different inquiry when the evidence in question is, as it is in this case,
scientific evidence. The test is equally applicable whether the evidence in
question is scientific or ordinary.
3. In
so holding, we leave open the possibility that, on a different record,
erroneous admission of a laboratory report could be harmless. | 7a60c064273aa67ce4aa0c6407e21fcedc10bb69dd4cc248e63f976caa09f253 | 2010-07-29T00:00:00Z |
cafe2608-7c82-40ab-8a04-b35e4d5b727c | In re Peterson | null | S056480 | oregon | Oregon Supreme Court | FILED: May 27, 2010
IN THE SUPREME COURT OF THE STATE OF OREGON
In re: Complaint as to the Conduct of
THOMAS J. PETERSON,
Accused.
(OSB Case No. 06-109;
SC S056480)
En Banc
On review of the decision of a trial panel of
the Disciplinary Board.
Argued and submitted November 2, 2009.
Thomas J. Peterson, Eugene, argued the cause and
submitted the brief in propria persona.
Jeffrey D. Sapiro, Disciplinary Counsel, Oregon
State Bar, Tigard, argued the cause and filed the brief for the Oregon State
Bar.
PER CURIAM
The accused is suspended from the practice of
law for a period of 60 days, commencing 60 days from the date of this decision.
PER CURIAM
In this lawyer
disciplinary proceeding, the Oregon State Bar (Bar) charged the accused with
violating three provisions of the Oregon Rules of Professional Conduct (RPC): RPC
1.15-1(a) (requiring lawyer to account for client funds and to deposit and
maintain client funds in trust), RPC 1.15-1(c) (requiring lawyer to withdraw
client money only as fees are earned or expenses incurred), and RPC 8.4(a)(3)
(prohibiting conduct involving dishonesty, fraud, deceit, or
misrepresentation). A trial panel of the Disciplinary Board concluded that the
accused had violated the rules as alleged. As a sanction, a majority of the
trial panel disbarred the accused. A dissenting member of the trial panel
would have suspended the accused for one year and required a two-year period of
probation thereafter.
The accused sought
review pursuant to ORS 9.536(1) and Bar Rule of Procedure (BR) 10.1. Pursuant
to ORS 9.536(2) and BR 10.6, this court reviews a decision of the trial panel de
novo. On de novo review, the Bar has the burden of establishing the
accused's misconduct by clear and convincing evidence. BR 5.2. Clear and
convincing evidence is evidence establishing that the truth of facts asserted
is highly probable. In re Johnson, 300 Or 52, 55, 707 P2d 573 (1985).
On review, we
conclude that the accused violated RPC 1.15-1(a) and RPC 1.15-1(c) as alleged
by the Bar. We suspend the accused from the practice of law for 60 days.
I. FACTUAL BACKGROUND
The accused, a sole
practitioner in Eugene, has practiced law in Oregon since 1976 and has no prior
disciplinary history. His practice consists primarily of domestic relations
and real estate work, some of which is contract work performed for other
lawyers. Prior to the Bar's investigation, the accused, who does his own
bookkeeping, kept "very spotty records" and did not maintain
individual client ledgers. Although the accused did not have very many client
trust accounts, he testified that he would put client money that was to be held
in trust into a lawyer trust account.
The majority of the violations
alleged by the Bar stem from the handling of a $2,000 check from the accused's
clients, Frances and Emmet Thomas, that was made payable to "Thomas
Peterson, Lawyer Trust Account." The Thomases, a retired couple, had
become involved in a boundary dispute with their neighbors, the Heneghans. The
Heneghans and the Thomases owned adjoining five-acre parcels and the Thomases
had been concerned that the Heneghans were encroaching onto their property. On
March 17, 2005, the Thomases contracted with surveyor Dave Wellman to locate
the boundary line between the two properties. The survey revealed that a
driveway recently built by the Heneghans was actually located on the Thomases'
property.
The Thomases then
asked Eugene lawyer Laura Parrish, who had assisted them with a prior probate
matter, to help them resolve the boundary dispute. Parrish, in turn, contacted
the accused, who previously had worked for her on a contract basis and who she
knew had experience with real estate issues. There was no written retainer agreement
between Parrish and the accused or between the accused and the Thomases. From
March 2005 until May 2006, the accused submitted regular bills for his services
to Parrish. He billed his work at his contract rate of $70 per hour. Parrish
paid the accused out of her office account and then billed the Thomases directly
for the accused's services.
The accused took the
lead role in working with the Thomases. In September 2005, the Thomases and
the Heneghans tentatively agreed to settle their dispute by exchanging equal
portions of their five-acre parcels. On September 27, 2005, the accused, the
Thomases, and the surveyor, Wellman, met at the Thomases' home to discuss how
the Thomases wanted to proceed with the property line adjustment. On October
5, 2005, the Thomases authorized Wellman to go forward with the next round of
survey work.
Wellman estimated
that his fee for the property line adjustment work would be $2,000. Although the
Heneghans and the Thomases had agreed to split payment of Wellman's fee, the
Thomases, Parrish, and the accused shared a concern that the Heneghans might
not pay their share.
On October 2 or 3,
2005, the accused called the Thomases, expressed a concern about the Heneghans not
paying their half of Wellman's fee, and stated that, if the Thomases put some
money towards Wellman's services, he would try to have the Heneghan's attorney,
Kate Thompson, put a like amount in reserve. On October 3, 2005, Frances
Thomas wrote a check for $2,000 payable to "Thomas Peterson, Lawyer Trust
Account." The check contained the notation "Land survey." All
parties agree that $1,000 of the money represented payment in full of the
accused's fee in performing documentation work to finalize the settlement and that
the accused would use the other $1,000 to pay the Thomases' share of Wellman's
fee once Wellman completed his work and submitted his bill. However, no
contemporaneous writing memorialized the purpose of the payment.
On October 6, 2005,
the accused deposited the $2,000 check into his trust account. The next day,
the accused wrote a check for himself against his trust account in the sum of
$2,000 and deposited that check into his personal checking account.
At that time, the
accused was experiencing financial difficulties. He had filed for bankruptcy
on June 30, 2005, to prevent foreclosure on his home. Because he had failed to
make the August and September payments on the bankruptcy plan, the bankruptcy
court had issued a September 23, 2005, order that required that the plan
payments be brought current by October 6, 2005. On October 6, 2005, the
accused mailed the bankruptcy trustee a personal check for the August and
September payments, totaling $3,870.(1)
Without the $2,000 from the Thomases, the accused would have had insufficient
funds in his checking account to timely make the $3,870 payment.(2)
The Thomases'
dispute with the Heneghans did not resolve quickly, and Wellman's fee rose to a
greater amount than anticipated. After several disagreements between the
Heneghans and the Thomases as to the location of the new boundary line, Wellman
submitted his bill for $4,690 on June 6, 2006. On June 19, 2006, the accused
sent Wellman the Thomases' share of his fee, which he paid by a $1,345 check
from the Thomases and a $1,000 check from his trust account.
Because the accused
believed that his trust account contained $505, he deposited $500 from his
personal account into his trust account to cover the check that he issued to
Wellman. However, because the accused had withdrawn $100 from the account on
June 9, his $500 deposit only raised the trust account balance to $905. Thus,
when Wellman cashed the $1,000 check on July 3, it resulted in a $95 overdraft
charge on the accused's trust account. The bank honored the check but notified
the Bar of the overdraft. That overdraft notice triggered the Bar's
investigation of the accused.
Although the accused
submitted his final bill through Parrish's office in May 2006, he continued to
perform documentation work on the Thomas matter until June 2007. The
documentation work included drafting a property line adjustment, a septic line
easement, and a trust deed modification for the Heneghan's property, as well as
working with the title company to obtain title insurance for the Thomases'
property. The accused did not submit any further bills to the Thomases for that
work except for a final bill for $174.66 for out-of-pocket costs advanced.
Throughout the Bar's
investigation, the accused has acknowledged that he did not keep proper trust
account records or otherwise follow proper bookkeeping procedures. In the
accused's first letter to the Bar, he apologized and explained that he had made
a mistake in calculating the balance in his trust account because he
"improperly withdrew" $100 from the account on June 9. In the
accused's second letter to the Bar, he explained his role in the Thomas matter
in more detail, stating:
"[A]fter discussing the matter with Ms. Parrish and Mr.
and Mrs. Thomas, it was decided that Mr. and Mrs. Thomas would deposit $2,000
with me, so that I could tell the Heneghan attorney, Kate Thompson, that I had
received money for the surveyor and that I assumed that she would also receive
money for the surveyor. Mr. and Mrs. Thomas and I agreed that $1,000 of the
sum would go to Mr. Wellman, and $1,000 would go to payment of my attorney
fees. I received the $2,000 on October 6, 2006, called Ms. Thompson that day
and stated that I had received money for the surveyor and that I assumed she
would do the same. I then transferred the $2,000 into my personal account. I
did so without confirming the arrangement in writing with Mr. and Mrs. Thomas,
and admit that I am at fault for not having done so."
In his third letter, the accused responded
to a question from the Bar investigator as to why he had removed the $1,000 intended
to pay for Wellman's services:
"I admit that I should not have removed the $1,000 that
was to be paid to Mr. Wellman, and am at fault for having done so. In
addition, I should have returned $1,000, instead of $500, to the trust account
to pay Mr. Wellman. My rationale was that I had earned the remaining $500 from
[another client] but had not yet withdrawn those funds from the trust account.
I admit that I did not follow proper bookkeeping procedures and am at fault for
not having done so."
In his fourth letter to the Bar, the accused
further responded to questions regarding the withdrawal of the $1,000 earmarked
to as future payment for Wellman services:
"I did not have a pressing need for the money at the
time I removed the $1,000 from the Thomas trust account fund that was to be
paid to the surveyor. * * * In any event, I cannot justify the withdrawal, and
any excuse I would attempt to make would sound forced and hollow. What I did
was wrong."
On November 8, 2006,
the Bar filed a complaint against the accused; the Bar filed an amended
complaint on March 20, 2007. On April 2, 2007, the accused filed an answer to
the amended complaint. The accused attached to his answer an affidavit dated
January 18, 2007, prepared by his lawyer and signed by the Thomases ("the
Thomas affidavit"). In part, the Thomas affidavit states:
"On October 6, 2005, we paid $2,000 to Tom
Peterson. $1,000 was a flat fee, fully earned at the time of receipt, paid to
Mr. Peterson, in advance, for consultation with Lane County, preparation and
filing of documents and follow-up matters needed to consummate the settlement.
Mr. Peterson also agree[d] to assume responsibility for paying, when billed,
the sum of $1,000 to Mr. Wellman, the surveyor. We agreed to pay the remainder
of our share of the survey cost.
"We expected Mr. Peterson to negotiate our
check and use the funds as he chose. We claimed no ownership interest in any
of the money once it was paid to Mr. Peterson.
"We understand that Mr. Peterson disbursed
to himself the sum of $2,000 shortly after receipt of our $2,000 check and then
later paid $1,000 to Mr. Wellman on or about June 19, 2006. This is what we
expected him to do. He made these disbursements with our knowledge, consent,
permission and approval.
"We didn't ask or expect Mr. Peterson to
retain any of the money in his trust account. The entire sum was his, subject
only to his agreement to pay Mr. Wellman $1,000 at some later date when Mr.
Wellman sent a bill for his services."
The Thomas affidavit
is consistent with the accused's testimony at trial. At various points during
the hearing and a pre-hearing deposition, the accused has referred to his
obligation to pay Wellman as an "agreement to assume responsibility"
of paying Wellman, a "legal obligation," a "moral, if not legal,
obligation," and a "contractual obligation." At a pre-hearing
deposition and at the hearing, the accused claimed that he had discussed his
agreement with the Thomases to obligate himself pay $1,000 of Wellman's fee
with Laura Parrish and Dave Wellman. However, at the hearing, neither Laura
Parrish, Dave Wellman, nor Frances Thomas recalled being told of such an
agreement.
Also at the hearing,
Frances Thomas testified regarding the accuracy of the affidavit. She first
testified that she did not remember anything about Peterson's fee being
nonrefundable and fully earned upon receipt. She also testified that the
statement that the accused could use the money "as he chose" was not
entirely accurate, because she and her husband only had granted "him
permission to use it for Dave Wellman and to tidy the loose ends." She
further testified that, at the time, she did not really know how the $1,000 for
Wellman would be handled in the interim but that, in retrospect, now that she
had talked with the Bar's investigator and understood the purpose of a lawyer
trust account, it appeared as though the $1,000 should have been kept in the
trust account. Finally, Mrs. Thomas also testified that she was pleased with
the accused's work and that he earned the money that he had been paid.
II. DISCUSSION
The trial panel
first found that the accused had violated RPC 1.15-1(a) by failing to keep
proper records of client funds between September 2005 and July 2006. In part,
RPC 1.15-1(a) requires that a lawyer keep "[c]omplete records" of
funds held in a lawyer's trust account for clients or third persons. The
accused has acknowledged that, prior to the Bar's investigation, he kept very
poor records, failed to maintain individual client ledgers, and failed to
reconcile his monthly trust account statements. On review, the accused
concedes that he violated the recordkeeping requirements of RPC 1.15-1(a). We
accept that concession.
The trial panel also
found that the accused's October 2005 withdrawal of the $2,000 violated RPC
1.15-1(a) and 1.15-1(c). In part, RPC 1.15-1(a) requires that
"[a] lawyer shall hold property of clients or third
persons that is in a lawyer's possession separate from the lawyer's own
property. Funds, including advances for costs and expenses and other funds
held for another, shall be kept in a separate 'Lawyer Trust Account' * * *."
RPC 1.15-1(c) requires that
"[a] lawyer shall deposit into a lawyer trust account
legal fees and expenses that have been paid in advance, to be withdrawn by the
lawyer only as fees are earned or expenses incurred."
On review, the accused appears to contest
those violations, admitting only that he violated RPC 1.15-1(c) insofar as it
would require a written agreement on the facts of this case.
We begin by
determining to whom the $2,000 belonged on October 7, 2005, when the accused
withdrew the money from his lawyer trust account and deposited it into his
personal account. The Bar argues that $1,000 represented an advance payment of
the accused's future attorney fees and thus remained client property until the
accused performed the documentation work to earn his fees. The Bar contends
that the remaining $1,000 represented "anticipated expenses for the
surveyor paid by the Thomases in advance." The accused, relying on the
affidavit, contends that the entire $2,000 sum was his property, subject only
to his agreement with the Thomases that he would pay the surveyor.
Even assuming that
the Thomases and Peterson had an oral agreement that the entire $2,000 sum
represented a fully non-refundable retainer earned on receipt, "an oral
agreement does not provide a sufficient basis for a lawyer to treat a client's
funds as if they were his or her own." In re Fadeley, 342 Or 403,
409-10, 153 P3d 682 (2007) (lawyer violated former DR 9-101(A) by
depositing client funds into personal checking account rather than lawyer trust
account). In the absence of a written fee agreement that expressly designates
a fee as a non-refundable retainer earned upon receipt, funds paid from a
client to a lawyer remain subject to trust account rules regarding funds held
for another. In re Biggs, 318 Or 281, 293, 864 P2d 1310 (1994)
(applying former DR 9-101(A)); see also In re Balocca, 342
Or 279, 288-89, 151 P3d 154 (2007) (following Biggs). Applying Fadeley,
Biggs, and Balocca, we conclude that the accused violated RPC
1.15-1(a) and (c) when he removed the $2,000 from his lawyer trust account and
deposited it into his personal checking account.
Our final inquiry
focuses on whether the accused's handling of the $2,000 also violates RPC
8.4(a)(3), as alleged by the Bar. RPC 8.4(a)(3) provides:
"(a) It is professional misconduct for a
lawyer to:
"* * * * *
"(3) engage in conduct involving
dishonesty, fraud, deceit or misrepresentation that reflects adversely on the
lawyer's fitness to practice law."
Under this court's case law,
"dishonesty includes theft or knowing conversion of client property, such
as client funds." In re Eakin, 334 Or 238, 248, 48 P3d 147 (2002).
To determine whether
an accused lawyer engaged in conduct involving dishonesty by conversion, we
apply the two-step analysis from In re Martin, 328 Or 177, 184, 970 P2d
638 (1998). We first consider whether the accused's conduct "amounted to
conversion." If so, we next evaluate whether the accused exhibited the
requisite intent such that the conversion constituted "conduct involving
dishonesty."(3)
An individual
commits the act of conversion when, without the legal right to do so, he or she
exercises "dominion or control over a chattel which so seriously
interferes with the right of another to control it that the actor may justly be
required to pay the other the full value of the chattel." Id. (quoting
definition found in Restatement (Second) of Torts § 222A (1965)).
Because an actor who
mistakenly believes that his or her conduct is legal still can commit
conversion, not all conversions implicate the prohibition in RPC 8.4(a)(3)
against "conduct involving dishonesty." Id. at 184-85. Acts
of conversion that are "intentional or knowing" violate RPC
8.4(a)(3); acts that are "merely negligent, unknowing or innocent" do
not. Id. at 186. Stated differently, the Bar must prove, by clear and
convincing evidence, that the accused either (1) intended to convert property,
or (2) knew "that his conduct was culpable in some respect." In
re Skagen, 342 Or 183, 203, 149 P3d 1171 (2006) (evaluating the mental
state required for "conduct involving dishonesty" under former DR
1-102(A)(3)).
As discussed above, there
was no written agreement between the accused and the Thomases that authorized
the accused to withdraw or spend the $2,000. The affidavit signed by the
Thomases is not the equivalent of a contemporaneously signed written fee
agreement. The conduct in question, however, is not in dispute: the accused
withdrew $2,000 from his trust account, deposited the funds in his personal
account, and used the funds for his own personal purposes. That conduct could
constitute conversion. We need not decide that issue, however, because, as we
shall explain, we conclude that the Bar has failed to prove that the accused's
state of mind was a culpable one.
The Bar points to a
number of circumstances surrounding the accused's withdrawal of the $2,000 that
the Bar contends demonstrate that his conduct was culpable rather than
innocent. The Bar begins with the circumstances surrounding the accused's
request for the $2,000, namely that: (1) prior to October 2005, the accused
only had billed the Thomases indirectly through Parrish, (2) the accused did
not list the $2,000 as a credit on his November billing statement to Parrish or
tell her about the payment, and (3) because the Thomases were current on their
payments to Parrish, the accused had no reason to ask for the money except to
satisfy his own financial needs.
In addition, the Bar
contends that the accused's handling of the $2,000 indirectly demonstrates his
knowledge that the money did not belong to him. The Bar argues that the
accused's initial deposit of the $2,000 into his trust account reflects his
knowledge that the $2,000 was client property that should remain in trust. See
In re Hedges, 313 Or 618, 623, 836 P2d 119 (1992) (money paid by client to
lawyer remained client funds in the absence of a contrary written agreement
when the accused had deposited money in trust account and admitted that, had
the money had been a nonrefundable fixed fee, he would have deposited it in his
office account). The Bar also points out that the accused issued the check
used to pay Wellman $1,000 from his trust account.
Next, the Bar points
to the accused's correspondence during the Bar's investigation. The Bar
explains that the accused did not assert the explanation that the entire $2,000
was a flat fee earned upon receipt in his correspondence with the Bar. The Bar
also notes that, in his correspondence with the Bar, the accused admitted that
he "should not have" withdrawn the $1,000 to be paid to the surveyor
and that such action "was wrong."
Finally, the Bar
contends that the accused has been dishonest and, accordingly, his explanations
are not entitled to any weight. The Bar argues that the accused lied in a
deposition by stating that he did not have any pressing need for money in
October 2005. Moreover, the Bar notes, although the accused testified that he
had personally obligated himself to pay Wellman and discussed that obligation
with Parrish, the Thomases, and Wellman, none of those persons corroborated
that story.
The accused makes
several points in response to the Bar's characterization of the evidence. As
to the timing of his request, the accused responds that, in October 2005, the
settlement and survey were both moving forward, and that the request was made
in response to the shared concern that the Heneghans would not pay their share
of the surveyor's bill. He also argues that the payment was sought because the
matter was moving forward such that he had transitioned from the initial phase
of his work (billed through Laura Parrish at a rate of $70 per hour) to the
documentation phase (billed through the $1,000 flat fee payment). With regard
to his correspondence with the Bar, the accused responds that his statements
were focused on his failure to memorialize the agreement in writing and thus do
not properly support the conclusion that he was admitting to a knowing or
intentional conversion of client funds. With regard to his financial
circumstances, the accused contends that he did not need the Thomas payment to
make his bankruptcy payments because his wife was paid on October 20 and he
could have obtained an extension of time from the trustee until that date. Finally,
the accused responds that, as he testified at trial, the reason he paid the
surveyor from his trust account was because he did not have a business account
and he wanted the payment to look professional.
We find it helpful
to consider the $1,000 intended for the accused's services separately from the
$1,000 intended for payment to Wellman. With regard to the $1,000 earmarked as
payment for the accused's services, we find that the Bar failed to prove by clear
and convincing evidence that the accused acted with culpable intent. Below, we
discuss three sets of facts that could lead to objectively reasonable
inferences that the accused intentionally or knowingly converted the funds and
explain why those facts, taken in light of the circumstances of the case, are
insufficient to meet the standard of clear and convincing evidence.
First, the accused
directed Frances Thomas to make the $2,000 check payable to his lawyer trust
account and then deposited the check into his trust account. That fact
suggests that the accused may have known that the $1,000 in attorney fees
belonged in trust because the accused testified that, when he had client money
that belonged in trust, his practice was to deposit that money into a trust
account. However, it is also undisputed that, in October 2005, the accused was
using poor bookkeeping and trust account practices. Thus, the deposit of the
funds into his trust account does not, standing alone, prove by clear and
convincing evidence that the accused knowingly misappropriated funds in this
case. See In re Wyllie, 331 Or 606, 621, 19 P3d 338 (2001) (Bar's
argument that, because the accused generally lacked appropriate procedures for
handling client funds, the accused knowingly misappropriated client funds
"proves too much").
Second, the accused
never noted a credit on his billing to Laura Parrish that reflected the $2,000
payment received from the Thomases. However, by October 2005, the accused had
taken the lead on the Thomas matter and Parrish was no longer directly
involved. Parrish testified that, although she was not aware of the agreement
between the accused and the Thomases, she would not have objected. Moreover,
although the accused submitted his last billing statement to Parrish on May 31,
2006, he continued to perform documentation work on the Thomas matter until
June 2007 without submitting any further billing, except a final bill for costs
advanced.
Third, when the
accused approached the Thomases and requested the $2,000, it was the first time
that he had directly contacted the Thomases regarding billing or fees. One
plausible explanation for the accused's request is that he was seeking funds to
make the back payments on his bankruptcy plan to avoid dismissal. But, an at
least equally plausible explanation is that the timing of the request
corresponded with the negotiation of a tentative settlement agreement and the
beginning of the surveyor's work on the property line adjustment. We are
unpersuaded that the Bar proved by clear and convincing evidence that the
accused had no legitimate reason to ask for the $2,000 advance payment. See
In re Claussen, 331 Or 252, 267, 14 P3d 586 (2000) ("The facts are
capable of supporting either party's view, but the evidence in the record does
not permit us to infer that the alleged violations are 'highly
probable.'").
Taken together, the
above-described evidence certainly raises the question whether the accused knew
that the $1,000 was client funds and not available for disbursement until all
work was performed. However, this court's standard of review of clear and
convincing evidence "demands more than merely a suspicion that a
particular fact is true." In re Albrecht, 333 Or 520, 539, 42 P3d
887 (2002). We find that the Bar did not prove that the accused violated RPC
8.4(a)(3) in his handling of the $1,000 that had been earmarked as payment for
his attorney fees.
We turn to the
$1,000 that the clients had advanced for payment of the surveyor. The accused
has consistently acknowledged that he received the $1,000 from the Thomases for
the purpose of paying the surveyor, Wellman. The question, however, is whether
the accused knew that his withdrawal and application of the $1,000 was
inconsistent with the authority that the clients had given him.
The Bar stresses
that the $1,000 in question was meant solely to compensate Wellman, not the
accused. The Bar also points out that the accused, in correspondence with the
Bar, acknowledged that he "should not have" withdrawn the $1,000 and
that that action "was wrong."
As we have already
discussed, the accused's acknowledgements that, viewed in retrospect, his
conduct was improper in some ways are not specific enough to serve as
admissions that he committed a conversion of client funds. However, the lack
of specificity in his statements is not the most serious evidentiary problem
that we detect in this record.
We find that the
accused did believe that he had a binding obligation to the client to pay the
surveyor, and that he always intended to act consistently with that obligation,
as he understood it. The parties differ sharply, however, in their portrayals
of the evidence of the authority that the accused received from the Thomases
regarding the money in question. The Bar relies on the testimony of Frances
Thomas, summarized above, that the money was for Wellman's bill and that she
had realized, after speaking with the Bar's investigator, that the accused
should have kept the money in the trust account. The Bar also criticizes the
accused's credibility and points out that Parrish, Wellman, and Frances Thomas
could not recall being told of the agreement that the accused described.
According to the
accused, his withdrawal of the $1,000 was consistent with his understanding
with the Thomases and, therefore, he was not acting dishonestly in making the
withdrawal. The affidavit signed by the Thomases explicitly corroborates the
accused's explanation of his authority regarding the $1,000.(4) Even if we disregard
the accused's testimony about his authority, as the Bar urges, there remains a
significant evidentiary conflict about what the accused was authorized to do
with the money that he received from the Thomases. The fact that Frances
Thomas later acquired a different understanding of the Bar's rules pertaining
to trust accounts from the Bar's investigator does not alter the affidavit's
portrayal of the accused's authority on October 7, 2005. The Bar focuses on
the fact that Frances Thomas expressed embarrassment for signing the affidavit
"without really studying it." However, she also testified that she
read the affidavit, without time constraint, before she signed it in her home.
Those differing accounts contribute to our conclusion that the evidence is in
conflict regarding the authority delegated to the accused. Even if the court
could view Frances Thomas' testimony as expressing second thoughts about the
accuracy of the affidavit, she did not repudiate the affidavit and said nothing
to indicate that Emmet Thomas disavowed his statements in the affidavit.
Additionally, as the accused points out, it is uncontradicted that the Thomases
were pleased with the accused's services and that he timely paid Wellman's bill
upon receipt.
As noted, the Bar
bears the burden to prove, by clear and convincing evidence, that the accused
had a culpable state of mind and, thus, acted dishonestly when he withdrew the
funds from his trust account and applied them to his own purposes.(5) Even if we disregard
the accused's testimony entirely, the evidentiary conflict to which we have
adverted causes us to be unpersauded, by clear and convincing evidence, that
the accused intentionally or knowingly withdrew and applied the $1,000 in
violation of his authority. We must resolve the resulting evidentiary question
against the party who bears the burden of proof on the question. Consequently,
we conclude that the Bar has not proven the charge of conversion involving
dishonesty, in violation of RPC 8.4(a)(3), regarding the $1,000 payment for the
surveyor's services.
III. SANCTION
Having found that
the accused violated RPC 1.15-1(a) and RPC 1.15-1(c), we next determine the
appropriate sanction. This court has recognized that the purpose of lawyer
discipline is not retribution but rather to "protect the public and the
administration of justice from lawyers who have not discharged, will not
discharge, or are unlikely to properly discharge their professional duties to
clients, the public, the legal system, and the legal profession."
American Bar Association's Standards for Imposing Lawyer Sanctions 1.1
(1991) (amended 1992) (ABA Standards); see In re Paulson, 346 Or 676,
712, 216 P3d 859 (2009), adh'd to as modified on recons, 347 Or
529, ___ P3d ___ (2010) (The purpose of lawyer discipline is not to punish a
lawyer who has failed to follow the rules of professional conduct.). To
determine the appropriate sanction, we follow a three-step analytical
framework. First, "we determine an initial presumptive sanction based on
(1) the ethical duty violated; (2) the lawyer's mental state; and (3) the
actual or potential injury caused" by the lawyer's conduct. Paulson,
346 Or at 712 (citation omitted). Second, we adjust the presumptive
sanction based on the presence of aggravating or mitigating circumstances. Id.
Third and finally, we consider whether that adjusted sanction is consistent
with Oregon case law. Id.
A. Preliminary analysis
In violating RPC
1.15-1(a) and RPC 1.15-1(c), the accused has violated his duty to his clients
to deal properly with client property and avoid potential injury to the
clients' interests. ABA Standard 4.12. Those violations also violate the
accused's duty to the public to avoid conduct that reflects adversely on his
fitness to practice law. ABA Standard 5.14.
The ABA Standards
describe three types of culpable mental states: intent, knowledge, and
negligence. A lawyer acts intentionally when the lawyer acts with "the
conscious objective or purpose to accomplish a particular result." ABA
Standards at 7. A lawyer acts knowingly when the lawyer acts with
"conscious awareness of the nature or attendant circumstances of the
conduct but without the conscious objective or purpose to accomplish a
particular result." Id. In turn, a lawyer acts negligently when
the lawyer deviates from the standard of care that a reasonable lawyer would
exercise in the situation by failing to heed a substantial risk that
circumstances exist or that a result will follow. Id. We find that the
accused acted negligently when he committed the trust account violations. From
his lengthy experience in the practice of law, the accused knew or should have
known that his handling of his trust account funds was improper.
An injury to a
client's interests can be actual or potential. Here, we find that the accused
caused potential economic injury to his clients because his poor accounting
methods jeopardized the security of trust account deposits. By failing to
maintain his trust accounts in accordance with legal requirements, the accused
also caused actual harm to the legal profession. In cases involving a failure
to observe trust account requirements, "[s]uspension is generally
appropriate when a lawyer knows or should know that he is dealing improperly
with client property and causes injury or potential injury to a client."
ABA Standard 4.12. In this case, the presumptive sanction is a suspension.
B. Aggravating and mitigating
circumstances
We next turn to a
consideration of aggravating and mitigating circumstances. We find two
aggravating circumstances. First, the accused committed multiple offenses in
this case. ABA Standard 9.22(d). Second, having practiced law in Oregon since
1976, the accused has substantial experience in the practice of law. ABA
Standard 9.22(i).
Two mitigating
circumstances also are present. The accused lacks any prior disciplinary
record. ABA Standard 9.32(a). The accused also appears to have an excellent
reputation in the community. ABA Standard 9.32(g).
C. Oregon Case Law
We turn to a
consideration of whether the presumptive sanction is consistent with Oregon
case law. Four recent cases are pertinent to this discussion.
In Fadeley,
the accused lawyer had no written fee agreement with his client. He received a
$10,000 deposit from the client and deposited it in his personal checking
account. The lawyer and client disagreed about whether the money constituted,
as the lawyer claimed, a fee fully earned on receipt. The Bar alleged four
violations: (1) failure to deposit client funds in a trust account, DR
9-101(A); (2) failure to render an accounting, DR 9-101(C)(3); (3) charging or
collecting a clearly excessive fee, DR 2-106(A); and (4) failure to promptly
refund an unearned fee, DR 2-110(A)(3). The court in Fadeley found that
the lawyer committed the violations with a mental state of negligence; it also
found that the aggravating circumstances outweighed the mitigating circumstances.
The court imposed a 30-day suspension.
In Eakin, the
accused lawyer and the client agreed on a flat fee for services of $3,500 and a
trust account deposit by the client of $3,000 to pay for costs. The lawyer
mishandled the client trust account by reimbursing herself $850 for an expense
that she did not incur, thus paying herself more than she was entitled to
receive. The court sustained charges against the lawyer under DR 9-101(A),
(C)(3), and (C)(4), all of which obligate a lawyer to properly administer
client funds in a trust account. The court determined that the sole aggravating
circumstance, substantial experience in the practice of law, outweighed the two
mitigating circumstances present. The court found that the lawyer should have
known that she was mishandling her trust account. The court ordered a
suspension of 60 days.
In Balocca,
the accused lawyer produced no written agreement regarding fees with the
client. The lawyer received the client's partial payment toward fees and costs,
but he did not deposit the funds into a trust account. The court sustained
charges of improper trust account administration under DR 9-101(A) and
9-101(C), as well as a charge under DR 2-106(A) for charging or collecting an
excessive fee. The court determined that the accused lawyer knew or should
have known that his handling of client funds was improper, and that there were
four aggravating circumstances and no mitigating circumstances. The court
imposed a suspension of 90 days.
Finally, in Wyllie,
the accused lawyer had no written fee agreement with the client. He collected
$750 from the client and deposited the money in a personal account, claiming
that he had earned that amount. The court sustained charges that the lawyer had
failed to deposit and maintain client funds in a trust account, as well as
other charges that the lawyer charged or collected an excessive fee, DR
2-106(A), DR 9-101(A); and had a conflict of interest. The court found that
the lawyer's mental state for the trust account violations was negligence, DR
5-105(E), and that there were several aggravating circumstances but no
mitigating circumstances. The court imposed a sanction of a four-month
suspension.
Our review of the
foregoing Oregon cases, and others, leads us to conclude that the presumptive
sanction that we identified earlier, a suspension, is the appropriate sanction
in this case. In determining the length of the suspension, we draw particular
attention, as did the court in Eakin, to the accused's substantial
experience in the practice of law. The failure of a lawyer with substantial
experience to carry out fully the responsibilities imposed by RPC 1.15-1(a) and
RPC 1.15-1(c) for the protection of client funds in a lawyer trust account is a
serious deviation from the legal profession's ethics. Under the circumstances
shown here, that aggravating circumstance outweighs his unblemished prior
disciplinary record and good reputation in the community. The Bar's proved
charges require that the accused be suspended for 60 days.
The accused is
suspended from the practice of law for a period of 60 days, commencing 60 days
from the date of this decision.
1. Because
the bankruptcy trustee did not accept personal checks, the trustee requested dismissal
of the accused's bankruptcy petition. The trustee later withdrew that motion
once the accused made payment via a cashier's check.
2. The
accused testified that his wife was paid on October 20, and that he could have
made arrangements with the bankruptcy trustee to postpone the due date of the
$3,870 payment until that time. The Bar responds that the accused's
explanation is implausible, noting that the accused needed the funds from his
wife's paycheck to make the next payment on the bankruptcy plan.
3. The
analysis from In re Martin was developed for substantially identical former
DR 1-102(A)(3), which provided that "[i]t is professional misconduct for a
lawyer to: * * * * * (3) Engage in conduct involving dishonesty, fraud, deceit
or misrepresentation." We consider the analysis in Martin equally
applicable to alleged violations of RPC 8.4(a)(3).
4. To repeat, the Thomases swore that the
following facts were true in their affidavit:
"Mr. Peterson also agree[d] to assume responsibility
for paying when billed, the sum of $1,000 to Mr. Wellman, the surveyor. We
agreed to pay the remainder of our share of the survey cost.
"We expected Mr. Peterson to negotiate our
check and use the funds as he chose. We claimed no ownership interest in any
of the money once it was paid to Mr. Peterson.
"We understand that Mr. Peterson disbursed
to himself the sum of $2,000 shortly after receipt of our $2,000 check and then
later paid $1,000 to Mr. Wellman on or about June 19, 2006. This is what we
expected him to do. He made these disbursements with our knowledge, consent,
permission and approval.
"We didn't ask or expect Mr. Peterson to
retain any of the money in his trust account. The entire sum was his, subject
only to his agreement to pay Mr. Wellman
$1,000 at some later date when Mr. Wellman sent a bill for his services."
At the trial panel hearing, Frances
Thomas gave testimony in response to questions about the foregoing affidavit.
Neither party called Emmet Thomas as a witness at the hearing.
5. Indeed,
intent is the distinguishing characteristic between failure to maintain client
funds in a trust account under RPC 1.15-1(a) and conversion involving
dishonesty under RPC 8.4(a)(3). See In re Phelps, 306 Or 508, 512, 760
P2d 1331 (1988) (Under former disciplinary rules, "[a] lawyer may remove
money from a trust account * * * before intentionally appropriating that money
for the lawyer's own purposes * * * but removal of money from a trust account
does not necessarily constitute an intentional misappropriation."). | f017343c9aaed2cbc580c138c1d0ca8eb0a33d2df2d9fbbfebe9e8111d7db2e7 | 2010-05-27T00:00:00Z |
caca3e26-8e53-4a85-915e-7737471925b9 | J. G. v. N. D. G. | null | S058285 | oregon | Oregon Supreme Court | FILED: July 15, 2010
IN THE SUPREME COURT OF THE STATE OF OREGON
In the Matter the Adoption of A.
R. G.-D., adopted name
A. R. G.-D., a Minor Child.
J. G.,
Petitioner
on Review,
v.
N. D. G.,
Respondent
on Review.
(CC
0509-69919; CA A141787; SC S058285)
En Banc
On review from the
Court of Appeals.*
Argued and submitted
June 8, 2010.
Kathryn M. Pratt,
Pratt Law Office LLC, Beaverton, argued the cause and filed the briefs for
petitioner on review.
Mark Kramer, Kramer
& Associates, Portland, argued the cause and filed the brief for respondent
on review.
DE MUNIZ, C. J.
The decision of the
Court of Appeals is reversed. The judgment of the circuit court is reversed,
and the case is remanded to the circuit court for further proceedings.
*Appeal from Multnomah County Circuit Court, Katherine Tennyson, Judge. 233 Or App 509, 226
P3d 130 (2010).
DE MUNIZ, C. J.
Maternal grandmother (grandmother)
obtained a judgment of adoption of her grandson, A.G., displacing birth mother (mother)
as A.G.'s parent. Mother moved to vacate the adoption judgment on the ground
that she had not received notice of the adoption proceeding and that the order
authorizing notice by publication was obtained through fraud and
misrepresentation. In response, grandmother moved to dismiss mother's motion.
The trial court allowed grandmother's motion to dismiss mother's motion to
vacate the adoption judgment. Mother appealed, and the Court of Appeals
affirmed without opinion. J.G. v. N.D.G., 233 Or App 509, 226 P3d 130
(2010). We allowed review and now reverse the decision of the Court of Appeals
and the judgment of the trial court, remanding to the trial court for a hearing
on the merits of mother's motion to vacate the adoption judgment.
The facts pertinent to our review are
undisputed. In September 2005, grandmother and a maternal aunt filed a
petition to adopt A.G. In January 2006, grandmother moved for an order
authorizing service on mother by publication in that proceeding.(1)
In support of her motion, grandmother filed an affidavit averring that
grandmother had had "no contact * * * whatsoever" with mother since
September 2005. She also averred that she had tried unsuccessfully to serve
mother in another proceeding in June 2004, but that mother was transient. Grandmother's
affidavit did not detail any effort to locate or serve mother within the five
months preceding grandmother's request to serve mother by publication. The
trial court granted grandmother's motion for service by publication.
Mother thereafter failed to appear at
an April 2006 hearing, and the trial court entered an "order dispensing
with [mother's] consent." On June 2, 2006, the trial court granted
grandmother and aunt's petition to adopt A.G., and a general judgment of
adoption was entered on June 7, 2006.
On June 1, 2007, within one year
after entry of the adoption judgment, mother moved to vacate the adoption. As
noted earlier, mother asserted that she had not received notice of the adoption
proceeding and that the court order authorizing notice by publication was
obtained through fraud and misrepresentation, violating her rights under the Due
Process Clause of the Fourteenth Amendment to the United States Constitution.(2)
Mother's counsel filed an affidavit
supporting mother's motion to vacate the adoption judgment. Counsel's
affidavit alleged that mother did not learn of A.G.'s adoption until an
attorney who was representing mother in proceedings concerning her other child,
R.M., learned of it sometime in January or February 2007,(3)approximately six months before mother filed
the motion to vacate the adoption judgment. The affidavit averred that grandmother
had testified, at a January 2007 hearing concerning R.M., that between December
2005 and February 2006, around the time grandmother signed the affidavit
requesting service by publication, grandmother regularly was taking R.M. to the
Department of Human Services (DHS) to visit with mother. According to the
affidavit, grandmother also had attended hearings at which mother was present.
Counsel's affidavit asserted that grandmother had omitted that information from
her affidavit supporting her request for an order for service by publication, and
that grandmother's failure to disclose that information was an intentional
misrepresentation designed to circumvent the adoption notice requirements. The
affidavit further alleged that, by providing a misleading affidavit, grandmother
had perpetrated a fraud on the court.(4)
In December 2007, the parties
unsuccessfully engaged in mediation. Ten months later, in September 2008, mother
requested a conference with the trial court to discuss setting a hearing on her
motion to vacate the adoption judgment. In response, grandmother moved to
dismiss mother's motion to vacate the adoption judgment. Grandmother advanced
two reasons for dismissing mother's motion. First, she argued that mother had
failed to comply with Multnomah County Supplementary Local Rule (SLR) 8.012(2),(5)
which requires in part that "motions not settled or reset within 5 months
of filing" be "automatically dismissed." Second, grandmother relied
on the doctrine of laches, arguing that the doctrine should be extended to
apply to the delayed adjudication of motions, as well as to the delayed filing
of claims.
In February 2009, the trial court
held a hearing on grandmother's motion to dismiss. Following the hearing, at
which grandmother testified, the trial court concluded that grandmother's
affidavit in support of her request to accomplish service by publication had
misled the trial court. Nevertheless, the trial court granted grandmother's
motion to dismiss mother's motion to vacate the adoption judgment, stating:
"[T]he court * * * needs to take a look at the longer
view for [A.G.]. I don't mean to belabor the point, but we're talking about
one to two years plus at the Court of Appeals if either sets of issues are appealed
to determine finality for [A.G.], and that's not fair to him.
"* * * * *
"[T]his court was stunned -- I guess is the right word
to use -- that grandmother and/or her lawyer at the time was filing an
affidavit in [A.G.]'s adoption case that represented that grandmother did not
know an address for mother when * * * there definitely was a location where she
could have been served.
"* * * * *
"[T]here was a definite basis for having a court take a
look at [mother's due process claims]. * * *
"* * * * *
"But the fact remains that we have this
little guy who spent the vast majority of his life, if not all of his life,
with his grandmother, and at some point this particular dispute has got to end,
and he's got to know where he's going to grow up. * * * I think that the local
rule and laches are both applicable in this case. Mother should have brought
this to the court's attention much, much sooner, and this case should have been
resolved much, much sooner.
"So while I deeply regret what I have to do
today, I think that the facts of this case and the equities of this case weigh
in favor of [A.G.'s] stability rather than mother's rights, and I will grant
the motion to dismiss * * *."
On March 5, 2009, the trial court
entered a supplemental judgment dismissing mother's motion to vacate the
adoption judgment. Mother appealed that ruling. As noted above, the Court of
Appeals affirmed without opinion. This court allowed review to consider
whether the trial court properly granted grandmother's motion to dismiss based
on Multnomah County SLR 8.012(2) and the doctrine of laches.
On
review, mother urges this court to vacate the adoption judgment because,
according to mother, it is clear from the record that her due process rights
were violated and that the underlying adoption judgment is "void."
Mother asserts that the trial court improperly permitted service by publication
based on grandmother's misleading affidavit. According to mother, lack of notice
deprived her of her constitutional right to due process, and that deprivation
should outweigh the application of both the doctrine of laches and of the
application of the SLR 8.012(2) timeline.
Similarly,
mother argues that, because she never received proper notice of the adoption
proceeding, the trial court never had subject matter jurisdiction. Mother
asserts that, as a result, the trial court's entry of the order dispensing with
her consent pursuant to ORS 109.324(6)
was ineffective, and this court should declare the adoption judgment void. See
Hughes v. Aetna Casualty Co., 234 Or 426, 435, 383 P2d 55 (1963) (quoting Furgeson
v. Jones, 17 Or 204, 218, 383 P2d 55 (1889) ("'consent lies at the
foundation of statutes of adoption, and * * * the court cannot take
jurisdiction of the subject-matter without it.'").
We
agree that mother's due process and jurisdictional claims potentially raise
significant questions regarding the validity of the adoption judgment. See
Armstrong v. Manzo, 380 US 545, 85 S Ct 1187, 14 L Ed 2d 62 (1965) (when a
birth parent does not receive notice of an adoption proceeding, the only way to
fully accord birth parent due process is to vacate the adoption judgment and
consider the case anew). However, the question before us at this stage of the
proceeding is a more narrow one. As we explained earlier, the trial court dismissed
mother's motion to set aside the adoption judgment relying on both Multnomah
County SLR 8.012(2) and the doctrine of laches.(7)
If, as we conclude, the court erred in dismissing mother's motion on those
grounds, then it is for the trial court to decide on remand whether to set
aside the adoption judgment for lack of notice. See Middleton v. Chaney,
335 Or 58, 57 P3d 893 (2002) (setting aside guardianship for lack of notice).(8)
We first address whether the trial
court properly relied on Multnomah County SLR 8.012(2) in dismissing mother's
motion to vacate the adoption judgment. SLR 8.012(2) provides, in part:
"Motion hearings may be reset twice * * *. Subsequent
requests to reset a hearing must be made by motion to the Chief Family Law
Judge * * *. Motions not settled or reset within 5 months of filing will be
automatically dismissed without notice to the parties."
SLR 8.012(2) explicitly refers to the resetting of
motions hearings several times; it does not address explicitly the initial
setting of hearings on motions.(9)
The text of SLR 8.012(2) arguably is broad
enough to apply to motions that have not been heard within five months of
filing. Reading the rule in that manner, however, essentially requires that we
insert a term in the rule so that it reads "Motions not heard,
settled or reset within five months of filing will be automatically dismissed
without notice to the parties." In construing statutes, we are prohibited
from inserting words the legislature has omitted. ORS 174.010. Similarly,
here we decline to insert a term not expressed in the rule, particularly where
we perceive that the real issue is whether the rule put mother on notice that
her motion would be subject to automatic dismissal if not heard within five
months of filing. In our view, the text of SLR 8.012(2) does not provide adequate
notice to a party that a motion that has never been set for a hearing in the
first place is subject to automatic dismissal. To the extent that the trial
court relied on SLR 8.012(2) as authority to dismiss mother's motion to vacate
the adoption judgment, it erred.
Grandmother also argues that the
doctrine of laches justifies the trial court's decision. Her argument in that
regard, however, is limited. Grandmother does not contend that laches barred
mother from filing her motion to vacate the adoption judgment; that is,
grandmother does not dispute that mother filed her motion to set aside the
adoption judgment in a timely fashion.(10)
Grandmother asserts instead that mother unduly delayed in pursuing her motion,
once filed, and that the trial court properly relied on the doctrine of laches
to dismiss mother's motion for, essentially, want of prosecution. Grandmother,
however, does not cite any authority that establishes that the doctrine of
laches applies in that way to motion practice, and we conclude that it does
not.(11)
We note that, in the course of ruling
on grandmother's laches argument, the trial court reasoned that prejudice to
the child (i.e., the child's best interests) bore on the question
whether mother had failed to prosecute her motion with reasonable diligence.
One difficulty with the trial court's reasoning is that laches does not apply
in this situation. And, without some legal or equitable theory that would
warrant dismissing mother's motion, the trial court could not rely, at this
stage of the proceedings, on a free-floating concern for the child's best
interests in order to dismiss mother's motion to vacate the adoption judgment.
Because neither of the two reasons
relied upon by the trial court provided a basis for dismissal of mother's
motion to vacate the adoption judgment, the trial court erred in granting
grandmother's motion to dismiss, and the Court of Appeals erred in affirming
that judgment.
The decision of the Court of Appeals
is reversed. The judgment of the circuit court is reversed, and the case is
remanded to the circuit court for further proceedings.
1. ORCP
7 D(6) outlines when service by publication is appropriate. It provides, in
part:
"(a) Court order for service by other
method. On motion upon a showing by affidavit or declaration that service
cannot be made by any method otherwise specified in these rules or other rule
or statute, the court, at its discretion, may order service by any method or
combination of methods which under the circumstances is most reasonably
calculated to apprise the defendant of the existence and pendency of the
action, including but not limited to: publication of summons; mailing without
publication to a specified post office address of the defendant by first class
mail and any of the following: certified, registered, or express mail, return
receipt requested; or posting at specified locations. If service is ordered by
any manner other than publication, the court may order a time for response.
"* * * * *
"(g) Defendant who cannot be served.
Within the meaning of this subsection, a defendant cannot be served with
summons by any method authorized by subsection (3) of this section if: (i)
service pursuant to subparagraph (4)(a)(i) of this section is not authorized,
and the plaintiff attempted service of summons by all of the methods authorized
by subsection (3) of this section and was unable to complete service, or (ii)
if the plaintiff knew that service by such methods could not be
accomplished."
2. The Due
Process Clause of the Fourteenth Amendment to the United States Constitution
provides:
"No State shall make or enforce any law
which shall abridge the privileges or immunities of citizens of the United
States; nor shall any State deprive any person of life, liberty, or property,
without due process of law; nor deny to any person within its jurisdiction the
equal protection of the laws."
See also Armstrong v. Manzo, 380 US 545, 85 S Ct 1187,
14 L Ed 2d 62 (1965) (failure to give biological parent notice of pending
adoption proceedings violates the most rudimentary demands of due process of
law).
3. Grandmother
does not dispute that assertion, although court records indicate that both
mother and mother's attorney knew of A.G.'s adoption by December 2006.
4. We
note that counsel for grandmother in this court did not represent grandmother
when she submitted the allegedly false affidavit in support of her motion to
serve mother by publication.
5. SLR
8.012 was amended effective February 1, 2009, after grandmother filed the
motion to dismiss, but before the court held a hearing and granted the motion.
Although those changes do not affect our analysis of the local rule, we
nevertheless consider the 2008 version of the rule that was in effect when the
events in this case took place.
6. ORS
109.324 provides, in part:
"(1) If a parent is believed to have
willfully deserted the child or neglected without just and sufficient cause to
provide proper care and maintenance for the child for one year next preceding
the filing of the petition for adoption, and if the parent does not consent in
writing to the adoption, the petitioner, in accordance with ORS 109.330, shall
serve on the parent a summons and a motion and order to show cause why the
adoption of the child should not be ordered without the parent's consent.
"(2) Upon hearing or when the parent has
failed to file a written answer as required in ORS 109.330(3), if the court
finds that the parent has willfully deserted the child or neglected without
just and sufficient cause to provide proper care and maintenance for the child
for one year next preceding the filing of the petition for adoption, the
consent of the parent at the discretion of the court is not required and, if
the court determines that the parent's consent is not required, the court may
proceed regardless of the objection of the parent."
7. Because
the trial court did not consider mother's motion to vacate the adoption, we cannot
decide in this proceeding whether the adoption should be vacated; we may only
reverse the trial court's dismissal of mother's motion to do so.
8. In
Middleton, this court directed the trial court to set aside the
guardianship order for lack of notice to the father without regard to whether
doing so was in the best interests of the child. 335 Or at 64. The court,
however, recognized that, once the order was set aside, the court could
consider, under established standards, whether the father or maternal relatives
should have custody of the child.
9. Here,
mother did not receive a hearing on her motion to vacate the adoption
judgment. It was never set and, as such, could not have been reset. Cf.
Brown v. Gatti, 195 Or App 695, 709-10, 99 P3d 299 (2004) (concluding that
Multnomah County SLR 5.045(1), which provided that "[n]o motion for
reconsideration * * * shall be heard," was inapplicable in that case
because "[t]he court had yet to consider [the] request, so there was
nothing to reconsider.").
10. ORS
109.381(3) provides:
"After the expiration of one year from the
entry of a judgment of adoption in this state the validity of the adoption
shall be binding on all persons, and it shall be conclusively presumed that the
child's natural parents and all other persons who might claim to have any right
to, or over the child, have abandoned the child and consented to the entry of
such judgment of adoption, and that the child became the lawful child of the
adoptive parents or parent at the time when the judgment of adoption was
rendered, all irrespective of jurisdictional or other defects in the adoption
proceeding. After the expiration of the one-year period no one may question
the validity of the adoption for any reason, either through collateral or
direct proceedings, and all persons shall be bound thereby. However, the
provisions of this subsection shall not affect the right of appeal from a
judgment of adoption as may be provided by law."
11. If
any legal theory applied, it would be dismissal for want of prosecution;
however, grandmother did not advance that theory below, and the trial court did
not rely on it. We note that ORCP 54 B(3) requires courts to mail notice to
parties "in each pending case in which no action has been taken for one
year immediately prior to the mailing of such notice, that a judgment of
dismissal will be entered in each such case by the court for want of
prosecution." ORCP 54 B(3). Here, the delay in adjudication was ten
months (between December 2007, when mediation attempts failed, and September
2008, when mother requested a conference with the trial court to discuss
setting a hearing). The ten-month period "in which no action" was
taken to move forward mother's motion to vacate the adoption judgment is short
of the one-year period permitted before a claim may be dismissed for want of
prosecution. The rule appears to us to cover precisely the matter that
grandmother now wishes to have subject to the doctrine of laches. We think,
however, that the rule's one-year limit establishes the applicable law. | e6738636f2ebacf8431338bb5e73e3703d48800ca6df5a77b0c73872ba4c41c0 | 2010-07-15T00:00:00Z |
5c344174-37a5-4b8e-8565-b5dd4141425c | Colby v. Gunson | null | S057691 | oregon | Oregon Supreme Court | FILED: August 26, 2010
IN THE SUPREME COURT OF THE STATE OF OREGON
CRAIG COLBY,
Petitioner on Review,
v.
KAREN GUNSON,
State Medical Examiner,
Respondent on Review.
(CC
06C15785; CA A133979; SC S057691)
En Banc
On review from the Court of Appeals.*
Argued and submitted May 13, 2010.
Craig P. Colby argued the cause and filed the petition
for review in propria persona.
Jerome Lidz, Solicitor General, argued
the cause and filed the brief for respondent on review. With him on the brief
was John R. Kroger, Attorney General.
Thomas M. Christ, Portland, filed a brief
for amici curiae ACLU Foundation of Oregon, Inc., Oregon Trial Lawyers
Association, Oregon Law Center, and Disability Rights Oregon.
Barbara L. Johnston, Brisbee &
Stockton LLC, Hillsboro, filed a brief for amicus curiae Carrell F.
Bradley. With her on the brief was Larry A. Brisbee.
BALMER, J.
The decision of
the Court of Appeals is reversed, and the case is remanded to the Court of
Appeals for further proceedings.
*Appeal from Marion County Circuit Court,
Albin W. Norblad,
Judge. 229 Or App 167, 210 P3d 917 (2009).
BALMER, J.
This case requires us to determine
whether an attorney, acting pro se, is entitled to attorney fees under
ORS 192.490(3), which grants "reasonable attorney fees" to any person
who prevails in a suit seeking disclosure of a public record. Plaintiff, an
attorney, filed an action on his own behalf seeking access to reports in the
possession of the state medical examiner. The trial court dismissed
plaintiff's claims. On appeal, the Court of Appeals reversed and remanded.
Plaintiff then sought attorney fees. The Court of Appeals denied plaintiff's
request, reasoning that the phrase "attorney fees" does not include the
value of legal services performed by an attorney acting pro se. Colby
v. Gunson, 229 Or App 167, 210 P3d 917 (2009). We allowed plaintiff's
petition for review and now reverse the decision of the Court of Appeals.
Plaintiff requested that defendant,
the state medical examiner, disclose autopsy and laboratory reports prepared
during the investigation of a police shooting. Plaintiff made the request
pursuant to ORS 192.420, which provides that, with certain exceptions, "[e]very
person has a right to inspect any public record of a public body in this
state." Defendant refused to disclose the reports, contending that they
were exempt from disclosure. Plaintiff petitioned the Attorney General to order
defendant to disclose the reports, and the Attorney General denied plaintiff's
petition.
Plaintiff then instituted proceedings
in the Marion County Circuit Court to obtain disclosure. See ORS
192.450(2) (authorizing proceedings). The trial court determined that the
records were exempt from disclosure under ORS 192.502(9), which exempts from disclosure
records that are confidential or privileged under Oregon law. Plaintiff
appealed, and the Court of Appeals reversed and remanded. The court concluded
that the records were not exempt under ORS 192.502(9), but remanded the case
for the trial court to determine whether the records were exempt under another
statute. Colby v. Gunson, 224 Or App 666, 199 P3d 350 (2008).
After he had successfully appealed,
plaintiff sought attorney fees under ORS 192.490(3). That statute provides, in
part:
"If a person seeking the right to inspect
or to receive a copy of a public record prevails in the suit, the person
shall be awarded costs and disbursements and reasonable attorney fees
at trial and on appeal. If the person prevails in part, the court may in its
discretion award the person costs and disbursements and reasonable attorney
fees at trial and on appeal, or an appropriate portion thereof."
(Emphases added.) The Court of Appeals denied plaintiff's
request, concluding that the meaning of "attorney fees," under the
statute, is "the price demanded by an attorney for services rendered to a
separate client entity." Colby, 229 Or App at 171. Because
plaintiff had represented himself, the court determined that he was not
entitled to receive attorney fees for his legal services.(1)
Plaintiff filed a petition for review, which we allowed.
On review, plaintiff argues that the
term "attorney fees," as used in ORS 192.490(3), means "the
value of the services performed by [an] attorney." In plaintiff's view,
although he did not represent a client separate from himself or send a bill for
his services, he nevertheless performed services as an attorney and is entitled
to recover the value of those services under the statute. Defendant disagrees
and argues that each word -- "attorney" and "fees" -- has
independent significance. In particular, defendant argues that the word
"attorney" connotes an agency relationship, rather than a status.
Thus, according to defendant, "attorney fees" must arise out of
services rendered by one person in the course of representing another.
Further, defendant argues, the legislature's use of the word "fees"
requires that that separate client actually incur an obligation to pay for
those services rendered.
For the reasons set out below, we
agree with plaintiff that the term "attorney fees," as used in ORS
192.490(3), means the reasonable value of legal services provided by an
attorney in seeking the disclosure of public records. Plaintiff is a
practicing attorney who performed legal services in pursuit of disclosure of
public records, and plaintiff is therefore entitled to recover from defendant the
reasonable value of those services, despite the fact that he acted pro se.
Because the term "attorney
fees" is not defined in the statute, we look to the plain and ordinary
meaning of the term. See State v. Tate, 347 Or 318, 324, 220 P3d 1176
(2009) (court gives words of common usage their plain, ordinary meaning). In
determining the plain meaning of "attorney fees," the Court of
Appeals relied, in part, on the definition provided in Black's Law
Dictionary: "The charge to a client for services performed for the
client, such as an hourly fee, a flat fee, or a contingent fee." Black's
Law Dictionary 148 (9th ed 2009). Admittedly, that definition implies some
sort of obligation of one individual (the client) to pay another (the
attorney). However, the definition in Black's -- although appropriate
in certain contexts -- is not the only reasonable interpretation of the term.
Instead, when used in the context of an attorney fee award, the ordinary
meaning of the term also includes the reasonable value of an attorney's
services, whether or not the client was required to pay for those services. See
ORCP 68 A(1) ("'Attorney fees' are the reasonable value of legal
services related to the prosecution or defense of an action.");(2)
see also Chalmers v. Oregon Auto. Ins. Co., 263 Or 449, 455, 502 P2d
1378 (1972) ("For the purpose of determining what is a reasonable attorney
fee in the appeal of a case to this court, * * * we must attempt to ascertain
the reasonable value of such services[.]").
Indeed, we previously have held that
a party may collect attorney fees regardless of whether the party incurred an
obligation to pay for the legal services provided. In Domingo v. Anderson,
325 Or 385, 938 P2d 206 (1997), the plaintiffs brought an action challenging
the notice of sale and the propriety of the sale of collateral that the
defendant had sold after the plaintiffs defaulted on a loan agreement. The
defendant prevailed on summary judgment and requested attorney fees pursuant to
a contract. Under the contract, the plaintiffs had agreed to "pay all
costs and expenses" of any action in which the defendant was required to
appear, including "[the defendant's] attorney fees." Id. at 387.
The defendant's attorney had been hired by the Professional Liability Fund, a
lawyers' professional liability insurance fund, rather than by the defendant
personally. The plaintiffs argued that, because the defendant had not
personally paid the attorney for his services, the defendant could not collect
attorney fees under the contract. This court disagreed, concluding that the
contract, in requiring only that the plaintiffs pay the defendant's
"attorney fees," did not contain any condition requiring that the
defendant first be obligated to pay for the attorney's services.(3)
Similarly, ORS 192.490(3) provides --
without limitation -- that any "person" who prevails in a suit seeking
the right to inspect or to receive a copy of a public record shall be awarded "reasonable
attorney fees." There is no requirement that the prevailing party, or
anyone else, be obligated to pay for the legal services rendered in the suit. Nor
is there a requirement that the "person" who prevailed be a different
person from the attorney whose services procured that favorable result. Instead,
the term "attorney fees," as used in the context of attorney fee
awards, means the reasonable value of services performed by an attorney,
whether or not anyone incurs an obligation to pay for those services.
Defendant argues that, even if the
term "attorney fees" does not require an obligation to pay for legal
services, the legislature's use of the term "attorney" prevents an
award of attorney fees to pro se litigants. Defendant argues that the
plain and ordinary meaning of the term "attorney" is one who
"provid[es] legal services or representation for an entity or person other
than oneself." Thus, defendant argues, an attorney acting pro se is
not an "attorney" for purposes of ORS 192.490(3).
Defendant relies in part on Black's
Law Dictionary, which defines "attorney" as follows:
"1. Strictly, one who is designated to transact
business for another; a legal agent. -- Also termed attorney-in-fact; private
attorney. 2. A person who practices law; LAWYER. -- Also
termed (in sense 2) attorney-at-law; public attorney."
Black's at 147. Defendant urges us to rely on the
first definition, which focuses on the agency relationship between one who acts
as an "attorney" for another. However, she points to no reason, and
we can think of none, that the legislature would have intended to use the term
attorney in that "strict" agency sense in the context of a statute
authorizing the award of attorney fees. Instead, the legislature likely
intended to use the term in its ordinary sense -- "attorney" simply
means an individual who practices law.(4)
Defendant also relies on ORS 9.310,
which provides:
"An attorney is a person authorized to
represent a party in the written proceedings in any action, suit or proceeding,
in any stage thereof. An attorney, other than the one who represents the party
in the written proceedings, may also represent a party in court, or before a
judicial officer, in which case the attorney is known as counsel, and the
authority of the attorney is limited to the matters that transpire in the court
or before such officer at the time."
Defendant argues that the first sentence of that statute
defines the term "attorney" and indicates that, to be an attorney,
one must have a separate client to represent.
We are not convinced that ORS 9.310 sheds
any light on the ordinary meaning of the term "attorney"; instead, it
defines the term for the limited purpose of describing the agency relationship
between an attorney and his or her client in a given case. See also ORS
9.330 (describing authority of "attorney," as described in ORS 9.310,
to act on behalf of a client). In contrast, ORS 9.005(1) defines
"attorney" more generally as "a member of the bar." See
also ORS 9.005(7) (defining "bar" as the Oregon State Bar). ORS
9.005 was adopted in 1975 and provides definitions for purposes of ORS 9.005 to
9.755, which generally describe the responsibilities of attorneys. That
definition, because it applies in a broader context, is more akin to the
ordinary definition of the term set out in Black's. It is also more useful
than is ORS 9.310 in determining the plain and ordinary meaning of "attorney."
Plaintiff is an attorney, in the
ordinary sense of the word. He graduated from law school, is a member of the
Oregon State Bar, and is authorized to practice law in this state. Throughout
the proceedings below, he was subject to the Oregon Rules of Professional
Conduct, along with other statutory provisions that govern the conduct of
attorneys. See ORS 9.527 (Supreme Court may discipline members of the
bar for misconduct, including violation of the Rules of Professional Conduct); see
also In re Glass, 308 Or 297, 301-02, 779 P2d 612 (1989) (attorney acting
on his own behalf violated disciplinary rule prohibiting frivolous claims).
Because plaintiff is an attorney and because he performed legal services in seeking
disclosure of public records, he is entitled to collect attorney fees for those
services. It is irrelevant that he performed those legal services on his own
behalf.
The Court of Appeals expressed, in
its opinion denying fees, a concern that permitting pro se attorneys to
collect attorney fees for legal work conducted on their own behalf would raise
the potential for abusive fee generation. Colby, 229 Or App at 172. Although
not necessary to our decision here, we note that the legislature has addressed that
concern by permitting attorney fees only to parties who "prevail[] in the
suit" and by requiring that the attorney fee award be "reasonable."
ORS 192.490(3). Further, the legislature has provided a list of factors that a
court must consider in determining the amount of any attorney fee award,
several of which protect against the abusive fee generation potential that the
Court of Appeals feared. See ORS 20.075(1), (2) (listing factors to be
considered in determining amount of any attorney fee award).
We conclude that the Court of Appeals
erred in its interpretation of ORS 192.490(3). Plaintiff, should he
"prevail[] in [his] suit," ORS 192.490(3), will be entitled to
attorney fees for the reasonable value of the legal services that he performed
on his own behalf. We therefore remand to the Court of Appeals for further
proceedings.
The decision of the Court of Appeals
is reversed, and the case is remanded to the Court of Appeals for further
proceedings.
1. The
court allowed plaintiff's petition for costs, to abide the outcome on remand. See
ORAP 13.05(4) (appellate court may allow costs to prevailing party and
condition award on outcome of case).
2. ORCP
68 A was not adopted until 1980, after the legislature had passed ORS 192.490.
It therefore cannot be used, directly, to demonstrate the legislature's intent
in using the phrase "attorney fees." However, we find it a useful
demonstration that the term has more than one plain and ordinary meaning.
3. Further,
this court cited with approval numerous Court of Appeals cases in which that
court had awarded attorney fees to attorneys who had represented parties free
of charge. Domingo, 325 Or at 390 n 7. For example, in State ex rel
Binschus v. Schreiber, 141 Or App 288, 294, 917 P2d 1063 (1996), the Court
of Appeals upheld an award of statutory attorney fees to the mother in a
custody proceeding, despite the fact that the mother had been represented by a
legal aid attorney and therefore was not required to pay for her attorney's
legal services.
4. Defendant
also relies on the definition of "attorney" contained in Webster's,
which is similar to the first definition contained in Black's:
"one who is legally appointed by another to transact business for him; specif
: a legal agent qualified to act for suitors and defendants in legal
proceedings." Webster's Third New Int'l Dictionary 141 (unabridged
ed 2002). However, Webster's defines "lawyer" similarly to
the second Black's definition: "a specialist in or a practitioner
of law : one (as an attorney, counselor, solicitor, barrister, or
advocate) whose profession is to conduct lawsuits for clients or to advise as
to the prosecution or defense of lawsuits or as to legal rights and obligations
in other matters." Id. at 1280. | d8267b3abd0e41c0c02df3ee498fac09c859ceafbf17689e8d77b949418c428b | 2010-08-26T00:00:00Z |
9dc17be0-1a1b-4b6e-b177-3b5e17bc287e | Zeh v. National Hospital Ass'n | 233 Or. 221, 377 P.2d 852 | null | oregon | Oregon Supreme Court | Reversed January 16, 1963.
Richard C. Helgeson, Portland, argued the cause for appellant. With him on the brief were King, Miller, Anderson, Nash & Yerke and Mark C. McClanahan, Portland.
Metta D. Baughman, Portland, argued the cause *222 for respondent. On the brief were Baughman and Baughman, Portland.
Before McALLISTER, Chief Justice, and ROSSMAN, O'CONNELL, LUSK and DENECKE, Justices.
REVERSED.
ROSSMAN, J.
This is an appeal by the defendant, National Hospital Association, from a judgment, based upon a verdict, which the circuit court entered in favor of the plaintiff. The amount of the judgment is $942.35 together with an attorney fee which was awarded under ORS 736.325. The judgment, apart from the allowance of the attorney fee, has its source in a policy of medical insurance which the defendant issued to the plaintiff July 1, 1958. Among its various provisions the policy required the defendant to pay the expenses of medical care which the plaintiff incurred for any ill health that was upon him at the time when the policy was issued provided he received no medical, surgical or hospital care for that specific condition during the first six months after the policy was issued. The complaint alleges that the
Judgment was demanded in the sum in which it was later entered. Although it is unimportant in this case, we add that the defendant was not required to bear the first $10 of a medical charge.
The answer admitted that the plaintiff incurred "treatment for a pre-existing condition, namely, a pain in his right leg," but denied that he "had not *223 received medical, surgical or hospital care during the first six consecutive months of coverage for said pre-existing condition."
From the foregoing, we see (1) that the defendant admits that it issued the policy upon which the complaint is based, (2) that both plaintiff and defendant state that when the policy was issued the plaintiff had a pre-existing condition of "pain in his right leg," (3) that the medical expense for which judgment is sought was for medical attention to the pain in the plaintiff's right leg, and (4) the defendant was required to discharge expenses incurred by the plaintiff for pre-existing conditions only if the plaintiff had not received medical, surgical or hospital care for them in the first six months after the policy was written.
The single assignment of error challenges the order which denied the defendant's motion for a directed verdict.
A copy of pertinent parts of the policy of insurance is attached to the complaint as an exhibit. From it we quote:
The word "employe" which occurs in the quoted passages refers to the plaintiff. It will be noticed that the policy covers a pre-existing condition of ill health provided the insured "has not received medical, surgical or hospital care during the first six (6) consecutive months of such coverage" for that condition. The policy in the case at bar was issued July 1, 1958. Therefore, if the plaintiff had not received "medical, surgical or hospital care" for the condition in his right leg in the period July 1, 1958, to January 1, 1959, the challenged judgment must be affirmed; but if he received, as alleged by the defendant, medical care for the condition in that period, the judgment must be reversed. That, then, is the issue before us.
In 1954 or 1955 the plaintiff noticed pain in his right leg. This was approximately three years before he obtained the policy of insurance which the defendant issued to him. About that time he consulted a physician who found a cyst on the back of his right knee. The physician inferred that the cyst was the cause of the pain and recommended treatment, but the plaintiff was skeptical and declined to go further. Later the plaintiff called upon another physician who, after examining him, gave him an injection, provided him with a belt and had a nurse apply heat treatments to him. His pains, however, continued. Both of those visits to physicians occurred before the policy was written. In the period September 18, 1958, to October 10, 1958, which was within six months after the policy of insurance had been issued, the plaintiff received from a chiropractic physician over a period of five days treatments *225 consisting of heat, massage and adjustment. They failed to improve the condition in the plaintiff's right leg.
November 17, 1958, which was also within six months of the day when the defendant issued the policy of insurance, the plaintiff called upon Dr. John Raaf, a neurologist, and explained to him the trouble which he was experiencing in his right leg. His brief states that he went to Dr. Raaf "for an examination to find out what caused the pain in his leg." The plaintiff considered Dr. Raaf very competent and went to him to learn not only what was causing the pain in his leg but also the course which he would have to pursue in order to correct it. Dr. Raaf called into the conference an associate by the name of Dr. Harold D. Paxton and shortly had Dr. Paxton make an extensive examination of the plaintiff. In describing the examination, Dr. Paxton testified:
The foregoing and other information which the plaintiff gave to Dr. Paxton constituted the history of his condition. As a witness, Dr. Paxton was asked:
At that point Dr. Paxton, as a witness, detailed the physical examination that he made of the plaintiff. At the conclusion of the physical examination he related to Dr. Raaf his findings. Following the receipt from Dr. Paxton of the results of the examinations, Dr. Raaf conferred again with the plaintiff. According to him, "We made certain recommendations." He prescribed no medicine and no diets. Dr. Raaf testified:
It is clear from Dr. Raaf's testimony that he did not have sufficient knowledge of the plaintiff's condition, as the plaintiff sat in his office, to be in a position to define with precision the cause of the plaintiff's painful condition. He deemed that the cause was concealed from his eyes by the plaintiff's flesh and bones. He thought that there were several possible causes for the plaintiff's pain, but felt so certain from the examination made of the plaintiff by Dr. Paxton aided by *228 his own learning as a neurologist that either arthritis of the spine or a protruded disc was the actual cause that he explained only those two to the plaintiff. As a skilled neurologist he knew the course that would have to be pursued to determine which of those causes was accountable. As we see from the testimony given by Dr. Raaf which is quoted in a preceding paragraph, he told the plaintiff that the first step is "conservative treatment," that is, traction. If it proved successful, nothing more needed to be done, but if it failed, the next step would be a pantopaque myelogram. Its nature is explained by Dr. Raaf in a preceding paragraph. A pantopaque myelogram is not a cure, it is a means whereby the physician, although unable to look through the skin, can nevertheless ascertain whether the patient has a protruded disc. If he has a protruded disc, Dr. Raaf explained to the plaintiff, surgery is necessary.
The foregoing was Dr. Raaf's verdict. He could become no more specific in the recommendations which he made until the plaintiff pursued the course of action that he placed before him. Before he could state with finality that the plaintiff's pains were caused by arthritis of the spine or by a protruded disc, the plaintiff would have to undergo traction and, if it failed to give relief, a pantopaque myelogram. Dr. Raaf referred to the recommendations which he made to the plaintiff not merely as recommendations and an opinion but also as "a differential diagnosis." He testified that he would have been unable to make his recommendations and "differential diagnosis" without the examination which was given to the plaintiff and without his conference with him. The plaintiff had a heart condition which made him fearful of surgery. Dr. Raaf testified: "It was up to him to make up his mind what *229 he wanted to do, whether he wanted to take our recommendation for further investigation and treatment."
After Dr. Raaf had laid out the foregoing before the plaintiff, the latter stated that he was not ready to adopt the program but that he would give it careful thought.
Dr. Raaf's charge for his service was $30. A few days after the plaintiff's consultation with Dr. Raaf he went to southern California in order to determine whether warm sunshine would improve his condition. It failed. He then returned to Dr. Raaf and on February 27, 1959, underwent traction. It did not help. The myelogram test which was then made indicated a protruded disc. April 20, 1959, surgery was resorted to and a protruded disc was removed.
We now face the question as to whether (1) the chiropractic treatment which the plaintiff received and (2) the services which Dr. Raaf performed for him constituted "medical * * * care" within the purview of the paragraph of the policy previously quoted which says that the defendant (the insurance company) is required to pay for the "medical * * * care" which is rendered to those of its insureds who have pre-existing conditions if they have "not received medical, surgical or hospital care during" the first six months of the policy. It is agreed that both the chiropractic treatment and Dr. Raaf's services were rendered within the crucial six months period. The defendant claims that both the chiropractic services and the neurological services of Dr. Raaf were medical care within the contemplation of the clause of the policy just quoted. The plaintiff argues that neither was medical care within that clause.
The plaintiff's contention that the heat, massage *230 and adjustment services which he obtained from a chiropractor cannot be deemed medical care is expressed as follows in his brief:
The sections of our laws which the plaintiff cites in his argument just quoted deem a chiropractor as engaged in a phase of the healing arts and require him to possess the educational and character qualifications which are exacted by those laws. They demand that before he can be granted a license to practice he must pass a written examination conducted by a board appointed by the governor of this state.
We noticed that the plaintiff received from the chiropractor heat treatments. Medical doctors at times *231 prescribe or administer such treatments. In fact, one of the medical doctors to whom the plaintiff resorted gave him a heat treatment. That warrants a belief that the administration of heat treatments constitutes medical care. The chiropractor also gave to the plaintiff massage treatments. Physicians frequently give or prescribe massage. Vol. 8, The Cyclopedia of Medicine, Surgery, Specialties, page 907. The chiropractor undertook hand adjustments of the plaintiff's shoulder. Treatment of that kind is at times given by physicians. Vol. 8, The Cyclopedia of Medicine, Surgery, Specialties, page 885.
The plaintiff's principal argument is not that the above treatments were not medical care, but that since the policy, in listing the medical services for which the defendant would pay, mentions only "medical doctors or osteopathic physicians * * * and treatment by dental surgeons in cases of jaw fractures," the services rendered by a chiropractor to an insured are not deemed by the policy as medical care. It will be noticed that the clause of the policy upon which the plaintiff depends does not state, at least not directly, that a chiropractor's services do not constitute medical care. The fact that the policy does not subject the defendant to payment for a chiropractor's services does not establish that the services are not medical care. The policy frees the defendant from liability for the first $10 of any medical charge even though the service was rendered by a medical doctor. If the charge was no more than $10 the defendant paid no part of it. But that circumstance does not indicate that the service was not medical care. Although we have not been informed why the policy excludes chiropractic services from the defendant's liability, it is clear that the services which were rendered to the *232 plaintiff by the chiropractor to whom he resorted were of the same kind that medical doctors render. In other words, had they been performed by a medical doctor they would have been deemed medical care.
We believe that the chiropractic services which the plaintiff received were medical care within the purview of the provisions of the policy which applies to pre-existing conditions, and medical care received for them within the six months period immediately following issuance of the policy.
We return now to the services performed by Dr. Raaf.
We quote the following from Provident Life and Accident Insurance Company v. Hutson (Texas) 305 SW2d 837:
When the plaintiff called upon Dr. Raaf he was anxious to learn, if possible, the cause of the trouble in his right leg and the course of treatment which he would have to pursue to overcome it. He wanted an examination, a diagnosis, and advice as to the future.
The issue which we must now resolve is whether the following constituted medical care: (1) the examination of the plaintiff which Dr. Raaf and Dr. Paxton made, (2) Dr. Raaf's statement to the plaintiff of his findings, and (3) Dr. Raaf's recommendations to the plaintiff as to (a) the additional course which would have to be taken to determine the exact nature of the ailment in his right leg and (b) the treatment which the plaintiff would have to undergo to overcome the ailment after its precise nature was discovered.
It is true, as the plaintiff's brief states, that Dr. Raaf did not give the plaintiff any pills or other form of medication; but he resolved for the plaintiff the general nature of his ailment and what would have to be done to improve the condition.
Dr. Raaf's recommendations obviously were accepted by the plaintiff. They made such a deep impression upon him and his wife that upon their return from California the plaintiff went to Dr. Raaf and took the first measure that had been recommended, that is, traction. This was taken in a hospital and extended over a period of three or four days. When it failed to yield the desired result, the plaintiff did not abandon Dr. Raaf as he had the other practitioners *234 whom he had consulted in the past, but returned and had the myelogram which was the second step in Dr. Raaf's program. The myelogram indicated that the cause of the plaintiff's trouble was a protruded disc. That development confronted the plaintiff with a severe test of his allegiance to Dr. Raaf's program, for a protruded disc called for surgery and the plaintiff's impaired heart condition made him apprehensive of surgery. Nevertheless, he returned to Dr. Raaf and the specified surgery, the third and final measure that constituted a part of Dr. Raaf's recommendations, was performed.
Undoubtedly, the purpose of the policy's clause which governs this issue is a practical one. The defendant was willing to insure pre-existing conditions of impaired health if such conditions were not sufficiently acute, active, or aggravated to require a physician's aid within six months of the day when the policy was issued. Therefore, the acceptance of medical care by an insured for a pre-existing condition within six months of the issuance of the policy was made the test of liability. If the consultation with the medical man is for the purpose of medication, or of diagnosis so that he may know what he must do next, it should be deemed medical care. Services that are received from physicians within the six months period must be examined for the purpose of determining whether they were undergone because the insured's pre-existing condition was troubling him. In the present instance the plaintiff received from Dr. Raaf's office an extensive examination and at its close was given by Dr. Raaf, a neurologist in whom he had great confidence, a statement of his findings and a program to pursue in order to overcome the painful condition of which he was complaining. The plaintiff *235 says that Dr. Raaf did not prescribe for him any pills, medicine or a diet. That is true, but he submitted to the plaintiff a course of treatment that he would have to adopt if he was to be restored to good health. There was no alternative. Pills and medicine could not produce the desired result, but the course of medical attention, which Dr. Raaf recommended and which the plaintiff presently embraced, was the plaintiff's only hope as was demonstrated when it was put into effect. Whether Dr. Raaf's recommendations that he made to the plaintiff are termed an opinion, a recommendation, a diagnosis or a differential diagnosis is of little moment. What he said and did on October 17, 1958, brought the plaintiff mental relief, gave him hope, and constituted a program to which he yielded full allegiance and faith. We are satisfied that what took place in Dr. Raaf's office on October 17, 1958, constituted medical care.
We sustain the assignment of error and, accordingly, reverse the challenged judgment. The defendant was entitled to a directed verdict.
Reversed. | fc89a207083a28b4012be90b71ca3e5647894f7f036eb57912525f1a2c5a68d4 | 1963-01-16T00:00:00Z |
2503d22b-862e-4032-a8d8-fa9625c31f55 | State v. Partain | null | S057581 | oregon | Oregon Supreme Court | FILED: September 10, 2010
IN THE SUPREME COURT OF THE STATE OF OREGON
STATE OF OREGON,
Petitioner on Review,
v.
RICHARD DALE PARTAIN,
Respondent on Review.
(CC 03P3038; CA A132336; SC S057581)
En Banc
On review from the
Court of Appeals.*
Argued and submitted
March 2, 2010.
Susan G. Howe, Senior
Assistant Attorney General, Salem, argued the cause and filed the brief for
petitioner on review. With her on the brief were John R. Kroger, Attorney
General, and Jerome Lidz, Solicitor General.
Ernest G. Lannet,
Chief Deputy Defender, Salem, argued the cause and filed the brief for
respondent on review. With him on the brief was Peter Gartlan, Chief Defender,
Office of Public Defense Services.
GILLETTE, J.
The decision of the
Court of Appeals is affirmed in part on different grounds. The judgment of the
circuit court is vacated, and the case is remanded to the circuit court for
resentencing in accordance with this opinion.
Walters, J., dissented
and filed an opinion.
*On appeal from the
Polk County Circuit Court, William M. Horner, Judge. 228 Or App 329, 208 P3d
526 (2009).
GILLETTE, J.
This case concerns the propriety of a
600-month prison sentence imposed on a defendant in a sex abuse case, after the
Court of Appeals had vacated the 420-month sentence that the trial court
originally had imposed. On defendant's appeal from the second sentence, the
Court of Appeals reversed, holding that the trial court had violated the rule
announced by this court in State v. Turner, 247 Or 301, 313, 429 P2d 197
(1967) -- that, when a defendant is retried after a successful appeal of his or
her conviction, the court in the second proceeding may not impose a harsher
sentence than had been imposed in the original proceeding. State v. Partain,
228 Or App 329, 208 P3d 526 (2009). Before this court, the state argues that
the rule from Turner either does not apply to the circumstances of this
case or, in any event, should be abandoned in favor of a rule that permits
imposition of a longer sentence on remand if the trial court is able to justify
that sentence on nonvindictive grounds. We agree with the state that Turner
should be abandoned. We also accept a version of the test that the state
proposes, but we conclude that the question whether that test has been met
requires further development of the record. We therefore affirm the decision
of the Court of Appeals to remand the case to the trial court.
In 2003, defendant was convicted of
multiple sex crimes --12 in all -- in a single proceeding. At sentencing, the
trial court imposed various sentences and ordered that certain of the sentences
be served consecutively to others. Altogether, the sentences required
defendant to serve 420 months in prison. The judgment stated, with respect to
each sentence, that defendant would not be eligible for any sentence reduction
program.
Defendant appealed, arguing (1) that the
trial court had erred in requiring that defendant serve the sentences imposed
on four of the convictions consecutively to certain other sentences, and (2) that,
with respect to the same four sentences, the trial court had erred in denying
defendant eligibility for sentence reduction programs without making certain
findings in open court that, under ORS 137.750, are required when sentences are
so limited. At some point in the appeal, the state conceded error with respect
to defendant's second argument, and joined with defendant in a motion to vacate
the erroneous sentences and to remand the entire case for resentencing. The
Court of Appeals granted the motion.
On remand, no new evidence or
information was placed on the record. In entering its sentence on remand, the
trial court discharged the four sentences that had been the focus of
defendant's appeal, but structured the remaining sentences in a way that
resulted in an overall term of 600 months in prison. The court did not state
any reasons for imposing the lengthier overall sentence.
Defendant appealed again, this time
arguing that, because the total sentence imposed on remand was longer than the
total sentence imposed in the original proceeding, the sentence violated the "no
harsher sentence" rule of Turner (described more fully below, ___ Or
at ___ (slip op at 5-6)). Because Turner was a case involving a retrial
rather than a resentencing, defendant also relied on a Court of Appeals
decision -- State v. Stockman, 43 Or App 235, 603 P2d 363 (1979) -- that
held that the Turner rule applied when a case was remanded after a
successful appellate challenge to a sentence on grounds other than
excessiveness. The state responded that the rules of Turner and Stockman
have been legislatively superseded by a 1993 amendment to ORS 138.222(5)(a), which
provides that, when a case is remanded because of a sentencing error, the
sentencing court "may impose a new sentence for any conviction in the
remanded case." Or Laws 1993, ch 692, § 2(5). The state also suggested
that Turner was directed only at sentences that are imposed by a court
to punish a defendant for seeking appellate review and that, in this case, the
new sentences were based solely on the abhorrent nature of the crimes.
The Court of Appeals rejected the
state's contention that the legislature impliedly repealed Turner and Stockman
when it later amended ORS 138.222(5)(a). Partain, 228 Or App at 335.
The court also rejected the state's suggestion that Turner prohibits harsher
sentences on remand only when the sentencing court's motivation was to punish
the defendant for appealing: It observed that, in Turner, this court
explicitly described the rule as a prophylactic one, adopted to avoid the
difficult task of determining a trial court's motives. Id. at 335-36
(quoting Turner, 247 Or at 314). Ultimately, the Court of Appeals
concluded that, under this court's decision in Turner and its own
decision in Stockman, the trial court had erred in imposing a greater
total sentence on remand. Id. at 336. We allowed the state's petition
for review.
The state argues that the Court of
Appeals erred on two grounds: (1) the court failed to recognize that the Turner
"no harsher sentence" rule is limited to cases in which the defendant
has been retried after successfully challenging his or her conviction,
and does not apply when a defendant is before a trial court solely for resentencing
after successfully challenging the lawfulness of the original sentence; and
(2) the court also failed to recognize that, in light of certain changes in
Oregon's sentencing laws, the Turner rule is no longer viable. Both of
those arguments call for a close examination of the Turner case, a task
to which we now turn.
The defendant in Turner was
convicted of assault and initially received a five-year sentence. He
successfully appealed his conviction and the case was remanded for a new
trial. In the second trial, defendant was convicted again, but this time the
trial judge sentenced him to seven years in prison -- two years more than the
original trial court had imposed. The defendant appealed, arguing that the
trial court could not constitutionally impose a longer prison sentence than the
one imposed in the original trial.
In its opinion in Turner, the
court described its overall methodology for analyzing the issue in terms of
"weigh[ing] the public interest in being protected from persons found
guilty of crimes and the individual's interest in exercising rights guaranteed
him by constitution, statute or judicial decision." 247 Or at 312. The
court identified the individual defendant's interest in terms of the statutory
right of appeal, and it concluded that permitting a trial court to impose a
more severe sentence after a successful appeal would have a "chilling
effect" on a defendant's exercise of that right. Id. at 313. The
court did not, however, explain its reasoning or identify any source of law for
the balancing approach that it adopted.
The court in Turner then
considered the public interest at issue, i.e., an interest in allowing
trial courts to impose whatever lawful sentences they deemed to be appropriate,
including a harsher sentence, when defendants are retried after successfully
appealing from some aspect of their previous conviction. The court suggested
that the public interest in such a scheme was relatively weak, rejecting, as
contrary to logic and its own prior case law, most of the reasons that had been
offered for upholding a harsher sentence imposed after retrial.(1)
It then announced the results of its balancing analysis, holding that
"the interest of the public and the individual can best
be served by the following rule: After an appeal or post-conviction proceeding
has resulted in the ordering of a retrial for errors other than an erroneous
sentence, such as in [State v. Froembling, 237 Or 616, 391 P2d 390
(1964) and Froembling v. Gladden, 244 Or 314, 417 P2d 1020 (1966)], and
the defendant has again been convicted, no harsher sentence can be given than
that initially imposed."
Id.
After stating that rule, the court
acknowledged that there might be some circumstances in which a harsher sentence
on remand might be rational and justified -- for example, when the first
sentence was too lenient or when evidence relevant to sentencing that was not
available to the judge in the first trial is available to the judge in
the second trial. The court concluded, however, that requiring reviewing
courts to distinguish between those legitimate harsher sentences and sentences
that were merely vindictive would cause difficulties in judicial
administration. It further concluded that the possible advantages associated
with permitting trial courts to impose harsher sentences when there were
nonvindictive reasons to do so were outweighed by the judicial efficiency that
would result from following the simple prophylactic rule that it was announcing.
Turner, 247 Or at 314-15.
The court concluded by discussing the
legal source of its new rule:
"There also remains the issue of whether
the rule proposed should be grounded upon the due process or double jeopardy
provisions of the state or federal constitutions or whether it should be
grounded upon the statutes or the common law.
"We do not find it necessary to decide the
constitutional issues as we conclude that, when the state grants a criminal
appeal as a matter of right to one convicted of a crime, as it has, our
procedural policy should be not to limit that right by requiring the defendant to
risk a more severe sentence in order to exercise that right of appeal. ORS
138.020."
Id. at 315. Although the court in Turner thus
proclaimed the rule to be a prudential one, the reference to the state
"grant[ing] a criminal appeal as a matter of right" and the citation
to ORS 138.020 indicate that the rule in some sense derived from the court's
particular understanding of the legislative intent behind that statute.(2)
Since Turner was decided in
1967, the rule it announced has been assiduously followed -- and sometimes
extended(3)
-- by the Court of Appeals, and it has been cited by this court as established
law on at least three occasions. See State ex rel Dillavou v. Foster,
273 Or 319, 324 n 8, 541 P2d 811 (1975) (to deny defendant who appeals credit for
time spent in jail pending appeal effectively penalizes the defendant for
appealing and, thus, violates rule of Turner); State v. Holmes,
287 Or 613, 617-19, 601 P2d 1213 (1979) (Turner rule precluding
imposition of more lengthy sentence after successful appeal and retrial does
not apply in the context of a probation revocation proceeding); State v.
Martin, 288 Or 643, 645-47, 607 P2d 171 (1980) (consistent with principle
announced in Turner, defendant whose conviction is set aside on his
motion for a new trial cannot, on remand, be prosecuted for additional charges
arising from the same criminal episode). Of those three cases, only Dillavou
truly embodies a Turner-like approach. Still, Turner's status as
a precedent of long standing is undeniable.
That brings us to the more ambitious
of the state's two arguments(4)
-- that we should abandon the Turner rule altogether in favor of a
sentencing rule that is more specifically focused on the one legitimate concern
that such resentencing raises -- the possibility that trial courts may employ
their sentencing authority to punish defendants for having the temerity to
appeal earlier convictions and sentences. The state acknowledges that
defendants and courts have relied on the Turner rule for a long time,
but it argues that the Turner rule is neither constitutionally nor
legislatively compelled and that, for a variety of reasons, this court can and
should set it aside.
In so arguing, the state does not
directly acknowledge this court's general policy of adhering to precedent or
the kind of showing that we generally have required before we will consider
overturning a decision of such long standing. But, acknowledged or not, the
reality of the state's burden is clear: Although this court arguably is more kindly
disposed to requests to reconsider precedent when, as here, the precedent does
not rest directly on the court's interpretation of a particular statute or
constitutional provision, that does not mean that we will lightly set aside a decision
of this sort. In fact, we have stated that there are three grounds on which we
will reconsider an established nonstatutory rule:
"(1) that an earlier case was inadequately considered
or wrong when it was decided; (2) that surrounding statutory law or regulations
have altered some essential legal element assumed in the earlier case; or (3)
that the earlier rule was grounded in and tailored to specific factual
conditions, and that some essential factual assumptions of the rule have
changed. Without some such premise, the court has no grounds to reverse a
well-established rule beside judicial fashion or personal policy preference,
which are not sufficient grounds for such a change."
G.L. v. Kaiser Foundation Hospitals, Inc., 306 Or 54,
59, 757 P2d 1347 (1988) (citations omitted).(5)
The state has not expressly directed
its analysis to any of those three "premises." Instead, the state's
primary objections to the Turner rule are that it is "too
restrictive," "too unwieldy," and that it is not required
by this state's constitutional or statutory law. The state also argues that
the rule is inconsistent with this court's expressed reluctance to interfere
with a trial court's sentencing discretion and with its expressed view that
judicial review of criminal sentences must be limited because the setting of
criminal penalties is a purely legislative function. See, e.g., State v.
Smith, 128 Or 515, 524, 273 P 323 (1929) (it is the province of the
legislature to establish penalties for crimes); State v. Montgomery, 237
Or 593, 595, 392 P2d 642 (1964) (court should not disturb discretion of the
trial court in fixing term of imprisonment). Finally, the state argues that,
since Turner was decided, the legislature has amended the statutes
pertaining to criminal appeals in ways that implicitly conflict with the Turner
rule. Unlike the state's other arguments, its last argument is relevant to one
of the accepted grounds for reconsidering established precedent -- that
"surrounding statutory law or regulations have altered some essential
legal element assumed in the earlier case." Kaiser Foundation
Hospitals, Inc., 306 Or at 59.
We note, in that regard, that,
although the court in Turner purported to erect a prudential rule, its
justification for that rule largely derived from an unspoken "gloss"
on ORS 138.020 -- that the right of appeal that that statute guarantees also
includes a right to be shielded from outcomes that might "chill" a
defendant's desire to exercise the right, including the risk of a longer
sentence. It would seem, in fact, that that gloss on ORS 138.020 was, in Kaiser
Foundation Hospitals, Inc. terms, an "essential legal element"
assumed in Turner. If so, then the question for this court, with
respect to the state's bid for reconsideration of Turner, is whether the
1993 amendment to ORS 138.222(5)(a) (on which the state relies), or any other
alterations in the surrounding law, has undermined that assumption about the
right of appeal that the court in Turner thought that ORS 138.020 conveyed.
If that assumption has been substantially undermined by more recent enactments,
then the Turner rule itself is an appropriate candidate for
reconsideration.
The 1993 amendment to ORS
138.222(5)(a), which the state has invoked, is germane to that inquiry.
Enacted some 25 years after Turner was decided, the relevant portion of
ORS 138.222(5)(a) provides:
"If[, in a criminal appeal,] the appellate court
determines that the sentencing court, in imposing a sentence in the case,
committed an error that requires resentencing, the appellate court shall remand
the entire case for resentencing. The sentencing court may impose a new
sentence for any conviction in the remanded case."
(Emphasis added.) As noted, the Court of Appeals rejected
the state's suggestion that, by enacting that provision, the legislature
implicitly overruled Turner. We agree with the Court of Appeals'
conclusion as far as it goes: There is nothing in the text, context, or
legislative history of ORS 138.222(5)(a) that suggests that the statute was
specifically directed at the holding in Turner.
On the other hand, it appears
that enactment of the quoted amendment did alter the legal landscape for
criminal appeals in a way that undermines the assumptions in Turner about
the dimensions of the right of appeal guaranteed by ORS 138.020. The amendment
unambiguously provides that, when a case is remanded because of a particular
sentencing error, the sentencing court may impose different sentences on any
and all counts -- even those not affected by the identified error. Although
the amendment does not explicitly state that that authority extends to increasing
a defendant's overall sentence, the scope of the statutory wording allows
sentencing courts to replace terms in a prior sentencing decision respecting certain
counts that were favorable to the defendant with less favorable ones respecting
those counts, with one reasonable consequence of such action by the sentencing
court being a collection of lawful sentences whose total exceeds defendant's
earlier sentence. The amendment thus strikes a different balance than did Turner
with respect to the discretion of trial courts to impose the lawful sentences that
they find to be appropriate.
The history of the amendment confirms
that general sense of the legislature's intentions. As defendant notes, the
amendment was adopted in response to a Court of Appeals case, State v. Smith,
116 Or App 558, 842 P2d 805 (1992), adh'd to on recons, 120 Or App 438,
852 P2d 935 (1993), which held that, upon remand for a sentencing error with
respect to one charge, a trial court could not resentence on certain other
offenses whose sentences were unchallenged, thereby restructuring the collective
sentences in the case so that the defendant was subject to the same total
sentence as previously had been imposed. Proponents of the amendment offered
it as a mechanism for "overruling" Smith, which they viewed as
"unjustly favor[ing] convicted felons." Exhibits, House
Appropriations Committee, SB 1043 (1993) (letter from Fred Avera, Polk County
District Attorney, and Dale Penn, Marion County District Attorney, proposing
amendment to SB 1043). Although there is nothing in the history that
establishes a legislative intent to affirmatively authorize the imposition of
sentences after a remand that are longer overall, the fact that
the legislature appears to have been motivated by a disagreement with the Smith
analysis does not comport with Turner's notion that the right of appeal
guaranteed by ORS 138.020 must be provided free of any risk of unfavorable
alterations in sentences.
Other post-Turner statutes also
are at odds with the special weight that Turner assigned to the right of
criminal defendants to appeal free of the risk of a more severe sentence on
remand. For example, ORS 138.222(5)(b), adopted in 2005 (Or Laws 2005, ch 563,
§ 1), extends the general approach of ORS 138.222(5)(a), allowing trial courts
to resentence a defendant on any judgments of convictions that are affirmed on
appeal, if any other judgment of conviction in the same case is reversed on
appeal.(6)
Again, the amendment indicates that the legislature did not share the view of a
criminal defendant's right to a risk- and barrier-free appeal that the court
espoused in Turner. The legislature's philosophical distance from the Turner
approach is still further illustrated by the 1989 legislature's grant of
authority to the state to appeal from sentences in felony cases on grounds that
the law required a different sentence. See ORS 138.222(4), (7)
(collectively providing that state may appeal defendant's sentences on such grounds).
One final illustration helps make our
point. For a number of years, the court relied on what it called a "rule
of lenity." That rule, which also was prudential, was used by the court
in doubtful cases as a basis for giving criminal statutes a limited reading -- i.e.,
for limiting the sweep of legislative enactments. See State v. Linthwaite,
295 Or 162, 179, 665 P2d 863 (1983) (describing and applying doctrine as basis
for holding that defendant's attack on four victims with a knife permitted only
one punishment); State v. Welch, 264 Or 388, 393-94, 505 P2d 910 (1973)
(applying rule in holding that person uttering two forged instruments committed
only one crime). The "rule" was abrogated by the legislature when it
adopted ORS 161.025(2), which directs courts to construe penal statutes
"according to the fair import of their terms." See Bailey v.
Lampert, 342 Or 321, 327, 153 P3d 95 (2007) (so holding). This history
further illustrates the legislature's systematic rejection of the policy and
value judgments underlying Turner.
We have suggested that the Turner
decision rested on an unexamined elaboration on the right of appeal guaranteed
by ORS 138.020 -- i.e., that the right of appeal necessarily includes
the right to have the length of any resentence limited to the length of the sentence
originally imposed. We have assumed, without actually deciding, that that reading
of ORS 138.020 had some basis in the law when Turner was decided. But,
based on changes in the law pertaining to criminal sentencing and criminal
appeals since Turner was decided, as well as the legislature's rejection
of the "rule of lenity," it now is clear that the Turner
court's expansive reading of the right to appeal in ORS 138.020 no longer is
viable, if it ever was. Put differently: The legal landscape surrounding the
right of criminal defendants to appeal has changed in a way that undermines the
essential premise for the holding in Turner. We therefore are free to
reconsider that holding in the light of current law.(7)
On reconsideration, we conclude that
the Turner rationale has been overtaken by the passage of time and by legislation.
As noted, Turner itself did not rest on any constitutional basis and no
persuasive argument has been advanced that the Oregon Constitution requires that
criminal defendants be shielded from the possibility that, on remand after a
successful appeal, a sentencing court will impose a lengthier sentence than that
which it originally imposed. In that regard, we note that the prohibition on
double jeopardy of Article I, section 12, which has been put forward as a basis
for such a rule, pertains to successive prosecutions and not to
resentencing, while the alternative proffered basis -- due process -- is a
federal, not an Oregon, constitutional guarantee. Furthermore, the suggestion
in Turner that such a blanket rule is somehow justified by ORS 138.020,
to ensure a full realization of the right of appeal that that statute was
enacted to guarantee, is wrong in the context of the present legal landscape
(and was both not fully considered and wrong in 1965): The statute was
concerned with who could appeal and what could be appealed. In our view, it
did not -- even by implication -- deal with what might be a permissible outcome
if a case were reversed and remanded. Finally, we cannot justify such a
blanket rule, as the court did in Turner, as a purely prudential safeguard.
Whatever the possibility of vindictive sentencing, the legislature remains
competent to deal with it explicitly and, if it does not do so, both the state
and federal constitutions provide the appropriate legal backstop. This court's
policy-driven intervention in that statutory/constitutional arrangement, while
doubtless well-meaning, inappropriately assumed on the part of the court
policy-making responsibility that belongs elsewhere. Turner is
overruled.
While we reject Turner's absolutist
approach to the longer-sentence-on-remand issue, that does not mean that we are
turning a blind eye to the problem that such sentences can pose. When, on
remand of a criminal defendant's case after a successful appeal, a trial court
imposes a longer sentence, it is natural to be concerned that the enhanced
penalty may be intended to punish the defendant for his or her success on
appeal. And, to the extent that that sort of vindictive sentencing occurs, it
undoubtedly is unlawful: The statutory right of appeal provided at ORS 138.020
may carry with it risks, as we today hold, but no conceivable construction of
the statute's wording supports the idea that the legislature intended to grant
to trial judges the authority to use their sentencing power to impose more
lengthy sentences on remand for the purpose of punishing defendants for
bringing appeals.
On the other hand, we can posit a
number of legitimate reasons for a trial court to impose a longer sentence on
remand or after retrial -- including the fact that the trial court in the
second sentencing proceeding has information about the defendant and his or her
actions that was not available at the first or the fact that the trial court
simply erred in applying sentencing statutes or guidelines. There is no basis
for saying that the legislature intends that such exercises of a trial court's
sentencing discretion must be barred, in order to ensure against the imposition
of vindictive (and unlawful) sentences. There also is no basis for saying that
either the Oregon or federal constitutions bars all such choices.
But the problem remains: How are
Oregon courts to deal with claims of vindictive sentencing? As we have noted,
it is not clear that any Oregon constitutional provision answers the question
directly. And, as we also have noted, we think that it is inappropriate to
create or announce a rule in this area of the law without real constitutional
or statutory support. (To do otherwise would be simply to substitute our
policy-making assessments for those of the court in Turner. If it was
inappropriate for that court to do what it did, it would be just as
inappropriate for this court to act in like manner.)
As it happens, there is a source of
law. The Supreme Court of the United States, acting under the Due Process
Clause of the Fourteenth Amendment, has addressed the problem and laid out a
method of dealing with it.
In North Carolina v. Pearce,
395 US 711, 726, 89 S Ct 2072, 23 L Ed 2d 656 (1969), the Court was faced with
two cases in which a defendant's sentence on retrial exceeded the sentence that
each defendant had received at that defendant's initial sentencing. The
defendants urged that longer sentences on retrial offended the Fifth
Amendment's double jeopardy provision, as well as the Equal Protection Clause
of the Fourteenth Amendment. The Court held that neither constitutional
provision prohibited such sentences. 395 US at 723.
The Court then turned to an analysis
of the issue under the Due Process Clause of the Fourteenth Amendment. For
reasons that soon will be apparent, we set out the Court's analysis at some
length:
"It is hardly to be doubted that it would
be a flagrant violation of the Fourteenth Amendment for a state trial court to
follow an announced practice of imposing a heavier sentence upon every
reconvicted defendant for the explicit purpose of punishing the defendant for
his having succeeded in getting his original conviction set aside. * * * And
the very threat inherent in the existence of such a punitive policy would, with
respect to those still in prison, serve to 'chill the exercise of basic
constitutional rights.' * * * [Moreover, and] even if the first conviction has
been set aside for nonconstitutional error, the imposition of a penalty upon
the defendant for having successfully pursued a statutory right of appeal or
collateral remedy would be no less a violation of due process of law."
Id. at 723-25 (citations and footnotes omitted).
The Court then went on to deliver the
following pronouncement:
"Due process of law, then, requires that
vindictiveness against a defendant for having successfully attacked his first
conviction must play no part in the sentence he receives after a new trial.
And since the fear of such vindictiveness may unconstitutionally deter a
defendant's exercise of the right to appeal or collaterally attack his first
conviction, due process also requires that a defendant be freed of apprehension
of such a retaliatory motivation on the part of the sentencing judge.
"In order to assure the absence of such a
motivation, we have concluded that whenever a judge imposes a more severe
sentence upon a defendant after a new trial, the reasons for his doing so must
affirmatively appear. Those reasons must be based upon objective information
concerning identifiable conduct on the part of the defendant occurring after
the time of the original sentencing procedure.[(8)]
And the factual data upon which the increased sentence is based must be made
part of the record, so that the constitutional legitimacy of the increased
sentence may be fully reviewed on appeal."
Pearce, 395 US at 725-26 (footnotes and citations
omitted).
The foregoing federal constitutional
rule is one that Oregon courts must follow with respect to resentencing
offenders to longer sentences. This court could, of course, announce
additional requirements under our own constitution or pursuant to statute. As
noted, however, we find no obvious basis in either source of law for doing so.
We therefore decline to posit anything other than the Pearce standard, as
modified by the Court in the manner noted, as the applicable standard in cases
of resentencing in Oregon: If an Oregon trial judge believes that an offender
whom the judge is about to resentence should receive a more severe sentence
than the one originally imposed, the judge's reasons must affirmatively appear
on the record. Those reasons must be based on identified facts of which the
first sentencing judge was unaware, and must be such as to satisfy a reviewing
court that the length of the sentence imposed is not a product of
vindictiveness toward the offender. Absent such facts and reasons, an unexplained
or inadequately explained increased sentence will be presumed to be based on
vindictive motives, and will be reversed.
Turning to this case, the Court of
Appeals, based on Turner, reversed the 600-month sentence that the trial
court imposed on remand. In light of our decision to overrule Turner
(an outcome the Court of Appeals could not have anticipated), the Court of
Appeals' rationale was incorrect: We now recognize that a trial court
lawfully may impose a harsher sentence on a defendant after retrial or remand,
as long as the court's grounds for doing so are not directed at punishing the
defendant for appealing his or her original convictions or sentences. However,
in light of the trial court's failure to explain on the record in this case its
reasons for imposing the longer sentence on remand, we cannot say that the
Court of Appeals was incorrect in reversing the trial court's judgment.
That court needed more information than is available in the present record in
order to assure itself that the sentencing court's choice of sentence on remand
was not a vindictive one. The trial court in this case should have an
opportunity to clarify the record in that respect; we therefore remand the case
to the trial court for that purpose. On remand, the trial court may choose to
impose a sentence that does not exceed the original total sentence of 420
months, which would not require a statement of the court's reasons for imposing
the sentence. If the court choose, instead, to impose a longer or otherwise
more severe total sentence, it must place on the record one or more nonvindictive
reasons for doing so.(9)
The decision of the Court of Appeals
is affirmed in part on different grounds. The judgment of the circuit court is
vacated, and the case is remanded to the circuit court for resentencing in
accordance with this opinion.
WALTERS, J., dissenting.
In 1967, a defendant had a right,
under Oregon statute, to appeal a wrongful conviction. In 1967, a trial court
had discretion, under Oregon statutes, to decide the sentence that a defendant
should receive if convicted for a second time after a successful appeal. In
1967, in State v. Turner, 247 Or 301, 429 P2d 565 (1967), this
court decided a question at the confluence of those statutes: whether a
defendant who successfully exercised the right to appeal a wrongful conviction
and had it overturned could be subjected to a harsher sentence than that
originally imposed. The court decided, in a unanimous opinion, that he could
not.
The majority overrules Turner as
a "well-meaning" but "inappropriate[]" assumption of
policy-making responsibility "that belongs elsewhere." ___Or at ___ (slip
op at 15). I agree with the majority that, in 1967, the legislature had
authority to decide the question presented in Turner. However, the
legislature had not exercised that authority and Oregon statutes neither
explicitly permitted nor explicitly precluded a sentencing judge from imposing
a harsher sentence in the circumstance presented. Therefore, I cannot agree
that the court in Turner inappropriately assumed a legislative role when
it decided the question before it.
In the absence of express statutory
guidance, the court in Turner considered the competing public interests
reflected in the statutes that the legislature had enacted --the public
interest in "permit[ting] a court to assess its sentence upon the most
complete and current information" and the public interest in
"correction of an erroneously conducted trial." 247 Or 313-14. The
court decided that because the legislature had granted a right of criminal
appeal and because the "public has no interest in foreclosing the
correction of an erroneously conducted trial," the appropriate procedural
policy should be "not to limit that right by requiring the defendant to
risk a more severe sentence in order to exercise that right of appeal." Id.
at 313, 315. A different rule, the court decided, "would 'chill' a
defendant's desire to correct an erroneously conducted initial trial," id.
at 313, and require a reviewing court to "make a subjective
determination whether the new information justified and was in fact the motive
for the more severe sentence," raising "difficulties in judicial
administration," id. at 314.
The court in Turner was not
required to reach that particular result and could have ruled, as the majority
in this case apparently would have, that the fact that the legislature had not
expressly precluded a harsher sentence on remand permitted just that. But the
court did not do so. During the 43 years that have intervened between Turner
and Partain, the Oregon legislature had authority to overrule
or alter the court's decision in Turner. But the legislature did not do
so. Given the authority of those entities, it is, in my view, the majority in Partain
that assumes policy-making authority that belongs elsewhere.
First, the majority extends its
authority beyond that necessary to decide the case before it. In this case,
the trial court imposed a harsher sentence on defendant after defendant
successfully appealed an error in sentencing, not an error in the underlying
conviction. The rule that the court announced in Turner explicitly
did not address that circumstance. The court stated:
"After an appeal or post-conviction proceeding has
resulted in the ordering of a retrial for errors other than an erroneous
sentence * * * and the defendant has again been convicted, no
harsher sentence can be given than that initially imposed."
247 Or at 313 (emphasis added). Instead of overruling Turner,
the majority could have refused to extend its rule to successful appeals of
sentencing errors.
Second, the majority reaches a
different result than did the court in Turner without an argument from
the state that the grounds for overturning longstanding precedent as stated in G.L.
v. Kaiser Foundation Hospitals, Inc., 306 Or 54, 59, 757 P2d 1347
(1988), are satisfied, ___ Or at ___ (slip op at 9), and without itself
reaching that conclusion.(1)
The majority relies, for reconsideration, on statutes enacted by the Oregon
legislature since Turner but does not conclude, and cannot conclude, in
the words of Foundation Hospitals, Inc., that those statutes
"altered some essential legal element assumed in the earlier case." Foundation
Hospitals, Inc., 306 Or at 59.
The statutes on which the majority
relies neither limit a defendant's right to appeal a wrongful conviction nor
indicate a legislative intent to expose a defendant to a risk that he or she
will receive a harsher sentence if successful in appealing a wrongful
conviction. ORS 138.222(5)(a) overrules a Court of Appeals case, State v.
Smith, 116 Or App 558, 842 P2d 805 (1992), adh'd to on recons, 120
Or App 438, 852 P2d 934 (1993), and ensures that a trial court may, on remand
from a successful appeal of a sentencing error, reconstruct a collective
sentence to impose the same total sentence previously imposed. ORS
138.222(5)(a) does not address remand from a wrongful conviction, much less
grant trial courts authority to impose harsher sentences after a successful
appeal from a wrongful conviction. ORS 138.222(5)(b) does address remand from
a successful appeal of a conviction, but only permits trial courts to
resentence the defendant on affirmed convictions. It does not address
sentencing on remand from reversed convictions, nor does it grant trial
courts authority to impose harsher sentences after a successful appeal or
indicate a philosophical interest in permitting such sentences.
ORS 138.222(4)(7) permits the state
to appeal from sentences in felony cases on the ground that the law required a
different sentence. Granting the state a right to insist that a lawful
sentence is imposed does not indicate a legislative intent to permit a trial
court to impose a harsher sentence on a defendant who exercises the same
right. To me, it indicates a legislative interest to ensure that any sentence
that is imposed be legally sound. Turner is consistent with that
intent. If a defendant knows that appeal of an invalid sentence will expose
him or her to the risk of a harsher sentence, the defendant will be less likely
to seek correction of that sentence -- a correction that the legislature deems
to be in the public interest.(2)
The majority does not contend that
the statutes on which it relies alter the right to appeal a wrongful conviction
or any other essential element of Turner but instead asserts that those
statutes are "at odds" with the "right of criminal defendants to
appeal free of the risk of a more severe sentence on remand." ___ Or at
___ (slip op at 12). I do not perceive the conflict that the majority
observes, but, more importantly, the majority itself recognizes that Oregon law
continues to grant criminal defendants the right to appeal free from the very
risk of a more severe sentence that Turner addresses -- the risk of
vindictive sentencing:
"[T]o the extent that that sort of vindictive
sentencing occurs, it undoubtedly is unlawful: The statutory right of appeal
provided at ORS 138.020 may carry with it risks, as we today hold, but no
conceivable construction of the statute's wording supports the idea that the
legislature intended to grant to trial judges the authority to use their
sentencing power to impose more lengthy sentences on remand for the purpose of
punishing defendants for bringing appeals."
___Or at ___ (slip op at 15).
After construing
Oregon law to preclude vindictive sentencing, the majority notes that the Due
Process Clause of the federal constitution includes the same prohibition. The
majority then decides that the rule devised by the Supreme Court in North
Carolina v. Pearce, 395 US 711, 89 S Ct 2072, 23 L Ed 2d 656 (1969), is
sufficient to address that concern. ___ Or at ___ (slip op at 18). In so
doing, the majority calls attention to the essential role of the judiciary and
makes my point.
The Due Process Clause does not state
explicitly the procedure that a reviewing court should use to protect against
vindictive sentencing. Nevertheless, the Supreme Court determined, in Pearce,
that, whenever a judge imposes a more severe sentence after a new trial, the
reasons for doing so must affirmatively appear. Id. at 725-26. The
Supreme Court did not exceed its authority in imposing that requirement; it
fulfilled its constitutional role. The court in Turner did the same.
The difference is not in the authority exercised, but in the rule crafted.
In the years since Pearce, the
Supreme Court has made clear that Pearce does not state a bright-line
test or even impose a presumption of vindictiveness for harsher sentences:
"While the Pearce opinion appeared on its face
to announce a rule of sweeping dimension, our subsequent cases have made clear
that its presumption of vindictiveness 'do[es] not apply in every case where a
convicted defendant receives a higher sentence on retrial.'"
Alabama v. Smith, 490 US 794, 799, 109 S Ct 2201, 104
L Ed 2d 865 (1989) (quoting Texas v. McCullough, 475 US 134, 138, 106 S
Ct 976, 89 L Ed 2d 104 (1986)). As a result, by adopting the Pearce rule
as the only test of the validity of a sentence on remand after a successful
appeal, the majority requires reviewing courts to do just what the court in Turner
sought to avoid; viz., deciding whether the case before them is one
"in which there is a 'reasonable likelihood' that the increase in sentence
is the product of actual vindictiveness on the part of the sentencing
authority." Nulph v. Cook, 333 F3d 1052, 1057 (9th Cir 2003)
(quoting Alabama v. Smith, 490 US at 799).
Oh, the endless questions and appeals
and consumption of judicial time we have purchased.
Is there a presumption of vindictiveness? See
Texas v. McCullough, 475 US at 138-40 (no presumption of vindictiveness
when defendant resentenced by trial judge after originally sentenced by a
jury); United States v. Goodwin, 457 US 368, 384, 102 S Ct 2485, 73 L Ed
2d 74 (1982) (presumption of vindictiveness not warranted in the pretrial plea
negotiation context, even though "[t]here is an opportunity for
vindictiveness"); Chaffin v. Stynchcombe, 412 US 17, 26-27, 93 S Ct
1977, 36 L Ed 2d 714 (1973) (no presumption of vindictiveness when defendant is
resentenced by a jury); Colten v. Kentucky, 407 US 104, 116-17, 92 S Ct
1953, 32 L Ed 2d 584 (1972) (no presumption of vindictiveness when defendant
convicted of misdemeanor in an inferior court was later convicted of a felony
after trial de novo in a court of general jurisdiction).
If there is a presumption of vindictiveness, has
it been overcome? See Nulph, 333 F3d at 1059-60 (insufficient
evidence in the record that petitioner elected to apply an unfavorable rule at
parole board hearing; therefore state did not rebut presumption of
vindictiveness); Bono v. Benov, 197 F3d 409, 421 (9th Cir 1999) (victim
letter contained in "contemporaneous notes and memoranda," but not in
written notice of decision, insufficient to rebut the presumption of
vindictiveness); Hurlburt v. Cunningham, 996 F2d 1273, 1276 (1st Cir
1993) (presumption rebutted by judge's reference to presentence report, the
defendant's record, and what he observed during trial); United States v.
Gallegos-Curiel, 681 F2d 1164, 1168 (9th Cir 1982) (burden shifts to
prosecution to show that increase in the severity of the charges did not stem
from vindictive motive or was justified by independent reasons or intervening
circumstances).
If the Oregon legislature had
decided that the bright line rule adopted by the court in Turner to
protect the right of appeal and guard against vindictive sentencing was too
restrictive, that times have changed, and that reviewing courts of this state
should determine, instead, whether sentencing judges, in truth, were
vindictive, I would, of course, apply that rule. But absent clear legislative
direction to do so, I would not subject Oregon judges to that inquiry. I would
not disturb the basic premise upon which Turner rested, and rested for
43 years -- that a defendant should not be required "'to barter with his
life for the opportunity of exercising'" the right to a criminal appeal. Turner,
247 Or at 316 (quoting State v. Wolf, 46 NJ 301, 309, 216 A2d 586, 590
(1966)). I respectfully dissent.
1. In
particular, the court rejected each of the reasons courts in other
jurisdictions had offered in defense of harsher sentences after remand -- that,
once reversed, an initial conviction and sentence are a "nullity,"
leaving the trial court on remand complete freedom to pass sentence as if the
initial sentence had never existed; that the traditional discretion granted to
trial judges in sentencing matters demanded that an otherwise lawful second
sentence be upheld; and that, by appealing, a criminal defendant essentially consents
to any lawful sentence that the trial court might impose on remand. 247 Or at
312-13.
2. The
referenced statute, ORS 138.020, has not been changed in any significant
respect since Turner. It provides: "Either the state or the defendant
may as a matter of right appeal from a judgment in a criminal action in the
cases prescribed in ORS 138.010 to 138.310, and not otherwise."
3. See,
e.g., Stockman, 43 Or App at 235-43, applying Turner's prohibition
on harsher sentences after remand and retrial to case in which the remand was
for resentencing only.
4. Because
we ultimately agree with the state that the Turner rule must be
overruled, there is no need to consider its alternative argument -- that,
assuming the rule is good law, it is inapplicable to the present case.
5. Although
we focus on a framework that was designed for reconsideration of common-law
holdings, we acknowledge that Turner is not, strictly speaking, a
common-law rule: As we have observed, the Turner court purported to be
resting its decision on purely prudential grounds but, at the same time, also
appeared to derive support for its rule in the terms of ORS 138.020, i.e.,
the statutory right of appeal. In the end, we would say that the Turner
decision is neither a case of statutory construction nor a common-law rule, but
simply turns on an unexamined assumption about the legislative intent
behind ORS 138.020. As such, it is not clear that resort to Kaiser
Foundation Hospitals, Inc. is necessary -- but, for the sake of completeness,
we proceed as if it were.
6. ORS
138.222(5)(b) provides:
"If the appellate court, in a case involving multiple
counts of which at least one is a felony, reverses the judgment of conviction
on any count and affirms other counts, the appellate court shall remand the
case to the trial court for resentencing on the affirmed count or counts."
7. Our
decision to reconsider the Turner rule on this basis is not meant to
suggest that the rule is not also susceptible to reconsideration under another
of the Kaiser Foundation Hospitals, Inc. criteria, viz.,
that Turner was "inadequately considered or wrong when it was
decided." 306 Or at 59.
8. This
specific requirement that any conduct on the part of the defendant that a court
relies on to justify a longer sentence must have occurred "after the time
of the original sentencing proceeding" is no longer applicable. See,
e.g., Texas v. McCullough, 475 US 134, 141-42, 106 S Ct 976, 89 L Ed 2d 104
(1986) (allowing judge to consider newly learned information about defendant
that involved acts committed by defendant before first sentencing proceeding;
stating that to do otherwise could lead to "bizarre conclusion").
9. The
requirement of a statement of nonvindictive reasons is essentially the outcome
for which the state advocates, although we impose it for reasons of judicial administration,
rather than -- as the state would have it -- as a substitute prudential rule
that somehow is "more fair." Defendant, for his part, never
advocated either for rejection of the Turner rule or for a remand for
resentencing; he preferred Turner as it was. However, we cannot be
satisfied that the root concern of defendant's second trip through the
appellate process -- vindictive resentencing -- is not present on this record.
The remand to the sentencing court addresses that problem.
1. The
majority does state, mirroring the words of Foundation Hospitals, Inc.,
that the court's decision in Turner "was both not fully considered
and wrong in 1965." ___ Or at ___ (slip op at 14-15). However, the
majority does so only after already deciding that reconsideration is
appropriate for the statutory reasons that it discusses. ___ Or at ___ (slip
op at 14).
2. See
State v. Thompson, 231 Or App 193, 217 P3d 697 (2009) (more severe sentence
permitted on resentencing when statutorily mandated). | 78f80e1d0a05eb167e072eff2addd49f8131207a7eb4a1d0e31f774ab7e50ce0 | 2010-09-10T00:00:00Z |
a8e85d8d-3ef2-48ca-921a-25c0ebe344d9 | Bonds v. Farmers Ins. Co. | null | S057422 | oregon | Oregon Supreme Court | FILED: October 14, 2010
IN THE SUPREME COURT OF THE STATE OF OREGON
ROBERT BONDS,
Petitioner on Review,
v.
FARMERS INSURANCE COMPANY OF OREGON,
Respondent on Review.
(CC 051213375; CA A134011; SC S057422)
En Banc
On review from the
Court of Appeals.*
Argued and submitted
March 1, 2010.
Joel S. DeVore, Luvaas
Cobb, Eugene, argued the cause and filed the brief for petitioner on review.
Thomas M. Christ, Cosgrave
Vergeer Kester LLP, Portland, argued the cause and filed the brief for
respondent on review.
Meagan A. Flynn,
Portland, filed a brief for amicus curiae Oregon Trial Lawyers
Association.
WALTERS, J.
The decision of the
Court of Appeals is affirmed. The judgment of the circuit court is reversed,
and the case is remanded to the circuit court for further proceedings.
Durham, J., filed a
dissenting opinion in which De Muniz, C. J., joined.
*On appeal from
Multnomah County Circuit Court, Jerry B. Hodson, Judge. 227 Or App 185, 205 P3d
45 (2009).
WALTERS,
J.
In this
case, we decide that, to "formally institute arbitration," and
thereby satisfy the timelines set forth in ORS 742.504(12)(a)(B) and maintain a
claim for underinsured motorist (UIM) benefits, an insured or an insurer must
expressly communicate to the other party that the initiating party is beginning
the process of arbitrating a dispute. We further decide that two letters
written by defendant to plaintiff in this case did not meet that standard and
that plaintiff's claim for UIM benefits is therefore time-barred.
On
July 2, 2003, plaintiff was injured in an automobile collision caused by the
negligence of another driver. Plaintiff was insured under an automobile policy
with Farmers Insurance Company (defendant) and was entitled to UIM coverage. In
March 2005, plaintiff's lawyer told defendant that he had reached a settlement
agreement with the other driver, that the settlement did not adequately cover plaintiff's
damages, and that plaintiff therefore intended to seek UIM coverage from defendant
for the remainder. Subsequently, a claims representative for defendant sent plaintiff's
lawyer two letters. The first letter acknowledged plaintiff's UIM claim and
stated, "Should we disagree on the liability/damages owed by the
underinsured motorist, [defendant] consents to submit this matter to binding
arbitration." The second letter stated that defendant disagreed about the
extent of the damages owed -- in particular, the representative stated that
plaintiff already had been compensated for his injuries through the other driver's
insurance coverage -- and that plaintiff was not entitled to UIM benefits. The
representative offered, however, to consider additional information about plaintiff's
alleged injuries. Both letters likely arrived on the same day.(1)
On
July 6, 2005 -- two years and four days after the accident -- defendant's claims
representative called plaintiff's lawyer to ask whether he had filed an action
against defendant regarding the UIM claim. When plaintiff's lawyer said that
he had not, the representative and the lawyer disagreed about whether the time
for filing such an action had expired. The next day, plaintiff's lawyer called
the representative and, referring to the representative's March 2005 letters, stated
that plaintiff would accept defendant's offer to arbitrate. When defendant asserted
that plaintiff's UIM claim was time-barred, plaintiff sought a judicial
declaration to the contrary. Following a bench trial, the trial court
concluded that defendant had formally instituted arbitration proceedings within
two years of the date of the accident and ordered defendant to arbitrate.
Defendant
appealed. The issue before the Court of Appeals focused on the action required
by ORS 742.504(12)(a)(B), which governs how parties to an insurance contract
can initiate arbitration respecting the contract:
"The parties to this coverage agree that no
cause of action shall accrue to the insured under this coverage unless within
two years from the date of the accident:
"* * * * *
"(B) The insured or the insurer has formally
instituted arbitration proceedings[.]"
(Emphasis added.) Defendant
argued that, to formally institute arbitration proceedings under ORS
742.504(12)(a)(B), the parties must follow a sequential two-step process: first,
the parties must reach a mutual agreement to arbitrate; and second, one of the
parties must give notice to arbitrate in compliance with the "arbitration
laws of the State of Oregon," specifically Oregon's Uniform Arbitration
Act. In a written opinion, the Court of Appeals decided that mutual agreement
to arbitrate is not a prerequisite to a party's formal institution of
arbitration proceedings. Bonds v. Farmers Ins. Co., 227 Or App 185, 205
P3d 45 (2009). However, the court also decided that the party instituting arbitration
proceedings must send notice of arbitration in accordance with Oregon's Uniform Arbitration Act and that defendant's
letters were insufficient to meet the requirements of that act. Id. at
191. We allowed plaintiff's petition for review, and, for the reasons we
explain, we affirm the decision of the Court of Appeals, but on different
grounds.
We
begin our analysis with the text of ORS 742.504.(2)
ORS 742.504 sets out a comprehensive model UIM policy. Subsection (12) of that
statute provides that the accrual of a claim for uninsured and underinsured
motorist benefits is conditioned on the occurrence of one of several events
within two years of the date of a motor vehicle accident. One of those events
is that "[t]he insured or the insurer has formally instituted arbitration
proceedings[.]"(3)
Defendant
argues that we can determine the meaning of ORS 742.504(12)(a)(B) by
considering its context and that neither party may formally institute
arbitration proceedings under ORS 742.504(12)(a)(B) until both parties have
agreed to arbitrate under ORS 742.504(10). That subsection provides, in part:
"If any person making claim hereunder and
the insurer do not agree that the person is legally entitled to recover damages
from the owner or operator of an uninsured vehicle because of bodily injury to
the insured, or do not agree as to the amount of payment that may be owing
under this coverage, then, in the event the insured and the insurer elect by
mutual agreement at the time of the dispute to settle the matter by
arbitration, the arbitration shall take place as described in section 2,
chapter 328, Oregon Laws 2007."
(Emphases added.) Plaintiff
agrees that, under subsection (10), arbitration cannot "take place"
absent mutual agreement to arbitrate, but contends that, under subsection (12),
one party acting alone may initiate the arbitration process and thereby
preserve a claim for benefits. Both parties point us to the enactment history
of subsections (10) and (12) to support their positions.
In 1967,
when the legislature originally enacted the forerunner to those subsections,
either the insured or the insurer could elect to arbitrate their dispute, and election
by one bound the other. The predecessor to ORS 742.504(10) provided, in part:
"[I]n the event the insured or
the insurer elects to settle the matter by arbitration, * * * [s]uch person and
the insurer each agree to consider themselves bound and to be bound by any
award made by the arbitrators pursuant to this coverage in the event of such
election."
Former ORS 743.792(10) (1967), renumbered as
ORS 742.504(10) (1989) (emphasis added). The predecessor
to subsection (12) provided:
"The
parties to this coverage agree that no cause of action shall accrue to the
insured under this coverage unless within two years from the date of the
accident:
"(a)
Suit for bodily injury has been filed against the uninsured motorist, in a
court of competent jurisdiction;
"(b)
Agreement as to the amount due under the policy has been concluded; or
"(c)
The insured or the insurer has formally instituted arbitration proceedings."
Former ORS 743.792(12) (1967), renumbered as ORS
742.504(12) (1989) (emphases added).
In
1987, this court determined that a statute that compelled the parties to a fire
insurance policy to "accept" the result of a damages appraisal
procedure that only one party had invoked deprived the nonconsenting party of
the right to a jury trial under Article I, section 17, of the Oregon
Constitution. Molodyh v. Truck Insurance Exchange, 304 Or 290, 295, 744
P2d 992 (1987); see also Carrier v. Hicks, 316 Or 341, 352, 851 P2d 581
(1993) (construing ORS 742.504(10) not to compel arbitration by unwilling party
and not to violate right to jury trial). After Molodyh, an "arbitration
trap" existed. That is, one party could demand arbitration, the parties
could arbitrate their dispute, and then the nonelecting party, if dissatisfied
with the results in arbitration, could demand that party's constitutional right
to a jury trial.
In 1997, in part to "[e]liminate[] the trap for the unwary
party," the legislature amended subsection (10). Senate Committee on
Business, Law and Government, SB 645, May 8, 1997, Ex K, p 1 ("Summary of
SB 645-2"). The legislature revised subsection (10) to make an
arbitration award binding only upon mutual agreement of the parties:
"[I]n the event that the insured and the insurer elect
by mutual agreement at the time of the dispute to settle the matter by
arbitration, the arbitration shall take place under the arbitration laws of the
State of Oregon or, if the parties agree, according to any other procedure."
Or Laws 1997, ch 808, § 2. That
amendment of subsection (10), defendant contends, demonstrates that the
legislature intended that the mutual agreement of the parties be a prerequisite
to the institution of arbitration proceedings under subsection (12). Plaintiff's
retort is that the legislature did not similarly amend subsection (12) to add a
requirement of mutuality, an omission that indicates its intent that a party's unilateral
action will be sufficient to meet the timelines imposed by that subsection.
There
is merit to the arguments of both parties. Defendant is correct that
subsection (12) originally was adopted years before this court announced its
decision in Molodyh. After Molodyh, even if one party elected to
arbitrate under subsection (12), the other could avoid binding arbitration by
refusing to consent. It is reasonable to conclude that, when the legislature amended
subsection (10) in 1997 to explicitly recognize, as required by Molodyh,
that mutual agreement to arbitrate was necessary to bind the parties to the
resulting arbitration award, the legislature also intended that that mutual
agreement would occur before institution of arbitration proceedings under
subsection (12).
On the
other hand, it also is reasonable to conclude that, when the legislature retained
without amendment the text that is now subsection (12)(a)(B), it did so
intending to continue to permit either party to take the action necessary to meet
the time limits that it imposed without also requiring that that party obtain the
agreement of the opposing party. The legislature could have been concerned
that, if the accrual of an insured's claim depended on the insured obtaining
the insurer's agreement to arbitrate, the insurer could, by refusing to consent
to arbitration, negate, or at least interfere with, the insured's ability to
meet statutory timelines. That argument is supported by the fact that, although
the legislature did not amend subsection (12) to require mutual action to
institute arbitration proceedings, it did amend subsection
(12) to provide that an insured's claim accrues if, within two years from the
date of the accident, "[t]he insured has filed an action against the
insurer in a court of competent jurisdiction." Or Laws 1997, ch 808, § 2,
codified as ORS 742.504(12)(a)(C). That
the legislature chose to amend subsection (12) in one way but not another is an
indication that the legislature consciously chose to continue to permit action
by one party alone to "formally institute" arbitration proceedings
and satisfy the statutory limitations period.
The
legislative history of ORS 742.504 does not provide further guidance as to the
legislature's intent, and we therefore rest our decision on the text of
subsections (10) and (12) and the purposes that they serve. State v. Gaines,
346 Or 160, 171, 206 P3d 1042 (2009). We read subsection (10) as identifying
rules for conducting arbitration once an agreement to arbitrate has been
reached, not as addressing the action necessary to meet the timeliness
requirements of subsection (12). Subsection (10) requires arbitration when the
parties agree to arbitrate "at the time of the dispute." In the
event that the parties reach mutual agreement to arbitrate, subsection (10)
provides that the arbitration shall "take place" under the state
arbitration laws. "Take place" means "[to] occur" or "[to]
happen." Webster's Third New Int'l Dictionary 2331 (unabridged ed
2002). In contrast, subsection (12) sets out the circumstances that must exist
for a claim for benefits to accrue and explicitly permits either party, acting
alone, to "formally institute" arbitration proceedings.
We do
not think that, by modifying ORS 742.504(10), the legislature also changed
subsection (12) in the same way sub silentio. See ORS 174.010
(in interpreting statutes, duty of court is not to insert what has been
omitted). We therefore hold, as did the Court of Appeals, that, to meet the
requirements of ORS 742.504(12)(a)(B), a party need not have obtained the other
party's agreement to arbitrate.
The
question that remains, and to which we now turn, is the particular action that
a party must take to "formally institute" arbitration proceedings. Defendant
argues, and the Court of Appeals concluded, that the answer is found in the
requirement of subsection (10) that arbitration shall "take place under
the arbitration laws of the state of Oregon."(4)
Defendant argues, and the Court of Appeals also concluded, that that was a
statutory reference to the Uniform Arbitration Act, particularly ORS
36.635(1). However, the Oregon Uniform Arbitration Act applies only to a
binding "agreement to arbitrate." See Or Laws 2003, ch 598, §
3 (so stating). Under the Uniform Arbitration Act, an agreement to arbitrate
is an enforceable and irrevocable agreement that requires the court, upon
petition by one party, to order the other party to arbitrate. See ORS
36.620 (an agreement to arbitrate generally is enforceable and irrevocable);
ORS 36.625(1) (court shall order parties to arbitrate upon showing of an
agreement to arbitrate). A contract of insurance that contains the model
provisions authorized by ORS 742.504 is not itself a binding agreement to
arbitrate. As noted, ORS 742.504(10) requires arbitration only when the
parties agree to arbitrate "at the time of the dispute." Because we
hold that an agreement to arbitrate is not a prerequisite to formal institution
of arbitration proceedings, the Uniform Arbitration Act, which does not apply unless
such an agreement has been reached, does not establish the manner in which a
party "formally institutes" arbitration proceedings. It follows that
we disagree with the contrary conclusion of the Court of Appeals.
Alternatively,
defendant argues that "arbitration proceedings are 'formally instituted'
when the process of arbitration has begun in accordance with established rules."
Defendant relies, for that position, on a Court of Appeals case that analyzed
ORS 742.504(12) and purported to define those terms:
"'Formal' means 'following or according with
established form, custom or rule * * * based on forms and rules, esp. such as
are accepted by convention: of or following a prescribed form.' Webster's
Third New Int'l Dictionary, 893 (unabridged ed 1993). 'Formal' has the
opposite meaning of 'informal,' which means 'conducted or carried out without
formal * * * or ceremonious procedure: unofficial.' Id. at 1160. 'Institute'
means 'to originate and get established: set up: cause to come into
existence.' Id. at 1171. Thus, to 'formally institute' arbitration
means to commence and establish arbitration according to prescribed or official
terms and rules."
Sanderson v. Allstate Ins.
Co., 164 Or App 58, 63, 989 P2d 486
(1999). Consequently, defendant contends, until the parties have agreed to
arbitrate, no single party can "commence and establish arbitration
according to prescribed or official terms and rules" under Sanderson and
thereby "formally institute it." Plaintiff responds that the words "formally
institute" do not impose a requirement
of mutual agreement and that initiating arbitration should be pragmatic and
uncomplicated, just like arbitration itself.
We consult,
as did the Court of Appeals in Sanderson, the dictionary. Although it
is true that "formally" can mean according to rule or custom, it also
has a simpler, more straightforward meaning, namely, "expressly" or "explicitly."
Webster's at 893. Although "according to custom or rule" is a
possible meaning of the word "formally," that is an unlikely meaning
in this context, because the legislature did not specify the custom or rule to
which the parties should adhere.(5)
We conclude that it is more likely that the legislature simply sought to
emphasize that the nature of a communication regarding arbitration should be "express"
or "explicit."
Likewise,
the word "institute" has a more straightforward meaning than the one
that the Court of Appeals suggested in Sanderson. "Institute"
can indicate bringing something into existence, establishing something, or
creating a set of procedures. However, it also may indicate simply a beginning:
"to set on foot: INAUGURATE, INITIATE." Webster's at 1171.
Putting
the synonyms for "formally" and "institute" together, we
conclude that the legislature used the words "formally institute" arbitration
proceedings to require that a party "expressly begin" those proceedings.
To take the action necessary to satisfy ORS 742.504(12)(a)(B), an insured or
insurer expressly must communicate to the other party that the initiating party
is beginning the process of arbitrating the dispute. The first step in that
process is the party's offer to utilize the arbitration process. Thus, to
"formally institute" arbitration proceedings, an insured or an
insurer must expressly communicate to the other party that the initiating party
offers to arbitrate or otherwise commits to the arbitration process.
That
said, however, we must address whether defendant's two letters satisfied the
requirements of ORS 742.504(12)(a)(B) as we have described them. One letter
from defendant said that, "[s]hould [defendant] disagree on the
liability/damages owed by the underinsured motorist, [defendant] consents to
submit this matter to binding arbitration." The subsequent letter from defendant
stated defendant's view that plaintiff already had been compensated for his
injuries through other insurance, but specifically noted that defendant was
willing to consider additional information.
Although
we cannot say that "formal institution" of arbitration proceedings must
always occur in a single communication, we think that the word "formal"
evidences an expectation that, when a party begins arbitration, the party will
do so in an obvious and express way, such as occurs when a party sets forth, either
in one document or in multiple documents that are part of a single message, a
notice, offer, or demand for arbitration. Here, plaintiff relies for its
argument that defendant formally instituted arbitration proceedings not only on
two documents, but also on an inference that, plaintiff asserts, can be drawn from
those two documents. Plaintiff contends that, taking the two documents in
combination, the trial court correctly concluded that defendant had agreed to
arbitrate the dispute if necessary and that defendant's rejection of
plaintiff's claim for damages was an indication that arbitration was necessary.
The
problem with plaintiff's position, in our view, is that even viewing
defendant's letters, as we must, in the light most favorable to plaintiff, see
Liles v. Damon Corp., 345 Or 420, 423, 198 P3d 926 (2008) (stating standard
of review), defendant did not obviously and expressly state that it was offering
to arbitrate. The first letter indicated a willingness to arbitrate, depending
on whether a future event -- disagreement -- occurred.(6)
The second letter did not definitively state that a disagreement existed, nor
did it mention arbitration.
We do
not mean to suggest that the parties must have reached an impasse in
negotiations before either party may "institute" arbitration
proceedings. A party that files a complaint with a court of competent jurisdiction
within two years of the date of a motor vehicle accident satisfies the time
limits of ORS 742.504(12)(a)(C) and does so even if the parties are engaged in
negotiations. The filing of a complaint, however, serves to begin the litigation
process. Similarly, a party that wishes to satisfy the time limits of ORS
742.504(12)(a)(B) by formally instituting arbitration proceedings must explicitly
offer to arbitrate or demand arbitration to expressly begin that process. Where,
as here, a party's consent to arbitrate is contingent on some future event and that
party does not expressly advise or acknowledge to the other party that that
event has occurred, no "formal institution" of arbitration
proceedings has occurred. We conclude that, on this record, defendant did not "formally
institute" arbitration proceedings within two years from the date of the
accident as required by ORS 742.504(12)(a)(B) and that plaintiff's claim for UIM
benefits was therefore time-barred.
The
decision of the Court of Appeals is affirmed. The judgment of the circuit
court is reversed, and the case is remanded to the circuit court for further
proceedings.
DURHAM, J., dissenting.
The question before the court is
whether defendant, through two letters to plaintiff's lawyer, "formally
instituted arbitration proceedings" under ORS 742.504(12)(a)(B).(1)
If defendant did so, then the trial court correctly compelled defendant to
participate in arbitration regarding plaintiff's underinsured motorist coverage
(UIM) claim. If defendant did not do so, then the trial court erred in
requiring the parties to arbitrate their dispute. The majority adopts the
latter conclusion. I respectfully disagree.
Before addressing the majority's
answer to that ultimate question, I turn first to several intermediate
conclusions that, in my view, the majority decides correctly. First, I agree
that the arbitration procedures described in ORS 742.504(10) do not bear on the
correct meaning of "formally instituted arbitration proceedings" in subsection
(12)(a)(B). By its terms, subsection (10) applies only if the insured and the
insurer "elect by mutual agreement" to settle their UIM dispute in
arbitration. Here, neither the statutorily prescribed minimum terms of UIM
coverage under ORS 742.504 nor the policy that defendant issued to plaintiff
constituted an agreement to arbitrate any UIM dispute. No other agreement to
arbitrate exists. Consequently, the majority correctly decides that subsection
(10) does not help to explain the meaning of "formally instituted
arbitration proceedings" under subsection (12)(a)(B).
Second, the majority correctly
determines that ORS 742.504(12)(a) contemplates that either the insured or the
insurer may formally institute arbitration proceedings unilaterally, that is,
without the participation, consent, or agreement of the other party. The term
"or" in subsection (12)(a)(B) leaves no doubt that either party may
act independently of the other to formally institute arbitration proceedings.
The majority also correctly determines
that the Oregon Uniform Arbitration Act (UAA), ORS 36.600 to 36.740, does not
govern the question whether the correspondence of defendant's claims
representative "formally instituted arbitration proceedings" under
ORS 742.504(12)(a)(B). The UAA applies generally to arbitration proceedings
that are the result of an agreement to arbitrate the underlying dispute. See
ORS 36.635(1) (describing procedures for initiating arbitration between parties
to an "agreement to arbitrate"). As already noted, no agreement to
arbitrate exists in this case.
I turn to the majority's analysis of
the phrase "formally instituted arbitration proceedings" in ORS
742.504(12)(a)(B). The parties' principal disagreement concerns whether a
party's offer or consent to participate in arbitration qualifies as the formal
institution of arbitration proceedings under the statute.(2)
According to plaintiff, defendant's first letter clearly expressed consent to
arbitration but that consent was subject to a condition: that there be a
disagreement between the parties about the "liability/damages owed by the
underinsured motorist." That condition, according to plaintiff, was
satisfied when defendant's claims representative, in a second letter, likely
received by plaintiff the same day as the first letter, asserted that plaintiff
was not entitled to UIM benefits, because the underinsured driver's insurance
had fully compensated him for his injuries. Defendant responds that the
letters do not convey a consent to arbitration, because the first letter
consented to arbitration conditionally and the second letter did not mention
arbitration.
I note at this point that there is no
doubt that defendant's claims representative intended her two letters to convey
defendant's consent to arbitration. Another statute, ORS 742.061(1),(3)
authorizes an award of attorney fees against an insurer in certain litigation
over an insurance policy. However, subsection (3) of that statute nullifies
that authority in an action to recover UIM benefits if the insurer, timely and
in writing, accepts coverage, leaving in dispute only the underinsured
motorist's liability and the insured's damages, and " [t]he
insurer has consented to submit the case to binding arbitration."
(Emphasis added.)
Defendant's claims representative,
Kerry Barton, testified that she intended her letters to convey consent to
arbitration to obtain for defendant the protection in ORS 742.061 against an
award of attorney fees to plaintiff:
[Ms. Barton:] "Just whenever I get a * * *
UM or UIM claim, I automatically send what we call the binding arbitration
letter, and then that went out. And then afterwards, subsequently, I was able
to review all the medical records, so a second letter went out. [Plaintiff's
lawyer] probably received them both on the same day, but they -- they did go
out at different times.
"Q: All right. And in -- in the
second letter, do you remember whether you stated the company's position with
respect to his client's uninsured motorist claim?
"A: Yes, I did. I reviewed the
medical records and, based on my opinion of those records and what they said, I
felt that his client had been compensated already for his claim through the
underlying policy.
"* * * * *
"Q: Ms Barton, why was the letter sent
containing the offer to consent to binding arbitration?
"A: When we receive notice of a UM or
UIM claim, if we notify the plaintiff attorney that we're willing to submit it
to binding arbitration, it makes it -- and I believe it's within six months of
notice of the claim, it makes it so that they're not entitled to attorney fees.
"If we don't consent to binding arbitration
and they file suit, then they're entitled to attorney's fees no matter what the
award is. So that's why we send that."
That testimony supports the trial court's observation that,
although Ms. Barton may have intended to secure for defendant the protection of
ORS 742.061 against an award of attorney fees, her correspondence could be
equally effective in formally instituting arbitration proceedings under ORS 742.504(12)(a)(B).(4)
The majority, after consulting
dictionary definitions of "formally" and "institute,"
concludes that, to formally institute arbitration proceedings under ORS
742.504(12)(a)(B), "an insured or insurer expressly must communicate to the
other party that the initiating party offers to arbitrate or otherwise commits
to the arbitration process." Bonds v. Farmers Ins. Co., 349 Or ___,
___, ___ P3d ___ (Oct 7, 2010) (slip op at 11). The majority thus accepts the
trial court's premise that, in this context, an offer or a consent to arbitrate
constitutes a formal institution of arbitration proceedings. However, the
majority reasons that defendant's second letter was insufficient to convey
defendant's offer to arbitrate because it did not expressly state that the
condition stated in the first letter had been satisfied:
"The first letter indicated a willingness
to arbitrate, depending on whether a future event -- disagreement -- occurred.
The second letter did not definitively state that a disagreement existed, nor
did it mention arbitration.
"* * * [A] party that wishes to satisfy the
time limits of ORS 742.504(12)(a)(B) by formally instituting arbitration
proceedings must explicitly offer to arbitrate or demand arbitration to
expressly begin that process. Where, as here, a party's consent to arbitrate
is contingent on some future event and that party does not expressly advise or
acknowledge to the other party that that event has occurred, no 'formal
institution' of arbitration proceedings has occurred."
Id. at ___ (slip op at 12-14) (footnote omitted).
I agree with the trial court and the
majority that a party's written offer or consent to arbitration serves to
formally institute arbitration proceedings under ORS 742.504(12)(a)(B). Where
no agreement to arbitrate exists, the parties have no authority to present any
claims to an arbitrator, and no administrative structure (such as a civil court
system) exists to receive complaints or demands for relief by any party.
Consequently, the only practical step that a party may take in this context is
to notify the other party in writing that the initiating party consents,
demands, offers or otherwise commits to participate in arbitration over the
dispute. That step is the formal institution of arbitration proceedings; that
first step toward arbitration will lead to binding arbitration of the dispute
if the other party also consents.
The majority, however, falls into
error in concluding that defendant's correspondence was too indefinite to offer
or consent to arbitration. Defendant's first letter contained an unambiguous
consent to arbitration of the UIM dispute, but the consent was subject to a
condition: that there be a disagreement on the "liability/damages owed by
the underinsured motorist." The second letter, described by Ms. Barton in
her testimony, confirmed defendant's position that plaintiff already had been
fully compensated for his injuries through the other driver's insurance policy.
In my view, the only permissible
legal construction of defendant's two letters is that defendant's consent to
arbitration became unconditional and, thus, legally effective. The second
letter stated, in legal effect, that the alleged underinsured motorist had no
further liability, and owed no additional damages, to plaintiff and, thus,
plaintiff was not entitled to any UIM benefits from defendant. That message
fully satisfied the condition stated in the first letter. It is of no legal
consequence that defendant's claims representative expressed defendant's
consent to arbitration in two letters rather than one, or that the second
letter did not state in express terms that the condition set out in the first
letter was satisfied. The majority's conclusion that that sort of additional
particular message is essential in this context simply embroiders the statute
with a requirement that has no basis in the terms of ORS 742.504(12)(a)(B). It
is also inconsequential that the second letter from the claims representative
offered to consider additional information about plaintiff's injuries. That
statement did nothing to alter the legal effect of the second letter: the
condition of "disagreement" set out in the first letter was
satisfied, because, in defendant's opinion, plaintiff had been fully compensated
by other insurance and was entitled to no UIM benefits from defendant. The
existence of a disagreement between the parties became obvious and, thus, the
conditional consent to arbitration expressed in the first letter became
unconditional.
The trial court correctly determined
that defendant consented to arbitration. The majority errs in overturning the
trial court's judgment.
I dissent.
De Muniz, C. J., joins in this
dissenting opinion.
1. The
second letter is not in the record. The representative testified to the
contents of the letter at trial.
2. Former
ORS 742.504 (2003) was in effect at the time of the accident. We refer to
the current version of the statute because the operative language has not
changed materially. We note amendments to the statute where relevant to the
analysis.
3. In
this case, defendant incorporated the provisions of ORS 742.504(12)(a)(B) in its
insurance contract with plaintiff. Insurers must include, in their UM/UIM
policies, coverage no less favorable to the insured than that set forth in the provisions
of the statutory comprehensive model policy. ORS 742.504; Vega v. Farmers
Ins. Co. of Oregon, 323 Or 291, 301-02, 918 P2d 95 (1996). Insurers
may include terms that vary from the model policy only by excluding or
softening terms that disfavor insureds or by adding extraneous terms that are
neutral or that favor insureds. Vega, 323 Or at 301-02. In this
case, defendant issued a UM/UIM policy to plaintiff that incorporated the time
limitations of the statutory model policy. Therefore, it is the terms of the model
policy that are operative here. See id. at 296 (terms of model
policy not applicable unless included in contract with insured); North River
Insur. v. Kowaleski, 275 Or 531, 534-35, 551 P2d 1286 (1976) (terms of
statutory model policy inoperative unless included in contract with insured). Of
course, when we interpret such statutorily imposed terms, we are seeking
to identify the legislative policy choice that is represented in the statute.
4. In
2007, the legislature removed the reference to the "arbitration laws of
the State of Oregon" and substituted reference to "local court rules
in the county where arbitration is held." Or Laws 2007, ch 328, §§ 2(2),
5.
5. We
also have some indication that, in 1997, when the legislature amended ORS
742.504(12), practitioners used a letter that included a "demand for
arbitration" to institute arbitration proceedings. See Lind v.
Allstate Ins. Co., 134 Or App 395, 397, 895 P2d 327, modified on recons,
136 Or App 532, 534-35, 902 P2d 603, rev den, 322 Or 362 (1995) (demand
for arbitration contained in letters from plaintiff).
6. Defendant
characterized its letter as intended to avoid payment of attorney fees under ORS
742.061(1). ORS 742.061(1) provides, in part, that, subject to certain
exceptions,
"if settlement is not made within six months from the
date proof of loss is filed with an insurer and an action is brought in any
court of this state upon any policy of insurance of any kind or nature, and the
plaintiff's recovery exceeds the amount of any tender made by the defendant in
such action, a reasonable amount to be fixed by the court as attorney fees
shall be taxed as part of the costs of the action and any appeal thereon."
ORS 742.061(3) provides one of those
exceptions:
"Subsection (1) * * * does not apply to
actions to recover uninsured or underinsured motorist benefits if, in writing,
not later than six months from the date proof of loss is filed with the
insurer:
"(a) The insurer has accepted coverage and
the only issues are the liability of the uninsured or underinsured motorist and
the damages due the insured; and
"(b) The insurer has consented to submit
the case to binding arbitration."
(Emphasis added.) Defendant's representative testified, "If
we don't consent to binding arbitration and they file suit, then they're
entitled to attorney's fees no matter what the award is. So that's why we send
that."
1. That
subsection of ORS 742.504 provides:
"(12)(a) The parties to this coverage agree
that no cause of action shall accrue to the insured under this coverage unless
within two years from the date of the accident:
"* * * * *
"(B) The insured or the insurer has
formally instituted arbitration proceedings[.]"
2. For purposes of this discussion, there is no material difference in
the legal consequences that result from an "offer" to participate in
arbitration and a "consent" to arbitration. Both an
"offer" and a "consent" to arbitration, however phrased,
commit the communicating party to participate in arbitration concerning the
underlying dispute.
3. ORS
742.061 provides, in part:
"(1) Except as otherwise provided in
subsections (2) and (3) of this section, if settlement is not made within six
months from the date proof of loss is filed with an insurer and an action is
brought in any court of this state upon any policy of insurance of any kind or
nature, and the plaintiff's recovery exceeds the amount of any tender made by
the defendant in such action, a reasonable amount to be fixed by the court as
attorney fees shall be taxed as part of the costs of the action and any appeal
thereon. If the action is brought upon the bond of a contractor or
subcontractor executed and delivered as provided in ORS 279B.055, 279B.060,
279C.380 or 701.430 and the plaintiff's recovery does not exceed the amount of
any tender made by the defendant in such action, a reasonable amount to be
fixed by the court as attorney fees shall be taxed and allowed to the defendant
as part of the costs of the action and any appeal thereon. If in an action
brought upon such a bond the surety is allowed attorney fees and costs and the
contractor or subcontractor has incurred expenses for attorney fees and costs
in defending the action, the attorney fees and costs allowed the surety shall
be applied first to reimbursing the contractor or subcontractor for such
expenses.
"* * * * *
'(3) Subsection (1) of this section does not
apply to actions to recover uninsured or underinsured motorist benefits if, in
writing, not later than six months from the date proof of loss is filed with
the insurer:
"(a) The insurer has accepted coverage and
the only issues are the liability of the uninsured or underinsured motorist and
the damages due the insured; and
"(b) The insurer has consented to submit
the case to binding arbitration."
(Emphasis added.)
4. The
trial court stated, correctly, that the court must focus on defendant's conduct
and its legal effect, not on defendant's intent and whether defendant might
have intended to comply with one particular statute rather than another:
"If I conclude that [the] insurance company
initiated formal arbitration proceedings, it may not matter whether they
intended to or not.
"[T]here are often unintended legal
consequences of people's conduct, and they may have intended to begin a
process, to use a term that's not in the statute, under another statute for
purposes [of] cutting off attorney fees and unwittingly have satisfied another
statute."
The legislature, in my view, should consider the
effect of the majority's conclusion on both ORS 742.504(12)(a)(B) and ORS
742.061. The implication of the majority's reasoning is that the standard
operating procedure that defendant's claims representatives have followed for
many years to consent to arbitration under ORS 742.061(3)(b) may be legally
insufficient, thus exposing defendant to unanticipated claims for attorney
fees. In my view, the legislature could not have intended to require a party
to use magic words or phrases to effectively consent to arbitration. The
legislature may wish to make clear that consenting to arbitration can be
accomplished by any written communication that in substance commits the party
to arbitration. | bdaf3c7d731ba97999123e570f43b2a780b3c1e1467baccc5d856e8ae91cc77a | 2010-10-14T00:00:00Z |
5071be70-3261-4014-8569-7f3ce807b858 | Blacknall v. Board of Parole | null | S056861 | oregon | Oregon Supreme Court | FILED: April 8, 2010
IN THE SUPREME COURT OF THE STATE OF OREGON
DWAINE BLACKNALL,
Petitioner on Review,
v.
BOARD OF PAROLE
AND POST-PRISON SUPERVISION,
Respondent on Review.
(CA A130410; SC
S056861)
En Banc
On review from the Court of Appeals.*
Argued and submitted September 15, 2009.
Meredith Allen, Senior Deputy Public Defender,
Salem, argued the cause and filed the brief for petitioner on review. With her
on the brief was Peter Gartlan, Chief Defender, Office of Public Defense
Services.
Judy C. Lucas, Senior Assistant Attorney
General, Salem, argued the cause and filed the brief for respondent on review.
With her on the brief were John R. Kroger, Attorney General, and Jerome Lidz,
Solicitor General.
DURHAM, J.
The decision of the Court of Appeals is affirmed.
*On review from a final order of the Board of
Parole and Post-Prison Supervision. 223 Or App 294, 196 P3d 20 (2008)
DURHAM, J.
Petitioner sought judicial review of
a final order of the Board of Parole and Post-Prison Supervision (board) that
affirmed an earlier order denying him rerelease on parole. The Court of
Appeals granted petitioner leave to proceed with judicial review. However,
before the court reached a decision, petitioner was released on parole.
Petitioner's counsel filed a notice of probable mootness and the Court of
Appeals dismissed the case as moot. Blacknall v. Board of Parole, 221
Or App 200, 189 P3d 1234 (2008). The court designated the board as the
prevailing party and, over petitioner's objection, awarded the board its
requested costs and disbursements, payable by petitioner. Blacknall v.
Board of Parole, 223 Or App 294, 296, 196 P3d 20 (2008). Petitioner sought
review, arguing that former ORS 144.335(12) (2005), renumbered as ORS
144.335(9) (2007), which governs judicial review of board orders, prohibited
the cost award.(1)
We conclude that ORS 144.335(12) did not prohibit the allowance of costs and disbursements.
Accordingly, we affirm the decision of the Court of Appeals.
In 1990, petitioner was convicted of
four counts of first-degree burglary and sentenced to a 20-year term. He was
paroled in 1991. In 2003, after petitioner had committed several parole
violations, the board revoked parole, returned petitioner to prison, and
ordered a future disposition hearing to determine the length of the parole
revocation. After the future disposition hearing, the board denied petitioner
rerelease on parole and reset his release date to May 11, 2008. In 2004,
petitioner filed a request for an administrative review in which he argued that
he had not received adequate notice that the board could revoke his parole and
deny him rerelease. In response, the board granted him the option of a
revocation hearing. The board held petitioner's hearing on May 10, 2005.
Subsequently, and without holding a second future disposition hearing, the board
affirmed its 2003 order that had revoked petitioner's parole. Petitioner
requested administrative review, arguing that, in denying his rerelease on
parole, the board had violated his due process rights and the board's own rules
by failing to hold a second future disposition hearing. The board denied
relief and petitioner timely sought judicial review in the Court of Appeals.
In October 2006, petitioner filed a
motion for leave to proceed. The Court of Appeals granted petitioner's motion
and the case proceeded to briefing. However, before the court took any further
action, petitioner's terms of imprisonment expired on May 11, 2008, and
petitioner was released on parole. Ten days later, petitioner filed a
"notice of fact relating to probable mootness," pursuant to ORAP
8.45, which provides, in part, that "when a party becomes aware of facts
that probably render an appeal moot, that party shall provide notice of the
facts to the court and to the other party or parties to the appeal * * *."
(Footnote omitted.)
On July 16, 2008, the Court of
Appeals, sua sponte, issued an order dismissing the petition for
judicial review as moot. The court also designated the board as the prevailing
party and awarded costs to the board, payable by petitioner. The board filed a
request for costs and disbursements in the total sum of $139.90: $100 as a
prevailing party fee and $39.90 for the costs of printing the briefs. Petitioner
objected to the board's statement of costs, arguing that ORS 144.335(12) barred
the court from allowing the board's requested costs and disbursements. On
October 29, 2008, the Court of Appeals issued a written opinion allowing the
board's statement of costs and disbursements. Petitioner timely sought review
in this court.
We begin by setting out the relevant
statutory provisions. Three provisions in ORS chapter 20 provide general
authority for the award of costs and disbursements, including a prevailing
party fee, on review of an agency order: ORS 20.310, ORS 20.190(1)(a), and ORS
20.120. First, ORS 20.310 provides for the award of costs and disbursements on
appeal:
"(1) In any appeal to the Court of Appeals
or review by the Supreme Court, the court shall allow costs and disbursements
to the prevailing party, unless a statute provides that in the particular case
costs and disbursements shall not be allowed to the prevailing party or shall
be allowed to some other party, or unless the court directs otherwise. If,
under a special provision of any statute, a party has a right to recover costs,
such party shall also have a right to recover disbursements. On the same terms
and conditions, when the Supreme Court denies a petition for review, the
respondent on review is entitled to costs and disbursements reasonably incurred
in connection with the petition for review.
"(2) Costs and disbursements on appeal to
the Court of Appeals or Supreme Court or on petition for review by the Supreme
Court are the filing or appearance fee, the reasonable cost for any bond or
irrevocable letter of credit, the prevailing party fee provided for under ORS
20.190, the printing, including the excerpt of record, required by rule of the
court, postage for the filing or service of items that are required to be filed
or served by law or court rule, and the transcript of testimony or other
proceedings, when necessarily forming part of the record on appeal."(2)
Thus, under ORS 20.310(1), a court will generally allow the
prevailing party to recover costs and disbursements, subject to two exceptions:
(1) if "a statute provides that in the particular case costs and
disbursements shall not be allowed to the prevailing party or shall be allowed
to some other party," or (2) if "the court directs otherwise."
Second, ORS 20.190(1)(a) provides
generally for an award of a $100 prevailing party fee on appeal:
"[A] prevailing party in a civil action or
proceeding who has a right to recover costs and disbursements in the following
cases also has a right to recover, as a part of the costs and disbursements,
the following additional amounts:
"(a) In the Supreme Court or Court of
Appeals, on an appeal, $100."
Third, ORS 20.120 provides that for
purposes of allowing costs and disbursements, review of decisions of "an
officer, tribunal, or court of inferior jurisdiction" is treated the same
as if the review were an appeal. Taken together, the above-quoted provisions
of ORS chapter 20 establish that, on review of an agency order, unless another
statute provides to the contrary, the reviewing court has authority to allow
the prevailing party to recover an award of costs and disbursements, including
a prevailing party fee of $100.
ORS 144.335 governs judicial review
of board orders. A board order is subject to judicial review "if the
order is a 'final order,' the petitioner is 'adversely affected or aggrieved'
by it, and the petitioner has 'exhausted administrative review.'" Dawson/Fletcher
v. Board of Parole, 346 Or 643, 649, 217 P3d 1055 (2009) (quoting ORS
144.335(1) - (4)). ORS 144.335 provided, in part:
"(4) If a person * * * seeks judicial
review of a final order of the board, the person shall file a petition for
judicial review with the Court of Appeals within 60 days after the date the
board mails the order disposing of the person's request for administrative
review. The person shall serve a copy of the petition for judicial review on
the board.
"* * * * *
"(6) Within 60 days after being served with
a copy of the record, or such further time as the court may allow, the
petitioner shall file a motion for leave to proceed with judicial review based
on a showing in the motion that a substantial question of law is presented for
review.
"(7) Notwithstanding ORS 2.570, the Chief Judge,
or other judge of the Court of Appeals designated by the Chief Judge, may, on
behalf of the Court of Appeals, determine whether a motion for leave to proceed
with judicial review under subsection (6) of this section presents a
substantial question of law and may dismiss the judicial review if the motion
does not present a substantial question of law. * * *
"(8) If the Chief Judge, or other judge of
the Court of Appeals designated by the Chief Judge, determines under subsection
(7) of this section that the motion presents a substantial question of law, the
court shall order the judicial review to proceed.
"(9) At any time after submission of the
petitioner's brief, the court, on its own motion or on motion of the board,
without submission of the board's brief and without oral argument, may
summarily affirm the board's order if the court determines that the judicial
review does not present a substantial question of law. * * *
"* * * * *
"(12) If the court determines that the
motion filed under subsection (6) of this section, when liberally construed,
fails to state a colorable claim for review of the board's order, the court may
order the petitioner to pay, in addition to the board's recoverable costs,
attorney fees incurred by the board not to exceed $100. If the petitioner
moves to dismiss the petition before expiration of the time provided for in
subsection (6) of this section, the court may not award costs or attorney fees
to the board."
(Emphasis added.)
Under that statute, a petitioner could
seek judicial review of a board order by filing a petition for judicial review
with the Court of Appeals, but judicial review would continue only upon a
showing that the motion for leave to proceed presented a "substantial
question of law."(3)
If the Court of Appeals determined that petitioner's motion for leave to
proceed did not demonstrate the presence of a substantial question of law, the
court could dismiss judicial review. ORS 144.335(7). Similarly, if, after
submission of petitioner's opening brief on the merits, the court determined
that "the judicial review does not present a substantial question of
law," the court could summarily affirm the board's order. ORS 144.335(9).
In this case, as noted, the Court of
Appeals concluded that petitioner had presented a "substantial question of
law" and, therefore, granted petitioner's motion for leave to proceed with
judicial review. ORS 144.335(8). As a consequence, the court necessarily also
concluded that petitioner had presented a "colorable claim" for
review under ORS 144.335(12). Atkinson v. Board of Parole, 341 Or 382,
388, 143 P3d 538 (2006) ("[T]he 'colorable claim' standard embodies a
lower quantum of merit than the 'substantial question of law' standard.").
ORS 144.335(12) does not expressly
address whether a court could allow costs to the board as prevailing party even
if the court had determined that petitioner's motion presented a colorable
claim. This case presents the question whether the legislature nevertheless
intended, by inference, to prohibit an award of costs in such a situation.
Stated differently, the issue is whether, when a petitioner has
presented a colorable claim, ORS 144.335 "provides that in [that]
particular case costs and disbursements shall not be allowed" to the board
as prevailing party.(4)
ORS 20.310(1).
Petitioner argues that ORS
144.335(12) prohibited the Court of Appeals from allowing costs to the board in
this case. Petitioner focuses on the legislature's use of the word
"if" in ORS 144.335(12), which he asserts means "in the event
that," "so long as," or "on the condition that."
Petitioner contends that, by using the word "if," the legislature
granted the Court of Appeals authority to allow costs to the board only upon
fulfillment of the specified condition, i.e., a petitioner's failure to
state a colorable claim. Accordingly, petitioner concludes that, by negative
inference, ORS 144.335(12) prohibited the Court of Appeals from awarding costs
in other situations. Petitioner also contends that the legislature's reference
to "recoverable" costs described the types of costs that may be
recovered if a petitioner fails to state a colorable claim, but did not suggest
that the court has authority to award costs in any other situation.
The state responds that ORS
144.335(12) only prohibited allowance of costs when petitioner had timely moved
to dismiss his petition for judicial review. The state asserts that ORS
144.335 did not serve as an independent source authorizing the recovery of
costs. The state focuses on the phrase "in addition to the board's
recoverable costs" and defines "recoverable" as "capable of
being recovered." Explaining that costs are not recoverable in the
absence of a statutory or contractual provision authorizing such an award, the
state asserts that the legislature's use of the phrase "recoverable
costs" reflected the legislature's understanding that some other statute,
such as one of those in ORS chapter 20, provided the authority for allowing
costs and disbursements. The state finds further support for that conclusion
in the legislature's decision to allow the board a limited attorney fee
recovery "in addition to" the board's recoverable costs.
We first examine the text and context
of the disputed provision to determine its meaning. In doing so, we are not
constrained by the interpretive arguments proffered by the parties. See
Stull v. Hoke, 326 Or 72, 77, 948 P2d 722 (1997) ("In construing a statute,
this court is responsible for identifying the correct interpretation, whether
or not asserted by the parties.").
As noted, ORS 20.310(1) authorizes
the Court of Appeals to allow costs and disbursements to the prevailing party
unless some other statute prohibits the award in the particular case. We must
decide whether ORS 144.335(12) contains such a prohibition. For ease of
discussion, we again set out the text of ORS 144.335(12):
"If the court determines that the motion
filed under subsection (6) of this section, when liberally construed, fails to
state a colorable claim for review of the board's order, the court may order
the petitioner to pay, in addition to the board's recoverable costs, attorney
fees incurred by the board not to exceed $100. If the petitioner moves to
dismiss the petition before expiration of the time provided for in subsection
(6) of this section, the court may not award costs or attorney fees to the
board."
Applying the familiar grammatical principle that a phrase set
off by commas functions as a parenthetical, we see that, if petitioner
failed to state a colorable claim, then the Court of Appeals could award
both "the board's recoverable costs," and "attorney fees
incurred by the board not to exceed $100." See Curly's Dairy v. Dept.
of Agriculture, 244 Or 15, 21, 415 P2d 740 (1966) (punctuation may assist
with discerning legislative intent). Thus, the text of ORS 144.335(12)
affirmatively authorized the recovery of $100 in attorney fees while
recognizing that some other source might authorize an award of
"recoverable costs."
Both sentences in ORS 144.335(12)
begin with the word "if." Webster's Third New Int'l Dictionary 1124
(unabridged ed 2002) defines "if," in part, as "1 a: in
the event that: in case * * * b: allowing, conceding, or granting that
* * * c: supposing * * * d: so long as: on condition
that." Applying the ordinary meaning of the word "if," we see
that each sentence in ORS 144.335(12) set out a condition that must be met and
a result that would occur "in the event that" or "so long
as" that condition was satisfied. First, "in the event that" or
"so long as" petitioner failed to state a colorable claim, then the
court could require petitioner to pay "the board's recoverable costs"
and "attorney fees incurred by the board not to exceed $100."
Second, "in the event that" or "so long as" petitioner
timely filed a motion to dismiss, then the court was prohibited from
awarding either costs or attorney fees.
The legislature, however, did not
express itself in regard to cases, such as this one, in which neither condition
stated in ORS 144.335(12) applied. The legislature also did not incorporate
into ORS 144.335(12) any terms suggesting that that statute was the exclusive
source of court authority for an award of costs in this context.
We previously have observed that,
"[d]epending on the context, the legislature's silence can signify a
variety of policy choices * * *." State v. Hess, 342 Or 647, 660,
159 P3d 309 (2007). We conclude that the legislature's silence in ORS
144.335(12) in the respects identified above signifies an intent not to disturb
the court's authority under ORS 20.310(1) to award costs where the prohibition
on awarding costs or attorney fees in ORS 144.335(12) did not apply. Two clues
support that view. First, we agree with the state that the phrase
"recoverable costs" in ORS 144.335(12) indicated the legislature's
recognition that some other source would authorize the recovery of costs. That
the legislature enacted ORS 144.335(12) within an existing statutory framework that
included ORS 20.301(1), but did not specifically bar the allowance of costs and
disbursements under other statutes, tends to suggest that the legislature did
not so intend. Second, ORS 144.335(12) expressly prohibited an award of costs
or attorney fees to the board if a petitioner timely moved to dismiss his or
her petition for judicial review. If the legislature had intended to prohibit
an award of costs and attorney fees in a different circumstance, such as where
a petitioner did not move to dismiss the petition for judicial review, the
legislature could have done so expressly. It did not do so.
Petitioner also argues that allowing
the Court of Appeals to impose a cost award against a petitioner who has stated
a colorable claim defeats the legislative intent of providing petitioners with
a disincentive to pursue frivolous claims, because it places "a petitioner
who fails to state a colorable claim equally on par with a petitioner
who overcomes that hurdle." Petitioner is mistaken. As explained above,
under ORS 144.335(12), a petitioner who filed a motion for leave to proceed and
presented a colorable claim, but ultimately did not prevail, could have costs
imposed against him or her pursuant to ORS chapter 20, including the $100
prevailing party fee. In contrast, a petitioner who failed to present a
colorable claim could have costs imposed against him or her (including the $100
prevailing party fee) and, in addition, could be required to pay
"attorney fees incurred by the board not to exceed $100."
The Court of Appeals' opinion and
much of the parties' briefing focuses on the relevance of two previous
decisions by this court that are part of the statutory context: DeYoung/Thomas
v. Board of Parole, 332 Or 266, 27 P3d 110 (2001) and Atkinson v. Board
of Parole, 341 Or 382, 143 P3d 538 (2006). See Wal-Mart Stores, Inc. v.
City of Central Point, 341 Or 393, 397, 144 P3d 914 (2006) (prior case law
interpreting statute considered in first step of statutory analysis). As
context, those cases may illuminate or explain the meaning of the statutory
text.
The issue in DeYoung/Thomas was
whether ORS chapter 20 authorized the Court of Appeals to award costs and
disbursements to the board when the board had prevailed on judicial review of
one of its orders. The Court of Appeals had granted the board's motions to
dismiss in two separate parole board cases (consolidated for review),
designated the board a prevailing party, and allowed costs and disbursements
under ORS 20.120. Parole petitioners sought review in this court and argued
that, notwithstanding ORS 20.120, the board could not recover costs. The
petitioners first noted correctly that "costs and attorney fees are
controlled entirely by statute and are not recoverable in the absence of a
statute or contractual provision that authorizes such an award." 332 Or
at 277. The petitioners contended that, because "there [was] no specific
statutory authority in the statutes that govern judicial review of Board
orders [i.e., ORS 144.335 (1999)] for awarding costs to the prevailing
party," no statute authorized an award of costs. Id. (emphasis in
original). The court in DeYoung/Thomas rejected the proposition that
the statutory authority to award costs must be located in the statutes that
governed the specific type of judicial review at issue. To the contrary, the
court explained that an earlier decision, Compton v. Weyerhaeuser, 302 Or
366, 730 P2d 540 (1986), already had clarified that ORS 20.120 was an
independent source of authority for allowing costs on judicial review of an
agency order. The court thus concluded that, because ORS 20.120 authorized an
allowance of costs, the Court of Appeals had not erred in awarding costs to the
board.
In Atkinson, the petitioner
sought review of the Court of Appeals' denial of his motion for leave to
proceed with judicial review, arguing that he had presented a "substantial
question of law." In construing the meaning of the "substantial
question of law" standard as used in ORS 144.335 (2005), this court
explained how that standard fit within the broader scheme of judicial review of
board orders:
"ORS 144.335 thus establishes two different
standards for the court to use when considering the relative merit of motions
for leave to proceed. Between those standards, the 'colorable claim' standard
embodies a lower quantum of merit than the 'substantial question of law'
standard. Such a conclusion is apparent from the legislature's desire to
discourage motions failing to satisfy the former [colorable claim] standard by
making the petitioners filing those motions subject to costs and fees.
Conversely, the legislature chose not to penalize the petitioners filing
motions that fail to satisfy the latter standard, subjecting them to only
dismissal, with no monetary penalty."
Atkinson, 341 Or at 388-89 (citations omitted; emphasis
added). After comparing the substantial question of law standard with the
colorable claim standard, the court in Atkinson concluded that "a
'substantial question of law' is a soundly based, firmly supported question
capable of adjudication as to what the law is that is presented by the facts of
the particular case at bar." Id. at 390.
In this case, the Court of Appeals
framed the issue as "whether there is anything in the Supreme Court's
decision in Atkinson that suggests that the court intended to overrule
its holding in DeYoung/Thomas." 223 Or App at 299. The Court of
Appeals distinguished Atkinson as a case that decided a different issue
-- the meaning of the phrase "substantial question of law" -- and
thus the court characterized the passage from Atkinson quoted above as dictum.
The court then concluded that this court's decision in DeYoung/Thomas controlled
the disposition of the case at bar, because the court in that case had upheld a
cost award on facts identical to this case.
Petitioner contends that the Court of
Appeals erred by concluding that the holding in DeYoung/Thomas controls
the instant case. According to petitioner, DeYoung/Thomas is inapposite
because "the statutory scheme has fundamentally changed" since July
6, 2001, the date of the court's decision in DeYoung/Thomas. We agree
with petitioner, at least in part. DeYoung/Thomas concerned judicial
review of parole orders under ORS 144.335 (1999). That version of the statute
contained no reference to cost awards. The provision at issue in this case,
ORS 144.335(12), was added in 2001, when the legislature amended ORS 144.335
and added the motion practice that we described above. Or Laws 2001, ch 661,(5)
It follows that the decision in DeYoung/Thomas does not determine the
meaning of the 2005 version of ORS 144.335(12), a later enacted statutory provision.
The state argues that the decision in
DeYoung/Thomas stands for the broader point that the provisions of ORS
chapter 20 govern the award of costs on review of an agency order, subject to
only one exception: when judicial review of the agency's order is subject to
review under the Administrative Procedures Act (APA), ORS chapter 183. The
state relies on a passage in DeYoung/Thomas in which this court stated
that, according to an earlier decision of this court, Compton, 302 Or at
730, "ORS 20.120 authorizes cost awards to the prevailing party in any
judicial review that the APA does not govern (a category that includes the
present cases as they were considered in the Court of Appeals)." DeYoung/Thomas,
332 Or at 280 (footnote omitted). As we discuss below, the state's reading of
that sentence is too broad.
In Compton, a workers'
compensation claimant sought reconsideration of an Oregon Supreme Court order
that had awarded costs against him. He argued that the award of costs in his
case was inconsistent with a previous reversal of a cost award in Shetterly,
Irick, & Shetterly v. Employment Division, 302 Or 139, 727 P2d 117 (1986).
The court in Shetterly had explained that the legislative history
revealed that, in enacting the judicial review provisions of the APA, the
legislature had considered authorizing recovery of costs by an agency against a
private claimant on judicial review of a contested case, but had decided not to
authorize such an award. The court in Compton pointed out that the factor
that distinguished the two cases was that Shetterly had involved
judicial review of an employment division order under the APA, but Compton involved
judicial review of a workers' compensation order, which was not subject to the
APA:
"Shetterly held effectively that ORS
183.497 superseded ORS 20.120 with regard to the cases within the purview of
ORS 183.497. However, ORS 20.120 still controls cases not subject to the APA
costs limitation. Compton is such a case."
302 Or at 369.
Properly understood, the issue in Shetterly,
DeYoung/Thomas, and Compton was whether the statutory scheme
governing judicial review of the agency order at issue contained a specific
prohibition on the allowance of costs that operated in a particular case to
nullify the general authority to award costs in ORS chapter 20. In Shetterly,
in which the APA governed judicial review, the court determined that the APA
did contain such a prohibition on an award of costs. In contrast, in Compton,
the court concluded that workers' compensation statutes in effect at the time
did not prohibit an award of costs against a workers' compensation claimant
when the Workers' Compensation Board prevailed on judicial review of its own
order. See Fromme v. Fred Meyer, Inc., 306 Or 558, 560, 761 P2d 515
(1988) (so recognizing). Similarly, the court concluded in DeYoung/Thomas that
ORS 144.335 (1999) contained no prohibition on an allowance of costs to the
prevailing party on judicial review.
When considered in context, Compton
and DeYoung/Thomas do not stand for the proposition that the APA is
the only statutory scheme that can limit a court's general authority to
award costs. See Fromme, 306 Or at 560 (recognizing that, in 1987, the
legislature overruled Compton by amending ORS 656.236(2) to prohibit the
assessment of costs on judicial review against unsuccessful workers'
compensation claimants). Rather, those cases acknowledge only what ORS 20.310
expressly provides: a prevailing party generally may recover costs and
disbursements unless another, more specific statute provides otherwise.
As for Atkinson, petitioner
contends that this court held there that ORS 144.335(12) prohibited the Court
of Appeals from awarding costs to a petitioner who had stated a colorable
claim. Petitioner focuses on a sentence in Atkinson that stated that a
petitioner who failed to state a colorable claim was "subject to costs and
fees," but a petitioner who stated a colorable claim would suffer "no
monetary penalty." It is clear, however, that that observation was
intended to contrast the legal standard of a substantial question of law with
that of a colorable claim. The court's discussion included no explanation or analysis
of the phrase "no monetary penalty." Atkinson did not involve,
much less decide, the propriety of an award of costs. Accordingly, the court's
reference to "no monetary penalty" in Atkinson does not dictate
any particular outcome in this case. See State v. McDonnell, 343 Or
557, 567, 176 P3d 1236, cert den, __ US __, 129 S Ct 235, 172 L Ed 2d
180 (2008) (doctrine of stare decisis does not require deference to
prior case holdings when those cases did not involve and determine precise
issue presented by case at bar).
In sum, an examination of text and
context reveals that the legislature did not intend that ORS 144.335 would
prohibit an award of costs in this case. Both parties also have offered
legislative history that they contend supports their position. We have
examined the legislative history behind ORS 144.335(12) and we find nothing in
the legislative history that would require a different conclusion. No part of
the legislative history indicates that, by enacting ORS 144.335(12), the
legislature intended to eliminate a court's general authority under ORS chapter
20 to award costs and disbursements if a petitioner has presented a colorable
claim.(6)
From the foregoing, we conclude that,
in enacting ORS 144.335(12), the legislature used a carrot-and-stick approach
to achieve its goal of reducing the number of meritless cases pursued on
judicial review. The carrot is found in the second sentence of ORS
144.335(12), which insulated petitioners from an award of costs and
disbursements if they voluntarily dismissed their petition within the time
stated. The stick is found in the first sentence, which authorized an award of
"attorney fees incurred by the board not to exceed $100," in addition
to the board's costs recovered under ORS chapter 20, if a petitioner decided to
pursue a petition that failed to raise a colorable claim. However, unless a
petitioner was entitled to the protection described in the second sentence of
ORS 144.335(12) -- which petitioner here was not -- ORS 144.335(12) did not
limit the court's authority under ORS 20.310(1) to award costs and
disbursements to the board.
ORS 144.335(12) did not prohibit the
Court of Appeals from awarding costs and disbursements to the board pursuant to
ORS chapter 20, even if a petitioner had presented a colorable claim on
judicial review, unless the petitioner had timely moved to dismiss the petition
pursuant to ORS 144.335(6). Accordingly, the Court of Appeals did not err in
awarding costs and disbursements in this case.
The decision of the Court of Appeals
is affirmed.
1. The
legislature amended ORS 144.335(12) in 2007, Or Laws 2007, ch 411, § 1, by
renumbering the subsection as ORS 144.335(9) and modifying certain procedural
references in the 2005 version. According to the parties, the principal issue
here is whether ORS 144.335(12) (2005) limited the authority of the Court of
Appeals under ORS 20.310 to award costs and disbursements to the board. In
positing that issue, the parties have assumed that the controlling statute is
the 2005 version of ORS 144.335(12), because that statute was in effect when
petitioner sought judicial review. To avoid confusion, we adopt the same
assumption: Unless otherwise noted, citations in this opinion to ORS 144.335
refer to the version in effect in 2005.
The 2007 version of ORS 144.335 was in effect
when the Court of Appeals awarded costs and disbursements to the board in this
case. However, the 2007 amendments did not modify the scope of the court's
authority to award costs and disbursements to the board, and they do not affect
our analysis in this case.
2. The
legislature in 2007 amended ORS 20.310(2), changing the term
"abstract" to "excerpt." Or Laws 2007, ch 547, § 6. That
amendment has no effect on the analysis of this case.
3. In
2007, the legislature amended ORS 144.335 to eliminate the interim step
requiring an inmate to file a motion for leave to proceed. Or Laws 2007, ch
411, § 1. Under the
current version of the statute, the Court of Appeals examines the petitioner's
brief to determine whether the judicial review presents a substantial question
of law. ORS 144.335(6) (2009). If the judicial review does not present a
"substantial question of law," the Court of Appeals, on its own
motion or on the motion of the board, "may summarily affirm the board's
order." Id.
4. Petitioner
does not argue that, because the Court of Appeals dismissed the appeal sua
sponte for mootness, the board is not a prevailing party for purposes of
ORS 20.310 and ORS 20.190. Because no party has raised or briefed the issue,
we assume, without deciding, that the Court of Appeals correctly designated the
board as the prevailing party on appeal. See ORS 20.310(1) (on appeal,
"the court shall allow costs and disbursements to the prevailing party * *
*."); ORAP 13.05(3) ("When an allowance of costs is dependent on
identification of a party as a prevailing party, the * * * petitioner * * * is
the prevailing party only if the court reverses or substantially modifies the
judgment or order from which the appeal or judicial review was taken.
Otherwise, the respondent * * * is the prevailing party.").
5. The
governor signed House Bill (HB) 2348 (2001) into law on June 28, 2001 and the
law took effect on January 1, 2002. See Or Laws 2001, ch 661, § 1 (so noting).
6. Petitioner
also argues that, even if ORS 144.335(12) did not prohibit an award of costs
and disbursements generally, the Court of Appeals abused its discretion by
awarding costs and disbursements in this particular case. First, petitioner
submits that the Court of Appeals failed to make at least a cursory record
reflecting its exercise of discretion to award costs to the board. Second,
petitioner contends that, in the circumstances presented by this case, where
petitioner's case became moot through no fault of petitioner, such an award is
inequitable and unduly punitive. Petitioner failed to preserve those arguments
before the Court of Appeals and also failed to raise those issues in his
petition for review. Accordingly, we decline to address them. | de7af32711e3aa6023b2ce0756c6d347afa8f56f5da1af0419d7bc2063a65008 | 2010-04-08T00:00:00Z |
1c8cac9e-8282-4e9f-862e-ab9270278463 | State v. Brown | null | S057594 | oregon | Oregon Supreme Court | FILED: May 27, 2010
IN THE SUPREME COURT OF THE STATE OF OREGON
STATE OF OREGON,
Petitioner
on Review,
v.
SHEENA BROWN,
Respondent
on Review.
(C060902CR;
CA A133625; SC S057594)
En Banc
On review from the
Court of Appeals.*
Argued and submitted
February 19, 2010, De Le Salle North Catholic High School, Portland, Oregon.
Robert M. Atkinson,
Senior Assistant Attorney General, Salem, argued the cause for petitioner on
review. With him on the briefs were John R. Kroger, Attorney General, and
Jerome Lidz, Solicitor General.
David Ferry, Deputy
Public Defender, Office of Public Defense Services, Salem, argued the cause for
respondent on review. With him on the brief was Peter Gartlan, Chief Defender.
DE MUNIZ, C. J.
The decision of the
Court of Appeals is reversed. The order of the circuit court is reversed, and
the matter is remanded to the circuit court for further proceedings.
*Appeal from
Washington County Circuit Court, Marco Hernandez, Judge. 228 Or App 197, 206
P3d 1180 (2009).
DE MUNIZ, C. J.
Defendant was charged with 22 counts
of identity theft. The evidence against her derived entirely from the
warrantless search of two bags that defendant had denied owning and had left in
a hotel room rented by another person. Defendant moved to suppress the
evidence against her on the ground that it had been obtained through a search
that violated Article I, section 9, of the Oregon Constitution and the Fourth Amendment
to the United States Constitution. The trial court concluded that the search
of the bag violated Article I, section 9, and suppressed the evidence. The
Court of Appeals affirmed. State v. Brown, 228 Or App 197, 206 P3d 1180
(2009). We allowed the state's petition for review and now reverse.
The facts relevant to our review are
undisputed. A man and a woman had checked into a hotel. The hotel room was
rented under the man's name, Taunice Beal; however, the woman paid for the room
with a credit card in the name of Katrina Ivanov. The clerk suspected some
form of identity theft or credit card fraud and summoned the police to the
hotel.
Police went to the room, which was
occupied by four people, one of whom was defendant. On the floor in plain view
was a methamphetamine pipe with residue. Officer Pfaff asked whether anyone in
the room was either Beal or Ivanov; the four people in the room denied being
Beal or Ivanov. Officer Pfaff also asked if anyone present had rented the
room; they all stated that they had not. When asked for identification, defendant
claimed that she did not have any identification with her and gave the officer
a false name, Stephanie Hageman.
The hotel manager arrived and, on learning
that no authorized guests were in the room, instructed everyone to leave. No
one protested or objected to being required to leave. Officer Pfaff asked the
people in the room if they had any personal property there. One person claimed
a cell phone and shoes; another claimed a purse and sandals. Defendant claimed
only a pair of sandals. While Officer Pfaff was retrieving defendant's sandals,
she noticed a black bag and asked defendant if the bag was hers. Defendant
denied that it was. The officer asked again, noting that defendant's sandals
were next to the bag; however, defendant again denied owning the bag. The
officer also pointed out a second black bag in the room, and asked if it
belonged to defendant. Defendant twice denied owning that bag. There was also
a third bag in the room -- a duffel bag -- which no one claimed. Officer Pfaff
asked everyone in the room if they had retrieved all of their personal
possessions from the room, because the room would be locked. No one claimed
anything else in the room. After everyone had left the room, the hotel manager
locked the room door, rekeying the lock so that the occupants of the room would
have to come to the hotel desk before they could enter the room. The officers
then left.
Later that afternoon, Beal returned
to the hotel with a companion, and the hotel contacted the police. Officer
Pfaff responded to the call and met with Beal. Beal stated that he had rented
the room, and that a woman he knew as Sheena had paid for it with a credit
card. The officer asked Beal if anything in the room belonged to him, and Beal
identified the duffel bag. Officer Pfaff asked Beal for permission to search
the room, and Beal responded, "'[y]ou can search whatever you want.'"
The officer first searched the duffel bag, then began searching the first black
bag. The officer found a wallet that contained a photo of defendant, a credit
card in the name of Katrina Ivanov, and some notebook paper containing
handwritten identity information for other people (e.g., names, dates of
birth, driver's license numbers, Social Security numbers, etc.). At
approximately the same time that Officer Pfaff discovered the identity
information, Beal told her that both black bags were owned by Sheena, and
Beal's companion added that Sheena's last name was Brown. Concluding that the
bag contained evidence of identity theft, the officer closed the bag, seized
the other black bag, and left the hotel room. Later, at the police station,
the officer further searched both bags, discovering additional evidence of identity
theft.(1)
Before trial, defendant moved to
suppress the evidence discovered during the search of the bags, arguing that
the warrantless search of the bags violated defendant's privacy right under
Article I, section 9, of the Oregon Constitution and the Fourth Amendment of
the United States Constitution. In response, the state asserted that defendant
had abandoned any possessory or privacy interest in the bags when she denied
owning them and left them in the room. The trial court granted defendant's
motion to suppress. In a letter explaining its ruling, the trial court
stated: "I am not convinced[,] based on the totality of circumstances in
this case[,] that the defendant demonstrated an intent to permanently
relinquish possession of the items at issue or the privacy interests that
accompanied the right to possess them."
The state appealed the suppression
order to the Court of Appeals, which affirmed. That court concluded that the
issue was "whether, when defendant stated that the bags did not belong to
her and left the hotel room without them, she manifested the intent permanently
to relinquish her possessory or privacy interests." Brown, 228 Or
App at 203-04. The court held that, "although defendant denied owning the
bags, her conduct in leaving her bags apparently secure in the hotel room did
not amount to giving up her privacy interest in that property." Id.
at 204. The court reasoned that defendant was leaving the bags in a secure
hotel room rented by someone she knew, which "was consistent with an
intent to maintain a privacy interest in the bags." Id. The court
also noted that nothing would have suggested to defendant that her denial of an
interest in the bags would cause them to be searched. Id. We allowed the
state's petition for review to consider whether the trial court and the Court
of Appeals correctly concluded that the search of the bags violated Article I,
section 9.
We begin by reviewing the nature of
the right guaranteed by Article I, section 9, which provides, in part:
"No law shall violate the right of the
people to be secure in their persons, houses, papers, and effects, against
unreasonable search, or seizure * * *."
The government conducts a "search" for purposes of
Article I, section 9, when it invades a protected privacy interest. See State
v. Crandall, 340 Or 645, 649, 136 P3d 30 (2006) (so stating); State v. Meredith, 337 Or 299, 303-04, 96 P3d 342 (2004) (same); State v. Wacker,
317 Or 419, 426, 856 P2d 1029 (1993) (same). A protected privacy interest
"is not the privacy that one reasonably expects but the privacy to
which one has a right." State v. Campbell, 306 Or 157, 164,
759 P2d 1040 (1988) (emphasis in original; citation omitted). Accordingly, a
defendant's subjective expectation of privacy does not necessarily determine
whether a privacy interest has been violated. See State v. Howard/Dawson,
342 Or 635, 643, 157 P3d 1189 (2007) (rejecting defendants' argument that they
did not expect their garbage to be searched by police after sanitation company
had picked it up).
It is true that Article I, section 9,
protects "the general privacy interests of 'the people' rather than * * *
the privacy interests of particular individuals." State v. Tanner,
304 Or 312, 320, 745 P2d 757 (1987) (footnote omitted).(2)
However, it is not enough that police may have violated Article I, section 9,
in some abstract sense. As Tanner explains, courts will suppress
evidence only when a defendant's rights under Article I, section 9, have
been violated. "[T]he search * * * must violate the defendant's section 9
rights before evidence obtained thereby will be suppressed; a defendant's section
9 rights are not violated merely by admitting evidence obtained in violation of
section 9." Id. at 315-16.
Here, when the officers first arrived
at the hotel room, it is clear that defendant had a constitutionally protected
privacy interest in both bags. She owned the bags, she was in possession of
the bags, and both she and the bags were in a private room that she had paid
for (admittedly under a false identity). The question is whether defendant's
subsequent actions caused her to lose those constitutionally protected privacy
interests.
This court's decision in State v. Cook, 332 Or 601, 34 P3d 156 (2001), is instructive. In Cook, police
officers, arriving at a parking lot to investigate possible thefts from
vehicles, spotted the defendant standing next to a garbage dumpster sorting
clothing into a duffel bag. One officer asked the defendant to step away from
the duffel bag, and defendant complied. The officer asked the defendant whether
the clothing or the bag belonged to him. The defendant said that they did not,
but that he had found them and was sorting through them for things to use. The
officers subsequently searched the duffel bag and discovered drugs, as well as
evidence that the bag did belong to the defendant.
On review, the state agreed that the
defendant had a possessory and privacy interest in the duffel bag and its
contents, but it argued that the defendant had relinquished that interest by
denying ownership and walking away from the articles. Id. at 605-06.
After reviewing this court's prior case law, the court identified three legal
principles applicable to the analysis:
"First, the determination whether a defendant has
relinquished a constitutionally protected interest in an article of property
involves both factual and legal questions, which this court reviews in the same
manner that it reviews other search or seizure questions * * *.
"Second, because Article I, section 9,
protects both possessory and privacy interests in effects, property law
concepts of ownership and possession are relevant, though not always
conclusive, in the factual and legal determination whether a defendant
relinquished all constitutionally protected interests in an article of
property.
"Finally, for constitutional purposes, the
question to be resolved in the present case is whether the defendant's
statements and conduct demonstrated that he relinquished all constitutionally
protected interests in the articles of property * * *."
332 Or at 607-08 (citation omitted). Applying those
principles, the court concluded that the evidence should have been suppressed.
Id. at 609. Although the defendant had denied owning the duffel bag,
defendant had expressly claimed a possessory interest in it. The defendant's
act of stepping away from the bag did not relinquish that possessory interest,
because the defendant merely complied with the officer's direction to do so. Id.
at 608-09.
"Leaving the items on the ground in compliance with the
officer's request to 'step out' is not conduct demonstrating an intent
permanently to relinquish possession of the items or the privacy interests that
accompanied the right to possess them. Under those circumstances, the officers
could not have reasonably concluded that defendant intended to relinquish his
possessory and privacy interests in the clothing and the bag."
Id. at 609.
As was true in Cook, the
question before us is "whether the defendant's statements and conduct
demonstrated that [she] relinquished all constitutionally protected interests
in the articles of property[.]" Id. at 608. Both the trial court
and the Court of Appeals concluded that defendant must be shown to have
intended to relinquish permanently all constitutionally protected
interests. See Brown, 228 Or App at 203-04 (considering whether
defendant "manifested the intent permanently to relinquish her possessory
or privacy interests").
In our view, the Court of Appeals'
emphasis on "permanent relinquishment" is problematic. There are any
number of circumstances in which a person relinquishes privacy interests
without doing so permanently. An individual who consents to a search of an
item, for example, relinquishes all constitutionally protected privacy
interests in the item. Under most circumstances, however, it would be
difficult to suggest that the individual has permanently relinquished those
privacy interests, subjecting the item to search at will for the indefinite
future. Additionally, a person who places an item in plain view has
relinquished any constitutionally protected privacy interest in the item. That
person, however, may renew the privacy interest simply by removing the item
from plain view. Similarly, a person who loses an item relinquishes some of
the person's constitutionally protected interest in the property, but only to
the extent necessary to search it for identification, and only so long as the
item remains lost. See State v. Pidcock, 306 Or 335, 340-42, 759 P2d
1092 (1988), cert den, 489 US 1011 (1989) (lost briefcase; the court
concluded that police officers lawfully could search for identification by
opening the briefcase and, later, the manila envelopes contained inside it; but
"[h]ad the deputies opened the manila envelopes in search of contraband,
they would have violated defendant's state * * * constitutional rights").
Once the lost item is returned to its owner, all constitutionally protected
interests ordinarily are renewed. Even when a privacy interest in an effect has
been lost by execution of a search warrant authorizing its search and seizure, the
owner or possessor can renew the privacy interest in the effect by regaining
its possession. See State v. Munro, 339 Or 545, 552, 124 P3d 1221
(2005) (seizure of a videotape under authority of a warrant destroyed the
defendant's privacy interests "[u]ntil such time as defendant regained
lawful possession of the videotape").
Moreover, we do not read Cook to
require permanent relinquishment. As we have quoted previously, the legal
test stated by the court in Cook was "whether the defendant's
statements and conduct demonstrated that he relinquished all constitutionally
protected interests in the articles of property." 332 Or at 608. The
word "permanently" occurs only once in the Cook opinion, when
the court applied the law to the facts. In context, the court used the word
"permanently" only to emphasize the transient nature of the
defendant's relinquishment of possession of the property. See id.
at 608-09 (noting that defendant had "relinquished his immediate
physical possession" of the bag and clothing, but only at the direction of
the officer, and concluding that that was "not conduct demonstrating an
intent permanently to relinquish" either possession or the
accompanying privacy interest (emphases added)).(3)
In all events, if Cook implied such a requirement, doing so was
unnecessary to our holding in that case, and we disavow that requirement now.
Accordingly, we reject the conclusions
of the Court of Appeals and the trial court that the defendant's conduct must
demonstrate an intent to permanently relinquish all constitutionally
protected interests.
With the foregoing cases and
discussion in mind, we now consider "whether the defendant's statements
and conduct demonstrated that [she] relinquished all constitutionally protected
interests in the articles of property." Cook, 332 Or at 608. Defendant
had a possessory and privacy interest both in the room and in the bags when she
encountered the police. She relinquished her privacy interest in the room by
denying that she was Katrina Ivanov and giving another (false) identity. As a
result, the hotel manager insisted that defendant (and the others) leave the
room. Defendant then was given an opportunity to remove her personal
possessions. She repeatedly and expressly denied that the bags were hers.
Defendant made no attempt to claim them or to take them with her. Her statements
and actions were identical to those of a person who had no possessory or
privacy interest in the bags at all. Thus, defendant relinquished, at least
temporarily, her possessory and privacy interests in the two bags.
In concluding that suppression of the
evidence was required, the Court of Appeals also emphasized that defendant was
aware that the bags were going to be left in a locked hotel room rented by a
person whom she knew. Brown, 228 Or App at 204. To determine whether,
and to what extent, that fact is relevant to our analysis, we first review this
court's prior case law regarding searches of property that has been placed in
the custody of another.
In Tanner, 304 Or at 312, the
defendant had stolen property from his employer and pledged the property to a
couple as collateral for a loan. Police discovered the property at the couple's
home during an illegal search of their residence. There was no question that
the illegal search of the couple's home had violated the couple's privacy
rights; as noted previously, however, this court concluded that it needed to
determine whether the search had violated the defendant's privacy
rights. Id. at 315-16. The court first explained that nonresidents may
have a privacy interest in the home of another. The court elaborated on that
with a series of hypotheticals:
"If A invites B to dinner at A's house and the police
burst in on the dinner, it would be ludicrous to contend that the police have
infringed upon a privacy interest of A but not upon a privacy interest of B. *
* *
"It is true that B, as a dinner guest, has
no right to exclude the police (or anyone else) if A invites them in, but in
that case the police have not violated section 9 at all. A section 9 privacy
interest is an interest against the state; it is not an interest against
private parties. That A controls access to the house does not preclude B from
asserting a privacy interest against the state if it violates the privacy of
the house.
"Should the result be any different if,
instead of inviting B to dinner, A allows B to store effects on A's premises?
In both cases A has allowed B to make use of the privacy of A's house. * * *
Again, B's section 9 interests will not be violated if A allows the police to
enter the house and discover the effects, but that is because A controls access
to the house, not because B does not have a privacy interest against the
state."
Id. at 321-22 (footnote and citations omitted). The
court concluded that "the entrustment of an effect to another is
sufficient to establish a privacy interest that is violated when the effect is
discovered through an unlawful search." Id. at 323.
The Tanner court then
considered whether, on the facts, the defendant had a privacy interest that had
been violated by the state. The court concluded that he did. In doing so,
however, the court recognized that the defendant's privacy interest depended
not only on the privacy of the house, but also on the interest that the
defendant had retained in the entrusted property:
"Had the circuit court found that
defendant had sold or given away the effects, that might have been a sufficient
basis for concluding that defendant no longer had a privacy interest that could
be violated by the discovery of the effects, but a person who pledges
effects as collateral is in much the same position as one who entrusts effects
to another for other purposes. The state contends that defendant had no
immediate right of access to the tapes and equipment, but that fact alone does
not preclude defendant's continuing entrustment of the effects. So long as
there remained a possibility that defendant would reclaim the effects, the
entrustment was sufficiently viable to demonstrate that the illegal search of
the [couple's] residence violated his privacy interests under section 9."
Id. (citation omitted; emphasis added).
More recently, this court addressed a
similar situation in Howard/Dawson, 342 Or at 635. There, the
defendants had thrown away garbage that the sanitation company had voluntarily
delivered to the police. The court first noted that the defendants did not
claim that they had retained any ownership or possessory interest in the garbage
after the sanitation company picked it up. "If any entity had a
constitutionally protected possessory interest [in the garbage], it was the
sanitation company[,] but that company voluntarily turned the property over to
the police." Id. at 640.
The only question was whether the
defendants retained a protected privacy interest in the garbage. Id. This
court concluded that they did not. "[W]hen a person gives up all rights
to control the disposition of property, that person also gives up his or her
privacy interest in the property in the same way that he or she would if the
property had been abandoned." Id. at 642-43 (citation omitted).
The question whether the defendants retained a constitutionally protected
privacy interest in the garbage was controlled by "the legal relationship
between [the] defendants and the sanitation company." Id. at 642; see
id. at 641 (noting that the defendants "have not claimed that their
contract with the sanitation company limited what the company could do with the
garbage once the company took possession of it"). Because the defendants
"turned the garbage over to the sanitation company without any restriction
on its disposition, they effectively abandoned that property." Id.
at 642.
In light of those cases, we now return
to the issue of what weight should be given in this case to defendant having
left the bags in a locked room rented by someone she knew. We conclude that
that fact does not affect our holding that defendant had relinquished her
constitutionally protected interests in the bags. As we have already noted,
defendant disclaimed ownership of the bags and voluntarily gave up possession
of them. In doing so, she abandoned her bags in a locked room to which she
would not have access. Defendant thus relinquished her possessory rights in
the bags to Beal. See Howard/Dawson, 342 Or at 640 (noting that it was
uncontested that the defendants had relinquished their possessory interests in
garbage to the sanitation company, once the sanitation company had picked up
the garbage). Because defendant had relinquished her possessory rights, she
also had relinquished her privacy interests in the bags. See id. at
642-43 ("when a person gives up all rights to control the disposition of
property, that person also gives up his or her privacy interest in the property
in the same way that he or she would if the property had been
abandoned"). Beal, by virtue of his control of the room, held the only
remaining possessory and privacy interest in the two bags. Beal's consent to a
search relinquished the remaining privacy interest in the room and its
contents. See Tanner, 304 Or at 322 ("B's section 9 interests will
not be violated if A allows the police to enter the house and discover the
effects, * * * because A controls access to the house * * *."). Accordingly,
when Officer Pfaff searched the two bags, she did not violate any
constitutionally protected privacy interest held by defendant. The Court of
Appeals and the trial court erred in holding otherwise.
Defendant alternatively contends that
the search violated the Fourth Amendment to the United States Constitution. It
was unnecessary for the Court of Appeals to reach that question, given its resolution
of the case under Article I, section 9. In accordance with principles of
judicial economy, we will consider defendant's Fourth Amendment argument.
The Fourth Amendment protects against
governmental violations of a defendant's reasonable expectation of privacy. See
Campbell, 306 Or at 163 ("Since Katz [v. United States,
389 US 347, 88 S Ct 507, 19 L Ed 2d 576 (1967)], the [United States Supreme]
Court has defined a Fourth Amendment search as a government action that
infringes upon a 'reasonable expectation of privacy.'" (footnote omitted)).
In this case, we conclude that defendant's Fourth Amendment rights have not
been violated, for essentially the same reasons that we have already
articulated in connection with our analysis of Article I, section 9. Defendant
disclaimed ownership of the bags and voluntarily left them behind. Under the
totality of the circumstances, she no longer retained a reasonable expectation
of privacy in the bags at the time of the search.
The decision of the Court of Appeals
is reversed. The order of the circuit court is reversed, and the matter is
remanded to the circuit court for further proceedings.
1. It
is not clear from the record whether any evidence was found in the second bag.
2. Tanner
explained the principle further:
"It is not correct * * * to say that a
warrantless search of A's house violated section 9 because it violated
A's privacy interests in the house. It would be more accurate to say that the
search of A's house violated section 9 because it violated the privacy of the
house. Given that the police have violated the privacy of the house, the
question then arises whether that violation has infringed upon anyone's privacy
interests. If the house proves to be abandoned, the police may have violated
section 9 without violating anyone's section 9 rights."
304 Or at 321 (emphases in original).
3. The
relevant part of Cook states:
"Although [the] defendant had relinquished his
immediate physical possession of the bag and clothing by leaving them on
the ground, undisputedly he did so only after [the officer] instructed him to
'step out' of the area near the dumpster where [the] defendant was sorting the
clothes into the bag. Leaving the items on the ground in compliance with the
officer's request to 'step out' is not conduct demonstrating an intent
permanently to relinquish possession of the items or the privacy interests
that accompanied the right to possess them. Under those circumstances, the
officers could not have reasonably concluded that [the] defendant intended to
relinquish his possessory and privacy interests in the clothing and the
bag."
Id. at 608-09 (emphases added). | abb54a12291d054e14e1245926a63a0740f84d8c9f64c77d34dd41123f9036a5 | 2010-05-27T00:00:00Z |
a930faa0-1650-43bf-aa92-7f6746e1a89b | In re Hostetter | null | S056471 | oregon | Oregon Supreme Court | FILED: July 29, 2010
IN THE SUPREME COURT OF THE STATE OF OREGON
In re Complaint as to the Conduct of
D. RAHN HOSTETTER,
Accused.
(OSB Nos. 07-37, 007-161; SC S056471)
En Banc
On review from a decision of a trial panel of the
Disciplinary Board.
Argued and submitted
March 1, 2010.
Roy Pulvers, Hinshaw
& Culertson LLP, Portland, argued the cause and filed the briefs for the
accused.
Stacy Hankin,
Assistant Disciplinary Counsel, Oregon State Bar, Tigard, argued the cause and
filed the brief for the Oregon State Bar.
PER CURIAM
The accused is
suspended from the practice of law for 150 days, commencing 60 days from the
date of the filing of this decision.
PER CURIAM
In this lawyer disciplinary matter,
the Bar charged the accused with ethical violations in two separate matters.
In the Ingle matter, the Bar alleged that the accused violated the
former-client conflict-of-interest rule. The trial panel concluded that the
accused violated DR 5-105(C) and RPC 1.9(a) when, having represented the
borrower in the underlying loan transaction, he subsequently represented the
lender in collecting the loans from the borrower's estate. In the Grohs matter,
the Bar alleged that the accused violated the rule against misrepresentation.
The trial panel concluded that the accused violated RPC 8.4(a)(3) when he
"acquiesced [in] the removal" of a notarized signature page from one
deed and had it placed on a second deed, which contained a different legal
description, and then had the altered deed recorded. In part because the
accused had been disciplined previously, the trial panel recommended that he be
suspended from the practice of law for 150 days.
Pursuant to ORS 9.536(1) and Bar Rules
of Procedure (BR) 10.1 and 10.3, the accused seeks review of the trial panel's
conclusions. This court reviews the trial panel decision de novo. ORS
9.536(2); BR 10.6. The Bar must establish misconduct by clear and convincing
evidence. BR 5.2. Clear and convincing evidence means "evidence
establishing that the truth of the facts asserted is highly probable." In
re Cohen, 316 Or 657, 659, 853 P2d 286 (1993). As to the Ingle matter, we
conclude that the accused violated DR 5-105(C) and RPC 1.9(a). As to the Grohs
matter, we conclude that the accused violated DR 1-102(A)(3) and RPC 8.4(a)(3).(1)
We impose a suspension of 150 days.
I. FACTS AND
PROCEDURAL HISTORY
A. The Ingle Matter
In the mid 1990s, the accused
represented Pearl Ingle in obtaining a series of loans from Andrew Hohn and
drafted the documents to evidence and secure those loans. The documents
included several promissory notes and a mortgage in favor of Hohn on certain
property owned by Ingle (loan transactions). The accused also represented
Ingle in obtaining from Hohn partial releases of the mortgage securing the
loans. In 2004, Ingle died, and her daughter was appointed personal
representative of Ingle's estate. Ingle's will directed that all her
"just debts and liabilities" be "fully paid."
During 2004 and 2005, the accused
represented Hohn in collecting the outstanding loans that Hohn had made to
Ingle during her lifetime (the debt collection).(2)
In particular, the accused asserted a probate claim on Hohn's behalf against
Ingle's estate based on the promissory notes and mortgages that he had
previously prepared for Ingle. The personal representative disallowed the
claim. The accused then demanded that the personal representative pay Hohn
$81,519.29 or execute a new promissory note for that amount, or the accused
would initiate a foreclosure action against Ingle's property -- the same
property at issue in the mortgages that the accused had prepared on Ingle's
behalf.
Eventually, the accused brought an
action against Ingle's estate asserting claims for breach of contract, action
on promissory notes, and judicial foreclosure of real property. The personal
representative challenged Hohn's claims, arguing that some loans were barred by
the statute of limitations, were unsupported by documentation, or had already
been repaid. The parties ultimately settled the claims for $52,660.64.
The personal representative
registered a complaint with the Bar. The Bar charged the accused with violating
DR 5-105(C) (subsequently representing a client in the same or a significantly
related matter as a former client when the interests of the current and former
clients are in actual or likely conflict) and RPC 1.9(a) (representing a client
in the same or substantially related matter as a former client in which the
current client's interests are materially adverse to the interests of the
former client without obtaining informed consent, confirmed in writing). The
trial panel concluded that the accused violated the foregoing provisions.
B. The Grohs Matter
Anna Grohs purchased property from
Oliver and Christie Wilde in 2003. The property consisted of four parcels.
Grohs defaulted on a payment, and the Wildes initiated a foreclosure
proceeding. Grohs obtained a bank loan to pay the Wildes, and the parties
discussed entering into a new agreement in which the Wildes would accept the
proceeds of the bank loan in exchange for releasing parcel 3.
The Wildes retained the accused to
represent them in negotiating the new agreement with Grohs. In November 2004,
the accused faxed Grohs a letter setting out the terms of the new agreement.
The letter enclosed for Grohs's signature a Deed in Lieu of Foreclosure for
parcels 1, 2, and 4 (deed on three parcels) and a promissory note for the
remaining balance. In a handwritten postscript, the accused informed Grohs
that, to cancel the foreclosure sale, Grohs would also need to sign a Deed in
Lieu of Foreclosure on all four parcels (deed on four parcels). Apparently,
the deed on four parcels was necessary to protect the Wildes in case Grohs's
loan did not close. In a later fax, the accused assured Grohs that, if Grohs's
loan closed, the foreclosure would be cancelled and the accused would destroy
the deed on four parcels. However, if the loan did not close, the accused
would record the deed on four parcels rather than the deed on three parcels.
Grohs signed and notarized the deed
on four parcels. The accused immediately cancelled the foreclosure sale.
Grohs's bank loan closed a few weeks later, and parcel 3 was reconveyed to
Grohs.
The accused was scheduled to be
away on vacation the next week. Before he left, he arranged for the Wildes to
come to the office during his absence and execute the remaining documents,
including the deed on three parcels. The accused reviewed the documents that
the Wildes were to sign and dictated a letter to Grohs, sent the next day,
informing her that the deed on three parcels would be recorded that day.
There is no record that Grohs ever
signed the deed on the three parcels. Instead, the signature page from the
deed on four parcels -- containing Grohs's notarized signature -- was affixed
to the deed on three parcels. The Wildes executed the deed on three parcels,
and the deed was sent for recording. Due to unrelated errors in the paperwork,
the deed was re-sent for recording at least two times, and was eventually
recorded sometime after January 1, 2005.(3)
About two years later, Grohs
discovered that her signature from the deed on four parcels had been affixed to
the deed on three parcels, and she complained to the Bar. The accused
responded by letter to Grohs's complaint. In that letter, the accused
acknowledged that he attached the signature page from the deed on four parcels
to the deed on three parcels, but asserted that he had Grohs's permission to do
so:
"Ms. Grohs was under time pressure to get her
loan closed. I told Ms. Grohs by telephone that I would send her the documents.
I told her that the Promissory Note did not need to be notarized, but the [deed
on three parcels] did need to be notarized. I told her that, if she wanted to
avoid the hassle of going to a notary again, I could use the deed she signed
previously and substitute the legal description of Parcels 1, 2 and 3 in place
of the legal description for Parcels 1,2,3, and 4. She agreed."
The Bar charged the accused with
violating DR 1-102(A)(3) (conduct involving misrepresentation) and RPC
8.4(a)(3) (conduct involving misrepresentation that reflects adversely on the
lawyer's fitness to practice law).
The
accused gave sworn deposition testimony that confirmed the version of events he
gave to the Bar in his letter. In that testimony, he explained:
"All I know is, is that there was a time when we were
pressured to -- she was pressured. She's the one that was feeling pressure,
not from me, but from wanting to salvage her interest in the property, to have
all the documents signed. And [there] were Fed-Ex exchanges. And somewhere in
there, there was an agreement to, for time's sake, to use, since she had
already signed, the [deed on four parcels]."(4)
The accused also testified that it was not Grohs's idea to
switch the pages, but his own:
"No, she wouldn't have thought of that. I think that,
and I'm pretty confident of this, I just think I suggested an option that I can
send this to you, but guess what, it reads the same and so we could just change
the legal description."
Contrary to his letter to the Bar
and his deposition testimony, the accused testified at the disciplinary hearing
that he first learned of the switched signature pages when the Bar informed him
of Grohs's complaint against him. The accused also testified that he did not
know how the signature page from the deed on four parcels became attached to
the deed on three parcels. Faced with the fact that his billing records
and documentation revealed no discussion with Grohs about affixing the
signature page from the deed on four parcels to the deed on three parcels, the
accused conceded that he had merely speculated that he and Grohs discussed
saving her a trip to the notary, and that he had assumed that they discussed it
because he "would not ever do anything like that without her
agreement." The accused opined that his staff possibly "just mixed
it up" because the accused was gone on vacation at the time and his legal
assistant told him that he did not instruct her to affix the signature page
from the deed on four parcels to the deed on three parcels.
The trial panel found that
"the [a]ccused or someone in his office" removed the notarized
signature page from the deed on four parcels, attached it to the deed on three
parcels, and had it recorded. The trial panel thus concluded that the accused
violated RPC 8.4(a)(3). The trial panel did not address whether the accused also
violated DR 1-102(A)(3) as charged by the Bar.(5)
Based on the above violations, the
trial panel concluded that the appropriate sanction in this case was a 150-day
suspension.
II. DISCUSSION
A. Ingle Matter
The accused seeks review of the
trial panel's decision that he violated DR 5-105(C) and RPC 1.9(a) in the Ingle
matter. DR 5-105(C) prohibits an attorney, after representing a former client
in a matter, from representing another client "in the same or a
significantly related matter when the interests of the current and former
clients are in actual or likely conflict." RPC 1.9(a) similarly prohibits
an attorney, after representing a former client in a matter, from representing
another person "in the same or a substantially related matter in which
that person's interests are materially adverse to the interests of the former
client unless each affected client gives informed consent, confirmed in writing."
In this case, the Bar has charged
that the accused's representation of Hohn, without obtaining informed consent,
confirmed in writing, from the estate and Hohn, constituted a former-client
conflict of interest in violation of both DR 5-105(C) and RPC 1.9(a). On
review, the Bar contends that the accused represented Ingle in a matter and
then later represented Hohn in the same or a substantially related matter when
Ingle's surviving intrests were materially adverse to Hohn's interests because
of their former relationship as debtor and creditor. The accused responds that
Ingle had no interests because she was deceased; the debt collection was not
the same matter as, or substantially related to, the loan transactions; and
Hohn's and Ingle's interests therefore were not materially adverse. We turn to
those arguments.
1. Whether a deceased client is a "former client" for
purposes of the former-client conflict-of-interest rules
As a threshold matter, we must
first determine whether it is possible for an attorney to violate the
former-client conflict-of-interest rules when his or her former client is
deceased. The accused essentially contends that no violation was possible
because Ingle, his former client, is deceased, and, accordingly, cannot have
interests adverse to Hohn, and cannot suffer injury from the subsequent
representation. The Bar responds that a deceased client's interests survive
his or her death. In particular, the Bar contends that, in this case, Ingle's
surviving interests are expressly described in her will.
This case presents a matter of
first impression in Oregon -- that is, whether a former client, now deceased,
is protected by the former-client conflict-of-interest rules. Oregon is not
alone, as no jurisdiction appears to have directly addressed the issue. At
best, a few jurisdictions have addressed the related issue of whether dissolved
corporations are "clients" for purposes of the former-client conflict-of-interest
rules. Those jurisdictions are split on the issue. Some jurisdictions hold
that, upon a corporation's dissolution, a conflict of interest cannot exist,
because the entity is "dead," no longer exists, and, accordingly,
cannot have interests adverse to the current client. See, e.g.,
Bagdan v. Beck, 140 FRD 660, 667 (D NJ 1991) (holding that, because the
former client of the accused (the corporation) for all intents and purposes is
"dead," the former-client conflict rule does not apply). Conversely,
other jurisdictions hold that a bankruptcy trustee "stands in the
shoes" of the corporation as former client, and the accused in later
litigation may not represent an interest adverse to the successors in interests
of the failed corporation. See, e.g., FDIC v. Berry, No 1-85-62,
(ED Tenn, June 10, 1985) (as discussed in Bagdan, 140 FRD at 666, with
full opinion attached as Appendix Exhibit 1) (disqualifying counsel for former
officers and directors of defunct corporation because those attorneys
previously had represented corporation).
The other context in which courts
have addressed whether a client's interests survive his or her death arises in
criminal cases, in which an attorney or firm represents a criminal defendant
after having previously represented the victim -- now deceased -- on unrelated
criminal charges. See, e.g., State ex rel S.G., 175 NJ 132,
134-35, 814 A2d 612, 614 (2003) (holding that a current-client conflict of interest
existed when firm represented both the defendant and his victim in unrelated
criminal matters, even after the victim's death, during the two-week period
before the victim's matter was terminated).(6)
The issue in those cases centered on whether the former representation of the
victim in the unrelated criminal matter prevented constitutionally adequate
representation of the criminal defendant in the subsequent criminal
proceeding. That is, the issue was whether a conflict of interest created such
a division of loyalty that the attorney could not provide the adequate
representation of the current client that the constitution requires. Here, we
must determine whether a conflict of interest exists such that the attorney
violates a disciplinary rule that protects the interests of the former client.
Accordingly, the two contexts are qualitatively distinct, and the former
provides little guidance in answering the latter.
We thus turn to the former-client
conflict-of-interest rules themselves to determine whether those rules'
protections extend to former clients who are deceased. In interpreting a disciplinary
rule, this court looks to the wording of the rule, read in context. See In
re Haws, 310 Or 741, 746-48, 801 P2d 818 (1990) (using that methodology to
interpret disciplinary rule, focusing on meaning of rule's key words). DR
5-105(C) provides, in part:
"Except as permitted by DR 5-105(D), a
lawyer who has represented a client in a matter shall not subsequently
represent another client in the same or a significantly related matter when the
interests of the current and former clients are in actual or likely
conflict."
(Emphasis added.) DR 5-105(D) provides an exception when
"both the current client and the former client consent to the
representation after full disclosure."
RPC 1.9(a) provides:
"A lawyer who has formerly represented a
client in a matter shall not thereafter represent another person in the same or
a substantially related matter in which that person's interests are materially
adverse to the interests of the former client unless each affected
client gives informed consent, confirmed in writing."
(Emphasis added.)
The wording of those rules focuses
on the interests of the former client. That focus supports the Bar's
position that, because a client's interests can and often do survive a client's
death, the rules' protections extend to a former client even after his or her
death. But it is not just any interests of the former client that must
survive. In the context of the disciplinary rule, it is the former client's
interests that pertain to the matter in which the lawyer previously represented
the former client. It is those interests that must survive the former client's
death.
The rules also require that the
former client's interests "are" in actual or likely conflict with (DR
5-105(C)) or materially adverse to (RPC 1.9(a)) the current client's
interests. Accordingly, the attorney must assess whether the pertinent
interests of the deceased former client will be adverse to the interests of the
subsequent client during the subsequent representation. That is, the
proper analysis is not whether the interests of the former and current client
were adverse during the former client's lifetime, but whether the surviving
interests of the former client are adverse to the current client during the
subsequent representation.
In sum, we conclude that, pursuant
to DR 5-105(C) and RPC 1.9(a), an attorney is prohibited from engaging in a
former-client conflict of interest even when the former client is deceased, as
long as the former client's interests survive his or her death and are adverse
to the current client during the subsequent representation. Having determined
that a deceased client may be a former client for purposes of the former-client
conflict-of-interest rules, we turn to whether the Bar proved the necessary
elements under those rules.
2. Whether the loan transaction and debt
collection is the same or a substantially related matter
The accused contends that there is
no former-client conflict of interest because the loan transaction and the debt
collection is not the same or a substantially related matter. The Bar
disagrees. According to the Bar, the loan transaction and the debt collection
are the same matter because the accused "represented Ingle's interests as
borrower in entering into various obligations, including promissory notes, with
Hohn" and then "sought to enforce those same obligations, but this
time on behalf of Hohn, the lender." Alternatively, the Bar argues that
the debt collection is substantially related to the loan transaction. Because,
as explained below, we determine on this record that the loan transaction and
the debt collection are both significantly and substantially related, we need
not determine whether the matters are the "same."
We first consider whether the loan
transactions and debt collection are "significantly related" under DR
5-105(C). Matters are "significantly related" for purposes of DR
5-105(C) if either:
"(1) Representation of the present client
in the subsequent matter would, or would likely, inflict injury or damage upon
the former client in connection with any proceeding, claim, controversy,
transaction, investigation, charge, accusation, arrest or other particular
matter in which the lawyer previously represented the former client; or
"(2) Representation of the former client
provided the lawyer with confidences or secrets * * * the use of which would,
or would likely, inflict injury or damage upon the former client in the course
of the subsequent matter."
DR 5-105(C)(1), (2).
This court first defined the term
"significantly related" in In re Brandsness, 299 Or 420,
430-31, 702 P2d 1098 (1985). In Brandsness, this court explained that
"the principle embodied in the concept of 'significantly
related' matters consists of two subtests:
"a. Matter Specific.
"Representation of the present client in
the subsequent matter would, or would likely, inflict injury or damage upon the
former client in any matter in which the lawyer previously represented the
former client; or
"b. Information Specific.
"Representation of the former client
provided the lawyer with confidential information the use of which would, or
would likely, inflict injury or damage upon the former client in the subsequent
matter."
Id. (emphasis in original). This court clarified that
matter-specific conflicts are "keyed to a particular matter," while
information-specific conflicts are "based on particular
information." Id. at 431.
When DR 5-105(C) was later
promulgated, it largely codified the definition of "significantly
related" that this court had formulated in Brandsness. In re
McKee, 316 Or 114, 129, 849 P2d 509 (1993) ("[t]he new rules codified
this court's holding in In re Brandsness"); see also Kidney
Association of Oregon v. Ferguson, 315 Or 135, 140 n 7, 145 n 13, 843 P2d
442 (1992) (observing that DR 5-105 "since has been amended, but its effect
essentially is the same," and that "changes in DR 5-105 reflect an
evolution of terminology rather than substance"). Accordingly, this
court's definition of "significantly related" in Brandsness is
relevant to this court's interpretation of that term under DR 5-105(C).
The Bar contends that the matters
in this case are "significantly related" because the accused engaged
in a matter-specific conflict under DR 5-105(C)(1). That is, according to the
Bar, "[t]o the extent there was, or even could have been, a dispute * * *
as to the validity of the loans or the amounts due, the [a]ccused's pursuit of
Hohn's interests would, or would likely, inflict injury or damage upon
Ingle."(7)
In several cases decided before Brandsness,
this court consistently held that a former-client conflict of interest exists
when an attorney represents a former client in a transaction and then
subsequently represents another client in enforcing his or her rights arising
out of that same transaction. See In re Holmes, 290 Or 173, 182-84, 619
P2d 1284 (1980) (improper for attorney to represent former client in
negotiating settlement of debt, and then represent subsequent client in suing
former client to collect that same debt); In re Brownstein, 288 Or 83, 87,
602 P2d 655 (1980) (an attorney cannot represent a former client in a
transaction and then subsequently represent another client in an attempt to
enforce his or her rights arising out of that same transaction); In re
Mumford, 285 Or 559, 561-62, 591 P2d 1377 (1979) (patent conflict of
interest existed when attorneys represented husband in divorce and then, on
behalf of wife's new spouse, sought to collect against husband the payments
under the settlement that had been negotiated while the attorneys represented
him). In articulating the test for "significantly related" matters
in Brandsness, this court described those cases as "such egregious
conflicts that we could decide them without searching for the boundary between
the acceptable and unacceptable that closer cases * * * require us to
locate." 299 Or at 430. Later, after DR 5-105(C) was promulgated, this
court reaffirmed that, under the matter-specific-conflict subtest for
"significantly related" matters, an attorney who represented a former
client in a transaction may not then represent another client in enforcing his
rights arising out of that same transaction. McKee, 316 Or at
129-30 (relying on DR 5-105(C)(1), slander of title action was "significantly
related" to earlier dissolution proceeding because the accused attempted to
enforce provisions of dissolution judgment that he drafted on behalf of former
client).
Against that backdrop, we have no
trouble concluding that the accused engaged in a matter-specific conflict in
this case and, thus, the matters are "significantly related" for
purposes of DR 5-105(C)(1). Here, the accused, in the loan transactions,
drafted several promissory notes and mortgages on behalf of Ingle in obtaining
loans from Hohn. He then, in the debt collection, subsequently represented
Hohn in enforcing his rights arising out of those same documents. Such an
"egregious conflict" leaves us with no doubt that the accused's
representation of Hohn in the debt collection "would, or would
likely" inflict injury or damage upon Ingle in connection with the loan
transactions.
The accused nonetheless argues that
the matters are not "significantly related," reasoning that Ingle
could not be injured or damaged by the subsequent representation, because she
was deceased. As noted, matters are "significantly related" under DR
5-105(C)(1) when, as pertinent here, representation of the present client in
the subsequent matter "would, or would likely, inflict injury or damage
upon the former client[.]" (Emphasis added.) The wording of that
portion of the rule focuses on the former client, and not on the interests
of the former client. That focus -- at first blush -- could support the
accused's contention that, once a client is deceased, he or she could not be
injured or damaged and, thus, matters could not be significantly related under
DR 5-105(C). However, that definitional provision must be understood in the
context of the prohibition itself, which arises when, in connection with the
subsequent representation, the "interests" of the current and former
client are in actual or likely conflict. Given that context, the injury or
damage to the former client to which the definition necessarily refers is
injury or damage to the former client's interests. Indeed, we can conceive of
no other way a lawyer's representation may injure a former client than through
his or her interests. That is, conflict of interest rules are
just that -- they protect the client's interests; they do not intend to
protect clients from, for example, physical injury or assault. Accordingly, a
deceased client may be injured within the meaning of the rule if, as previously
noted, his or her surviving interests may be harmed by the subsequent
representation.
In this case, Ingle's interests in
the loan transactions were those of a debtor -- to minimize her legal debt as
much as possible as is reasonable within the bounds of the law. Those
interests survived Ingle's death and were represented by her personal
representative. See ORS 114.265 (personal representative has fiduciary
duty to preserve estate with as little sacrifice of value as is reasonable
under the circumstances). Ingle's will also expressly stated that she would fully
pay her "just" debts. On the other hand, as the accused himself
acknowledged, Hohn's goal in the debt collection was to collect "as much
as possible pursuant to the promissory notes and even some loans under which
there were no notes[.]" Thus, the accused's representation of Hohn
"would, or would likely" injure or damage Ingle's surviving interests
in the loan transactions in violation of DR 5-105(C).
We turn to whether the matters are
"substantially related" pursuant to RPC 1.9(a). Whether the analysis
under RPC 1.9(a) differs from DR 5-105(C) depends on whether the term
"substantially related" differs in meaning from "significantly
related." At the time of the accused's conduct, RPC 1.9(a) provided no
definition of "substantially related." RPC 1.9 (2005).(8)
The new rule thus did not contain the definition previously set out in DR
5-105(C).
The term was changed from
"significantly related" to "substantially related" when the
Oregon Rules of Professional Conduct were adopted on December 1, 2004,
effective January 1, 2005. Order Adopting the Oregon Rules of Professional
Conduct, Chief Justice Order No. 04-44 (Dec 1, 2004), Oregon Appellate Advance
Sheets No. 1 (Jan 3, 2005) at A-3, A-16. Although RPC 1.9 (2005) provides no
commentary to explain why the term was changed from "significantly
related" to "substantially related," the wording tracks that of
ABA Model Rule 1.9(a). See ABA Model Rule 1.9(a) (2002) (former-client
conflict of interest exists when matters are the same or "substantially
related" and the interests of the former and current client are
"materially adverse"). Before the adoption of the RPCs, Oregon's
former-client conflict-of-interest rule was distinct from both the ABA Model
Rule and the rule adopted in many states because it used the term
"significantly related" rather than "substantially
related," and it used an actual and likely conflict paradigm rather than
requiring that the interests be "materially adverse." American Bar
Association and Bureau of National Affairs, Inc., ABA/BNA Lawyers' Manual on
Professional Conduct § 51:205 (2002) ("Oregon's ethics code has a
unique provision on former-client conflicts" because it uses the term
"significantly related" and an actual/likely conflict paradigm).
However, after the RPC was adopted, Oregon's rule became nearly identical to
ABA Model Rule 1.9(a).(9)
Because RPC 1.9(a) (2005) does not
define the term "substantially related," and because it tracks the text
of the ABA Model Rule, we look to the commentary of the ABA Model Rules for guidance.
In particular, Comment [3] to ABA Model Rule 1.9(a) (2002) provides a
definition of "substantially related" for purposes of that rule:
"Matters are 'substantially related' for
purposes of this Rule if they involve the same transaction or legal dispute or
if there otherwise is a substantial risk that confidential factual information
as would normally have been obtained in the prior representation would
materially advance the client's position in the subsequent matter."
That definition is not binding on this court, but we consider
it for its persuasive value.
The "substantial relationship"
test from the ABA Model Rule can be broken down into two subtests:
(Emphasis added.) In a sense, the ABA Model Rule can be
characterized as dealing with matter-specific conflicts and
information-specific conflicts, as did DR 5-105(C). Yet, each subtest under the
ABA Model Rule appears to be broader than the subtests under DR 5-105(C).
Unlike DR 5-105(C)(1), to
constitute a matter-specific conflict under ABA Model Rule 1.9(a), a risk of
injury is not required; rather the matters must merely involve the same
transaction or legal dispute. The main concern appears to be disloyalty to the
former client. ABA/BNA Lawyers' Manual on Professional Conduct §
51:226. It is generally if not universally accepted that a "current
representation adverse to a former client is substantially related to the
earlier representation if it involves the lawyer's own work for the former
client -- especially an attack on that work." Id.; see also
Restatement of Law Governing Lawyers § 132(1) (2000) (a current matter
is substantially related to an earlier matter if "the current matter
involves the work the lawyer performed for the former client").
To constitute an
information-specific conflict under ABA Model Rule 1.9(a), unlike DR
5-105(C)(2), actual possession of client confidences is not necessary. See
discussion ___ Or at ___ n 7 (slip op at 14-15 n 7) (explaining that DR
5-105(C)(2) requires actual possession of client confidences). Rather, it is
enough if there is a substantial risk that confidential factual information as
would normally have been obtained in the prior representation would materially
advance the client's position in the subsequent matter. The ABA Model Rule
protects the former client from having to reveal the confidential information
learned by the lawyer. The focus thus is on the risk of information gained
"based on the nature of the services the lawyer provided the former client
and information that would in ordinary practice be learned by a lawyer providing
such services." Comment [3] to ABA Model Rule 1.9(a); see also Richard
E. Flamm, Lawyer Disqualification: Conflicts of Interest and Other Bases
§ 8.4, 148 (2003) (policy against requiring former client to show precisely
what confidences were used against her includes avoiding extensive inquiries
into privileged areas).
As previously noted, the Bar did
not argue that the accused came into actual possession of client confidences.
Neither did it argue that the accused's conduct created a substantial risk
that confidential factual information as would normally have been obtained in
the prior representation would materially advance Hohn's position in the
subsequent representation. We thus confine our focus on whether the matters are
"substantially related" under RPC 1.9(a) based on whether the accused
engaged in a matter-specific conflict. We conclude that they are. The debt
collection and loan transactions certainly involved the same transaction
-- the underlying loan documents that the accused drafted on behalf of Ingle.
The accused's representation of Hohn involved his own work that he had
completed on behalf of Ingle and, in that regard, the matters are substantially
related.(10)
We therefore determine that the accused engaged in a matter-specific conflict
in violation of RPC 1.9(a).
3. Whether
Ingle's surviving interests were adverse to Hohn's interests during the
subsequent representation
A conflict of interest exists under
RPC 1.9(a) when the current client's interests "are materially adverse to
the interests of the former client." A conflict of interest exists under
DR 5-105(C) when the interests of the current and former clients "are in
actual or likely conflict." An "actual conflict of interest"
exists when "the lawyer has a duty to contend for something on behalf of
one client that the lawyer has a duty to oppose on behalf of another
client." DR 5-105(A)(1). A "'likely conflict of interest' exists in
all other situations in which the objective personal, business or property
interests of the clients are adverse." DR 5-105(A)(2). "A 'likely
conflict of interest' does not include situations in which the only conflict is
of a general economic or business nature." Id. So framed, the
analysis under RPC 1.9(a) and DR 5-105(C) is not materially distinct.
The Bar contends that Ingle's
surviving interests and Hohn's interests were per se materially adverse
and patently in conflict due to their former relationship as debtor and
creditor. We agree. As previously discussed, Ingle's interests in the loan
transactions as debtor -- i.e., to minimize her legal debt as much as reasonably
possible within the bounds of the law -- survived Ingle's death and were
represented by her personal representative. ___ Or at ___ (slip op at 17-18).
On the other hand, Hohn's interests as creditor in the debt collection were to
maximize the amount that Ingle owed under the loans as much as was reasonable
within the bounds of the law and to collect as much of that amount as possible.
Those interests are "different" and "adverse." See In
re Wittemyer, 328 Or 448, 455, 980 P2d 148 (1999) (conflict of interest
existed when a lawyer represented both the lender and borrower in a loan
transaction); In re Moore, 299 Or 496, 506, 703 P2d 961 (1985)
(debtor and creditor had different interests). Thus, Ingle's surviving
interests and Hohn's interests were in likely conflict and materially adverse
during the subsequent representation.
The accused disagrees, contending
that Ingle's and Hohn's interests were not adverse because the Bar failed to
prove that Hohn actually sought to collect on any loans that were not
"just." According to the accused, the Bar's assertions that Hohn
sought to collect on undocumented loans or loans beyond the statute of
limitations are not supported by the record.
The accused conflates
"adversity" with "injury." The rules against conflicts of
interest require an attorney to assess whether the interests of the former and prospective
new client are adverse at the time the attorney seeks to undertake the
subsequent representation. Ingle's surviving interests and Hohn's interests as
debtor and creditor were adverse from the outset. Whether the subsequent
representation ultimately caused actual injury to Ingle is an inquiry relevant
to sanctions, and not to whether Ingle and Hohn's interests are adverse or in
conflict. See American Bar Association's Standards for Imposing Lawyer
Sanctions 7 (1991) (amended 1992) (ABA Standards) (defining actual and
potential injury for purposes of sanctions).
In sum, we find that the debt
collection was significantly and substantially related to the loan transactions
and Hohn's interests were in likely conflict with and materially adverse to
Ingle's surviving interests during the subsequent representation. We therefore
conclude that the accused violated both DR 5-105(C) and RPC 1.9(a) in the Ingle
matter.
B. Grohs Matter
The Bar alleged that the accused
engaged in misrepresentation in violation of DR 1-102(A)(3) and RPC 8.4(a)(3)
when the accused removed Grohs's signature page from the deed on four parcels,
attached it to the deed on three parcels, and then recorded the altered deed.
As noted, the trial panel concluded that the accused violated RPC 8.4(a)(3),
but did not address DR 1-102(A)(3). The accused seeks review of the trial
panel's decision that he violated RPC 8.4(a)(3). On de novo review, we
consider whether the accused's conduct violated either rule as alleged.
DR 1-102(A)(3) provides: "It
is professional misconduct for a lawyer to * * * [e]ngage in conduct involving
dishonesty, fraud, deceit or misrepresentation[.]" RPC 8.4(a)(3)
provides: "It is professional misconduct for a lawyer to * * * engage in
conduct involving dishonesty, fraud, deceit or misrepresentation that reflects
adversely on the lawyer's fitness to practice law[.]"
A lawyer engages in conduct
involving misrepresentation when the lawyer makes a representation, either
directly or by omission, that the lawyer knows is false and material. In re
Davenport, 334 Or 298, 308, 49 P3d 91, adh'd to as modified on recons,
335 Or 67, 57 P3d 897 (2002). "A lawyer acts knowingly by being
consciously aware of the nature or attendant circumstances of the conduct, but
not having a conscious objective to accomplish a particular result." In
re Lawrence, 332 Or 502, 513, 31 P3d 1078 (2001). A misrepresentation is
material if it "would or could significantly influence the hearer's
decision-making process." In re Eadie, 333 Or 42, 53, 36 P3d 468
(2001). The accused does not dispute that, if he knowingly attached the signed
and notarized signature page from the deed on four parcels to the deed on three
parcels and sent it for recording, that such representation was false and
material. Neither does the accused dispute that such misrepresentation would
reflect adversely on his fitness to practice law. Rather, the accused's sole
contentions are that the Bar failed to establish, by clear and convincing
evidence, that he acted (1) through direct, personal conduct, or (2) with a
knowing state of mind.
First, the accused contends that
there is "no evidence -- and certainly not clear and convincing evidence --
of direct, personal conduct." (Original capitalization omitted.) The
trial panel concluded that the accused "acquiesced [in] the removal of the
notarized signature page" from one deed and had it placed on a second
deed. According to the accused, that conclusion is contradicted by the trial
panel's "either/or" finding that "the Accused or someone in
his office" (emphasis added) removed the signature page from the deed
on four parcels and affixed it to the deed on three parcels. The accused thus
contends that the trial panel's "either/or" finding of fact cannot
support a conclusion by clear and convincing evidence that there was any
personal misconduct by the accused.
Second, the accused contends that
there is no clear and convincing evidence that the accused acted with the requisite
mens rea of "knowledge." The accused argues that "[a]ll
the evidence points to a mistake by [the accused]'s office in the
filing[.]"
The Bar disagrees and contends that
the accused acted both personally and with the requisite knowledge. The Bar relies
principally on the accused's letter in response to the Bar and his deposition
testimony, in which the accused was "clear and unequivocal" that he
personally made the substitution after consulting with Grohs. According to the
Bar, although the accused later changed his story and claimed that he had no
idea how the signature page on the deed on four parcels became attached to the
deed on three parcels, the trial panel considered the disparate versions
provided by the accused and rejected the new version.
The question of what the accused
actually knew thus hinges on whether this court believes the accused's letter
in response to the Bar and deposition testimony under oath, or his later
equivocations and retractions. This court gives weight to the trial panel's
express credibility assessments. In re Gustafson, 333 Or 468, 470, 41
P3d 1063 (2002). More specifically,
"[w]hen a panel's assessment is based on the objective
factors involving the intrinsic believability of competing inferences or
evidence -- e.g., the inherent improbability of certain testimony, the
existence of corroboration, and so on -- this court owes no deference to that
assessment, but the panel's discussion may be enlightening and have persuasive
force. When the panel's assessment is based on subjective observations
of a witness's demeanor and the manner in which the witness testifies, the
trial panel explicitly should state that its findings are demeanor-based,
because this court appropriately defers to the trial panel's superior position
to assess credibility on that basis."
In re Fitzhenry, 343 Or 86, 103 n 13, 162 P3d 260
(2007).
The trial panel in this case found
that the accused's trial testimony varied from his letter of explanation to the
Bar and from what was contained in his deposition. The trial panel also found
that Grohs was credible in all her testimony and expressly concluded that,
where her testimony differed from that of the accused, Grohs was to be
believed. The trial panel did not, however, make other express demeanor-based
findings.
In contrast to the version of
events given by the accused in his letter to the Bar and deposition testimony,
Grohs testified at the hearing that she never had a conversation with the
accused about attaching her signature from the deed on four parcels to the deed
on three parcels. The trial panel found that testimony to be credible, but
made no demeanor-based findings. Accordingly, we owe no deference to that
assessment. Fitzhenry, 343 Or at 103 n 13. However, Grohs's testimony
is corroborated by the accused's billing records and documentation, which do
not support that she had such a conversation with the accused. We thus find
the panel's credibility finding, based on those objective factors, to have
persuasive force. Id. The accused's previous claim in his letter to
the Bar and his deposition testimony that he had permission from Grohs to affix
the signature page from the deed on four parcels to the deed on three parcels
is not credible.(11)
However, that finding undermines only
the accused's original proffered reason for attaching the signature page
from the deed on four parcels to the deed on three parcels, not his concession
that he knew about the signature page switch. As noted, in his letter to the
Bar, the accused represented that he sought and received Grohs's permission to
"use the deed she signed previously and substitute the legal description
of [the deed on three parcels] in place of the legal description for [the deed
on four parcels]." That representation to the Bar establishes the
accused's knowledge of the signature page switch, whether he or someone in his
office personally switched the pages. When the accused later testified before
the trial panel that he did not know how the signature page became affixed, his
only proffered explanation for the discrepancy in his version of events was
that he had no recollection of switching the pages, but merely had speculated
that he discussed saving Grohs a trip to the notary, because he "would not
ever do anything like that without her agreement." Given that the accused
immediately admitted in his letter to the Bar that he was "consciously
aware" of the circumstances surrounding the signature page switch to the
Bar, we find that he had the requisite knowledge that the notarized signature
page from the deed on four parcels was removed and affixed to the deed on three
parcels.
Accordingly, the Bar established by
clear and convincing evidence that the accused acted with knowledge. Thus, the
trial panel correctly concluded that the accused violated RPC 8.4(a)(3). The
Bar also proved by clear and convincing evidence that the accused violated DR
1-102(A)(3).
III. SANCTION
Having found that the accused
violated the disciplinary rules charged, we must determine the appropriate
sanction. The trial panel concluded that the appropriate sanction was a
150-day suspension. On review, the accused challenges the trial panel's
sanction, and argues that, at most, a reprimand is warranted. We have reviewed
the trial panel's conclusions with regard to the sanction and, as we explain
below, we conclude that a 150-day suspension is appropriate.
The purpose of lawyer discipline is
not to penalize the accused. In re Glass, 308 Or 297, 304, 779 P2d 612
(1989). Rather, the purpose is to "protect the public and the
administration of justice from lawyers who have not discharged, will not discharge,
or are unlikely to properly discharge their professional duties to clients, the
public, the legal system, and the legal profession." ABA Standard 1.1.
In determining an appropriate
sanction for a lawyer's violations of the rules, we follow the analytical
framework that this court has set out in past cases. Under that framework, we
determine an initial presumptive sanction based on (1) the ethical duty
violated, (2) the lawyer's mental state, and (3) the actual or potential injury
caused. See, e.g., In re Jaffee, 331 Or 398, 408, 15 P3d 533
(2000) (articulating methodology). We then adjust that presumptive sanction
based on a fourth factor -- the presence of aggravating or mitigating
circumstances. Id. at 408-09. Finally, we consider whether that
adjusted sanction is consistent with Oregon case law. Id. at 409.
A. Preliminary Analysis
The accused has violated multiple
rules in this matter. The violations breached the accused's duties
to his clients and to the public. ABA Standard 4.3 (failure to avoid conflicts
of interest violates duty owed to clients); ABA Standard 5.1 (engaging in
misrepresentation violates duty owed to public to maintain personal integrity);
see also In re Knappenberger, 338 Or 341, 356, 108 P3d 1161 (2005)
("[a] lawyer's most important ethical duties are those owed to clients,
including the duty to avoid conflicts of interest"); In re Spencer,
335 Or 71, 86, 58 P3d 228 (2002) (by engaging in conduct that involved
dishonesty and misrepresentation, the accused violated his duty to the public
to maintain his personal integrity).
The ABA Standards recognize three
mental states: intentional, knowing, and negligent. A lawyer acts with
"intent" if he or she acts with "the conscious objective or
purpose to accomplish a particular result." ABA Standards at 7. A lawyer
acts with "knowledge" if he or she acts with "conscious
awareness of the nature or attendant circumstances of the conduct but without
the conscious objective or purpose to accomplish a particular result." Id.
"Negligence" is "the failure of a lawyer to heed a substantial
risk that circumstances exist or that a result will follow, which failure is a
deviation from the standard of care that a reasonable lawyer would exercise in
the situation." Id.
Here, as for the violations in the
Ingle matter, based on our de novo review of the record, we conclude
that the accused violated DR 5-105(C) and RPC 1.9(a) knowingly. The accused
represented Ingle in obtaining a series of loans from Hohn and drafted the
documents to evidence and secure those loans. It is undisputed that the
accused knew both that Hohn was Ingle's lender in those loan transactions and
that Hohn, in the subsequent representation, was seeking to enforce his rights
arising out of the very documents that the accused had drafted on behalf of
Ingle in the prior representation. Furthermore, the accused testified at the
hearing that he was aware that Hohn's interest was "in getting as much as
possible pursuant to the promissory notes and even some loans under which there
were no notes[.]" In that respect, we conclude that the accused was
consciously aware of the nature or attendant circumstances of the conduct
underlying the violations in the Ingle matter.
As to the Grohs matter, the trial
panel necessarily found that the accused acted with knowledge when it
determined that the accused violated RPC 8.4(a)(3). As we previously explained,
based on our own de novo review of the record, we agree with the trial
panel that the accused violated RPC 8.4(a)(3) knowingly, and we also conclude
that the accused violated DR 1-102(A)(3) knowingly. ___ Or at ___ (slip op at
28-29).
Under the ABA Standards, the
injuries caused by a lawyer's professional misconduct may be either actual or
potential. See In re Williams, 314 Or 530, 547, 840 P2d 1280 (1992)
("[A]n injury need not be actual, but only potential, in order to support
the imposition of a sanction."). Actual "injury" is actual harm
to a client, the public, the legal system, or the profession that is caused by
a lawyer's misconduct. ABA Standards at 7. "Potential injury" is
harm that is reasonably foreseeable at the time of the lawyer's misconduct but
that ultimately did not occur. Id.
As to the Ingle matter, there was
potential injury to the public and the profession. See In re McMenamin,
319 Or 609, 621, 879 P2d 173 (1994) (Graber, J., dissenting) (potential for
injury to public and profession exists because, "when lawyers have
conflicts of interest, they jeopardize the willingness of clients to disclose
fully their confidences and thereby jeopardize the ability of clients to obtain
the most effective legal representation possible"). There was also potential
injury to Ingle's interests, but not actual injury to them. Although the
estate expended monetary resources in defending the claim against certain
"unjust" claims (i.e., Hohn's claims to collect on loans
unsupported by notes and claims beyond the statute of limitations), the
estate would have had to do so regardless of who had represented Hohn. See In
re Campbell, 345 Or 670, 688, 202 P3d 871 (2009) (injury to former client
included potential economic harm, not actual economic harm,
because former client would have been required to employ a lawyer even if the
accused had not also represented subsequent clients).
Regarding the Grohs matter, we
conclude that, although it does not appear that the Wildes suffered any actual
injury, there was potential injury to the Wildes, because proper claim of title
to the properties could potentially be in dispute due to the altered deed. There
also is potential serious injury to the legal system, the profession, and to
the public when, as here, a lawyer engages in misrepresentation that reflects
adversely on the lawyer's fitness to practice law. In re Paulson, 346
Or 676, 716, 216 P3d 859 (2009), adh'd to as modified on recons, 347 Or
529, 225 P3d 41 (2010).
The ABA Standards provide that
suspension is the appropriate sanction for each of the accused's violations of
RPC 1.9(a) and DR 5-105(C). See ABA Standard 4.32 (suspension is
generally appropriate when a lawyer knows of a conflict of interest and does
not fully disclose to a client the possible effect of that conflict, and causes
potential injury to a client). Reprimand is generally an appropriate sanction
for each of the accused's violations of RPC 8.4(a)(3) and DR 1-102(A)(3). See
ABA Standard 5.13 (reprimand is generally appropriate when a lawyer knowingly
engages in conduct that involves misrepresentation and that adversely reflects
on the lawyer's fitness to practice law). Because suspension is the greater of
the two sanctions, suspension is the appropriate preliminary sanction here.
B. Aggravating and Mitigating Circumstances
We next consider any aggravating
and mitigating circumstances. We find three aggravating circumstances in this
case. First, the accused committed multiple offenses. ABA Standard 9.22(d).
Second, having been licensed to practice law in Oregon since 1978, the accused
has substantial experience in the practice of law. ABA Standard
9.22(i). Finally, the accused has prior disciplinary offenses. ABA Standard
9.22(a). Specifically, in 1997, the accused was suspended from the practice of
law for 90 days for violating DR 1-102(A)(3) (engaging in conduct involving
dishonesty), DR 5-104(A) (entering into a business transaction with a client
without consent after full disclosure), and ORS 9.527(4) (willful deceit or
misconduct in the legal profession). In re Hostetter, 11 DB Rptr 195
(1997). In 2001, the accused was admonished for engaging in a current-client
conflict of interest in violation of DR 5-105(E).
The accused disputes that the 2001
letter of admonition is appropriately considered as a prior disciplinary
offense. We disagree. In In re Cohen, 330 Or 489, 500-01, 8 P3d 953
(2000), this court explained that it ordinarily would not consider a letter of
admonition as a prior disciplinary offense if the admonition involved
misconduct "wholly different in nature from the misconduct at issue in the
case at bar," but would do so if it involved the "same or similar
type of misconduct as that presently at issue." The accused was
admonished in 2001 because he violated DR 5-105(E) (current-client conflict of
interest). Specifically, the State Professional Responsibility Board found
that the accused represented clients in a subdivision matter at the same time
that the accused's firm was representing another client in lease negotiations
(and then a dispute) with those same clients. That misconduct is not
"wholly different in nature from the misconduct at issue" in this
case but, rather, is similar in type and violates the same duty -- the duty
owed to his clients. See ABA Standard 4.3 (failure to avoid conflicts
of interest violates duty owed to client).
Two mitigating factors are also
present. The accused had a cooperative attitude toward the disciplinary
proceedings. ABA Standard 9.32(e). The accused also appears to have an
excellent reputation in the community. ABA Standard 9.32(g).
C. Oregon Case Law
Having made a preliminary
determination that a suspension of some term is appropriate based on the ABA
Standards and the aggravating and mitigating factors, we turn to this court's
case law to help us determine the duration of that suspension. As we have
noted in the past, case-matching in the context of disciplinary proceedings
"is an inexact science." In re Stauffer, 327 Or 44, 70, 956
P2d 967 (1998). That is especially so for cases involving multiple violations
in multiple matters, because in many such proceedings the accused declines to
contest the charges or the sanction. Paulson, 346 Or at 721. Still, we
think that this court's past cases do provide some guidance, and that they
demonstrate the appropriateness of the suspension in this case.
As this court has explained on
several occasions, a finding that a lawyer has engaged in a conflict of
interest in violation of DR 5-105, standing alone, typically justifies a 30-day
suspension. Campbell, 345 Or at 689; see also Knappenberger,
338 Or at 361 (court ordinarily suspends lawyers who violate DR 5-105(C)); In
re Hockett, 303 Or 150, 164, 734 P2d 877 (1987) (30-day suspension
appropriate for single violation of DR 5-105(C)). Here, however, the accused
not only engaged in a conflict of interest, but also engaged in
misrepresentation that reflects adversely on his fitness to practice law.
In previous lawyer disciplinary
cases involving dishonesty and misrepresentation, this court has ordered
sanctions ranging from six-month suspensions to disbarment. In re Wilson,
342 Or 243, 251, 149 P3d 1200 (2006); see, e.g., In re Benson,
317 Or 164, 854 P2d 466 (1993) (six-month suspension for assisting client in
preparation of fraudulent documents); In re Hawkins, 305 Or 319, 751 P2d
780 (1988) (disbarment for filing false affidavit and using false evidence); In
re Brown, 298 Or 285, 692 P2d 107 (1984) (two-year suspension for
preparation of false affidavit).
In re Morris, 326 Or 493,
953 P2d 387 (1998), is particularly instructive here. In that case, this court
concluded that the accused violated, inter alia,(12)
DR 1-102(A)(3) when she knowingly altered and filed with the court a final
account that had been previously signed and notarized by her client. 326 Or at
495, 501-02. This court also concluded that the accused violated DR 5-105(E)
(representing multiple current clients when such representation would result in
an actual or likely conflict) when the accused simultaneously represented the
prior and successor personal representatives of an estate. 326 Or at 495, 503-04.
After determining that the accused's violation of DR 5-105(E) was "both
obvious and serious," but also finding that the "mitigating factors
significantly outweigh[ed] the aggravating factors," this court imposed a
sanction of 120 days. 326 Or at 505-06.
Here, as in Morris, the
accused's violation of the conflict of interest rules was "obvious and
serious." Furthermore, the aggravating factors in this case militate in
favor of a sanction greater than the 120-day sanction imposed in Morris.
Accordingly, a 150-day suspension is appropriate in this case.
IV. CONCLUSION
Having found, as did the trial
panel, that the accused violated DR 5-105(C), RPC 1.9(a), and RPC 8.4(a)(3), as
well as DR 1-102(A)(3); having considered the relevant ABA Standards; and
having evaluated the applicable Oregon case law, we determine that the
appropriate sanction for the accused's violations in this matter is a 150-day
suspension.
The accused is suspended from the
practice of law for 150 days, commencing 60 days from the date of the filing of
this decision.
1. The
Oregon Rules of Professional Conduct (RPC) became effective January 1, 2005.
The Disciplinary Rules (DRs) of the Oregon Code of Professional Responsibility
apply to conduct before that date. In re Fitzhenry, 343 Or 86, 88 n 1,
162 P3d 260 (2007). Because the accused's conduct in these matters occurred
both before and after January 1, 2005, both the DRs and the RPC apply.
2. The
accused did not obtain informed consent, confirmed in writing, from either the
personal representative or Hohn before representing Hohn against the estate.
3. As
recorded, the deed on three parcels contained the signed and notarized
signature page from the deed on four parcels, but the unsigned page from the
deed on three parcels was still attached.
4. The
accused contends that the Bar improperly relies on the accused's deposition
testimony because the Bar did not enter the testimony into evidence, but,
rather, read portions of the testimony into the record at the hearing. When
the Bar read the above portion of the testimony into the record, the accused
immediately responded with, "I know I prefaced that by saying, 'I don't
remember this.' I'm sure if we looked back, there would have been [a] preface
to that to say, 'I don't have an independent recollection of much of this at
all.'" The accused thus argues that the Bar improperly relies on portions
of his deposition testimony out of context.
We disagree with the accused. The accused
never requested that any additional portion of the deposition testimony be read
into the record to confirm that he in fact did not, at the time, recall the
events he testified to in detail during his deposition. In all events, even
without relying on the deposition testimony in this case, we would reach the same
conclusion based solely on the accused's letter to the Bar.
5. The
Bar pleaded violations of both DR 1-102(A)(3) and RPC 8.4(a)(3) in its second
amended complaint and presented facts establishing that the accused's conduct
occurred both before and after January 1, 2005. Accordingly, it appears that
the trial panel's lack of a finding regarding DR 1-102(A)(3) was merely
inadvertent.
6. See
also Mickens v. Taylor, 535 US 162, 176-78, 122 S Ct 1237, 152 L Ed 2d 291 (2002)
(Kennedy, J., concurring) (agreeing with majority's denial of ineffective
assistance of counsel claim based on assertion of conflict-of-interest when
petitioner's counsel previously represented the deceased victim; noting that,
although petitioner's counsel's belief that his duty to the deceased victim
ended upon the victim's death "may have been mistaken," petitioner's
counsel's prior representation of the victim did not influence the choices he
made during the course of the trial).
7. The
Bar does not contend that the accused engaged in an information-specific
conflict under DR 5-105(C)(2). That is, the Bar does not appear to contend on
appeal, nor did it contend before the trial panel, that the accused's representation
of Ingle provided the accused "with confidences or secrets * * * the use
of which would, or would likely, inflict injury or damage" upon Ingle in
the course of the subsequent matter under DR 5-105(C)(2).
In any event, we note that DR 5-105(C)(2)
requires that an attorney have come into actual possession of client
confidences. See id. ("Representation of the former client provided
the lawyer with confidences or secrets * * *." (Emphasis added.)).
There is nothing in the record in this case that suggests that the accused
obtained actual possession of any confidential information in representing
Ingle in the loan transactions that would, or would likely, inflict injury or
damage upon Ingle in the course of representing Hohn in the debt collection.
8. The
rule was amended effective December 1, 2006, to add the following definition of
"substantially related":
"For purposes of this rule, matters are
'substantially related' if (1) the lawyer's representation of the current
client will injure or damage the former client
in connection with the same transaction or legal dispute in which the lawyer
previously represented the former client; or (2) there is a substantial risk
that confidential information as would normally have been obtained in the prior
representation of the former client would materially advance the current
client's position in the subsequent matter."
RPC 1.9(d); Order Amending Oregon Rules of Professional
Conduct, Chief Justice Order No. 06-059 (Nov 16, 2006), Oregon Appellate
Advance Sheets No. 26 (Dec 18, 2006) at A-19. Because the accused's conduct
preceded the effective date of the amendment, that definition does not apply in
this case.
9. The
only difference between RPC 1.9(a) and ABA Model Rule 1.9(a) is that RPC 1.9(a)
allows an exception if the attorney obtains informed consent, confirmed in
writing, from each affected client, while ABA Model Rule 1.9(a) requires
informed consent, confirmed in writing, from only the former client.
10. The
accused disagrees and contends that, to establish a matter-specific conflict
pursuant to RPC 1.9(a), the Bar is required to prove actual injury --
that is, the Bar is required to prove that the estate paid more than the fair
value of Hohn's claims as a result of the accused's representation of Hohn. The
accused's premise and conclusion are incorrect. The accused relies on language
in RPC 1.9(d)(1) (matters are "substantially related" if the lawyer's
representation of the current client "will injure or damage the former
client"), a subsection of the rule that, as noted, ___ Or ___ n 8 (slip op
at 18 n 8) was not adopted until after the accused engaged in the conduct at
issue. We therefore decline to address the accused's argument in that respect.
11. The
accused's reason for gaining Grohs's permission also does not hold up
factually. The accused claimed in his letter to the Bar and deposition
testimony that Grohs was under time pressure to get her loan closed. However,
Grohs's loan had already closed several days before the signature pages were
switched.
Furthermore, whether the accused had Grohs's
permission to alter and record the deed is irrelevant. The misrepresentation
occurred in this case when, by recording the document, the accused knowingly
made a false representation that Grohs signed the deed on three parcels when,
in fact, she had signed and notarized a separate and distinct legal document --
the deed on four parcels.
12. This
court also found that the accused violated DR 7-102(A)(5) (in lawyer's
representation of client, knowingly making a false statement of law or fact)
and DR 1-102(A)(4) (conduct prejudicial to the administration of justice). 326
Or at 495. | 69815050074b690c0f719043ce961e6cc90cf6e15be665580f167840d39ce05a | 2010-07-29T00:00:00Z |
297f80bb-2bb2-4218-b7d9-0a18805ea8f4 | State v. Daniels | null | S057832 | oregon | Oregon Supreme Court | FILED: July 9, 2010
IN THE SUPREME COURT OF THE STATE OF OREGON
STATE OF OREGON,
Respondent
on Review,
v.
DEVIN JACOB DANIELS,
Petitioner
on Review.
(CC
200621759; CA A136901; SC S057832)
En Banc
On review from the
Court of Appeals.*
Argued and submitted
May 19, 2010, at Ashland High School, Ashland, Oregon.
Bronson D. James,
Chief Deputy Public Defender, Office of Public Defense Services, Salem, argued
the cause for petitioner on review. With him on the brief was Peter Gartlan,
Chief Defender.
Gregory A. Rios,
Assistant Attorney General, Salem, argued the cause for respondent on review.
With him on the brief were John R. Kroger, Attorney General, and Jerome Lidz, Solicitor
General.
WALTERS, J.
The decision of the
Court of Appeals is reversed. The judgment of the circuit court is reversed,
and the case is remanded to the circuit court for further proceedings.
*Appeal from Lane
County Circuit Court, Pierre L. Van Rysselberghe, Senior Judge. 230 Or App 430,
215 P3d 127 (2009).
WALTERS, J.
The issue in this criminal case is
whether the state adduced evidence from which a jury could find that defendant
was in actual or constructive possession of a small quantity of methamphetamine
located in defendant's girlfriend's bag. The Court of Appeals affirmed defendant's
conviction without issuing a written opinion. State v. Daniels, 230 Or
App 430, 215 P3d 127 (2009). We allowed review and now reverse.
At trial, the following evidence,
viewed in the light most favorable to the state, see State v. Casey, 346
Or 54, 56, 203 P3d 202 (2009) (stating standard), was presented. On September
21, 2006, police obtained a warrant to search the house that defendant shared
with a roommate. Defendant's girlfriend, Perdune, did not live there. The
week before the police obtained the warrant, they had noticed a high volume of
visitors to defendant's house. One officer had observed four vehicles and five
pedestrians within a 20-minute period, suggesting to him that someone at the
house was selling illegal drugs. Using a confidential informant, police made a
controlled purchase of narcotics.
On September 21, the police knocked on
the front door of defendant's house and, when they received no response, made a
forced entry. In a safe in defendant's roommate's bedroom, police found a small
pistol, a list of transactions, a larger plastic baggie(1)
containing smaller plastic baggies, and a plastic container holding a substance
commonly used to dilute methamphetamine. In defendant's bedroom, police found
a set of digital scales, small plastic baggies, a loaded magazine of .223
caliber rounds for an assault rifle (but no corresponding rifle), and a pink bag.(2)
Inside the pink bag was a small baggie identical to the small plastic baggies found
in the bedrooms of both defendant and his roommate. The baggie in the pink bag
contained a small quantity of methamphetamine sufficient for personal use.
Defendant was present during the
search, as was Perdune.(3)
Defendant's roommate was not. On questioning, defendant confessed to having
sold methamphetamine from the residence "about a month ago" and to
using methamphetamine regularly, smoking it three to four times per week. Perdune
acknowledged ownership of the pink bag.
The
state charged defendant with one count of possession of methamphetamine, ORS
475.894,(4)
and one count of distribution of methamphetamine within 1,000 feet of a school,
ORS 475.892. At trial, defendant twice moved for a judgment of acquittal. In
one motion, defendant contended that the state had not proved that defendant's
distribution occurred in proximity to a school. The court granted that motion,
reducing the distribution charge to the lesser-included charge of delivery of
methamphetamine under ORS 475.890. In the other motion, defendant contended
that the state had not adduced sufficient evidence to permit a conviction for
possession. The trial court denied that motion, and the jury returned a
verdict of guilty on both charges, viz., the possession charge and the
delivery charge. Defendant appealed the possession conviction, asserting that
the trial court had erred in denying his motion for a judgment of acquittal.(5)
As noted, the Court of Appeals affirmed.
As a preliminary matter, it is
important to clarify that defendant's conviction for delivery of
methamphetamine did not reflect a jury finding that defendant had delivered
methamphetamine to Perdune on or about September 21, 2006. The delivery that
the jury was instructed to consider, and that formed the basis for its
conviction, occurred 30 days earlier.
In the indictment, the state alleged two
separate counts -- first that, on or about September 21, 2006, defendant
possessed methamphetamine; and second, that, on or between August 1 and
September 21, 2006, defendant delivered methamphetamine. During trial, the
judge asked the state's attorney to clarify the facts on which they based the delivery
charge. The court explained that the jury should be told whether that charge
was based on the delivery that defendant told the officer he had made a month
before the search, a delivery that may have occurred when the informant bought
methamphetamine, or a delivery that may have occurred on the date of the
search.(6)
The state apparently answered that the delivery charge was based on defendant's
statement to the officer because the court instructed the jury accordingly:
"But that * * * the incident alleged in [the delivery]
charge is not the incident when the search warrant was served, or it's not the
incident, I think Counsel made this clear when the informant went into the
house under the officer's supervision with the money, and so forth.
"The incident which is that * * * alleges
the basis of this charge is the one based on the officer's testimony about the
Defendant telling him when [he] last sold methamphetamine. That's the incident
that you're dealing with on that charge, and the issue is did the State prove
that beyond a reasonable doubt within the rules of the laws, and [the]
instructions that I'm giving you."
(Ellipses in transcript.)
The court also instructed the jury
that the possession charge depended solely on whether defendant possessed
methamphetamine on the date that the search warrant was served -- September 21,
2006:
"First charge alleges that the Defendant on
or about September 21, 2006 in Lane County, Oregon did unlawfully and knowingly
possess a substance containing the Schedule II controlled substance,
methamphetamine.
"And the incident that's alleged to be the
basis of that charge, is the incident time when the search warrant is served,
and that's your question. Was the Defendant at that time, and that was September
21, 2006 is alleged [to have been] when the offense [occurred], unlawfully possessing
methamphetamine[?]"
Thus, in light of the trial court's instructions, the issue
before this court is whether there was evidence from which the jury could have
found that defendant possessed, on September 21, 2006,(7)
the methamphetamine that the police found in Perdune's bag when they conducted
their search.
In ruling on the sufficiency of the
evidence of possession of methamphetamine, the question is whether there was
sufficient evidence in the record from which a reasonable trier of fact could
have found the essential elements of the crime beyond a reasonable doubt. State v. Rader, 348 Or 81, 91, 228 P3d 552 (2010).
"In making that determination, a court must resolve all conflicts of evidence
in favor of the state and give the state the benefit of all reasonable
inferences." Id.
The state advances two alternative
arguments for the conclusion that it presented sufficient evidence to support the
jury's verdict of guilty. The state first argues that defendant actually
possessed the methamphetamine found in Perdune's bag. A person has actual
possession of property when the person has physical control over it. See
ORS 161.015(9) ("'Possess' means to have physical possession or otherwise
to exercise dominion or control over property."); State v. Fries,
344 Or 541, 546, 185 P3d 453 (2008) ("As a general rule, 'to have physical
possession' of property means to have bodily or physical control of
it.").
The state contends that, although
defendant was not in physical control of the methamphetamine when the police
discovered it on September 21, there was evidence that defendant had had that methamphetamine
in his physical control "just before" the police discovered it. The state
points to defendant's admission that he had sold methamphetamine previously, the
paraphernalia that the police discovered indicating that a high volume
methamphetamine sales operation was ongoing, Perdune's status as defendant's
girlfriend, the fact that the methamphetamine was discovered in her bag, and
the fact that the methamphetamine was inside a small plastic baggie that was identical
to the small plastic baggies found elsewhere in the house. The state argues
that the jury could have inferred from that evidence that defendant was the
source of the methamphetamine in Perdune's bag and that he therefore had had the
methamphetamine in his physical possession on the day of the search before
either supplying it to Perdune for her use or placing it in her bag to avoid
its discovery by the police.
Although those scenarios are possible,
they rely on speculation rather than reasonable inferences. The evidence
disclosed that defendant had supplied methamphetamine to others about a month before
and that Perdune was in possession of methamphetamine, but not other facts from
which a reasonable jury could infer that defendant was the source of that
methamphetamine. Defendant had no methamphetamine in his own possession and
there was no methamphetamine anywhere else in the house.
Even if we were to assume that there
was evidence from which a jury could find that defendant supplied Perdune with the
methamphetamine or placed it in her bag, there was not sufficient evidence that
defendant did so -- and therefore was in possession of the drugs -- on
September 21, 2006. To establish actual, as opposed to constructive,
possession, the state had to prove that defendant had physical control of the
methamphetamine on September 21, i.e., that he possessed the
methamphetamine on that day. The state argues that the amount of
methamphetamine in the bag was small and that the jury could infer from that
fact that Perdune had not had it in her possession for long. If defendant had transferred
the methamphetamine to Perdune before September 21, the state contends, she already
would have consumed it. What the state overlooks, however, is that the
evidence did not disclose the extent or frequency of Perdune's use. The fact
that the methamphetamine was in Perdune's bag on September 21 was insufficient to
permit a jury to find, beyond a reasonable doubt, that defendant also had that
methamphetamine in his physical possession on that date.
In the alternative, the state contends
that defendant had constructive possession of the methamphetamine in Perdune's
bag. The concept of constructive possession broadens the scope of the crime of
possession beyond physical control. State v. Casey, 346 Or 54, 60, 203 P3d 202 (2009). In accordance with that concept, under ORS 161.015(9), "possess" means not
only physical possession, but "otherwise exercis[ing] dominion or control
over property."
The state contends that the jury
could have found that defendant exercised dominion or control of the
methamphetamine on September 21, 2006, because he shared control of it with
Perdune. The state relies on the same circumstances outlined above: defendant
was a drug dealer and user; defendant and Perdune were in a romantic
relationship; and Perdune's bag was located in defendant's bedroom.
Accordingly, the state contends that "it is likely that the drugs were available
for defendant's use, and that he, therefore, constructively possessed
them." (Emphasis added.)
We reject the state's argument for
two reasons. First, proximity to property owned by a social guest does not
establish that the host exercises dominion or control over that property.
Second, the facts did not permit a reasonable inference that Perdune was more
than defendant's social guest.
In Casey, the court considered
four factual circumstances on which the state based an argument of constructive
possession of a gun owned by a social guest, three of which are relevant here.
First, the court considered the fact that the guest brought a gun, concealed on
his person, into the defendant's residence. The court held that no reasonable
trier of fact could find that the defendant exercised dominion or control over
the gun without some evidence that the defendant knew that the guest was
carrying a gun. 346 Or at 60-61. Second, as the defendant and his guest were
leaving the residence, the guest placed the gun on a counter in the defendant's
residence. The fact that the guest did so with defendant's knowledge was also
insufficient to establish constructive possession. The court stated,
"As a general matter, guests retain dominion and
control over their own property when they visit another person's home. See
Minnesota v. Olson, 495 US 91, 99-100, 110 S Ct 1684, 109 L Ed 2d 85
(1990) ('[H]osts will more likely than not respect the privacy interests of
their guests, who are entitled to a legitimate expectation of privacy despite
the fact that they have no legal interest in the premises.'). A guest who
hangs his or her hat on the host's hat rack for the duration of a visit does
not, by that act alone, give the host dominion or control over the guest's
hat. Something more is required to permit an inference that the guest intended
to cede or share control of the guest's property with the host."
Id. at 61. Third, the court concluded that when the
defendant in Casey reentered the residence and was again in proximity to
the gun for a short period of time, his proximity to the gun, without more, was
not sufficient to establish constructive possession. Id. at 62-63.
Like Casey, the facts in this
case do not create an inference of constructive possession sufficient for a
reasonable jury to conclude beyond a reasonable doubt that defendant had
constructive possession of the methamphetamine. The evidence neither established
nor permitted a reasonable inference that defendant knew that the pink bag was
in his bedroom or that it contained methamphetamine. There was no evidence that
defendant had looked in the bag, that the bag was transparent, or that the
methamphetamine was otherwise discernable. The state contends that a jury
could infer defendant's awareness of the methamphetamine from the likelihood
that he had sold it to Perdune. But, as we have previously explained, the record
does not contain facts that would justify that inferential leap. Without some
evidence that defendant knew that the methamphetamine was in Perdune's bag, the
evidence, like that in Casey, is insufficient to permit a reasonable
jury to find that defendant constructively possessed it.
Second, as Casey informs us, guests
retain dominion and control over their own property when they visit the home of
another. The evidence did not permit a reasonable jury to find that Perdune
was any more than a social guest at defendant's residence. The evidence did
not disclose anything about the relationship between defendant and Perdune
other than that it was romantic. There was no evidence, for example, about
whether defendant and Perdune had formed a partnership in their personal
property, or even how long they had been acquainted. There was no evidence
about whether Perdune had permitted defendant to exercise dominion or control
over her personal property, or even that he had opened her bag or purse. A romantic
relationship and bedroom access does not give rise to an inference of a partnership
relationship and purse access.
Viewing the evidence in the light
most favorable to the state, we conclude that a rational juror could not have
found beyond a reasonable doubt that defendant possessed, on September 21,
2006, the methamphetamine that the police discovered that day. We therefore
conclude that the trial court erred in denying defendant's motion for a
judgment of acquittal on that charge.
The decision of the Court of Appeals
is reversed. The judgment of the circuit court is reversed, and the case is
remanded to the circuit court for further proceedings.
1. At
trial, the witness referred to this larger plastic item and the smaller plastic
items within it as "baggies." To be consistent with that testimony,
we also use the term "baggies."
2. At
trial, some of the participants referred to the container as a "pink
bag," "purse," and "backpack," but the only witness,
the police officer, used the term "bag" or "pink bag." The
container was not introduced into evidence. We also will use the words
"bag" or "pink bag."
3. Viewing
the record in the light most favorable to the state, there was some evidence
that Perdune was present when the search warrant was executed. The police officer
who conducted the search testified that "she claimed the bag as being
hers." In addition, the officer was not certain whether he interviewed
defendant first or last. Because defendant's roommate was not present during
the search, it appears that the officer interviewed someone in addition to
defendant and that that person was present when the search was conducted. A
trier of fact reasonably could infer that Perdune was present and acknowledged
ownership of the bag at the time of the search.
4. ORS
475.894(1) provides:
"It is unlawful for any person knowingly or
intentionally to possess methamphetamine unless the substance was obtained
directly from, or pursuant to, a valid prescription or order of a practitioner
while acting in the course of professional practice, or except as otherwise
authorized by ORS 475.005 to 475.285 and 475.840 to 475.980."
5. Defendant
also sought appellate review of the issue of whether a unanimous jury verdict
was constitutionally required. We decline to consider that issue on review. See
ORAP 9.20(2) (court may limit questions on review).
6. In
a conference on jury instructions, the trial court told the attorneys that he
needed to clarify the charge for the jury because "my concern is * * * so
that we've got three possible bas[i]s for a charge, three possible dates, I
mean they could say well, it was when the informant went in the house, or they
could say, you know, they could look at [the] date the search warrant was
served, or they could look at the date 30 days before when the Defendant
alleges that he sold the substance, so I want to make sure they know the charge
that's before them." (Ellipsis in transcript.)
7. As
noted, the indictment alleged that defendant possessed the methamphetamine
"on or about" September 21, 2006, but the court instructed the jury
that it was required to find that defendant's possession occurred on that
specific date. The state did not object to the instruction, nor does it argue
in this court that there was evidence that defendant possessed the
methamphetamine on a date "on or about" September 21, 2006, other
than on that specific date -- September 21, 2006. As we understand the state's
argument, it does not dispute that, for the purposes of resolving defendant's
motion for judgment of acquittal, the question is whether there was evidence
from which a reasonable trier of fact could have found that, on September 21,
defendant actually or constructively possessed the methamphetamine found in the
pink bag. We limit our discussion to that issue. | 08bb45c581e579849b51c3263c2629ba842d2b9c68a8821b3c63356dbaee5dca | 2010-07-09T00:00:00Z |
af99ca11-aee8-4d0d-a701-194070dfce3f | Caruthers v. Kroger (Ballot Title Certified) | null | S058168 | oregon | Oregon Supreme Court | MISCELLANEOUS SUPREME COURT DISPOSITIONS
BALLOT TITLE CERTIFIED
April 16, 2010
Caruthers et al v. Kroger (S058168). Petitioner's request for oral argument is denied. Petitioner's argument that the Attorney General's certified ballot title for Initiative Petition No. 64 (2010) does not comply substantially with ORS 250.035(2) to (6) is not well taken. The court certifies to the Secretary of State the Attorney General's certified ballot title for the proposed ballot measure. | 91747b5f011d03448f35ba059de31599d7d194638a8418e9724c532183b75693 | 2010-04-16T00:00:00Z |
51fc0626-0f9c-423b-bb8e-327af455f5ca | State v. Hamilton | null | S057583 | oregon | Oregon Supreme Court | FILED: June 10, 2010
IN THE SUPREME COURT OF THE STATE OF OREGON
STATE OF OREGON,
Respondent
on Review,
v.
ALBERT LEWIS HAMILTON,
Petitioner
on Review.
(CC001239970;
CA A135407; SC S057583)
On review from the
Court of Appeals.*
Argued and submitted
March 4, 2010.
Robin A. Jones, Senior
Deputy Public Defender, Office of Public Defense Services, Salem, argued the
cause for petitioner on review. With her on the brief was Peter Gartlan, Chief
Defender.
Janet A. Klapstein,
Assistant Attorney General, Salem, argued the cause for respondent on review.
With her on the brief were John R. Kroger, Attorney General, and Jerome Lidz,
Solicitor General.
Before De Muniz, Chief
Justice, and Gillette, Durham, Balmer, Kistler, and Walters, Justices.**
DE MUNIZ, C. J.
The decision of the
Court of Appeals and the judgment of the circuit court are affirmed.
*Appeal from Multnomah County Circuit Court, Jerry B. Hodson,
Judge. 229 Or App 94, 209
P3d 851 (2009).
**Linder, J., did not participate in the consideration or decision of this case.
DE MUNIZ, C. J.
Defendant petitions for review of a
Court of Appeals decision affirming his convictions and sentences for, among other
crimes, multiple counts of robbery in the first and second degrees. The Court of Appeals affirmed, citing its decision in State v. Williams, 229 Or App 79, 209 P3d 842, rev den 347 Or 44 (2009) in
which it concluded that robbery is a crime against a person and that those
against whom a defendant uses physical force or whom a defendant threatens in
the course of a robbery are "victims" of that robbery, justifying
multiple convictions and sentences. State v. Hamilton, 229 Or
App 94, 209 P3d 851 (2009). We allowed
defendant's petition for review and, for the reasons set out
below, we affirm the Court of Appeals decision.
We take the facts that we consider
relevant from a previous Court of Appeals opinion describing the factual
context of the underlying charges against defendant:
"On the night of December 22, 2000, Terry
Weaver, the owner of the Spare Room Lounge in northeast Portland, was tending
bar. The Spare Room is divided into two separate areas known as the 'front
bar' and the 'back bar.' [Approximately 200 customers were in the back bar.]
Weaver was behind the front bar along with two employees, Anna Higgins and
Patricia Alcorn. Alcorn was standing near the entrance to the kitchen. Two
customers, Lori Owens and Joyce Hansen, were sitting on bar stools at the front
bar, and Ernest Brumitt and William Lambert, also customers, were in the back
bar.
"At approximately 10:45 p.m., [defendant
and another man wearing masks] walked through the front door into the front
bar. The men fired two shots into the ceiling of the lounge and ordered
everyone to get down. As that occurred, Alcorn slipped into the kitchen to
call 9-1-1. One of the men then ran towards the bar, pointed a gun at
Higgins's chest, and demanded money. That same man then approached Weaver,
pointed the gun at his head, and again demanded money. Weaver complied with
the demand and began handing over money, first from the lounge's cash register
and then from the lottery till. Owens and Hansen got down on the floor * * *.
Alcorn * * * was put on hold by a 9-1-1 operator and watched through a small
cook's window in the kitchen as one of the perpetrators ran past the bar. She
then hid behind a walk-in refrigerator for protection.
"Lambert and Brumitt, the patrons who were
in the back bar, heard the gunshots and went to the front bar to see what was
happening. As they watched the first man point the gun at Weaver, they tried
to approach. However, the second man saw them and fired two more shots into
the ceiling. Lambert and Brumitt * * * got down on the floor. The man who
took the money then ran around the bar, fired several shots into the ceiling,
and, after meeting up with his cohort, ran out the door. Shortly thereafter,
Portland police arrived on the scene and, after an extended pursuit during
which one of the assailants shot at two of the officers, defendant[ and a
codefendant] were apprehended."
State v. Davis/Hamilton, 194 Or App 382, 385-86,
95 P3d 230 (2004), adh'd to as modified on recons, 197 Or App 1, 104 P3d
602 (2004), rev den, 339 Or 230 (2005).
Among other crimes, defendant was
charged with two counts of attempted aggravated murder and two counts of
attempted first-degree assault for firing at the officers, and seven counts
each of first-degree robbery with a firearm and second-degree robbery with a
firearm for his conduct involving the owner, employees, and certain customers
at the bar. At trial, after the state presented its case, defendant moved for judgment
of acquittal on each of the robbery charges relating to the bar customers and
Alcorn, asserting that those persons were merely witnesses. The trial court
denied the motion, reasoning that the gravamen of the offense of robbery was
the threat associated with the crime, and that all seven people named in the
counts had felt threatened. The jury subsequently convicted defendant of all
14 robbery counts.
Defendant appealed, asserting that
the trial court had erred when it denied his motion for judgment of acquittal,
and that his first-degree robbery convictions for crimes against the
"witnesses" in the bar should merge with his robbery convictions for
crimes against Weaver and Higgins. The Court of Appeals rejected defendant's
arguments regarding the motion for judgment of acquittal, concluding that the
state had presented evidence sufficient to permit the jury to decide whether
defendant was guilty of the multiple robbery charges. That court also declined
to address defendant's argument that various of the robbery charges should
merge, reasoning that defendant should have raised that argument in a
post-verdict motion. Davis/Hamilton, 194 Or App at 392. Defendant
petitioned for reconsideration, and the Court of Appeals held that a Sixth
Amendment Blakely v. Washington, 542 US 296, 124 S Ct 2531, 159 L Ed 2d
403 (2004) error had occurred at sentencing and remanded the case to the trial
court for resentencing. State v. Davis/Hamilton, 197 Or App 1, 104 P3d 602
(2004), rev den, 339 Or 230 (2005).
On remand to the trial court, and
before sentencing, defendant again sought merger with regard to his robbery
convictions; the trial court denied that motion. Defendant appealed and, as
noted, the Court of Appeals affirmed, citing its decision in Williams.(1)
In Williams, the Court of Appeals had concluded that the focus of the
robbery statutes is the threat that the defendant made against a person and,
therefore, all those persons that a defendant threatens in the course of a
robbery are victims of the crime. 229 Or App at 84-85. Based on its reasoning
in Williams, the Court of Appeals concluded here that robbery crimes
committed against more than one victim were not subject to merger. Hamilton,
229 Or App at 95.
On review, defendant argues that the
legislature intended the robbery statutes, set out below, to provide increasing
degrees of seriousness for proving a single substantive offense, which
defendant argues is "the use or threatened * * * use of force in the
course of committing a theft or attempted theft." (Emphasis by
defendant.) Defendant contends that, because the robbery statutes do not use
the word "victim," and because theft or attempted theft is a
necessary element of the crime of robbery, the definition of "victim"
must come from the theft statute, ORS 164.015,(2)
which defines the victim of theft as the owner of the property, and ORS
164.005(4),(3)
which defines "owner." Defendant argues that, by incorporating theft
as the "root element" of the crime of robbery, the legislature made
clear that the "victim" of the crime is the person from whom property
is taken or demanded, and not bystanders, observers, or other persons who might
suffer collateral harm. Therefore, defendant asserts, the guilty verdicts for
robbery against the bar customers (counts 5 through 8 on verdict form) and
Alcorn (count 9 on verdict form) should merge into the convictions for robbery committed
against Weaver (count 3 on verdict form) and Higgins (count 4 on verdict form).(4)
We turn to the question whether merger applies in this case.(5)
The state maintains that the seven
guilty verdicts are separately punishable and should result in separate
judgments of conviction under ORS 161.067(2). That statute provides, in part:
"When the same conduct or criminal episode,
though violating only one statutory provision involves two or more victims,
there are as many separately punishable offenses as there are victims."
In analyzing whether a crime involves
"two or more victims" within the meaning of ORS 161.067(2), this
court determines who qualifies as a "victim" by interpreting the
substantive statute defining the relevant crime. See State v. Glaspey,
337 Or 558, 561-63, 100 P3d 730 (2004) ("We conclude that ORS 161.067(2)
uses the term 'victims' to describe the category of persons who are victims
within the meaning of the specific substantive statute defining the relevant
offense."). To do so, we examine the text of the pertinent statute in
context, and then, to the extent we find it helpful, we consider legislative
history proffered by the parties. See State v. Gaines, 346 Or 160,
171-72, 206 P3d 1042 (2009) (after considering text and context, court
considers any pertinent legislative history, giving it appropriate weight).
Like many criminal statutes, the
robbery statutes reflect an escalating order of seriousness, beginning with
robbery in the third degree. ORS 164.395 provides, in part:
"(1) A person commits the crime of robbery
in the third degree if in the course of committing or attempting to commit
theft * * * the person uses or threatens the immediate use of physical force
upon another person with the intent of:
"(a) Preventing or overcoming resistance to
the taking of the property or to retention thereof immediately after the
taking; or
"(b) Compelling the owner of such property or
another person to deliver the property or to engage in other conduct which
might aid in the commission of the theft[.]"
The second-degree robbery statute, ORS 164.405, provides, in
part:
"(1) A person commits the crime of robbery
in the second degree if the person violates ORS 164.395 and the person:
"(a) Represents by word or conduct that the
person is armed with what purports to be a dangerous or deadly weapon; or
"(b) Is aided by another person actually
present."
Finally, the first-degree robbery statute, ORS 164.415,
provides, in part:
"(1) A person commits the crime of robbery
in the first degree if the person violates ORS 164.395 and the person:
"(a) Is armed with a deadly weapon;
"(b) Uses or attempts to use a dangerous
weapon; or
"(c) Causes or attempts to cause serious
physical injury to any person."
As defendant notes, the term
"victim" is not used in any of the robbery statutes. However, the
statutes generally only describe the person against whom force must be used as
"any person" or "another person." For example, under ORS
164.395, a person is guilty of robbery in the third degree if the person
commits or attempts to commit theft and the person "uses or threatens the
immediate use of physical force upon another person." (Emphasis
added.) Likewise, under ORS 164.415(1)(c), a person is guilty of robbery in
the first degree if the person violates ORS 164.395 and the person "[c]auses
or attempts to cause serious physical injury to any person."
(Emphasis added.) The text of ORS 164.395(1)(b) -- which refers to
"[c]ompelling the owner of such property or another person"
(emphasis added) -- accentuates the importance of the generic words "any
person" or "another person"; it demonstrates that the
legislature deliberately chose not to limit the reach of the robbery statutes
to the use of force against the owner.
Moreover, the robbery statutes
demonstrate that the theft need not be successful. It is the additional factor
of actual or threatened violence that transforms the conduct from theft, which
requires only the intent to deprive, into a substantively different crime,
robbery. This court has noted that
"[r]obbery is the taking of property using threats of
violence or otherwise creating a sense of fear in the victim, thus forcing the
victim to hand over property. It is the concept of fear or threat of
violence that separates robbery from mere theft. * * * The use or threat of
violence is what causes the victim to part with property, and that coercive
effect is what each of the robbery statutes addresses."
State v. White, 346 Or 275, 290, 211 P3d 248 (2009)
(emphasis added). It follows that a "victim" of robbery includes a
person against whom a defendant uses or threatens violence in the course of
committing or attempting to commit theft, which can, but does not have to, be
the owner or possessor of the property.
An examination of the legislative
history pertinent to the robbery statutes confirms the foregoing conclusion.
The robbery statutes are a product of the comprehensive revision of the state
criminal code in 1971. The text of ORS 164.395 "contains the basic
statement of the crime," with the texts of ORS 164.405 and ORS 164.415
"adding one or more of certain aggravating factors to the crime."
Commentary to Criminal Law Revision Commission Proposed Oregon Criminal Code,
Final Draft and Report §§ 150, 154 (July 1970). The Commentary states that the
intent of the robbery statutes is not only to retain the underlying principle
in past statutes of prohibiting the forcible taking of property from another,
but also to adopt the view that "repression of violence is the principal
reason for being guilty of robbery." Id. at 155. The statutes
also made it "immaterial whether property is or is not obtained," and
removed the requirement that robbery "[could] only be consummated through
an assault plus a taking of property from the person assaulted." Id.
at 156. "The language 'use or threatens the immediate use of physical
force upon another person' encompasses the type of case in which the force or
threat is directed at someone other than the owner of the property." Id.
The legislative subcommittee that reviewed the proposed robbery statutes noted
that "the use or threat of force would not need to be directed at the
owner of the property; it could be directed toward a member of the owner's
family or one of his employees and still fall within the purview of the robbery
statute." Minutes, Oregon Criminal Law Commission, Subcommittee No 1, June
22, 1968, 5. The subcommittee also noted that the purpose of the revision was
to shift the focus of attention from the taking of property to the risk of
injury and violence to the victim. Id.
That commentary
confirms the wording of the statutes and this court's case law: the
legislature intended that a "victim" of robbery includes a
person against whom a defendant uses or threatens violence in the course of
committing or attempting to commit theft. Here, in the course of committing
theft of the bar's property, defendant directly threatened seven people with
force to prevent their resistance to the taking of that property. Defendant
and his codefendant fired multiple shots into the ceiling of the lounge,
ordered the bar customers to get down onto the floor, and aimed their weapons
at Weaver and Higgins. Each of the seven people subjected to threats of
violence in the course of the robbery was a victim for purposes of the robbery
statutes. Thus, the trial court properly
denied defendant's motion to merge his robbery convictions under ORS
161.067(2), and the Court of Appeals correctly affirmed that ruling.
The decision of the Court of Appeals and
the judgment of the circuit court are affirmed.
1. Defendant
also filed a pro se supplemental brief challenging the consecutive
sentences that were imposed without jury findings. The Court of Appeals
rejected that argument under Oregon v. Ice, 555 US ___, 129 S Ct 711, 172
L Ed 2d 517 (2009), and defendant did not seek review of that decision in this
court.
2. ORS
164.015 provides, in part:
"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[.]"
3. ORS
164.005(4) defines "owner of property taken, obtained or withheld" or
"owner" as "any person who has a right to possession thereof
superior to that of the taker, obtainer, or withholder."
4. Defendant
also argues that the guilty verdicts for robbery in the second degree against
the bar customers (counts 12 through 15 on verdict form) and Alcorn (count 16
on verdict form) should merge into the convictions for robbery in the second
degree committed against Weaver (count 10 on verdict form) and Higgins (count
13 on verdict form). However, he did not raise that issue in the Court of
Appeals. Sentences on all of the second-degree robbery counts were ordered to
be served concurrently, and appear to have now been completed. That question
is therefore not properly before us.
5. Defendant
advances the same legal arguments regarding merger that he made with regard to
his motions for judgment of acquittal. However, defendant's post-verdict
arguments no longer pertain to the sufficiency of the state's proof, but
instead to questions regarding the proper construction of ORS 164.395, and to
the proper application of ORS 161.067 to the entry of his multiple robbery convictions. | ea084506e6ff761937fc8bf0298bd8206cbab3bf588df84cb634629a16de4fb7 | 2010-06-10T00:00:00Z |
1792223f-ebe5-4bc8-b77c-360766befcb9 | State v. Morgan | null | S057279 | oregon | Oregon Supreme Court | FILED: May 13, 2010
IN THE SUPREME COURT OF THE STATE OF OREGON
STATE OF OREGON,
Respondent on Review,
v.
CAROLYN ANN MORGAN,
Petitioner on Review.
(CC 062638BFE; CA A134236; SC S057279)
En Banc
On review from the Court of Appeals.*
Argued and submitted November 3, 2009.
Peter Gartlan, Chief Defender, Office of Public Defense Services, Salem, argued the cause for
petitioner on review. With him on the brief was David C. Degner, Deputy Public
Defender.
Susan G. Howe, Senior Assistant Attorney General, Salem, argued the cause for respondent on review. With her on the brief were John R. Kroger, Attorney General, and Jerome Lidz, Solicitor General.
GILLETTE, J.
The decision of the Court of Appeals and the judgment of the circuit court are affirmed.
*Appeal from Jackson County Circuit Court, William G. Purdy, Judge. 226 Or App 515, 203 P3d 927 (2009).
GILLETTE, J.
This is a criminal case in which
defendant was convicted of unlawful possession of heroin, ORS 475.854,(1)
which a police officer discovered in defendant's purse. Defendant reached into
the purse after the officer indicated that he needed to search it for weapons.
The officer, concerned that defendant was reaching for a weapon, seized the
purse and saw drug paraphernalia inside it. The trial court refused to
suppress the evidence found in the purse, and a divided panel of the Court of
Appeals affirmed. We allowed defendant's petition for review and now affirm
the decision of the Court of Appeals and the judgment of the trial court.
Defendant's drug arrest arose out of
a legal traffic stop of a car in which defendant was a passenger. During the
stop, the stopping officer, Lance, learned that the driver's license was
suspended. At that point, Lance asked defendant if she had a driver's
license. He did so because he could release the car to her rather than have it
towed if defendant were able to submit proof of valid driving privileges. See
ORS 809.720(3)(a) (permitting release of an impounded vehicle to person
entitled to lawful possession, who submits proof of valid driving privileges).
Defendant gave Lance her license, along with the car's registration and
insurance card (defendant was the car's owner). Lance then contacted police
dispatch and learned that defendant's license was valid but that there was an
outstanding warrant for the driver's arrest. After placing the driver in the
back of his patrol car, Lance returned to the car where defendant still was
sitting. He handed defendant her license and told her that, because it had
checked out as valid, he would not need to have the car towed. Lance then
asked defendant "if [he] could look in the vehicle and make sure [he]
wasn't leaving her with any contraband." Defendant gave Lance permission
to search the car.
When defendant consented to the search,
she still was seated in the car. She spontaneously got out, apparently to
permit the search. As she did so, she picked up and took with her a large
purse (also described in trial testimony as a "tote bag"), which
Lance previously had seen between the front seats. Lance told defendant that,
if she brought the purse with her, he would have to search it for weapons. He
also told her, however, that she could just leave the purse in the car. He
testified that, had she done so, he would not have searched it. ("There
was no reason for me to look at it if she left it in the vehicle.")
At that point, defendant's demeanor
changed from "relaxed and cordial" to "agitated and
nervous." Speaking very rapidly, she gave Lance "like four reasons why
[he] could not look in her bag," and, while doing so, she "clutched the
bag to her chest." Lance explained to defendant that, if defendant were
to leave her purse in the car, that would be satisfactory, but, if she insisted
on keeping it with her, he would have to search it for weapons.(2)
Defendant began backing away from Lance while shaking her head. She then
reached into the purse. Lance, concerned that defendant was reaching for a
weapon, seized the purse. As he did so, he looked down into the bag, which was
open at the top, and observed what he recognized as drug paraphernalia in it. A
subsequent search of defendant's car produced drugs and more drug paraphernalia.(3)
The present criminal case ensued.
Defendant moved to suppress the evidence obtained as a result of the seizure of
her purse. The trial court denied defendant's motion and made the following
findings of fact, each of which is supported by the record:
"(1) Defendant * * * was a passenger in a
vehicle driven by [another person].
"(2) Deputy Lance lawfully stopped the
vehicle driven by [the other person].
"(3) [The other person] had a suspended
license. He was arrested and placed in the [officer's] patrol vehicle.
"(4) Deputy Lance checked to see if [defendant]
had a valid license to drive the vehicle. She did. She was also the
registered owner of the vehicle.
"(5) Deputy Lance asked for and received permission
from [defendant] to search the vehicle prior to releasing it to her.
"(6) When [defendant] exited the vehicle
she also took her bag. [Deputy Lance] told her he needed to look in her bag
for officer safety [reasons] if she was going to keep it[,] or she could leave
it in the car.
"(7) [Defendant] clutched her bag, shook
her head and backed up into the car when the deputy stated he needed to search
the bag. She became more nervous upon his statement. She then reached into
the bag.
"(8) The deputy then took the bag for
officer safety reasons and saw paraphernalia for drug use."
From the foregoing, the trial court concluded that the
defendant had not been impermissibly seized and that the officer properly took
defendant's bag from her. Defendant then entered a conditional guilty plea,
ORS 135.335(3), and appealed to the Court of Appeals. A divided panel of that
court affirmed. State v. Morgan, 226 Or App 515, 203 P3d 927 (2009).
We granted defendant's petition for review.
In this court, defendant offers
several alternative arguments in support of her central premise, which is that
the seizure of her purse was constitutionally impermissible.(4)
We address each in turn.
The arresting officer told defendant
that, if she insisted on removing her purse from the car, he would have to
search it. Defendant argues first that a motorist's consent to a search of her
car does not automatically justify a frisk of the motorist or a search of items
in her immediate possession. From this, defendant posits that the officer was
claiming (and that the state now claims) that an investigating officer at the
scene of a vehicle stop may "pat[]down every motorist before conducting a
consent search of a car, regardless of the particular circumstances of the incident."
But that is not this case. Here, the
officer did not patdown defendant or carry out a seizure of her purse on
the basis of some standard police practice. There is no question, of course,
that Lance acted in a constitutionally significant way (by seizing the purse)
after events led him to believe that his safety was threatened, and defendant
has every right to contest what the officer actually did. But this argument is
premised on speculation about what the officer might have done. It is
not well taken.
In the Court of Appeals, the dissent opined
that the officer's advice to defendant -- that she must either leave her purse
in the car or allow it to be searched -- itself constituted a seizure of
defendant, her purse, or both. See Morgan, 226 Or App at 527-28
(Sercombe, J., dissenting). Defendant urges us to adopt the dissent's view. However,
our review of the record shows that the Court of Appeals' majority was correct when
it asserted that no such argument ever was made to the trial court. Morgan,
226 Or App at 523 n 2. Thus, the argument is not entitled to consideration
now.
Defendant next argues that Lance's
insistence on searching defendant's purse impermissibly expanded on what
defendant characterizes as her "clear intent" concerning the scope of
her consent to search her car. Defendant's theory at this point is that, when
Lance told defendant that he intended to search her purse if she did not leave
it in the car, he somehow unilaterally expanded the scope of defendant's consent
to search the car. A single answer to this argument suffices: The state does
not now and has never argued that the search of defendant's purse was justified
under a consent theory. That argument is not well taken.
Defendant next argues that her refusal
to consent to a search of her purse did not give rise to either (1) reasonable
suspicion to believe that she was armed and an imminent threat to the arresting
officer or (2) probable cause to believe that the purse contained evidence of a
crime. The second part of defendant's argument may be answered summarily: The
state has never contended that the arresting officer had probable cause to
believe, before it was seized, that defendant's purse contained evidence of a
crime. The matter is a nonissue. That returns us to the first part of
defendant's argument, viz., that the state is arguing that defendant's
refusal to permit a search of her purse itself created reasonable
suspicion that she was "armed and an imminent threat." We agree with
defendant that her desire to maintain her privacy interest in the contents of
her purse did not itself create a reasonable suspicion. But the crux of this
case is not defendant's privacy interest in her purse; it is what her overt
acts suggested that the purse contained. We turn to the parties' various
positions on that subject.
Both the trial court and the Court of
Appeals' majority based their rulings on the so-called "officer
safety" doctrine that this court first described in State v. Bates,
304 Or 519, 524, 747 P2d 991 (1987):
"Upon consideration, we hold that Article I, section 9,
of the Oregon Constitution, does not forbid an officer to take reasonable steps
to protect himself or others if, during the course of a lawful encounter with a
citizen, the officer develops a reasonable suspicion, based upon specific and
articulable facts, that the citizen might pose an immediate threat of serious
physical injury to the officers or to others then present."
We also stated in Bates that, in applying the doctrine,
it is not the role of the courts to "uncharitably second-guess an
officer's judgment" concerning a potential threat. Id. All that
is required, under Bates, is that the officer's belief be reasonable and
based on specific and articulable facts. Id.; see also State
v. Amaya, 336 Or 616, 631-33, 89 P3d 1163 (2004) (to same effect); State
v. Ehly, 317 Or 66, 81-82, 854 P2d 421 (1993) (same).
In Bates, two officers stopped
the defendant late at night as he was driving in a "high crime" area.
The defendant was cooperative and did not display any hostile or aggressive behavior.
However, the officers became concerned for their welfare when they noticed a
partially concealed bag under the defendant's seat. The officers asked the
defendant to pull the bag completely into view. He did not. Instead, he
reached down and placed his hands on the bag, and remained in the position as
the officers repeatedly ordered him to pull the bag into view. After a few
seconds, the officers drew their guns, ordered the defendant out of the car,
and found contraband in the bag. This court ruled that, on the facts
presented, the officers' actions did not come within the officer safety doctrine.
Bates, 304 Or at 527-28.
Defendant argues that her actions in
this case were even less threatening than those of the defendant in Bates.
Nothing about defendant, her car, or the arrest of the driver suggested that
defendant was intoxicated or involved in illegal activity. Defendant's
behavior was not hostile or aggressive and she fully cooperated with Lance's
requests, even to the point of agreeing to a search of her car.
Notwithstanding defendant's arguments
to the contrary, some of defendant's actions, considered together, were sufficient
to elevate Lance's reasonable sense of concern for his safety: Her sudden exit
from her car was unexpected. Her swift change of demeanor from calm to visibly
nervous for an unknown reason understandably surprised the officer. What tipped
the scales, however, was defendant's act of reaching into the purse. Lance
already had mentioned to defendant his concern about weapons. To thereafter
permit defendant to reach into a capacious purse that readily could have concealed
a weapon would have been folly. Once defendant began to reach into the purse,
Lance could reasonably suspect that she might pose an immediate threat of
serious physical injury to him, and Article I, section 9, of the Oregon
Constitution did not forbid him from taking reasonable steps to protect himself
-- including seizing the purse. See Amaya, 336 Or at 619 (officer's
question about contents of bag that woman was trying to conceal was based on
reasonable suspicion that woman posed immediate threat and did not violate
Article I, section 9); Ehly, 317 Or at 81-83 (officers developed
reasonable suspicion that motel tenant was searching for gun in duffel bag and
could constitutionally search bag under officer safety doctrine). Defendant's
argument to the contrary is not well taken.
The decision of the Court of Appeals
and the judgment of the circuit court are affirmed.
1. ORS
475.854 provides:
"(1) It is unlawful for any person
knowingly or intentionally to possess heroin.
"(2) Unlawful possession of heroin is a
Class B felony."
2. The
fairest reading of Lance's testimony, given the trial judge's ruling, was that
Lance also conveyed to defendant the fact that, if she left the purse in the
car, Lance would not search it. However, Lance did not testify to having used
precisely those words, and there is another basis for deciding this case. We
therefore simply note the likely meaning of the testimony in the record.
3. Defendant
does not raise any separate issue respecting the officer's subsequent search of
the car.
4. From
that premise, defendant asserts that evidence derived from the search of her
purse must be suppressed. The state's quarrel is with defendant's premise; it
does not argue that, even if the purse were seized unlawfully, the challenged
evidence nonetheless would be admissible. | 9bfe251adfe1f1f4d2f5b933e95611651ea275c5aed6ea0af2ef0aeee815bedd | 2010-05-13T00:00:00Z |
7518857e-344b-46d2-8918-c376a64a25f5 | Coffey v. Board of Geologist Examiners | null | S057511 | oregon | Oregon Supreme Court | FILED: July 9, 2010
IN THE SUPREME COURT OF THE STATE OF OREGON
NICHOLAS W. COFFEY,
Petitioner on Review,
v.
BOARD OF GEOLOGIST EXAMINERS,
Respondent on Review.
(BGE 03-03-002,
03-09-006, 04-07-004; CA A134319; SC S057511)
En Banc
On review from the Court of Appeals.*
Argued and submitted March 5, 2010, at the
University of Oregon School of Law, Eugene, Oregon.
James E. Mountain, Jr., of Harrang Long Gary
Rudnick P.C., Portland, argued the cause and filed the brief for petitioner on
review. With him on the brief was Jona J. Maukonen.
Denise G. Fjordbeck, Assistant Attorney General,
Salem, argued the cause and filed the brief for respondent on review. With her
on the brief were John R. Kroger, Attorney General, and Jerome Lidz, Solicitor
General.
DURHAM, J.
The decision of the Court of Appeals and the
order of the Board of Geologist Examiners are affirmed.
*Appeal from a Final Order of the Board of
Geologist Examiners, January 22, 2008. 226 Or App 418, 204 P3d 177 (2009).
DURHAM, J.
Nicholas W. Coffey
(petitioner), a registered geologist, seeks review of a Court of Appeals
decision, Coffey v. Board of Geologist Examiners, 226 Or App 418,
204 P3d 177 (2009), that affirmed an order of the Board of Geologist Examiners
(board) that had revoked his certificate of registration on grounds of
negligence, gross negligence, and two violations of the board's rules of
professional conduct. On review, petitioner argues that this court should
reverse the order on one or more of the following grounds: the board lacked
the authority to revoke his certificate of registration, the board's rules
defining "negligence" and "gross negligence" were insufficient,
and some of the conclusions in the board's order were not supported by
substantial reason.(1)
We affirm the Court of Appeals decision and the board's order.
In 2004, after
receiving complaints about two of petitioner's hydrogeology reports (the
Nielson report and the DeHart report), the board filed a notice of proposed
disciplinary action in which it proposed to reprimand petitioner, suspend
petitioner's license for one month, impose a subsequent probationary period if
and when petitioner was reinstated, and impose civil penalties.(2) In 2005, after the
board received a third complaint regarding the quality of an letter opinion prepared
by petitioner (the Miller report), the board amended its notice of proposed
disciplinary action and raised the proposed sanction to revocation of
petitioner's certificate of registration. The amended notice alleged that
petitioner had committed "negligence, gross negligence, incompetence or
misconduct in the practice of geology as a registered geologist" in the
preparation and handling of the three reports, and that petitioner had violated
three of the standards in the board's code of professional conduct. Following
a hearing before an administrative law judge, the board issued a final order
that revoked petitioner's certificate of registration.(3) In that order, the
board concluded that petitioner had been negligent and grossly negligent in his
work on the Nielson and DeHart reports, negligent in his work on the Miller
report, and had violated two rules of professional conduct.(4) Petitioner sought
judicial review and the Court of Appeals affirmed without opinion. Coffey,
226 Or App 418.
On review,
petitioner first argues that the board lacked the authority to revoke his
registration. He relies on Megdal v. Board of Dental Examiners, 288 Or
293, 605 P2d 273 (1980) for the proposition that the board must adopt a rule stating
the board's standard for selecting a particular sanction from the range of
possible sanctions listed in ORS 672.675 before it may impose any of those
sanctions. Petitioner argues that, because the board did not adopt such a
rule, it lacked legal authority to revoke his certificate of registration. For
the reasons that follow, we disagree.
Whether an agency is
required to promulgate rules in advance of an adjudication is "a matter
of statutory interpretation."(5)
Trebesch v. Employment Division, 300 Or 264, 267, 710 P2d 136 (1985); see
also Forelaws on Board v. Energy Fac. Siting Council, 306 Or 205, 214, 760
P2d 212 (1988) ("If an agency is required to adopt a rule through
rulemaking proceedings, that requirement must be found through an analysis of
the specific statutory scheme under which an agency operates and the nature of
the rule that the agency wishes to adopt." (Citation omitted.)). When no
statute expressly requires an agency to make rules before selecting a
disciplinary sanction, a reviewing court examines the statutory text and
context pertaining to the agency's delegated responsibilities regarding the
disciplinary process to discern whether the legislature nonetheless impliedly
intended to require the agency to make rules concerning the subject matter in
question before selecting an otherwise authorized sanction.
"In the absence of an explicit directive, the breadth
and kind of responsibility delegated to the agency by the statutory term
(fact-finding, applying an ambiguous law, or developing policy) will be one,
but not a dispositive, factor which may indicate an implicit directive from the
legislature for rulemaking. In addition, the tasks the agency is responsible
for accomplishing, and the structure by which the agency performs its mandated
tasks, all of which are specified in an agency's authorizing legislation, must
be examined as a whole in order to discern the legislature's intent with regard
to rulemaking."
Trebesch, 300
Or at 270.
With the foregoing
general principle in mind, we turn to a discussion of the statutes identifying
the board's responsibilities. The legislature has charged the board with
regulation of the professional practice of geology in this state. See
generally ORS 672.505 to 672.705 (providing for administrative regulation
of the practice of geology under board authority). To enable the board to
accomplish that general mandate, the legislature has authorized the board to
certify qualified applicants as registered geologists (ORS 672.555), has
required the board to promulgate and distribute a code of professional conduct
(ORS 672.655),(6)
and has given the board the power to discipline registered geologists for
certain described acts (ORS 672.675).
That final responsibility
-- disciplinary decisions -- is the specific task at issue in this case. ORS
672.675 provides the statutory basis for revocation of a geologist's
certificate of registration:
"The State Board of Geologist Examiners has
the power to suspend, revoke or refuse to renew the
certificate of registration of any registrant or reprimand any
registrant who is found to have been involved in:
"(1) The practice of any fraud or deceit in
obtaining a certificate of registration,
"(2) Any negligence, gross negligence,
incompetence or misconduct in the practice of geology as a registered
geologist;
"(3) Any felony; or
"(4) The commission of any unlawful act set
forth in ORS 672.505 to 672.705."
(Emphasis added.)
Other statutes and
rules describe the procedures by which the board accomplishes the task of
disciplining geologists. The board(7)
refers sworn complaints against a geologist to the board's compliance committee.
ORS 672.665; OAR 809-055-0000(3).(8)
If the committee determines that the complaint "may have validity,"
then "it will notify the [geologist] of allegations by mail and request
written comments." OAR 809-055-0000(4)(b). After the committee evaluates
the complaint and any written comments from the geologist, it makes its
recommendation to the board whether charges should be brought. The board makes
a final decision whether to pursue formal charges. OAR 809-055-0000(4) to
(5). If it chooses to do so, the board then issues a notice informing the
geologist of the proposed disciplinary action, which triggers the full panoply
of contested case procedures under the Oregon Administrative Procedures Act
(APA), including the right to judicial review. ORS 670.325(1);(9) ORS 183.482 (providing
for judicial review of contested cases).
The legislature has
granted broad rulemaking authority to the board. ORS 670.310(1) provides:
"Except as otherwise provided by law and in
accordance with any applicable provisions of ORS chapter 183, each professional
licensing board and advisory board may make such rules as are necessary or
proper for the administration of the laws such board is charged with
administering."
The legislature, in ORS 670.304(8), has made
ORS 670.310(1) applicable to the board.
As noted, ORS
672.655 requires the board to adopt a code of professional conduct but does not
specify the code's content. Petitioner has not identified, and we have not
discovered, any statute that expressly requires the board to adopt rules
specifying the standards that it will follow in selecting a particular sanction
in disciplinary proceedings. Petitioner submits, however, that the
"legislature's grant of authority to choose to punish from a list of
potential sanctions is sufficiently broad to constitute a delegation of
legislative authority." Accordingly, petitioner concludes, Megdal requires
the board to employ prior rulemaking that specifies the criteria that the board
will use in selecting a disciplinary sanction.
Megdal concerned
ORS 679.140 (1977), which authorized the Board of Dental Examiners to regulate
the professional practice of dentists, and specifically authorized the board to
discipline any licensed dentist for "unprofessional conduct." ORS
679.140(2) defined "unprofessional conduct" as "includ[ing] but
not limited to" a list of specific activities. The Board of Dental
Examiners revoked the petitioner's dentistry license for fraudulent business
practices concerning applications for dental malpractice insurance -- an
activity not listed as "unprofessional conduct" under ORS
679.140(2). The petitioner sought judicial review, arguing that the board
lacked the authority to discipline him without first promulgating a rule
identifying the particular fraudulent business practice as unprofessional
conduct. The court noted that, in statutory schemes governing other
occupational licensing agencies, the legislature had explicitly required those
agencies to promulgate rules of professional conduct. In that context, the
court in Megdal held that
"when a licensing statute contains both a broad
standard of 'unprofessional conduct' that is not fully defined in the statute
itself and also authority to make rules for the conduct of the regulated
occupation, the legislative purpose is to provide for the further specification
of the standard by rules, unless a different understanding is shown."
Id. at 313-14.
Relying on Trebesch and Megdal, petitioner argues that, when the
legislature has authorized an agency to regulate a profession, has granted the agency
broad rulemaking authority, has required the agency to adopt a code of
professional conduct, and has made the agency responsible for
completing an incomplete legislative policy, such as selecting a disciplinary
sanction, then a rebuttable presumption arises that the legislature intended
the agency to complete that incomplete policy by rulemaking, rather than by
adjudication.
We disagree that Megdal
requires the sort of rulemaking that petitioner seeks here. As noted, and
as in Megdal, the legislature has empowered the board with rulemaking
authority.(10)
However, Megdal involved a situation in which the legislature impliedly had
directed an agency to give detail to a term of delegation --
"unprofessional conduct" -- which the court characterized as a
"broad standard * * * that is not fully defined in the statute
itself." 288 Or at 313. In doing so, the legislature authorized the
agency to complete an incomplete legislative policy by identifying by rule the kind
or kinds of conduct that would warrant discipline as "unprofessional
conduct."
In contrast, here
the legislature has expressed a complete policy: the board has the power to
impose a sanction from the list of sanctions set out in ORS 672.675, i.e.,
reprimand, refusal to renew the certificate of registration, suspension, or
revocation, if it finds that a registrant has "been involved in"
conduct described in ORS 672.675(1) to (4).(11)
The four potential sanctions that the statute authorizes are graduated in their
severity, from reprimand to revocation. That aspect of the statute indicates
that the legislature intended the board, when imposing professional discipline,
to gauge the type or types of disciplinary sanction imposed according to the
severity of the misconduct that it finds. Although that determination by the
board constitutes the exercise of delegated authority, applying the specified
graduated sanctions to the facts underlying the charges of negligence and gross
negligence is more analogous to the interpretation and application of existing
law than to the making of new law or the completion of an incomplete
legislative policy. That explains, in part, why Megdal does not require
the particularized rulemaking for which petitioner contends before the board
can select a disciplinary sanction under ORS 672.675.(12)
Two additional
interpretive clues lend further support to our conclusion. First, in other
statutes that charge the board with regulating other aspects of the profession
of geology, the legislature has explicitly required that the board act
by rulemaking, rather than by adjudication. See ORS 672.555(4) (board
"shall, by rule," adopt the minimum coursework requirements for an
eligible applicant for a certificate of registration); ORS 672.555(2)(b)(D)
(board shall determine the adequacy of an applicant's geological work history
experience "in accordance with standards adopted by rule"); ORS
672.565(1) (board may create specialties "by rule, with the rules to
contain any required additional qualifications"); ORS 672.565(5) (board
may "establish by rule criteria for exempting persons applying for a
certification from a written examination requirement"); ORS 672.655 (board
shall "adopt a code of professional conduct"). The fact that the
legislature did not include a similar express rulemaking requirement in ORS
672.675 with regard to the board's choice of sanctions provides some indication
that it did not so intend.
Second, as discussed
above, the legislature has provided that the board will use contested case
proceedings to discipline geologists. See ORS 670.325 and ORS
670.304(8) (requiring the board to conduct contested case proceedings before
suspending or revoking a geologist's certificate of registration). The
legislature's specification of the authorized range of sanctions available to
the board in a contested case is not ambiguous. Clearly, the legislature
envisioned that the board would select a sanction, if appropriate, from the
range of legislatively authorized sanctions on a case-by-case basis, and that
the board's resulting final order would be subject to judicial review under ORS
183.482. The board does have the authority to disclose its criteria for
choosing a particular sanction in advance of a contested case hearing, either
by including that information in its code of professional conduct, see ORS
672.655, or by other rulemaking. However, by contrast to Megdal, we
cannot conclude that a disclosure through advance rulemaking of the board's
criteria for choosing a particular sanction is necessary to ensure the fairness
of the contested case or any later judicial review proceedings. In our view, certificate
registrants are able to efficiently conduct their professional activities
without advance notice by rule of the board's criteria for selecting sanctions
in disciplinary proceedings. Those considerations indicate that it is not
likely that the legislature intended in ORS 672.675 to require prior rulemaking
concerning the board's criteria for selecting a disciplinary sanction.
The requirement of
ORS 672.655 that the board prepare and adopt a code of professional conduct
does not alter the foregoing observation. ORS 672.655 contains no explicit
requirement concerning the content of the board's code of professional
conduct. The code of professional conduct that the board has adopted, OAR
809-020-0001 to 809-020-0030, describes several goals for professional
geologists (e.g., honesty, integrity, and protection of the public
health and welfare), OAR 809-020-0001, several responsibilities of geologists
to the profession of geology, to their employers, and to the board, OAR chapter
809, division 20, and several forms of misconduct that may lead to discipline (e.g.,
engaging in fraud or misrepresentation), OAR 809-020-0030. However, the
board's code of professional responsibility does not describe the board's
disciplinary process, leaving the details of that process to other rules. That
is a permissible approach; the code, after all, concerns the "professional
conduct" of registered geologists, ORS 672.655, not the board's disciplinary
responsibilities. ORS 672.655 offers no support to petitioner's contention
that the legislature intended to require the board to incorporate standards for
selecting disciplinary sanctions into the code of professional responsibility.
Petitioner correctly
points out that, in Megdal, 388 Or at 311, this court recognized that
"the legislature should not be assumed to be insensitive to the importance
of fair notice of grounds that may lead to loss of one's profession or
occupation." However, this court also has declined to adopt a per se rule
that the twin aims of fair notice and consistent application of professional
discipline can be accomplished only by rulemaking, and not by adjudication. Cf.
Trebesch, 300 Or at 276 ("Interpretation of statutory terms by orders
in contested cases is an adequate alternative to rules. Both are capable of
achieving a uniform application of the law."). We assume, of course, that
the legislature intended to provide a petitioner with fair notice of potential
discipline. Consequently, one relevant consideration under the Trebesch analysis
is whether the statutory context reveals that the agency can satisfy fair
notice concerns if, in selecting a disciplinary sanction, it proceeds by an adjudication
rather than rulemaking.
As noted above, the
procedures for disciplining individual geologists include built-in safeguards
that adequately alleviate concerns about any lack of fair notice regarding
proposed discipline under ORS 672.675. The board must provide a geologist with
advance notice of the proposed disciplinary action and an opportunity for a
hearing to contest both the truth of the allegations and the correctness of the
proposed sanction. ORS 672.675 places with the board the primary
responsibility for correct interpretation and consistent application of
sanctions in disciplinary proceedings. That structural feature reduces the
risk of inconsistent notice procedures or conflicting statutory interpretations
that may occur when multiple agencies or multiple panels of decision-makers
within a single agency carry out that responsibility. Finally, as the board
points out, judicial review under the APA is designed to guard against
arbitrary application of sanctions by an agency. See ORS
183.482(8)(b)(B) (A court shall remand an order to an agency if the agency's
exercise of discretion is "[i]nconsistent with an agency rule, an
officially stated agency position, or a prior agency practice, if the
inconsistency is not explained by the agency[.]").
The foregoing
discussion leads us to conclude that the legislature did not intend to require
the board to adopt rules setting criteria for the selection of a particular
sanction listed in ORS 672.675 before it could take disciplinary action against
petitioner in a contested case proceeding. We reject petitioner's contrary
argument.
We turn to
petitioner's second argument, which focuses on the board's rules defining the
terms "negligence" and "gross negligence." As noted above,
the board may discipline a registered geologist for "[a]ny negligence,
gross negligence, incompetence or misconduct in the practice of geology
* * *." ORS 672.675(2) (emphasis added). The Board has promulgated
administrative rules that define the emphasized terms. OAR 809-003-0000(15)
defines "negligence" as "[f]ailure by a registrant to exercise
the care, skill, and diligence demonstrated by a registrant under similar
circumstances in the community in which the registrant practices." OAR
809-003-0000(9) defines "gross negligence" as "[r]eckless and
wanton disregard for exercising care and caution."
Petitioner argues
that the board's efforts to define those terms by rule fall short. Petitioner
contends that the terms "negligence" and "gross negligence"
are terms of delegation, such that the board was obligated to complete an
incomplete legislative policy by adopting administrative rules or provisions in
the code of professional conduct defining those terms.(13) He acknowledges that
the board has promulgated administrative rules defining those terms.
Petitioner argues, however, that the Board's rules are insufficient because
they set the standard of care with reference to "the community in which
the registrant practices" without indicating how the board will
determine that community standard of care.(14)
Petitioner also argues that, in interpreting its own rules, the board violated
a requirement of Megdal by relying on expert testimony to determine the
standard of "care, skill, and diligence demonstrated by a registrant under
similar circumstances in the community in which the registrant practices,"
i.e., Marion County.(15)
The board responds that the definitions adopted for "negligence" and
"gross negligence" are consistent with the legislature's general
intent, and that expert testimony is an appropriate means to establish or
explain the professional standard of care in the pertinent community.
In evaluating the
merits of the parties' arguments, we must bear in mind the standard of review
that governs our examination of the board's rules. The parties differ about
whether the court may categorize the grounds of "negligence" and
"gross negligence" as exact terms, inexact terms, or terms of
delegation. Each type of term "conveys to the agency a different range of
responsibility for definition." Ross v. Springfield School Dist. No.
19, 294 Or 357, 367 n 7, 657 P2d 188 (1982). Both exact terms and inexact
terms are complete expressions of legislative policy. Id. As to exact
terms, the agency's task is to apply the term to the facts of the case; as to
inexact terms, the agency's task is to interpret the meaning of the term within
the completed policy expressed by the legislature. Springfield Education Assn.
v. School District, 290 Or 217, 224-26, 621 P2d 547 (1980). By contrast,
terms of delegation are "non-completed legislation which the agency is
given delegated authority to complete." Id. at 228.
The board contends
that the statutory terms "negligence" and "gross
negligence" are inexact terms because they represent complete expressions
of legislative policy, but require the agency to engage in interpretation to
determine whether actions taken by a registered geologist in a particular case
fall within the statutory meaning of the terms. The board argues that it was
free to interpret those terms either by rulemaking or adjudication. Id.
at 226 ("An agency may express its determination of which interpretation
effectuates the [completed] statutory policy either by rule or * * * by order
in a contested case."). The board also points out that, in Ross,
294 Or at 368-69, this court, addressing a similar issue, concluded that a
contested case final order was a suitable vehicle for the interpretation of the
statutory standard of "immorality" in connection with the dismissal
of a permanent teacher:
"The statute places primary interpretive
responsibility with the [Fair Dismissal Appeals Board]. When applying terms of
complete legislative expression, an agency may interpret statutory standards
either by an interpretive rule or by order in a contested case. Springfield,
supra, 290 Or at 226. The FDAB has chosen to interpret immorality by
means of an order in this case. No requirement for prior rulemaking
exists."
We review the board
rules defining statutory grounds for discipline for an error of law under ORS
183.482(8)(a).(16)
The dispositive inquiry is whether the agency's rules are consistent with
legislative intent. Coast Security Mortgage Corp. v. Real Estate Agency,
331 Or 348, 353, 15 P3d 29 (2000). In analyzing the text and context of a
statute, we apply the well-defined legal meanings of legal terms. Norden v.
Water Resources Dept., 329 Or 641, 645, 996 P2d 958 (2000). When an agency
interprets its own rules, we defer to that interpretation if it is
"plausible and not inconsistent with the rule, the rule's context, or any
other source of law." Friends of Columbia Gorge v. Columbia River,
346 Or 366, 410, 213 P3d 1164 (2009).
It is important to
understand the specific focus of petitioner's argument. Petitioner
acknowledges, as he must, that the board did promulgate rules that interpreted
the statutory terms "negligence" and "gross negligence."
He asserts that the board's definitional rules are incomplete and, therefore,
are legally erroneous, because they incorporated a familiar element -- the
standard of care in the professional geologist's community -- but failed to
designate specifically how the board would determine and apply the community
standard in each case. As we explain below, we disagree. In this context, the
community standard element of negligence may differ from place to place and,
ordinarily, is determined by courts and other tribunals on a case-by-case
basis, frequently with the aid of expert testimony. Consequently, we cannot
attribute to the legislature an intent to require the board to specify by rule,
in advance of adjudication, how it will determine the community standard of
care in every case.
In the professional
negligence context, this court has recognized that "the standard of care
is that of a reasonably prudent, careful and skillful practitioner of that
discipline in the community or a similar community under the same or similar
circumstances." Creasey v. Hogan, 292 Or 154, 163, 637 P2d 114
(1981) (footnote omitted) (malpractice claim against podiatrist); see also Getchell
v. Mansfield, 260 Or 174, 179, 489 P2d 953 (1971) (recognizing that a
professional acts negligently by failing to follow "the reasonable
practice * * * in the community"). Whether professional
"negligence" rises to the level of "gross negligence" is a
question of degree. "Gross negligence is the equivalent of reckless
disregard and is negligence of a substantially greater degree than that of
ordinary negligence." Fassett v. Santiam Loggers, Inc., 267 Or
505, 508, 517 P2d 1059 (1973). Fairly read, the board's rule-based
formulations of "negligence" and "gross negligence"
incorporate all or most of the well-established legal meanings of those terms,
and give adequate notice of the sort of conduct that will lead to discipline by
the board.
The foregoing
conclusion aids in our analysis of whether the board's definitional rules
reflect an error of law, but it does not squarely answer a remaining aspect of petitioner's
challenge. Petitioner contends that the board erred by determining the meaning
of the "pertinent community" element of negligence and, thus, the
range of actions required by due care in this case, by considering expert
testimony about the practice of geology in Marion County. The board's final
order on reconsideration contained the following discussion of the 'pertinent
community' in this case:
"[W]e first must determine the standard of
care in the community at issue here: Marion County.
"* * * * *
"[I]t is beyond the authority of Marion
County * * * to establish standards for the practice of geology. * * * * The
legislature has specifically given that power to this Board. * * * Although
the Board certainly has the power to establish statewide standards of care, as
to which a registrant's failure to comply constitutes 'negligence,' the Board
instead has defined 'negligence' with reference to the standard of care
exercised in the pertinent 'community.' Consequently, there is no applicable
'board standard' here. Rather, the standard is established by expert testimony
on a case-by-case basis."
Final Order on Reconsideration at 8
(citation omitted).
Petitioner argues
that the board's determination of the "pertinent community" is
inconsistent with the Megdal principle that a professional licensing
board may not rely on expert testimony to determine the pertinent standard of
care. In Megdal, the court held that the Board of Dental Examiners was
required to make rules identifying ethical standards of professional conduct
and could not rely on testimony of experts about how to formulate such
standards. However, that determination stemmed from the court's conclusion
that, by using the broad delegative phrase "unprofessional conduct,"
the legislature had required the Board of Dental Examiners to identify the
ethical standards of the dental profession through administrative rules.
Unlike in Megdal,
the board here did promulgate rules that accurately defined "negligence"
and "gross negligence" before applying those terms during this
adjudication. As noted, in disputes involving claims of professional
negligence, parties routinely depend on expert testimony to establish the
standard of reasonable care in the applicable community because, ordinarily,
the factfinder otherwise would be unable to determine whether the conduct in
question failed to satisfy the required standard of care. Getchell, 260
Or at 179; see also Spray v. Bd. of Medical Examiners, 50 Or App 311,
318, 320-21, 624 P2d 125 (1981) (implicit in the statutory standard of
"inappropriate or unnecessary medical treatment" is the assumption
that expert testimony may be used to "determine the standards of treatment
that would be adhered to by the members of the medical community in any given
case" because, for such a standard, "adoption of precise
pre-decisional criteria" is not a feasible).
The foregoing
discussion leads us to conclude that petitioner's reliance on Megdal is
misplaced. The court's concern in that case -- an agency's reliance, without
prior rulemaking, on expert testimony to supply the meaning of a statutory
ground for professional discipline -- is not present here. In this case, the
board's task consisted of applying the legislature's criteria for professional discipline,
embodied in the standards of "negligence" and "gross
negligence," and the board's administrative rules that accurately defined
those terms. Consistent with the familiar legal meaning of professional
negligence, the board's standard took into account any distinctive elements of
the practice of professional geology in the pertinent community. The board's
consideration of expert testimony to explain that practice in the local
community and, therefore, to apply the statutory disciplinary criteria and
rule-based definitions, did not constitute an error of law.
As his final
challenge to the board's order, petitioner submits that the board's findings regarding
the pertinent standards of care are not supported by "substantial
reason." Under ORS 183.470(2), an agency's order must contain findings of
fact and conclusions of law. Because the order is the "instrument by
which an agency demonstrates that a particular interpretation or application of
a statute is within a generally expressed legislative policy," the
agency's findings of facts and conclusions of law must be supported by
"substantial reason." Springfield Education Assn., 290 Or at
227. In Ross, the court explained that
"[i]t is essential that an agency articulate in a
contested case the rational connection between the facts and the legal
conclusion it draws from them. This is required both for purposes of
meaningful judicial review and to ensure that the agency gives responsible
attention to its application of the statute."
294 Or at 370 (citations omitted).
Petitioner contends
that the board's order is not supported by substantial reason because it does
not specify the evidence on which the board relied to determine the relevant
standards of care. Petitioner is mistaken. For each allegation of negligence
or gross negligence against petitioner, the order describes relevant evidence
presented at the hearing and, furthermore, connects the board's findings of
fact based on that evidence with the pertinent conclusions of law that support
the board's order. For each conclusion indicating that petitioner had violated
the pertinent standard of care, the order rationally explains how the findings
of fact support the conclusion. Our review indicates that the board's order
exhibits the "substantial reason" that this court required in Springfield
Education Assn. and Ross.
The decision of the
Court of Appeals and the order of the Board of Geologist Examiners are
affirmed.
1. Petitioner
does not challenge the board's factual findings. Accordingly, we accept those
findings as the facts for purposes of judicial review. See Meltebeke
v. Bureau of Labor and Industries, 322 Or 132, 134, 903 P2d 351 (1995) (so
holding under analogous circumstances).
2. The
board had previously issued petitioner a letter of concern, dated March 27,
2003, in which it had noted concerns about the technical quality of
"numerous reports" completed by petitioner and emphasized that
"it is imperative that [petitioner's] work product reflect the 'care,
skill, and diligence'" demonstrated by registered geologists in
petitioner's community.
3. Initially,
the board issued a final order that revoked petitioner's license. After petitioner
filed a petition for judicial review in the Court of Appeals, the board
withdrew its final order, reconsidered the matter, and issued a final order on
reconsideration pursuant to ORS 183.482(6). That statute provides, in part:
"At any time subsequent to the filing of
the petition for review and prior to the date set for hearing [before the Court
of Appeals] the agency may withdraw its order for purposes of reconsideration.
If an agency withdraws an order for purposes of reconsideration, the agency
shall, within such time as the court may allow, affirm, modify or reverse its
order. If the petitioner is dissatisfied with the agency action after
withdrawal for purposes of reconsideration, the petitioner may refile the
petition for review and the review shall proceed upon the revised order. An
amended petition for review shall not be required if the agency, on
reconsideration, affirms the order or modifies the order with only minor
changes. * * *"
In the Court of Appeals, petitioner filed an amended petition
for judicial review of the final order on reconsideration. Accordingly, the
board's final order on reconsideration (i.e., its second order) is the
operative order on review.
4. In
the final order on reconsideration, the board concluded that petitioner had
violated (1) OAR 809-020-0025(1) by failing to respond to a letter from the
board within the designated time period; and (2) OAR 809-020-0001(1) by signing
and placing his seal on unprofessional work. Petitioner does not challenge
those conclusions on review.
5. Two
lines of authority from this court prescribe distinct modes of analysis for
determining the intent of the legislature in enacting certain statutes. In PGE
v. Bureau of Labor and Industries, 317 Or 606, 610, 859 P2d 1143 (1993),
this court outlined three levels of analysis, beginning with the text and
context of the pertinent statute, that have as their objective the discovery of
"the intent of the legislature" in enacting a statute. Id.
In Springfield Education Assn. v. School Dist., 290 Or 217, 621 P2d 547
(1980), this court, relying on earlier cases, including Megdal,
concluded that it would determine the nature and scope of agency authority
delegated by statutes, including whether a statute required agency rulemaking
in advance of adjudication, by examining three types of statutory terms,
"exact," "inexact," and "delegative." Id.
at 223 (citing McPherson v. Employment Division, 285 Or 541, 591 P2d
1381 (1979), and Megdal); see also Ross v. Springfield School Dist.
No. 19, 294 Or 357, 367-68, 657 P2d 188 (1982) (discussing the three
categories of statutory terms outlined in Springfield Education Assn.
and distinguishing Megdal).
Those lines of authority are not inconsistent;
each operates in its proper context to guide courts and agencies in determining
the intent of the legislature in enacting statutes. See Bergerson v.
Salem-Keizer School District, 341 Or 401, 413-14 & n 7, 144 P3d 918
(2006) (rejecting argument that court must disregard cases predating PGE;
applying methodologies from both Springfield Education Assn. and PGE
to determine scope of interpretive responsibility of agency and court under
agency's authorizing statute).
6. ORS
672.655 provides:
"The State Board of Geologist Examiners
shall cause to be prepared and shall adopt a code of professional conduct which
shall be made known in writing to every registrant and applicant for
registration under ORS 672.505 to 672.705. A copy of the code shall be
provided to each successful applicant at the time of registration under ORS
672.585. The board may revise and amend this code of ethics from time to time
and shall forthwith notify each registrant in writing of such revisions or
amendments."
7. The
board consists of "four geologists and one public member, appointed by the
Governor," as well as the State Geologist, who is an ex officio
member. ORS 672.615(1), (2). The board may also "appoint an administrator
who shall not be a member of the board." ORS 672.615(7).
8. We
refer in this opinion to the version of OAR 809-055-0000 now in effect. The
2004 version of that rule, in effect at the time that the board received and
reviewed the three complaints about petitioner's hydrogeology reports, was
substantively identical, although it contained some differences in phrasing and
section numbering that do not affect the analysis of this case.
9. ORS
670.325(1) provides that
"[a]ll proceedings for the refusal to issue, or the
suspension or revocation of any license, [or] certificate of registration * * *
required to practice any profession subject to the authority of a professional
licensing or advisory board shall be conducted pursuant to the procedure for
contested cases required or authorized by ORS chapter 183."
ORS 670.304(8) expressly makes the above provision applicable
to proceedings of the board.
10. As
noted, ORS 670.304 and ORS 670.310 vest the Board with authority to make all
necessary or proper rules for the administration of the Board's authorizing
statutes, in accordance with applicable provisions of the APA.
11. The
legislature also has authorized the board to impose a civil penalty for a
violation of the statutes and rules that regulate the practice of geology. ORS
672.690(1) provides:
"In addition to any other penalty provided by law, a
person who violates any provision of ORS 672.515 to 672.705 or any rule adopted
thereunder is subject to payment of a civil penalty to the State Board of
Geologist Examiners in the amount of not more than $1,000 for each
offense."
12. Trebesch
confirms that the nature of the statutory term in question, i.e.,
whether the term is inexact or delegative, does not determine the necessity of
rulemaking to define the term prior to its application in an adjudication:
"Megdal does not mean that all terms
delegating policymaking discretion can be applied only after rulemaking. Nor
does Ross mean that terms delegating interpretive responsibility may
always be applied as the agency chooses, either by rule or by adjudication.
Both cases address only the requirement for rulemaking in the individual
agencies at issue in the cases."
300 Or at 270.
Accordingly, Trebesch requires examination
of not only the statutory term in question but also the scope of the agency's
responsibility, the agency's structure for performing mandated tasks, and any
other factor that bears on the legislature's intent regarding rulemaking. Id.
13. In
this proceeding, we have no occasion to examine whether the board must explain
other broad statutory grounds for discipline, such as "incompetence,"
"misconduct in the practice of geology," or the other criteria set
out in ORS 672.675, through additional rulemaking or through the board's code
of professional conduct.
14. Petitioner
levies the same challenge against each definitional rule. He suggests that
both rules should have stated that, in determining the standard of care in the
community in which a registrant practices, the board will consider practices
followed and accepted by persons practicing geology within the county in which
the registrant practices.
15. The
parties agree that the relevant community standard for the board's charges
governing negligence in the practice of professional geology is the standard of
conduct that applies in Marion County, which is where the property for which
the hydrogeology reports at issue in this case were prepared. Petitioner
argued to the Court of Appeals that the board failed to establish the standard
of professional practice in Marion County because the board relied on the
expert testimony of a professional geologist, Sprecher, who practiced mainly in
central Oregon, but testified about Marion County's requirements based on his
review, at the board's request, of Marion County zoning ordinances, including
hydrogeology guidelines. Petitioner also asserted that, apart from Sprecher's
insufficient testimony, the record contained no other evidence of the standard of
care in Marion County.
On review, petitioner makes a
somewhat different argument. He claims that the board's rule defining
negligence correctly incorporates as an element the standard of care in
"the community in which the registrant practices." OAR 809-003-0000(15).
However, he contends that that rule is insufficient because it lacks a
description of how the board will determine the community standard where the
professional geologist practices, and that no other rule fills in that gap. He
also argues, citing Megdal, that the board's acceptance of Sprecher's
expert testimony amounted to an improper delegation of the board's
responsibility to set the pertinent standard of care when it enacts its rules
before an adjudication.
16. ORS
183.482(8)(a) provides that
"The court may affirm, reverse, or remand
the [agency's] order. If the court finds that the agency has erroneously
interpreted a provision of law and that a correct interpretation compels a
particular action, the court shall:
"(A) Set aside or modify the order; or
"(B) Remand the case to the agency for
further action under a correct interpretation of the provision of law." | 45bc20ba43f8ce59047a27134b16133af6edb7cc12d26caf2d882b9279104b02 | 2010-07-09T00:00:00Z |
80b552f5-f807-4c30-97dc-94e4f822d6a9 | State ex rel English v. Multnomah County | null | S057387 | oregon | Oregon Supreme Court | FILED: June 17, 2010
IN THE SUPREME COURT OF THE STATE OF OREGON
STATE ex rel DOROTHY ENGLISH,
Deceased,
by and through DOUGLAS JAMES SELLERS,
Personal Representative of the
Estate of Dorothy English, Deceased,
Respondent on Review,
v.
MULTNOMAH COUNTY,
a public corporation incorporated in the State of Oregon;
CAROL FORD,
in her capacity as Director of the Department of County Management for Multnomah County;
and MINDY HARRIS,
in her capacity as Finance Officer for Multnomah County,
Petitioners on Review.
(CC 070708042; CA A137217; SC
S057387)
On review from the Court of Appeals.*
Argued and submitted January 6, 2010.
Stephen L. Madkour, Assistant County
Attorney, Office of Multnomah County Attorney, Portland, argued the cause and
filed the brief for petitioner on review. With him on the brief was Agnes
Sowle, County Attorney for Multnomah County.
D. Joe Willis, Schwabe, Williamson & Wyatt,
P.C., Portland, argued the cause for respondent on review. With him on the
brief were Michael T. Garone and Andrew J. Lee.
Stephanie L. Striffler, Senior Assistant
Attorney General, Salem, filed a brief for amicus curiae State of
Oregon. With her on the brief were John R. Kroger, Attorney General, and
Jerome Lidz, Solicitor General.
Barton C. Bobbitt, Sisters, and Jeannette
L. Moore, The Gilroy Law Firm, PC, Tigard, filed a brief for amici curiae Virginia
Louise Bleeg, Darrin Black, Roger J. Miracle, Ann M. Miracle, Harold
MacLaughlan, and Rebeca MacLaughlan.
Before De Muniz,
Chief Justice, and Durham, Balmer, Kistler, and Linder, Justices.**
BALMER, J.
The decision of the Court of Appeals is
affirmed. The judgment of the circuit court is reversed, and the case is
remanded to the circuit court with instructions to issue a peremptory
writ of mandamus directing the county to pay the judgment for $1,150,000.
*Appeal from Multnomah County Circuit
Court, Jerry B. Hodson, Judge. 227 Or App 419, 206 P3d 224 (2009).
**Gillette, J., did not
participate in decision of this case. Walters, J., did not participate in the
consideration or decision of this case.
BALMER, J.
This mandamus action requires us to
determine the effect of a final judgment, containing a "money award,"
that was entered "pursuant to" Measure 37, a land use statute that
applies here but that has now been substantially superseded by later
legislation. Dorothy English, an owner of land in Multnomah County, filed a cause
of action under Measure 37 against the county, ultimately obtaining a judgment "against
[the county] for just compensation pursuant to the provisions of [Measure 37]
in the sum of $1,150,000." Although the county initially appealed that
judgment, it later dismissed its appeal. English requested payment of the
trial court judgment, and, when the county failed to pay the $1,150,000, she
sought mandamus to compel payment.(1)
The mandamus court dismissed the alternative writ of mandamus, concluding that
the trial court judgment was payable only at the county's discretion. English
appealed, and the Court of Appeals reversed and remanded with instructions to
issue a peremptory writ of mandamus directing the county to pay the judgment
for $1,150,000. State ex rel English v. Multnomah County, 227 Or App
419, 206 P3d 224 (2009). We allowed the county's petition for review and, for
the reasons that follow, now affirm the decision of the Court of Appeals.
I. MEASURE 37
In 2004, the voters approved Ballot
Measure 37 (2004), codified at ORS 197.352 (2005), renumbered as
ORS 195.305 (2007) (Measure 37(2)),
which authorized awards of "just compensation" to landowners if a
government entity enforced land use regulations that reduced the fair market
value of the landowners' property. In particular, ORS 197.352(1) provided:
"If a public entity enacts or enforces a
new land use regulation or enforces a land use regulation enacted prior to
December 2, 2004, that restricts the use of private real property or any
interest therein and has the effect of reducing the fair market value of the
property, or any interest therein, then the owner of the property shall be paid
just compensation."
Certain land use regulations were exempt from the
compensation provision, including those "[r]estricting or prohibiting
activities for the protection of public health and safety." ORS
197.352(3)(B).(3)
The statute authorized a landowner whose property had been affected by a
nonexempt regulation to submit a "written demand for compensation * * * to
the public entity enacting or enforcing the land use regulation." ORS 197.352(4),
(5). If the public entity continued to apply the regulation to the property
more than 180 days after the landowner made that written demand, the landowner
was permitted to file an action in the circuit court:
"If a land use regulation continues to
apply to the subject property more than 180 days after the present owner of the
property has made written demand for compensation under this section, the
present owner of the property, or any interest therein, shall have a cause of
action for compensation under this section in the circuit court in which the
real property is located, and the present owner of the real property shall be
entitled to reasonable attorney fees, expenses, costs, and other disbursements
reasonably incurred to collect the compensation."
ORS 197.352(6).
Measure 37 also contained a provision
that permitted the public entity to waive the relevant land use regulation or
land use regulations instead of paying just compensation:
"Notwithstanding any other state statute or
the availability of funds under subsection (10) of this section, in lieu of
payment of just compensation under this section, the governing body responsible
for enacting the land use regulation may modify, remove, or not to apply [sic]
the land use regulation or land use regulations to allow the owner to use the
property for a use permitted at the time the owner acquired the property."
ORS 197.352(8). Finally, the statute contained a provision
addressing both payment of claims and waiver of regulations:
"Claims made under this section shall be
paid from funds, if any, specifically allocated by the legislature, city, county,
or metropolitan service district for payment of claims under this section.
Notwithstanding the availability of funds under this subsection, a metropolitan
service district, city, county, or state agency shall have discretion to use
available funds to pay claims or to modify, remove, or not apply a land use
regulation or land use regulations pursuant to subsection (6) of this section
[providing landowner with a cause of action for compensation]. If a claim has
not been paid within two years from the date on which it accrues, the owner
shall be allowed to use the property as permitted at the time the owner
acquired the property."
ORS 197.352(10). The government's option, based on those
sections of Measure 37, to pay compensation or to waive applicable land use
regulations, is sometimes referred to as "pay or waive."
II. FACTUAL
BACKGROUND AND TRIAL COURT PROCEEDING
On December 2, 2004, the day that
Measure 37 became effective, English filed a written demand for compensation
with Multnomah County in the amount of $1,150,000. She argued that, when she
purchased her property in 1953, she lawfully could have used the property by
partitioning it to create two separate parcels per year and constructing single-family
homes on those parcels. Ultimately, she argued, she could have created at
least eight separate parcels. She listed various regulations that were being
enforced against her property that she claimed prevented or restricted that
originally permissible use. In response, the Board of County Commissioners
issued an order (the 2005 order), in which it waived some of the 61 regulations
listed in English's written demand. It refused to waive the other listed
regulations, asserting that those regulations either were exempt from Measure
37 or did not prevent English from partitioning her land into two parcels per
year for a total of eight parcels, the intended use that she had described in
her written demand.
English was unsatisfied with the board's
order, and, on May 16, 2006, she filed an action for just compensation in the
Multnomah County Circuit Court. The complaint alleged that various land use
regulations restricted English's intended use of the property --
"partitioning it into two parcels per year and then selling the
partitioned parcels for construction of single family homes and appropriate
amenities" -- and that, as a result, she was entitled to just compensation
"in the amount of $1,150,000 (and probably an even higher figure based on
information learned after submitting the written demand for Just
Compensation)." The complaint alleged that that figure "represents
the amount equal to the reduction in value of the fair market value of the
Property on or about December 2, 2004, resulting from enactment or enforcement
of the land use regulations complained of."
Two days after English filed her
complaint, the board issued another order (the 2006 order), in which it waived additional
regulations. The county then filed an answer to English's complaint,
asserting, as an affirmative defense, that it had waived all regulations
affecting the proposed development of English's property, except "1)
regulations restricting or prohibiting activities for protection of public
health and safety, and 2) regulations which provide for the procedure for land
divisions and development of real property in Multnomah County." The county
explained that health and safety regulations are expressly exempt from Measure
37 and argued that the procedural regulations "are not within the purview
of Measure 37 because they do not restrict the use of private real
property."
On August 2, 2006, English moved for
summary judgment, arguing that she had demonstrated that she was entitled to just
compensation as a matter of law in the amount of $1,150,000 and that there was
no genuine dispute as to any fact material to her claim. In the alternative,
she argued that, if any factual dispute existed as to the amount of
compensation due, she was entitled at least to summary judgment "on all
liability issues." Again, the county responded that it had waived all
nonexempt regulations and that English was therefore not entitled to any
compensation. On September 22, 2006, the trial court held a hearing on
English's motion for summary judgment. English argued that the waivers in the
2006 order were irrelevant because they came too late. According to English, the
county was required to waive the regulations within 180 days of her written
demand. Because it had failed to do so, she asserted that the county had an
absolute obligation to pay her just compensation and no longer had the option
to "pay or waive." In any event, she argued, the 2006 order did not
waive all the relevant regulations; specifically, she argued (1) that Measure
37 did not provide the exemption that the county claimed for procedural
regulations and (2) that at least some of the regulations that the county had labeled
as "health and safety regulations" did not qualify for that exempt
status.
The trial court granted English's motion
for summary judgment as to liability. The court reasoned that, although health
and safety regulations were exempt from Measure 37, the county had refused to
waive "quite a few" regulations "that have nothing to do with
health and safety." The court also rejected the county's position that
various procedural regulations were not within the purview of Measure 37. Because
"the County did fail to modify, remove or not apply various land use
ordinances, including a land division ordinance[,] in its March 17, 2005 order,
or in its May 18, 2006 order," the court granted English's motion for
summary judgment "as to liability." However, the court refused to
grant summary judgment as to the amount of just compensation, because English had
presented no evidence proving the amount of the reduction in her property value
that had been caused by the county's continued enforcement of the nonexempt regulations.
After the court entered an order
granting English's motion for summary judgment, the county moved to bifurcate
trial on the two remaining issues in the case: (1) which regulations were
exempt as health and safety regulations under Measure 37 and (2) how much
English's property value had been decreased by the continued enforcement of
each nonexempt regulation. The court acknowledged that "there's more to
the case than just trying the amount of damages," but nonetheless denied
the county's motion, reasoning that "liability and damages are commonly
combined in one trial."
The court then set a trial date of
December 11, 2006, and the parties submitted trial memoranda. However, before
trial, the county stipulated that "just compensation for the claim set
forth in [English's] Complaint is $1,150,000." As a result, the court
never decided which regulations were exempt as health and safety regulations(4)
or how much the enforcement of each individual regulation decreased the value
of English's property.
The parties then submitted proposed
forms of judgment. Each party's proposed judgment stated that English would
"have judgment against [the county] for just compensation pursuant to the
provisions of ORS 197.352 in the sum of $1,150,000." Each party's
proposed judgment also included a separate section labeled "Money
Judgment," including information such as the judgment creditor's name and
address, the judgment debtor's name and address, and the amount of the award.(5)
The county's proposed judgment included an additional paragraph, stating that
"pursuant to ORS 197[.]352(10)[,] the judgment for $1,150,000 shall be
payable only from funds, if any, specifically allocated by [the county] for
payment of claims under ORS 197.352." The only other significant
difference between the two judgments was that English's proposed judgment
included interest in the "Money Judgment" section, and the county's
did not.
At the hearing on the form of judgment,
the trial court first concluded that English was not entitled to interest.
When English offered to "type * * * up" a new judgment that did not
include interest, the court noted that the county had submitted a proposed
judgment that did not include interest. The court was concerned, however,
about the additional paragraph providing that the judgment would be payable
only from specifically allocated funds, stating that it "would sign a
judgment exactly like this one that was submitted without that paragraph.
Because the actual statute has other provisions that allow the County to use
its discretion to pay it from other available funds and so forth." The
court reasoned, "The law is what it is, and I don't think it's necessary
to be included in the general judgment." The county argued that it was
important to include the statutory wording regarding the specifically allocated
funds so as to limit English's ability to enforce the judgment, but the court stated,
"My preference would be to just say that the judgment shall be payable
pursuant to [ORS] 197.352(10)."
Several days after the hearing, the
court entered a judgment. That judgment was entitled "General
Judgment" and provided, in part:
"Based on the stipulation of the parties as
to just compensation,
"IT IS HEREBY ORDERED AND ADJUDGED:
"1. That [English] have judgment
against [the county] for just compensation pursuant to the provisions of ORS
197.352 in the sum of $1,150,000.
"2. That [English] have judgment for
her reasonable attorney fees, expenses, costs and other disbursements
reasonably incurred pursuant to 197.352, ORCP 68 and Supplemental Judgment.
The court later entered a corrected judgment, in which it
crossed out the word "Judgment" in the section heading "MONEY
JUDGMENT" and replaced it with the word "Award," to track the
wording of ORS 18.042, which describes the information that must be included in
a judgment in order to create a judgment lien.(6)
The county appealed.
On February 15, 2007, a little over a
month after the trial court had entered the trial court judgment, the board
issued a third order, in which it waived the procedural rules, provided a
process for English to request approval of her new parcels, and listed several
regulations that would continue to be enforced as "health and safety"
regulations. On that same day, the county moved to dismiss its appeal of the
trial court judgment. The Court of Appeals granted the motion, and the
appellate judgment issued on February 23, 2007. On May 24, 2007, the board
issued a fourth order, in which it waived another "health and safety"
regulation and modified the process for English to request approval of her
parcels. English maintains that even the fourth order did not waive all
necessary regulations.
III. MANDAMUS
PROCEEDING
On June 6, 2007, English sent the county
a certified copy of the trial court judgment and requested that the county pay
the $1,150,000 money award. See ORS 30.390 (describing process for
obtaining satisfaction of judgment against a public corporation). The county failed
to pay, and English initiated this mandamus action. The mandamus court issued
an alternative writ of mandamus, directing the county to pay the award or show
cause why it had not done so. The county moved to dismiss the alternative writ,
arguing that, even after English's claim was reduced to a final judgment, the county
retained the discretion to determine whether it would pay the award of just
compensation or waive the applicable regulations. The county argued that it
had exercised its discretion to waive the applicable regulations, and it
therefore was not required to pay the $1,150,000 award. The trial court
granted the county's motion, concluding that "a judgment entered pursuant
to [Measure 37] is payable only at the discretion of the government[] and that
[English] cannot compel the payment of the judgment."
English appealed, arguing that,
because the county had dismissed its original appeal and allowed the trial
court judgment to become final, it was prohibited from raising any defenses that
it may have had under Measure 37 to the judgment requiring it to pay just
compensation. The county responded that English's claim was moot in light of
the passage of Ballot Measure 49 (2007), Oregon Laws 2007, chapter 424 (Measure
49), which fundamentally altered the claims and remedies that previously had
been available to landowners under Measure 37. The county also contended that
claim preclusion did not prohibit its defenses to English's attempt to collect
the judgment and that, under Measure 37, the county had complete discretion as
to whether to pay the judgment.
The Court of Appeals reversed and
remanded with instructions to the trial court to issue a peremptory writ of
mandamus directing the county to pay the $1,150,000 judgment. The court first
concluded that Measure 49 did not deprive final judgments that had been
issued pursuant to Measure 37 of continuing viability. Thus, because English's
Measure 37 claim had been reduced to a final judgment, Measure 49 did not
prevent her from seeking enforcement of that judgment. English, 227 Or
App at 428. Next, the court held that the county was prohibited from raising
defenses that it could have raised in the underlying trial court proceeding -- in
particular, its defenses (1) that it was not required to pay English just
compensation because it had not specifically allocated funds for that purpose;
(2) that it was not required to pay just compensation because it had waived all
land use regulations that restricted English's intended use of her property;
and (3) that, two years after English's cause of action accrued, the land use
regulations were automatically waived under Measure 37, and the county
therefore was not required to pay just compensation. Id. at 430-33. Finally,
the court held that Measure 37 did not make payment of the final, unconditional
judgment contingent upon the county's exercise of discretion. Id. at
433. The county then filed a petition for review, which we allowed.
IV. ANALYSIS
A. Effect of Measure 49
On review, the county first renews
its argument that English's claim for just compensation is controlled by
Measure 49 and that the judgment that she received pursuant to Measure 37 therefore
has no continuing legal effect. In November 2007, more than eight months after
English's trial court judgment became final, Oregon voters approved Measure 49,
which altered the remedies and procedures that had been available under Measure
37. As we explained in Corey v. DLCD, 344 Or 457, 465, 184 P3d 1109 (2008), Measure 49 "extinguish[ed] and replace[d] the benefits and
procedures that Measure 37 granted to landowners." Further, "Measure
49 pertains to all Measure 37 claims, successful or not, and regardless
of where they are in the Measure 37 process." Id. (emphasis in
original). As a result, the county argues, Measure 49 applies to English's
claim, despite the fact that she was successful in obtaining a final judgment
against the county pursuant to Measure 37. According to the county, English
must pursue her claim under Measure 49, rather than requesting that the court
enforce her final judgment by writ of mandamus. In short, the county argues
that the passage of Measure 49 renders English's Measure 37 judgment
unenforceable.
We disagree. As the Court of Appeals
correctly reasoned, when a claim is reduced to a final judgment, the underlying
claim is extinguished, "merging" into the judgment; as a result, the "rights
upon the judgment are substituted for the former claim." Barrett and
Barrett, 320 Or 372, 378, 886 P2d 1 (1994). For example, if a trial court
incorporates a contract, such as a settlement agreement in a dissolution case,
into its final judgment, then the parties' contract claims are extinguished,
and the parties' rights to enforce the judgment are substituted for the previously
held rights on the contract. See Webber v. Olsen, 330 Or 189, 196, 998 P2d 666 (2000) (noting that once settlement agreement is incorporated into
judgment, contractual remedies are no longer available); see also Rigdon v.
Rigdon, 219 Or 271, 276-79, 347 P2d 43 (1959) (concluding that settlement
agreement merged with judgment).
That rule applies equally in this
context: English's Measure 37 claim was extinguished once her claim was
reduced to a final judgment. When the county dismissed its appeal and the
Court of Appeals issued the appellate judgment, English's rights under Measure
37 were replaced with her rights -- if any -- under the trial court judgment. The
issue in this mandamus proceeding, therefore, is the interpretation and
enforceability of English's final judgment against the county in the amount of
$1,150,000, not the propriety of her claim under Measure 37. Although, as we
discuss below, the proper interpretation of Measure 37 might become relevant in
interpreting the trial court judgment, it is the judgment that controls. Our
interpretation of the judgment and our determination as to whether that
judgment is enforceable are not controlled by Measure 49, as Measure 49 supersedes
only those proceedings that are governed by Measure 37. See Corey, 344
Or at 466-67 (Measure 49 applies to Measure 37 claims and nullifies "orders
disposing of Measure 37 claims"). The Court of Appeals correctly
determined that the final judgment in this case was not voided by Measure 49.(7)
B. Claim Preclusion
Having determined that Measure 49 did
not void the trial court judgment, we turn to whether the county is prohibited
by principles of claim preclusion from asserting certain defenses in this
mandamus proceeding. We begin with a brief overview of the principles concerning
the preclusive effect of a final judgment. As this court noted in Drews v.
EBI Companies, 310 Or 134, 139, 795 P2d 531 (1990), the overarching principle
of preclusion "comprises two doctrines: claim preclusion, also known as res
judicata, and issue preclusion, also known as collateral estoppel."(8)
(Footnotes omitted.) Further, the doctrine of claim preclusion can be
separated into two concepts: the rule of merger and the rule of bar. See Restatement
(Second) of Judgments § 17 (1982) (describing merger, bar, and issue
preclusion); see also Ira v. Columbia Food Co. et al, 226 Or 566, 570, 360
P2d 622 (1961) ("The term res judicata is frequently used in a
broad sense as including merger, bar, [and issue preclusion].").
Issue
preclusion prevents parties from relitigating issues that were actually
litigated and determined in a prior action. Nelson v. Emerald
People's Utility Dist., 318 Or 99, 103-04, 862 P2d 1293 (1993). See
also Restatement at § 27 (describing issue preclusion). Claim
preclusion is broader than issue preclusion in that it may bar litigation of an
issue that could have been raised, even if that issue was not actually raised,
in an earlier proceeding. Drews, 310 Or at 140. As noted, claim
preclusion can be separated into two concepts: the rule of merger and the rule
of bar.
We turn first to the rule of merger.(9)
As discussed above, once a plaintiff obtains a valid, final judgment, the
plaintiff's underlying claim merges into the final judgment and is extinguished.
For that reason, the plaintiff can no longer maintain an action on the
underlying claim. See Barrett, 320 Or at 378 (describing principles). The
plaintiff may, however, be able to maintain an action to enforce and effectuate
the judgment, and, in that action, "the defendant cannot avail himself of
defenses he might have interposed, or did interpose, in the first
action." Restatement at § 18; see also Security Inv. Co. v.
Miller, 189 Or 246, 251, 218 P2d 966 (1950) (describing merger and
conclusive effect of judgment). In other words, when a plaintiff seeks to
enforce a valid judgment, the defendant may not collaterally attack the
judgment as being erroneously issued.
The second aspect of claim
preclusion, known at common law as the rule of bar, is the principle most often
described by the term "claim preclusion." That rule prohibits parties from splitting claims by requiring
plaintiffs to "bring all claims arising from the same factual transaction
or circumstances in a single action." Peterson v. Temple, 323 Or
322, 327, 918 P2d 413 (1996). Thus, a plaintiff who has brought an action
against a defendant and obtained a final judgment in that action is prohibited
from later bringing an action against the same defendant based on the same
factual transaction or circumstances.
In past
cases, this court has referred to the foregoing concepts collectively as claim
preclusion, often without distinguishing between merger and bar. In Drews,
for example, after describing the rule of bar, the court noted that
"[c]laim preclusion applies equally to a defendant's defense."(10)>
310 Or at 140. For that proposition, the court cited section 18 of the Restatement,
the section dealing with the rule of merger. Id. It is true, as
discussed above, that the rule of mergerapplies to
a defendant's defense: a defendant cannot raise defenses in an action to
enforce a judgment that he or she did raise or could have raised in the action
in which the judgment was entered. However, the statement from Drews can
create confusion, because, in Oregon, the rule of bar does not apply in
the same way; instead, under the rule of bar, if, in one action, certain facts
create both a defense and a counterclaim, "failure to assert such facts,
either as a defense or as a counterclaim, does not preclude [the] defendant
from thereafter bringing a separate action based upon those facts." Buck
v. Mueller, 221 Or 271, 277, 351 P2d 61 (1960).(11)
That is because, in Oregon, unlike in the federal courts, there are no
compulsory counterclaims. Compare FRCP 13(a) (pleading "must state"
certain claims as counterclaims) with ORCP 22 A (defendant "may set
forth" counterclaims). We therefore refer
to the rule at issue in this case as the rule of merger, rather than the more
generic term of "claim preclusion."
With
the foregoing framework in mind, we return to the parties' arguments in this
case. English argues that the county is prohibited, by the principles of claim
preclusion discussed above, from raising its Measure 37 defenses in this
mandamus action and that the county is bound by the trial court's valid, final
judgment. Although English uses the more general term "claim
preclusion," the substance of her argument is correct, and the county is
prohibited, by the rule of merger, from raising any defenses in this mandamus
proceeding that it could have raised, or that it raised and lost, in the
original trial court proceeding.
The county argues, however, that it is
not prohibited from "asserting its defenses to the collectability of the [trial
court] judgment based on the plain language of [Measure 37]," because it
could not have raised those defenses in the trial court proceeding. The county
contends that the only issue in the trial court proceeding was the amount of
compensation, not the county's obligation to pay compensation. The county
reasons that the sole purpose of the cause of action provision of Measure 37 was
to provide a procedure for liquidating Measure 37 claims, after which the
governing body (here, the county), could decide whether to pay the liquidated
amount or to waive the regulation. In the county's view, the trial court
judgment determined only that the value of English's claim was $1,150,000, and
not that the county was required to pay that amount. Thus, the county argues,
it would have been premature for the county to raise any defense during the trial
court proceeding concerning the county's obligation to pay.
We view the county as arguing, at
least in part, that the trial court judgment potentially created no remedy at
all for English. In other words, the county appears to argue that, after the trial
court entered the judgment, the county retained the following options: (1) to
pay English $1,150,000, but only if it specifically allocated funds for that
purpose as described in ORS 197.352(10); (2) to affirmatively waive all
relevant land use regulations; or (3) to do nothing, in which case all relevant
regulations would be automatically waived two years after English's cause of
action accrued, by operation of ORS 197.352(10). Under the third circumstance,
applying the county's reasoning, English would have no remedy under the
judgment; instead, her only remedy would be the automatic waiver already
contained in Measure 37.
To the extent that the county argues that
the trial court judgment creates no remedy for English -- and imposes no
obligation on the county -- we disagree. As noted, the trial court granted
English's motion for summary judgment "as to liability" after
determining that the county had continued to enforce nonexempt land use
regulations that decreased the value of English's property. Although we agree
with the county that the trial court did not necessarily conclude, in granting
English's motion for summary judgment, that English was entitled to payment,
the trial court did conclude that English was entitled to some remedy --
either payment or waiver of the land use regulations. Thus, we cannot agree
with the county that the judgment determined only the amount of compensation
and granted English no remedy at all.
C. Interpretation of Trial Court Judgment
We also read the county's brief as
raising an additional, slightly more nuanced argument than the one just
described -- an argument based on its interpretation of the judgment itself. At
times, the county appears to concede that the trial court judgment grants some
remedy to English; the county nonetheless argues that it retained discretion to
elect whether that remedy would be payment or waiver of the regulations. In
other words, the trial court judgment, although creating an obligation to pay, conditioned
that obligation on the county's continued enforcement of the relevant land use
regulations. According to the county, that is so because the judgment expressly
provides that it was entered "pursuant to the provisions of [Measure
37]," and Measure 37, in turn, provides the county with the discretion to
either pay just compensation or waive the applicable land use regulations. As
a result, the county appears to argue, the judgment provides the county
with the discretion to either pay or waive the regulations.
The county's argument might be
plausible if we considered, in isolation, the wording in the judgment that
states that it is a judgment against the county "for just compensation pursuant
to the provisions of [Measure 37]." (Emphasis added.) However, the remainder
of the judgment indicates that the trial court intended to enter an
unconditional judgment awarding $1,150,000 to English. Initially, we note that
the court included a section labeled "money award," which, like other
judgments making unconditional awards of money, included information about English,
identified as the "judgment creditor," and information about the
county, identified as the "judgment debtor." ORS 18.042 requires
that any "judgment document for a judgment in a civil action that includes
a money award" contain a section, like the one included in the judgment
here, that is "clearly labeled as a money award" and that provides
certain information about the judgment creditor and judgment debtor. ORS
18.005(14) then defines a "money award" as "a judgment or
portion of a judgment that requires the payment of money."
(Emphasis added.) Thus, by including the section labeled "money
award," along with the information required by ORS 18.042, it appears that
the trial court intended for the judgment to require the payment of money.
Moreover, the trial court did not
indicate -- in the trial court judgment, a letter opinion, or elsewhere --
which regulations the county would be required to waive to avoid paying just
compensation. It is likely that, if the trial court had intended the judgment to
require either payment of $1,150,000 or waiver of certain land use regulations,
the court would have included a list of the land use regulations that the
county would need to waive to satisfy the judgment. That is particularly true because
it is apparent from the trial court record that the court understood that the
parties disagreed as to which regulations were exempt from Measure 37 and which
regulations reduced the value of English's property; indeed, that was the focus
of the hearing on English's motion for summary judgment. The county's argument
appears to assume that the trial court intended for that issue to be resolved
in a later proceeding. That is, once the county had waived certain
regulations, English would bring another action to determine whether she
was entitled to recover some or all of the $1,150,000 award contained in the
judgment. However, the trial court labeled the judgment a "general
judgment," thereby indicating that the document was a "concluding
decision of [the] court" and "decide[d] all requests for relief in
the action." ORS 18.005(7), (8). As a result, we do not interpret the
judgment as leaving open the issue of what was required to satisfy the
judgment. Instead, it appears that the court included in the text of the
judgment what was required to satisfy it: payment of $1,150,000.
The county argues that, despite the
text of the judgment itself, the trial court's statements at the hearing on the
form of judgment indicate that the court did not intend to require the payment
of money when it entered the trial court judgment.(12)
As noted, the trial court expressed concern about a paragraph in the county's
proposed judgment that provided that the judgment would be payable only from
specifically allocated funds, "[b]ecause the actual statute has other
provisions that allow the County to use its discretion to pay it from other
available funds and so forth." The court added, "The law is what it
is, and I don't think it's necessary to be included in the general judgment."
When the county urged the court to include the text from Measure 37 in the
judgment so as to limit the county's liability, the court responded that its
preference "would be to just say that the judgment shall be payable
pursuant to [ORS] 197.352(10)."
Admittedly, the trial court's
statements at the hearing are not crystal clear. Those statements are open to several
interpretations, including that the trial court believed (1) that the judgment
would require payment of $1,150,000, (2) that the judgment would require either
payment of $1,150,000 or waiver of some or all complained-of land use
regulations, or (3) that the court did not need to determine what the judgment
would require, because a later court would sort it out. However, the court more
clearly explained that it was reluctant to include the county's proposed
provision because, notwithstanding the availability of specifically allocated
funds, the county could "use its discretion to pay * * * from other
available funds." See ORS 197.352(10) (so stating). Thus, although
some of the court's later statements imply that the court believed that it did
not need to determine whether the judgment could be satisfied by a later waiver,
the record of the proceedings that resulted in the judgment, taken as a whole,
suggests that the trial court intended the judgment to unconditionally require
payment. In any event, the trial court judgment itself appears to unconditionally
require the payment of money, and the court's statements at the hearing on the
form of judgment do not convince us that the court intended otherwise. We do not
read the trial court's equivocal statements at a brief, informal hearing to
contradict the text of the judgment, which sets out a "money award"
like any other judgment requiring the payment of money. We therefore interpret
the judgment as a general judgment requiring payment of $1,150,000.
We now turn to an argument by the
county that is based on the alleged similarity between the framework of ORS
chapter 35, which governs condemnation proceedings, and Measure 37. In brief,
the county argues that the condemnation statutes permit a condemner to litigate
the amount of compensation that it would be required to pay a property owner
and only then to decide whether to pay that amount and take the property
or, instead, not to take the property; Measure 37, the county asserts, should
be construed similarly.
Pursuant to the condemnation statutes,
a "condemner" -- an entity with the power to exercise the right of
eminent domain -- that wishes to condemn property must seek out the owner of
the property and attempt to reach an agreement as to the compensation to be
paid for taking the property. See ORS 35.215(1) (defining
"condemner"); ORS 35.235 (describing agreement). If the condemner
cannot locate the owner or cannot agree with the owner as to the amount of
compensation, the condemner may commence an action to condemn the property.
ORS 35.245(1). The parties then litigate the amount of compensation at trial.
See ORS 35.305 (describing conduct of trial). As the county correctly
points out, it may be difficult for the condemner to decide whether to condemn
the property without first liquidating the amount of compensation that it will
be required to pay for the property. As a result, the condemnation statutes
provide ways for the condemner to elect not to take the property, even
after the jury renders a verdict determining the property value. For example,
a condemner may, within 60 days after a verdict on the compensation
amount, elect not to take the property, ORS 35.335(3), and thus avoid paying
compensation. And the judgment in a condemnation case is, by statute, a
conditional judgment. See ORS 35.325 (after jury assesses compensation,
court "shall give judgment appropriating the property in question to the
condemner, conditioned upon the condemner's paying into court the compensation
assessed by the jury" (emphasis added)).
The county is correct in pointing out that there are procedures
in a condemnation action by which the condemner can avoid paying a compensation
amount that already has been determined in a legal proceeding by electing not
to take the property. The county may also be correct that similar alternatives
might have been available in Measure 37 actions. For instance, the trial court
in this case might have entered a judgment that explicitly conditioned the
payment of $1,150,000 on the county's continued enforcement of certain land use
regulations and thereby given the county the express option to "pay or
waive." Alternatively, the trial court might have granted the county a
certain amount of time, before entering the judgment, to consider whether to
waive the regulations or pay the compensation amount. Here, however, the court
did not. As described above, the trial court instead entered an unconditional
judgment awarding English $1,150,000. The county's arguments regarding the
benefits of first liquidating the amount of compensation and then allowing the
governmental entity to decide whether to pay should have been made before the
trial court and on direct appeal of the trial court judgment. They were not.
Rather, despite the county's argument that the trial court include a provision
in the trial court judgment limiting English's ability to enforce the judgment,
the trial court entered a judgment that required the county to pay English a
specified amount. The county appealed but, for whatever reason, dismissed its
appeal.
In sum, we conclude that the trial
court judgment is an unconditional money award, requiring the county to pay
English $1,150,000. The county had the opportunity to litigate the form of
judgment and to request a judgment that either expressly was conditioned on
continued enforcement of the land use regulations or expressly indicated that
it determined only the amount of compensation and did not create any obligation
or remedy. If the county had wanted to achieve that result in the trial court,
its remedy when it did not was to file a direct appeal. English obtained a
final, unconditional judgment, including a money award, and the county cannot
now collaterally attack that judgment as erroneous. We therefore have no
occasion to address the majority of the county's arguments concerning the
proper construction of Measure 37.
D. Validity of Trial Court Judgment
Having concluded that the trial court
judgment unconditionally requires the payment of money, the only remaining
issue is whether Measure 37 itself prohibits or voids otherwise final,
unconditional judgments. See State v. McDonnell, 343 Or 557, 562, 176
P3d 1236 (2007) ("[A] void judgment is subject to collateral
attack, while a voidable judgment is subject only to direct attack."
(Internal quotation marks omitted; emphasis in original.)). In other words,
the county's only remaining argument is that, even if the trial court intended
to enter an unconditional judgment requiring the payment of money, because of
the framework of Measure 37, it was not permitted to do so, and the trial court
judgment is therefore unenforceable.
That argument is not well taken. "[W]hen
a trial court has both subject-matter and personal jurisdiction, a judgment
issued in excess of the court's authority is voidable, not void." McDonnell,
343 Or at 563. Thus, even if the county were correct that the trial court
exceeded its authority under Measure 37 by entering a judgment that
unconditionally requires the payment of money, the trial court judgment would
nonetheless be immune from collateral attack, because such a judgment would be
only "voidable." The only issue that the county can raise in this mandamus
proceeding is whether the trial court judgment is void, not whether the trial
court exceeded its authority under Measure 37 by entering the trial court
judgment.
The county correctly notes that certain
provisions of Measure 37 indicate that the county (and other governing bodies)
has discretion to decide whether to pay claims for just compensation or waive
the applicable land use regulations. See ORS 197.352(8), (10) (so providing).
However, to the extent that the county argues that those provisions also void
final judgments that include unconditional money awards, we disagree. The
county has pointed to nothing in the text of Measure 37 that would indicate
such an intent, and we will not assume that the voters intended to create such
an extraordinary result without having it clearly expressed in the measure that
they approved.(13)
V. CONCLUSION
The Court of Appeals correctly
concluded that the county's defenses to enforcement of the trial court judgment
are either barred by preclusion principles or lack merit. The trial court
judgment is a final, valid judgment that requires that the county pay English
$1,150,000. We therefore affirm the decision of the Court of Appeals,
reversing the judgment of the mandamus court.
The decision of the Court of Appeals is
affirmed. The judgment of the circuit court is reversed, and the case is
remanded to the circuit court with instructions to issue a peremptory
writ of mandamus directing the county to pay the judgment for $1,150,000.
1. We
refer to the original Measure 37 proceeding as the "trial court proceeding,"
to the circuit court in that proceeding as the "trial court," and to
the judgment entered in that proceeding as the "trial court
judgment." We refer to this case as the "mandamus proceeding"
and to the circuit court in this case as the "mandamus court." The
defendants in the mandamus proceeding include two county officials, acting in
their official capacity, as well as the county itself. During the pendency of
this proceeding, English died and her personal representative was substituted
as the real party in interest. Throughout this opinion, for sake of clarity,
we refer to the parties in the trial court proceeding and in the mandamus
proceeding as "English" and "the county."
2. For
ease of reference, we refer to the entire statutory scheme of former ORS
197.352 as "Measure 37." All citations to the specific provisions of
ORS 197.352 are to the 2005 version of the statute.
3. ORS
197.352(3) provided:
"Subsection (1) of this section [providing
for just compensation] shall not apply to land use regulations:
"(A) Restricting or prohibiting activities commonly and
historically recognized as public nuisances under common law. * * *;
"(B) Restricting or prohibiting activities
for the protection of public health and safety, such as fire and building
codes, health and sanitation regulations, solid or hazardous waste regulations,
and pollution control regulations;
"(C) To the extent the land use regulation
is required to comply with federal law;
"(D) Restricting or prohibiting the use of
a property for the purpose of selling pornography or performing nude dancing.
Nothing in this subsection, however, is intended to affect or alter rights
provided by the Oregon or United States Constitutions; or
"(E) Enacted prior to the date of
acquisition of the property by the owner or a family member of the owner who
owned the subject property prior to acquisition or inheritance by the owner,
whichever occurred first."
4. English
did stipulate that some of the regulations were, in fact, health and safety regulations
under Measure 37. However, English and the county continued to disagree as to
other regulations.
5. English's
original proposed form of judgment labeled the section "Money Judgment
Information To Comply with ORCP 70A(2)(a)." The county noted in its
objection to English's proposed form of judgment that ORCP 70 A had been
repealed and that the relevant statute was ORS 18.042.
6. ORCP
70 A used the term "Money Judgment" in describing the section
containing the information that must be included in a judgment to create a
judgment lien. As noted, that rule had been repealed at the time of entry of
judgment. It appears that the use of the term "Money Judgment" was
an oversight, carried over from English's original form of judgment.
7. The
county similarly argues that "English's claim for just compensation relies
on a now non-existent statutory provision" -- Measure 37 -- and that her
claim must fail because "there is no present legal authority for English's
claim for compensation." For the reasons discussed above, the "legal
authority" for English's claim is the trial court judgment itself, not
Measure 37.
8. Before
Drews, this court had referred to preclusion principles generally --
including both issue and claim preclusion -- as res judicata. We now
use "the more exact terms 'claim preclusion' or 'issue preclusion' to
denote the respective branches of preclusion by former adjudication." Drews,
310 Or at 139.
9. The
rule began as one of common law, but ORS 43.130(2) now codifies it:
"[A] judgment, decree or order is, in
respect to the matter directly determined, conclusive between the parties,
their representatives and their successors in interest by title subsequent to
the commencement of the action, suit or proceeding, litigating for the same
thing, under the same title and in the same capacity."
10. Indeed,
the Court of Appeals quoted that sentence from Drews in its claim
preclusion analysis and, throughout its opinion, referred to "claim
preclusion" generally, without distinguishing between the concepts of
merger and bar. State ex rel English v. Multnomah County, 227 Or App
419, 429-33, 206 P3d 224 (2009). Although we agree that the rule of merger
prohibits the county from raising any defenses in this mandamus proceeding that
it could have raised in the trial court proceeding, for the reasons discussed
in the text, we refer to the relevant rule as the rule of merger rather than by
the generic term "claim preclusion," which also describes the rule of
bar.
11. Of
course, if the defendant actually raises a counterclaim in the first action,
the rule of bar applies as though the defendant was a plaintiff in the first
action. Further, the rules of issue preclusion apply so that "a party can
not recover in a separate action on a cause of action which he failed to plead
in a prior action by way of setoff or counterclaim but which was necessarily
adjudicated by the former judgment." Gwynn v. Wilhelm, 226 Or 606,
610, 360 P2d 312 (1961).
12. The
county also argues that the trial court's statements indicate that the court
intended the judgment to determine the amount of compensation alone, without
creating any obligations or remedies. For the reasons discussed above, we
reject that argument.
13. The
county also argues that English's death extinguishes her rights under the trial
court judgment. We reject that argument without discussion. | 3f783df24354cc7cf94cc2c26619d2d32fc119da12e811cb9dd396367775cf70 | 2010-06-17T00:00:00Z |
e9d228b4-79f1-4537-861c-747f631f7e2a | State v. Rader | null | S056821 | oregon | Oregon Supreme Court | FILED: March 25, 2010
IN THE SUPREME COURT OF THE STATE OF OREGON
STATE OF OREGON,
Petitioner on Review,
v.
MATTHEW ABRAM RADER,
Respondent on Review.
(CC 05C48687; CA
A132153; SC S056821)
En Banc
On review from the Court of Appeals.*
Argued and submitted September 17, 2009.
Jamie K. Contreras, Assistant Attorney General,
Salem, argued the cause and filed the brief for petitioner on review. With her
on the brief were John R. Kroger, Attorney General, and Jerome Lidz, Solicitor
General.
Zachary Lovett Mazer, Deputy Public Defender,
Salem, argued the cause and filed the brief for respondent on review. With him
on the brief was Peter Gartlan, Chief Defender, Office of Public Defense
Services.
KISTLER, J.
The decision of the Court of Appeals is
reversed. The judgment of the circuit court is affirmed.
*Appeal from Marion County Circuit Court, John B. Wilson, Judge. 223 Or App 169, 195 P3d 438 (2008).
KISTLER, J.
Ordinarily,
fourth-degree assault is a misdemeanor. ORS 163.160(2). It becomes a Class C
felony, however, when the victim's minor child "see[s]" or
"directly perceive[s]" the assault. ORS 163.160(3)(c); ORS
163.160(4).(1)
Those statutes give rise to two questions in this case. The first is what the
phrase "directly perceive[s]" means. The second is whether the
evidence was sufficient to permit a reasonable trier of fact to find that a
child who was in her bedroom "perceived" an assault on her mother
that occurred outside the child's closed bedroom door. In resolving those
questions, the Court of Appeals held that a child perceives the assault when
the child is conscious of and recognizes the assault; it then ruled that the
evidence was insufficient to meet that standard. State v. Rader, 223 Or
App 169, 173, 1775-76, 195 P3d 438 (2008). We allowed the state's petition for
review and now reverse the Court of Appeals decision.
Because this appeal
arises from a motion for a judgment of acquittal, we state the facts in the
light most favorable to the state. State v. Fries, 344 Or 541, 543, 185
P3d 453 (2008). Defendant lived with the victim and the victim's two minor
children, aged 11 and three, in a two-bedroom apartment. Defendant and the
victim had a brief but unstable relationship, marked primarily by defendant's
controlling behavior and assaultive conduct. On July 25, 2005, defendant began
berating the victim about her relationship with her former boyfriend, who was
the father of the victim's younger daughter. Defendant believed that the
victim spent too much time picking up her daughter at her former boyfriend's
house, and he suspected that the victim had been engaging in sexual relations
with her former boyfriend.
Defendant began by screaming
and yelling at the victim. He called her a "lying fucking whore" and
asserted, in more graphic terms, that she was probably engaging in oral sex
with her former boyfriend when she went over to pick up their daughter. He continued
by yelling that he knew that the victim wanted someone else on the side and
asserted, again in more graphic terms, that she probably was engaged in other
kinds of sexual relations with her former boyfriend and that, if she were not,
she wanted to do so.
Defendant's anger
turned physical. The victim testified that defendant "became very
agitated, to the point where he was using his body to -- using his weight to
force me around with just his chest and his shoulders." Defendant pushed
the victim out of their bedroom where the argument had begun, into the hallway,
and around the hallway until he backed her into the open doorway of her younger
daughter's room, where the daughter was watching television.(2)
As defendant pushed
the victim into the doorway of her daughter's room, he continued to scream at
her. The victim took a step into her daughter's room to turn up the television
"so she would be distracted by [sic] all of the yelling and
screaming." Defendant then reached behind the victim and closed the
bedroom door. He grabbed the victim's head with both hands and headbutted her,
striking the victim's head with his head. The victim testified that the sound
of that blow was "very loud." She explained: "From the sound,
to me, I thought that my head was cracked open." The force of the blow
made the victim's head recoil, causing her head to hit her daughter's bedroom
door "very loudly." The victim fell to the floor, let out a cry of
pain, and got back to her own bedroom where she sat on the floor between her
bed and the wall. The victim's head began to swell where defendant had hit
her. Defendant got ice and made the victim put it on her head "to make it
go away so nobody could see it," and he told the victim not to go to work
"unless [she] wanted everybody to know our business, unless [she] wanted
everybody to know what he had done."
At trial, the prosecutor
asked the victim whether her daughter could have heard the sounds arising from
the assault through the closed bedroom door. Specifically, on direct
examination, the prosecutor asked her, "[A]t the times when these arguments,
these assaultive incidents were happening, there was yelling and screaming,
would someone who was in either of the bedrooms, even with the door shut, be
able [to] hear what's going on?" The victim answered "yes."(3)
The victim did not
contact the police after the July 25 incident. A few days later, defendant
assaulted the victim again. After the second assault, the victim petitioned
for a restraining order and also contacted the police. As a result of
defendant's acts, the state charged him with, among other things, felony
fourth-degree assault arising out of the July 25 incident.(4)
At the close of the
state's evidence, defendant moved for a judgment of acquittal. Regarding the
July 25 incident, defendant argued that no reasonable trier of fact could find
that the child perceived the assault and thus witnessed it. Defendant did not
contend that there was insufficient evidence to convict him of misdemeanor
fourth-degree assault. Rather, his challenge was limited to the element that
elevated the misdemeanor to a felony. The trial court denied defendant's
motion. Later, the trial court, sitting as the trier of fact, found that the
child had witnessed defendant's assault on her mother and convicted him of,
among other things, felony fourth-degree assault for the July 25 assault.
Defendant appealed that conviction, arguing that the trial court had erred in
denying his motion for judgment of acquittal. The Court of Appeals agreed with
defendant, reversed his conviction for felony fourth-degree assault, and
remanded for entry of a conviction of misdemeanor fourth-degree assault. Rader,
223 Or App at 176.
On review, the state
argues that the Court of Appeals erred in interpreting the term
"witness" in ORS 163.160(3)(c), and that, alternatively, even if the
Court of Appeals' interpretation of that term were correct, the Court of
Appeals still erred in finding that there was insufficient evidence to submit
the charge of felony fourth-degree assault to the trier of fact. We begin with
the statutory interpretation question that the state raises and first set out
the text of the relevant statutes.
ORS 163.160(1)
provides, in part, that a person commits the crime of fourth-degree assault if
the person "[i]ntentionally, knowingly, or recklessly causes physical
injury to another." Ordinarily, fourth-degree assault is a misdemeanor.
ORS 161.160(2). However, it will become a Class C felony if, among other
things:
"The assault is committed in the immediate presence of,
or is witnessed by, the person's or the victim's minor child or stepchild or a
minor child residing within the household of the person or victim."
ORS 163.160(3)(c). ORS 163.160(4) defines
the term "witnessed." It provides that "an assault is witnessed
if the assault is seen or directly perceived in any other manner by the
child."
The interpretative
issue in this case is narrow. The state does not contend that the assault
occurred in the child's immediate presence or that the child saw the assault. It
argues only that the child heard and thus "directly perceived" the
assault on her mother. On that point, the state and defendant agree that the
use of the word "directly" requires that the child's perception be
contemporaneous. And neither side disputes that "perceives" means:
"to become aware of through the senses: NOTE, OBSERVE < ~ roughness and smoothness --
R.S. Woodworth> * * * esp: to look at ."
Webster's Third New Int'l Dictionary 1675 (unabridged ed 2002).
Where the parties
differ is in defining precisely what the child must perceive or, in the
dictionary's terms, "become aware of" in order for the child to
perceive the assault. The state argues that, to perceive an assault aurally, a
child need only be aware of the sounds emanating from the assault; the child
need not be aware that those sounds emanate from assaultive conduct. Defendant,
for his part, argues that perceiving an assault requires not only awareness of the
sounds created by the assaultive conduct but also some minimal level of awareness
that those sounds emanate from assaultive conduct.
The state's
interpretation of ORS 163.160(4) is difficult to square with the text of that
statute. As noted, ORS 163.160(4) provides that "an assault is witnessed
if the assault is seen or directly perceived in any other manner by the
child." Under the plain text of the statute, what a child must perceive
or, in the dictionary's terms, "become aware of" is "the assault,"
not merely the sounds (or other sensory data) emanating from the assault. The
text of the statute implies that the child must be aware that the sounds that
he or she hears arise from assaultive conduct.
The context sheds
some light on the issue. Under ORS 163.160(4), "seen" is an
alternative to "directly perceived." A child will
"witness" an assault if the child sees or directly perceives the
assault. A child who sees an assault will be aware that someone is hitting or
striking another (or engaging in other assaultive conduct). To be sure, an
infant who sees an assault may have only an imperfect understanding of what he
or she is observing. But we infer from the legislature's decision to juxtapose
"seen" and "directly perceived" and to require that the
child either see or perceive "the assault" that the legislature intended
to require a minimal level of awareness that the images or sounds that a child
perceives arise from assaultive conduct. See Behnke-Walker v. Multnomah
County, 173 Or 510, 518, 146 P2d 614 (1944) ("'[T]he coupling of words
together shows that they are to be understood in the same sense.'"
(quoting Neal v. Clark, 95 US 704, 708, 24 L Ed 586 (1877))).
The legislative
history provides additional insight, but it does not all point in the same
direction. See State v. Gaines, 346 Or 160, 172, 206 P3d 1042 (2009) ("Legislative
history may be used to confirm seemingly plain meaning and even to illuminate
it * * *."). Before 1999, ORS 163.160(3)(b) (1997) elevated fourth-degree
assault to a felony if "[t]he assault is witnessed by the person's or the
victim's minor child," but the statute did not define
"witnessed" or include "immediate presence" as an
alternative basis for elevating fourth-degree assault to a felony. The
legislature amended the statute in 1999 by adding "immediate
presence" and defining "witnessed" as "seen or directly
perceived." Or Laws 1999, ch 1073, § 1.
Initially, House
Bill (HB) 3129 (1999)(5)
proposed adding the phrase "committed in the immediate presence of"
and defined "witnessed" for purposes of the statute as being
"seen or perceived in any other manner by the child." At the first
work session, Steve Dingle, representing the Oregon District Attorneys
Association, spoke on behalf of the bill and described what he considered to be
the reason for the bill:
"There are judges that are interpreting [ORS 163.160(3)(b)
(1997)] literally, which would require that the child actually visually see the
assault. Other judges are interpreting the statute to include minor children
who perhaps are on the other side of a wall, excuse me, in a bedroom that
actually hear the yelling the screaming the cursing the assaulting. So this
just is intended to make crystal clear that that second situation is captured
by the statute."
Testimony, House Committee on Judiciary -
Criminal Law, HB 3129, Apr 13, 1999, Tape 134, Side A. Dingle testified that
children who hear domestic abuse are "just as traumatized as [a] child who
actually sees the assault occurring," and responded to questions about
vagueness by saying that the sponsors wanted to make clear with the amendments
that "witnessed means more than visually observing." Id.
Dingle then
addressed "immediate presence" and suggested that that phrase would
apply to a child who was in another room but heard the sounds arising from the
assault. Id. In response to Dingle's comments, Representative Mannix, the
chair of the committee, offered a different view of the terms, "immediate
presence" and "witnessed." Representative Mannix observed:
"Being in the other room [during an assault] may not be immediate
presence. However, being in the other room and hearing the altercation means
that you have witnessed because you have seen or perceived." Id.
Representative
Mannix then distinguished "witnessed" from "immediate
presence." He noted that, under the definition of "witnessed,"
the question was:
"Whether you heard it. Whether you saw it. [W]hat
we're talking about is perception and the fact of being aware, which is what
we're trying to get at, is the child being aware of this happening. And
otherwise, whether you can say that they witnessed it by being aware of it
happening -- they were there. That's the immediate presence point."
Id. Dingle
agreed with Representative Mannix's distinction between "witnessed"
and "immediate presence." Id.
Later, in response
to a proposal to substitute "see or heard" for "seen or directly
perceived," Representative Mannix cautioned against doing so:
Representative Mannix: "If you said even 'heard,' then
some lawyers are going to get at parsing down what 'heard' meant. Does that
mean that you discerned what that thud sound was, and we're trying to cover,
the whole point being that the traumatic impact on the child rather than some
lawyer trying to parse words.
Dingle: "Chairman Mannix, that's an excellent point.
I'd be very concerned that if you have the word 'heard,' that there's an
element of comprehension on the part of the ch[ild] -- we're going to get into
that whole argument as to --
Representative Mannix: "Did you understand what it
meant when you heard that thud sound, as this man hit mommy? I'm just imagining
already the parsing that might occur. * * *
Dingle: "One of the things we'd like to do, too, is
avoid, wherever possible, even bringing the child into court, and if we get
into a subjective element and aspect as to whether or not the child comprehends
it, then the child necessarily becomes a witness. Right now, if we have a
cooperative victim, we don't even need that."
Id. After
hearing more concerns about the possible ambiguity of the word
"perceive," the committee considered using the words "seeing,
heard, or felt." Id. However, the committee opted instead to
change "perceived" to "directly perceived." Representative
Mannix explained that "the point is that the child is aware of what's
going on at the time it's going on." Testimony, House Committee on
Judiciary - Criminal Law, HB 3129, Apr 27, 1999, Tape 162, Side A.
We draw three
conclusions from the legislative history. First, the primary purpose of the
bill, as explained to the committee, was to make clear that "witnessed"
included hearing an assault as well as seeing it. Second, Representative
Mannix explained that, in using the term "perceived," "what
we're trying to get at is the child being aware of this happening." Considering
his remarks in light of the proposed amendment before the committee, we conclude
that "this" refers to the assault; that is, what the legislature was
"trying to get at is the child being aware of [the assault]
happening." Third, the colloquy between Representative Mannix and Dingle points
potentially in a different direction. Their colloquy expresses a concern that
children not be called as witnesses so that lawyers can parse how much the
child discerned or knew.
Although the colloquy
between Representative Mannix and Dingle can be read to support the state's interpretation
of ORS 163.160(4), that part of the legislative history is difficult to square
with the text and context of the statute, which require that the child see or
perceive "the assault." See Gaines, 346 Or at 178 (explaining
that we give text and context primacy in interpreting the legislature's
intent). That colloquy is also difficult to square with the remainder of the
legislative history, which contemplates that perception requires some minimal awareness
that the sounds arise from assaultive conduct.
Considering the
text, context, and legislative history of ORS 163.160(3)(c) and (4), we
conclude that a child "directly perceives" an assault if the child
contemporaneously is aware through any of the child's senses that an assault is
occurring -- i.e., that one person is causing injury to another. See
ORS 163.160(1)(a) (providing that a person commits fourth degree assault if,
with the requisite mental state, the person "causes physical injury to another").
When the state contends that a child heard and thus directly perceived an assault,
it is sufficient to show that the child was aware that the sounds arose from
assaultive conduct. The child need not be aware of the details or the specifics
of the assault.
With that standard
in mind, we turn to whether the trial court correctly denied defendant's motion
for a judgment of acquittal. We note, at the outset, that, in deciding whether
the trial court's ruling was correct, the question is whether there was
sufficient evidence in the record from which a reasonable trier of fact could
find the elements of the crime beyond a reasonable doubt. In making that
determination, a court must resolve all conflicts of evidence in favor of the
state and give the state the benefit of all reasonable inferences. State v.
Cervantes, 319 Or 121, 125, 873 P2d 316 (1994).(6)
In this case, defendant
argues that the trial court should have granted his motion for a judgment of
acquittal for two reasons. First, he argues that no reasonable trier of fact
could find that the sounds arising from the assault were audible through the
closed bedroom door. Second, he contends that, even if a reasonable trier of
fact could find that the sounds were audible, the evidence was not sufficient
to find that the child was aware that the sounds arose from assaultive conduct.
We begin with the question
whether a reasonable trier of fact could find that the sound of defendant's
head hitting the victim's and the sound of the victim's head hitting the
child's door were audible in the child's bedroom. On that point, the victim's
apartment was a small two-bedroom apartment, between approximately 800 and 900
square feet. The verbal and physical confrontation between defendant and the
victim began in their bedroom, went out into the hall, and ended in the open doorway
of the child's bedroom. When defendant headbutted the victim, they were
standing next to the child's bedroom door. At that point, the door was closed
and the television on inside the room. The victim testified that the sound of
the headbutt was "very loud" and that the sound made her think that
her "head was cracked open." The victim also testified that, when
defendant headbutted her, her head recoiled and hit her daughter's bedroom door
very loudly. Finally, when asked whether "when these arguments, these
assaultive incidents were happening, there was yelling and screaming, would
someone who was in either of the bedrooms, even with the door shut, be able
[to] hear what's going on," the victim said "yes."
We need not decide
whether the last answer alone would be sufficient to permit a reasonable trier
of fact to find that the sounds arising from defendant's assaultive conduct
were audible through the closed bedroom door. Even without the victim's
opinion, a reasonable trier of fact could infer that the "very loud"
sound of defendant's head hitting the victim's and the sound of the victim's
head hitting the child's door "very loudly" were audible in the
child's bedroom. Indeed, a trier of fact reasonably could infer that the noise
produced by the victim's head hitting the child's bedroom door very loudly
would reverberate through the child's bedroom, even with the television turned
up, in the same way that a very loud knock on an outside door reverberates
through a home.(7)
The remaining issue
is whether a reasonable trier of fact could find that the child was aware, from
hearing the sounds arising from the assault, that defendant was causing
physical injury to her mother. On that issue, the sound of defendant's head
hitting the victim's and the sound of the victim's head hitting the door did
not occur in a vacuum. Those sounds were preceded by an intense verbal and
physical confrontation. Immediately before defendant headbutted the victim,
defendant was screaming at the victim in the threshold of the child's open
bedroom door. The victim reached in and turned up the television to distract
her daughter. Given those facts, a reasonable trier of fact could find that
the child was aware of the physical confrontation between defendant and her
mother. Indeed, the confrontation had spilled over into the child's bedroom,
and the victim sought to distract her daughter's attention from it by turning
up the television.
Additionally, a
reasonable trier of fact could find that the child was aware that defendant was
the aggressor and her mother the object of his aggression.(8) And, given the sounds of
the headbutt and of the victim's head hitting the door, followed immediately by
a cry of pain from the child's mother, a reasonable trier of fact could find
that the child was aware that defendant had hurt her mother -- i.e.,
that defendant had caused physical injury to her mother and thus had assaulted
her. The child need not have perceived the specifics of the assault or
comprehended the consequence of defendant's actions to come within the
legislature's concern to protect children from exposure to domestic assault.
As this case
demonstrates, when the state seeks to prove that a child heard and thus
directly perceived an assault, the child need not testify. The state may rely,
as it did in this case, on the close spatial and temporal connection among the
child, the verbal confrontation, and the assault that immediately followed to prove
that the child was aware of defendant's assault on her mother. Alternatively,
the state may introduce evidence of the child's reaction after the assault
occurs to prove that the child was aware of the assault. The nature and types
of evidence on this point are far too varied to attempt to catalog them, but it is important to emphasize that the evidence must be
sufficient for the trier of fact to draw a reasonable inference not only that
the child could have heard the sounds arising from the assault but that the
child also was aware of those sounds and that they arose from assaultive
conduct. The evidence in this case met that standard, and the trial court
correctly denied defendant's motion for a judgment of acquittal.
The decision of the
Court of Appeals is reversed. The judgment of the circuit court is affirmed.
1. Other
circumstances also will elevate fourth-degree assault from a misdemeanor to a
felony. In describing the statute, we focus only on the circumstances at issue
in this case.
2. The
victim's older daughter was not home at the time of this incident.
3. On
cross-examination, defense counsel asked the victim: "In your opinion,
was there anything with regards to the headbutting incident from which your
daughter would have been able to determine that you had been headbutted?"
After defense counsel rephrased the question a couple of times, the victim
responded: "At the time it happened? Not unless she actually saw
it." Because we view the facts in the light most favorable to the state,
we do not consider whether the victim's answer on cross-examination would have permitted
the trier of fact to find that the child could not have heard the sounds
arising from the assault.
4. Those
two incidents resulted in multiple charges and convictions. On appeal,
defendant challenged only the felony assault conviction arising out of the July
25 incident. Because he has not challenged the other convictions arising out
of the two incidents, we have limited our discussion of the facts to the July
25 incident.
5. Two
bills were before the House. HB 3129, as first introduced, elevated fourth-degree
assault to a felony if the defendant had at least two prior domestic assault
convictions. HB 3394 elevated fourth-degree assault to a felony if the
defendant committed the assault in the immediate presence of the child and
defined the witness to mean see or directly perceive. The legislature
considered the two bills together and later incorporated HB 3394 into HB 3129.
For convenience, we refer only to HB 3129.
6. In stating the standard of review for a motion for a judgment of acquittal, the
Court of Appeals set out the standard that an instruction on an inference must
meet. See Rader, 223 Or App at 173 (paraphrasing State v. Rainey,
298 Or 459, 466, 693 P2d 635 (1985)). In doing so, the Court of Appeals
incorrectly conflated two related but separate issues. When a trial court
instructs the jury that it may infer one fact from another, the federal
constitution requires there be some "rational way the trier [of fact]
could make the connection permitted by the inference." Ulster County
Court v. Allen, 442 US 140, 157, 99 S Ct 2213, 60 L Ed 2d 777 (1979); see
Rainey, 298 Or at 466 (citing and following Ulster). That issue is
not present when a court decides a motion for judgment of acquittal. In that
instance, no instruction tells the jury that it may infer one fact from
another, and the standard stated in Rainey is inapposite. The
applicable standard of review is instead the more familiar one -- whether a
reasonable trier of fact could find the elements of the crime beyond a
reasonable doubt.
7. The
Court of Appeals questioned whether the evidence was sufficient to permit a
reasonable trier of fact to find that the child heard the noises outside the
door because "the victim [had] turned up the volume of the television in
order to drown out the sound of the argument." Rader, 223 Or App at
176. We note, however, that the victim testified that she turned up the volume
on the television "so [that her daughter] would be distracted by [sic]
all of the yelling and screaming." Turning up the television so that it
distracted her daughter differs from turning it up so that it drowned out the
sounds of the argument, or so a reasonable trier of fact could find.
8. We
do not mean to suggest that this inference is necessary to the state's proof,
only that it is an additional circumstance in this case that bears on the
question whether a reasonable trier of fact could find that the child was aware
of the assaultive conduct. | 9739c33e1e9a670204d2e31e623b9933359addc0143b7bf4c34eefa6fe2a5da5 | 2010-03-25T00:00:00Z |
857c60ec-c42f-4a63-a84c-1337c2af86ec | Caruthers v. Kroger | null | null | oregon | Oregon Supreme Court | FILED: March 18, 2010
IN THE SUPREME COURT OF THE STATE OF OREGON
JERRY CARUTHERS,
Petitioner,
v.
JOHN R. KROGER,
Attorney General,
State of Oregon,
Respondent.
(SC S057678)
En
Banc
On
petitioner's objections to modified ballot title filed February 19, 2010;
considered and under advisement on February 25, 2010.
Thomas
K. Doyle, Bennett, Hartman, Morris & Kaplan, LLP, Portland, filed the
objections for petitioner.
Douglas
F. Zier, Senior Assistant Attorney General, Salem, waived appearance for
respondent.
GILLETTE,
J.
The
Attorney General's certified ballot title is referred to the Attorney General
for further modification.
GILLETTE,
J.
This
ballot title review proceeding involving the ballot title for Initiative
Petition 43 (2010) is before us for a second time. In the first iteration, Caruthers
v. Kroger, 347 Or 660, ___ P3d ___ (2010), this court held that the Attorney
General's certified ballot title was deficient in each of its parts -- the
caption, the "yes" and "no" result statements, and the
summary. We referred the matter back to the Attorney General to prepare a
modified ballot title. Id. at 671. See ORS 250.085(8)
(providing for that procedure).
In
response to our referral, the Attorney General prepared and certified to this
court a modified ballot title. See ORS 250.085(9) (providing
procedure). Petitioner has filed objections to the Attorney General's modified
ballot title, once again asserting that each part of the Attorney General's
certified ballot title fails to comply substantially with the requirements of
ORS 250.035. See ORS 250.085(5) (providing that standard of review);
ORS 250.085(9) (providing procedure for objecting to modified ballot title).
For the reasons set out below, we once again agree with petitioner and again
refer the ballot title to the Attorney General for further modification.
We
think that the best way to understand petitioner's present objections to the
Attorney General's modified ballot title is by (1) setting out the proposed
measure, (2) summarizing our criticism of the Attorney General's previously
certified ballot title, (3) setting out the Attorney General's modified ballot
title that was prepared in response to our earlier opinion, and then (4)
considering petitioner's objections. To that end, we begin by setting out the
proposed constitutional amendment in full:
"In order to respect voter participation in the initiative and referendum process,
and in order to ensure the integrity of public officials in reviewing
signatures on petitions, the People add the following provision to Section 1,
Article IV of their Constitution:
"Every
registered voter who has signed an initiative or referendum petition that has
been filed as provided in section (1)(2)(e) or section (1)(3)(b) of this
Article is guaranteed the right to have his or her signature counted for
purposes of determining whether the initiative or referendum petition has
obtained enough signatures to qualify for submission to the voters. No statute
or rule may restrict this right."
Respecting
the Attorney General's former certified ballot title, this court explained,
"the subject of the proposed measure is perhaps
best identified by noting the connection between two separate parts of the
proposed measure: The second clause of the measure's introductory sentence
states that the proposed measure is to be added to Article IV, section 4, of
the Oregon Constitution, 'in order to ensure the integrity of public officials in
reviewing signatures on petitions.' The way in which that integrity is
to be 'ensured' is then found in the proposed measure's statement that 'no
statute or rule' may restrict the 'right' of a qualified voter to have the
voter's signature 'counted.' From those two provisions, it becomes clear that
the subject of the measure is the removal of impediments to that counting,
whether those impediments be statutory or rule-based. And that necessarily
means that some of the processes by which signatures presently are vetted --
processes that can prevent the counting of certain individual signatures -- are
to be set aside and that the legislature is forbidden to enact substitutes for
them. The Attorney General's caption fails to identify this subject, which is
at the heart of the proposed measure."
Caruthers, 347 Or at 667-68 (emphasis in original). We went on to add, with respect to the result statements and the summary, that the ballot title inappropriately
focused on a process called "sampling," by which the Secretary of
State projected from a sample of appropriately submitted, valid petition
signatures the likely total number of valid signatures among the entire number
of signatures submitted in support of initiating or referring a measure. The
court stated:
"On referral, the Attorney General should, consistent with the word number
limitation applicable to th[ese] part[s] of the ballot title, avoid singling
out and concentrating on any particular way by which the Secretary of State
limits the eligibility of signatures to be counted, and avoid making debatable
assumptions respecting the effect of passage of the proposed measure."
Id. at 669.
On
referral, the Attorney General revised his initial ballot title and certified
the following modified ballot title in its place:
"Amends
Constitution: Prohibits laws restricting count of registered voters' signatures
to determine initiative/referendum qualification for ballot"
"Result
of 'Yes' vote: 'Yes' vote invalidates current law and prohibits future
laws restricting the counting of individual registered voters' signatures to
determine if initiative/referendum qualifies for ballot.
"Result
of 'No' vote: 'No' vote retains existing laws, regulations regarding how
individual registered voters' signatures on initiative/referendum petitions are
counted to determine if measure qualifies for ballot.
"Summary:
Amends constitution. Initiative and referendum petitions qualify for ballot
only when signed by sufficient number of qualified registered voters; the exact
number of signatures required for ballot qualification depends on the
particular type of measure. Currently, constitutional provisions, statutes,
and administrative rules establish requirements for signature collection and
verification to prevent fraud, forgery, or improper signature gathering and
establish procedures for determining how signatures on petitions are counted.
Measure invalidates existing laws restricting the counting of individual
registered voters' signatures to determine whether a sufficient number of valid
signatures have been collected on initiative/referendum petitions to qualify
them for the ballot; prohibits any future statute or administrative rule from
restricting the counting of all registered voters' signatures on
initiative/referendum petitions. Other provisions."
We
turn to petitioner's objections to that modified ballot title.
1. Modified Caption
As
noted, the modified caption in the Attorney General's certified ballot title
provides:
"Amends
Constitution: Prohibits laws restricting count of registered voters' signatures
to determine initiative/referendum qualification for ballot"
Petitioner
asserts that the Attorney General's use of the phrase "laws restricting
count" (petitioner actually misquotes the phrase as "law restricting
count") inappropriately focuses on counting votes, when the true subject
of the proposed measure reaches beyond "counting" to touch a variety
of statutes and rules that are designed to control the initiative and
referendum process as a whole, with the result (invalidating signatures) being
a consequence of violations of certain of those statutes and rules.
Petitioner
is correct. This court did state in its earlier opinion that the proposed
measure would remove some (not all) of the impediments to counting signatures,
but specifically noted that the manner in which that would be accomplished was
that
"some of the processes by
which signatures presently are vetted -- processes that can prevent the
counting of certain individual signatures -- are to be set aside and * * * the
legislature is forbidden to enact substitutes for them. The Attorney General's
caption fails to identify this subject, which is at the heart of the measure."
Caruthers, 347
Or at 668. As further clarification, the opinion included examples of statutes
and rules that would be affected by enactment of the proposed measure. Id.
at 665. Most such statutes and rules focus on practices and procedures that
the legislature and the Secretary of State have considered desirable to ensure
the legitimacy of the signature-gathering process and to regulate the
activities of those who gather the signatures; few (if any) have as their
principal focus or purpose the disqualification of signatures. Thus, as our
previous opinion indicated (and as petitioner now argues), the subject of the
proposed measure was the elimination of many existing controls on the present
signature collection and verification process, together with a prohibition on
creating substitutes for those controls. The Attorney General's caption still does
not capture that subject. It must. In failing to do so, the caption does not
substantially comply with ORS 250.035(2)(a) (requiring that a certified ballot
title contain a caption that "reasonably identifies the subject matter of
the * * * measure"). The ballot title therefore
must be referred to the Attorney General for modification. See ORS
250.085(8) (ballot title failing to comply substantially with requirements of
ORS 250.035 shall be referred to Attorney General for modification).
We recognize that the
ballot title modification process must be carried out very expeditiously -- a
modified ballot title must be certified by the Attorney General within five
business days of referral from this court, ORS 250.085(9) -- and we do not wish
to "hide the ball." We therefore suggest (without in any sense
requiring it) that a caption phrased in some way akin to the following meets
the requirements of ORS 250.035(2)(a):
"Amends Constitution: Prohibits disqualification of
initiative/referendum signatures even when obtained in violation of election
laws"
2. Modified "Yes" and "No"
Result Statements
Once again, for the
convenience of the reader, we set out the Attorney General's modified "yes"
and "no" result statements:
"Result
of 'Yes' vote: 'Yes' vote invalidates current law and prohibits future
laws restricting the counting of individual registered voters' signatures to
determine if initiative/referendum qualifies for ballot.
"Result
of 'No' vote: 'No' vote retains existing laws, regulations regarding how
individual registered voters' signatures on initiative/referendum petitions are
counted to determine if measure qualifies for ballot."
Petitioner's
objections to both of those parts of the Attorney General's modified ballot
title is the same as that made to the caption: As written, both result
statements are under-inclusive in that they speak of "counting"
signatures instead of focusing on the larger effect of the proposed measure, if
it were adopted. Again, we agree. The statements do not substantially comply
with the requirements of ORS 250.035(2)(b) and (c). They must be modified in
a manner that is consistent with our comments concerning the caption.
3. Summary
Again
for the convenience of the reader, we set out the Attorney General's modified
summary:
"Summary:
Amends constitution. Initiative and referendum petitions qualify for ballot
only when signed by sufficient number of qualified registered voters; the exact
number of signatures required for ballot qualification depends on the
particular type of measure. Currently, constitutional provisions, statutes,
and administrative rules establish requirements for signature collection and
verification to prevent fraud, forgery, or improper signature gathering and
establish procedures for determining how signatures on petitions are counted.
Measure invalidates existing laws restricting the counting of individual
registered voters' signatures to determine whether a sufficient number of valid
signatures have been collected on initiative/referendum petitions to qualify
them for the ballot; prohibits any future statute or administrative rule from
restricting the counting of all registered voters' signatures on
initiative/referendum petitions. Other provisions."
Petitioner
agrees that the summary's description of current law is correct, but he asserts
that the discussion of what the proposed initiative measure would do if adopted
is, once again, too narrowly focused, for the reasons already discussed.
Again, we agree. The summary as written does not substantially comply with the
requirements of ORS 250.035(2)(d). It must be further modified in a manner
consistent with our discussion of the caption and the result statements.
The Attorney
General's certified ballot title is referred to the Attorney General for
further modification. | 0bee573e5d599874f9475370b56fa2146794d0b325a822e2c661c31a9d3c4e6a | 2010-03-18T00:00:00Z |
4322662e-e507-458a-b11a-164a1674497d | State v. Ayles | null | S056577 | oregon | Oregon Supreme Court | FILED: August 12, 2010
IN THE SUPREME COURT OF THE STATE OF OREGON
STATE OF OREGON,
Petitioner on Review,
v.
ERIN ALBERT AYLES,
Respondent on Review.
(CC 051228; CA A132029; SC S056577)
En Banc
On review from the Court of Appeals.*
Argued and submitted May 13, 2009.
Janet A. Metcalf,
Assistant Attorney General, Salem, argued the cause and filed the brief for
petitioner on review. With her on the brief were John R. Kroger, Attorney General,
and Rolf C. Moan, Acting Solicitor General.
David Ferry, Deputy
Public Defender, Salem, argued the cause and filed the brief for respondent on
review. With him on the brief was Peter Gartlan, Chief Defender, Office of
Public Defense Services.
GILLETTE, J.
The decision of the
Court of Appeals is affirmed. The judgment of the circuit court is reversed,
and the case is remanded to the circuit court for further proceedings.
Durham, J., concurred and filed an opinion.
Kistler, J., dissented and filed an opinion, in which Balmer and Linder, JJ., joined.
*Appeal from the Clatsop County Circuit Court, Henry R. Dickerson, Jr., Senior Judge. 220 Or App
606, 188 P3d 378 (2008).
GILLETTE, J.
In this criminal case, a police
officer unlawfully detained defendant, a passenger in a car that the officer
lawfully had stopped for a traffic violation, and then sought and obtained
defendant's consent to search his person. The case requires us to consider
whether defendant established a minimal factual link between the illegal
detention and his consent to a search of his person during that illegal
detention. If he did establish the required link, then the burden shifted to
the state to demonstrate that contraband seized during that search was not
obtained as a result of an exploitation of the illegal detention. The case
presents a further question: Must evidence found and incriminating statements
made after defendant was arrested and advised of his rights under Miranda v.
Arizona, 384 US 436, 86 S Ct 1602, 16 L Ed 2d 694 (1966), be suppressed
because they also were the product of the preceding illegal detention? We hold
that defendant has shown the required minimal factual connection between the illegal
detention and his consent. We also hold that the later administration of Miranda
warnings did not sufficiently attenuate the taint of the illegal detention to
permit this court to conclude that the defendant's subsequent incriminating
statements, and the evidence found as a result of those statements, were not
the product of the prior illegality. We therefore affirm the decision of the
Court of Appeals, State v. Ayles, 220 Or App 606, 188 P3d 378 (2008), to
that effect.
The following facts are undisputed.
On June 7, 2005, at 9:47 a.m., state police trooper Hunt observed a car driving
67 miles per hour in 55 miles-per-hour zone on Highway 26. He also noticed
that the car did not have a front license plate. Hunt stopped the car for the
two violations. The stop occurred some 15 miles east of Seaside, Oregon, and
about two miles from the nearest gas station-convenience store. The area was
wooded and there were no residences nearby. Hunt approached the driver and
noticed that she appeared to be under the influence of methamphetamine.
Defendant was sitting in the front passenger seat. Three other people were
sitting in the back seat of the car.
Hunt explained to the driver why he
had stopped the car. When Hunt then asked the driver if there was any
methamphetamine in the car, defendant interrupted, asking the trooper how to
rectify the license plate situation so that they could avoid being stopped
again. Hunt answered defendant's question. Although defendant had not done
anything to cause Hunt to believe that defendant had committed a crime, Hunt
found it suspicious that defendant had spoken up while Hunt was questioning the
driver about methamphetamine. Hunt's suspicions also were aroused by
defendant's demeanor, which Hunt described as "over friendly."
Hunt asked defendant for his
identification. Defendant handed Hunt a Department of Veterans' Affairs
identification card. Hunt took it and put it in his patrol car. He then had
the driver get out of the car and told her that he suspected that she was under
the influence of methamphetamine. He patted her down, did not find weapons or
contraband, and told her to sit on the rear bumper of her car. He returned to
the patrol car and ran a computer check on defendant and the driver. That
check did not reveal anything of interest. Nonetheless, Hunt continued to
retain defendant's identification.
Hunt returned to the car and asked
defendant to step out. Defendant did so. Hunt asked defendant if he had any
weapons, and defendant replied that he did not. Hunt then asked defendant for
consent to pat him down, which defendant gave. Hunt had defendant interlace
his fingers and put them to the back of his neck, and then Hunt put one hand on
defendant's hands in preparation for the patdown. From his vantage point at
that moment, Hunt could see down into defendant's right breast pocket, where he
observed an unlabeled prescription pill bottle that contained something wrapped
in plastic. From Hunt's training and experience, he believed that the pill
bottle contained illegal drugs. He took the bottle out of defendant's pocket
and asked defendant, "Is that the meth?" Defendant admitted that it
was. Hunt arrested defendant, handcuffed him, advised defendant of his Miranda
rights, searched him more thoroughly, and placed him in the back seat of
the patrol car.
Hunt then conducted field sobriety
tests on the driver and arrested her for driving under the influence of
intoxicants. He asked the three remaining passengers to step out of the car.
As they were getting out, one of the passengers told Hunt that there was a blue
backpack in the car that belonged to defendant. Hunt then went back to the
patrol car and asked defendant to step out again. He asked defendant if the
backpack was his, and defendant admitted that it was. Hunt then asked
defendant if there was any additional methamphetamine in the backpack;
defendant replied that there was and described in detail what Hunt would find
in the backpack. Hunt searched the backpack and found the methamphetamine as
defendant described, as well as other drug paraphernalia.
Defendant was charged with possession
and manufacture/delivery of methamphetamine. Before trial, he moved to
suppress all of his statements and the evidence obtained after Hunt took his
identification. He argued that he was seized in violation of Article I,
section 9, of the Oregon Constitution, when Hunt took and retained his
identification, because Hunt had no reasonable suspicion at that time that
defendant either had committed a crime or posed a threat to Hunt's safety. The
trial court denied the motion. The court ruled that defendant was not
illegally seized when Hunt took defendant's identification. In light of that
ruling, the trial court concluded that defendant's consent to search his person
was voluntary, his subsequent arrest was lawful, and the statements that he
made after receiving Miranda warnings also were voluntary.(1)
The trial court then conducted a stipulated facts trial and convicted defendant
of the possession offense.
Defendant appealed his conviction to
the Court of Appeals, assigning error to the trial court's denial of his motion
to suppress. In the Court of Appeals, the state conceded that the taking and
retaining of defendant's identification amounted to an unlawful seizure under
Article I, section 9, of the Oregon Constitution. The Court of Appeals
accepted that concession as well founded and held that the trial court erred in
ruling to the contrary. Ayles, 220 Or App at 611.
The court then turned to the state's
arguments that defendant's consent to search was not the result of an
exploitation of the unlawful seizure, and that the giving of Miranda warnings
attenuated the taint of the preceding unlawful police conduct. Id. The
court quoted a statement from this court's opinion in State v. Hall, 339
Or 7, 115 P3d 908 (2005), explaining that a defendant who seeks suppression of
evidence obtained from a consensual search on the ground that the search was
the product of illegal police conduct bears an initial burden to show a "'minimal
factual nexus between the unlawful police conduct and the defendant's consent.'"
Ayles, 220 Or App at 611-12 (quoting Hall, 339 Or at 34-35).
Under Hall, if the defendant has met that burden, then the burden shifts
to the state to prove "that the defendant's consent was independent of, or
only tenuously related to, the unlawful police conduct." Hall, 339
Or at 35. The state argued that defendant had failed to make the initial
showing required of him in this case. The Court of Appeals rejected that
argument, holding that there was a minimal factual nexus between the illegal
taking and retaining of defendant's identification and the ultimate discovery
of contraband. The court then went on to hold that the state had failed to
"demonstrate[ ] the existence of any intervening circumstances or other
factors that might mitigate the effect of the illegal detention of
defendant." Ayles, 220 Or App at 613. Finally, the
Court of Appeals concluded that the evidence found in defendant's backpack
after he had been handcuffed, arrested, and advised of his rights under Miranda
also should have been suppressed because, in this case, the Miranda
warnings were not a sufficient intervening circumstance to purge the taint of
the previous illegal police conduct. Id. at 616. Accordingly,
the Court of Appeals reversed the judgment of the trial court.
The state seeks review of that
decision. The state contends that the Court of Appeals erroneously concluded
that there was a minimal factual nexus between defendant's consent to search
and the prior illegal police conduct simply because the illegal police conduct
preceded the giving of consent and the making of statements. The state asserts
that defendant was detained not just as a legal matter, by the taking and
retaining of his identification, but also as a factual matter, by the lawful
stop, in a remote location, of the car in which he was riding. According to
the state, the factual considerations trump the legal ones: Because, as a
practical matter, defendant could not have left the scene, Hunt's request for
consent to search defendant was causally unrelated to the unlawful police
conduct.
Before we begin our analysis of the
legal issues presented in this case, we pause to observe how limited the state,
as petitioner here, has chosen to make them. First, the state has not asked
this court to reconsider Hall. Second, the state does not argue that
the Court of Appeals was wrong to conclude that the state had not met its
burden to show that the consent would have occurred independent of the
illegality or that the connection between the unlawful stop and the consent was
attenuated. Rather, as the state has presented the case to this court, the
only issues are whether (1) defendant met his initial burden to show a minimal
factual nexus between the unlawful police conduct and his consent to search,
and whether (2) the giving of Miranda warnings was a sufficient
intervening circumstance, standing alone, to mitigate the taint of the
preceding unlawful police conduct on defendant's later statements about the
evidence in the backpack. We turn to those issues.
As the state has acknowledged,
defendant was seized in violation of Article I, section 9, of the Oregon Constitution,
when Hunt took and retained defendant's identification without reasonable
suspicion of criminal activity. Defendant consented to the search of his
person during that illegal seizure.(2)
That consent was voluntary, i.e., there is no evidence in the record
that defendant's free will was overcome by the illegal police conduct. See Hall,
339 Or at 20-21 (suggesting distinction between two ways in which violation of
defendant's rights under Article I, section 9, may affect validity of
defendant's consent to search -- situations in which police conduct renders
defendant's consent involuntary, and situations where consent is voluntary,
that is, the illegal police conduct does not rise to level of overcoming
defendant's free will, but nevertheless affects defendant's decision to
consent). That is, even when consent is voluntary as a matter of
"free will," evidence obtained as a result of the ensuing search is
not admissible unless the state also can "prove that the consent was independent
of, or only tenuously related to, any preceding violation of the defendant's
rights under Article I, section 9." Hall, 339 Or at 27.
As noted above, in Hall, the
court described a paradigm for analyzing the effect of an illegal detention on
the admissibility of evidence obtained from a subsequent "consensual"
search:
"After a defendant shows a minimal factual nexus
between unlawful police conduct and the defendant's consent, then the state has
the burden to prove that the defendant's consent was independent of, or only
tenuously related to, the unlawful police conduct. Deciding whether the state
has satisfied that burden requires a fact-specific inquiry into the totality of
the circumstances to determine the nature of the causal connection between the
unlawful police conduct and the defendant's consent. * * * Although
determining the existence of such a causal connection requires examination of
the specific facts at issue in a particular case, we view several
considerations to be relevant to that determination, including (1) the temporal
proximity between the unlawful police conduct and the defendant's consent, (2)
the existence of any intervening circumstances, and (3) the presence of any
circumstances -- such as, for example, a police officer informing the defendant
of the right to refuse consent -- that mitigated the effect of the unlawful
police conduct."
Id. at 34-35. And, as noted above, this case requires
us only to examine what is required for the defendant to establish the "minimal
factual nexus" that is mentioned in the first sentence of the foregoing
paragraph.(3)
The state argues that, in this case,
defendant has not proved that there was any factual nexus, even a
minimal one, "between the illegal stop -- the taking and retaining of
defendant's identification -- and the trooper's request for consent to pat down
defendant," because (1) defendant was a passenger in a car that was
lawfully stopped in a remote location when the officer asked defendant for that
consent, and (2) according to the state, there was evidence in the record that
Hunt would have asked defendant for consent to search him even if Hunt had not
asked defendant for identification. And, the state argues, "if the only
preceding illegality -- the taking and retaining of defendant's identification
-- was not causally related to the trooper's request for defendant's consent to
a patdown, then there was no taint to purge." As the state stresses, "'[b]ut
for' causation may require only a 'minimal factual nexus,' Hall, 339 Or
at 25, but it is not devoid of all meaning and it is not the equivalent of post
hoc ergo propter hoc[.]"
There are two problems with the
state's argument. First, it misunderstands the Hall analysis. Second,
it misunderstands the undisputed facts of the encounter. With respect to the
first point, Hall requires the defendant to establish a "minimal
factual nexus between unlawful police conduct and the defendant's consent,"
not the police officer's request for consent. That is, the focus of the
factual nexus determination is not on whether Hunt's decision to ask
defendant for consent was caused by his taking of defendant's identification;
rather, it is on whether defendant would have consented to the search that
uncovered the evidence if the officer had not unlawfully seized him. The second
problem with the state's theory lies in its assertion that the only factual
nexus that defendant has shown is that the unlawful police conduct preceded
his consent. As noted, however, the illegal seizure did not simply precede
the consent -- it was ongoing at the time defendant gave his consent to
the search; therefore, the two events were not just in close "temporal
proximity," Hall, 339 Or at 35, but were occurring simultaneously.
When we apply the law, properly
understood, to the facts of the case, we conclude that defendant met his burden
to establish a minimal factual nexus between the illegal police conduct and his
consent to search. During defendant's unlawful seizure, defendant was not free
to leave. The unlawful police conduct thus made defendant available to Hunt for
questioning. Although the state asserts that, as a practical matter, defendant
would have remained at the scene regardless of the illegal seizure (because his
driver had been lawfully stopped and the location of the stop was somewhat
remote), the state has pointed to no evidence in the record that defendant
would not have left had he not been illegally detained. Indeed, the state's only
argument on that point is that the nearest convenience store was about two
miles away and the stop of the driver occurred 15 miles east of Seaside. Those
facts alone do not establish that it would have been impossible, or even
extremely difficult, for defendant to leave the scene. But our point is an
even more fundamental one: Whether or not defendant would have asserted his
personal liberty and left the scene once his identification was returned to
him, we cannot conclude that the illegal seizure of defendant, while it was
ongoing, had no factual nexus to defendant's decision to consent. A defendant
gains nothing from having a constitutional right not to be seized if the police
can seize him and -- by definition -- use the circumstance of that seizure as a
guarantee of an opportunity to ask him to further surrender his liberty. There
was a minimal factual nexus between defendant's illegal seizure and his
decision to consent.
This court's recent decision in State
v. Thompkin, 341 Or 368, 143 P3d 530 (2006), provides strong support for
that conclusion. In Thompkin, a police officer requested and retained
the defendant's identification during a lawful stop of the car in which defendant
was a passenger. At that time, the officer did not have either a reasonable
suspicion of criminal activity on the defendant's part or a concern for the
officer's own safety. While the defendant was seized, an officer asked the
defendant if she had any drugs or weapons on her person. In response, the
defendant handed the officer a crack pipe. The officer then asked the
defendant if she would consent to a search of her person. Defendant responded
by getting out of the car and complying with the request to search. The
ensuing search revealed a rock of crack cocaine.
This court held that the defendant
had been unlawfully seized for purposes of Article I, section 9, of the Oregon
Constitution, when the officer took and retained her identification without
either reasonable suspicion of criminal activity or of a threat to his safety.
Thompkin, 341 Or at 379. It then turned to the question whether
suppression of the evidence obtained during that illegal seizure was required.
The court began by setting out the Hall analysis to be used in
situations such as these, then emphasized that,
"[o]nce a defendant demonstrates a minimal factual
nexus between prior, unlawful police conduct and the evidence sought to be
suppressed, deciding whether the state has carried its burden requires a
fact-specific inquiry into the totality of the circumstances."
Id. at 380. The court acknowledged that, in Hall and
the cases that Hall relied on, the defendants consented to be searched
during an unlawful seizure, whereas in Thompkin, the defendant directly surrendered
incriminating evidence in response to police questioning during an unlawful
seizure -- but the court held that those slight factual differences were of no
constitutional moment. Thus, the court held, because of the close temporal
proximity between the illegal seizure of the defendant and her surrender of the
crack pipe, as well as the absence of any intervening circumstances attenuating
the effects of the unlawful police conduct, "the state failed to prove
that [the] defendant's decision to surrender incriminating evidence, even if
voluntary, was not the product of the preceding violation of her rights under
Article I, section 9." Id. at 381. It followed, the court held, that
the evidence obtained during the unlawful seizure had to be suppressed. Id.
The state points out that the court
in Thompkin did not expressly find that the defendant there had
established a "minimal factual nexus" between the unlawful police
conduct and her surrender of incriminating evidence in response to police
questioning; rather, the court appeared to have assumed such a connection
without considering the matter. And, the state suggests, had the court
properly considered the question, it would have concluded that, as here, there
was no causal connection between the unlawful seizure and the defendant's
subsequent incriminating action.
We disagree. It is true that, in certain
of this court's cases, including Thompkin and even Hall itself, the
court has not expressly found the existence of a minimal factual connection
between illegal police conduct and a defendant's decision to consent. Rather,
the court in those cases appears to have assumed without discussion that the
defendant had met that initial burden by establishing that the defendant had
consented to a search during an illegal seizure. The court merely stated
the requirement of a minimal factual nexus and then proceeded immediately to an
examination of whether the state had met its burden to prove that the
connection was too tenuous to require suppression.
On the other hand, the state has
cited no case, and our research discloses none, in which a court has found the absence
of a minimal factual nexus between an unlawful seizure that is ongoing and a
defendant's decision to consent to an officer's request to search. We think
that the reason both that the court sometimes assumes without discussion that a
defendant has shown the required nexus when consent occurs during an ongoing seizure
and that no case exists holding that there is no minimum connection in such circumstances
is that the existence of a minimal factual nexus is obvious in cases in which the
defendant consents to a search (or takes other incriminating action) during
an illegal seizure. That conclusion is reflected in this court's recent
decision in State v. Rodgers/Kirkeby, 347 Or 610, 227 P3d 695 (2010).
In that case, without any discussion or explanation, this court expressly
concluded that the defendants in that case "ha[d] shown the required
nexus" by showing that they consented to be searched during a period of
unlawful detention. Id. at 629-30.
To summarize, then, we agree with the
state that the "minimal factual nexus" standard is a true standard,
not a resort to the logical fallacy, "post hoc ergo propter hoc."
However, a defendant establishes a more substantial connection than merely one
thing occurring after another when that defendant establishes that he or she consented
to a search during an unlawful detention. In such a circumstance, the
fact that the defendant is not legally free to leave because of the illegal
police activity cannot be discounted in motivating the defendant's consent and,
therefore, such illegal police conduct normally will be at least minimally
connected to the defendant's decision to consent.(4)
We hold that this is such a "normal" case -- i.e., defendant in
this case met his initial burden, thereby shifting the burden to the state to
prove that the evidence obtained did not derive from exploitation of the
unlawful police conduct. As noted, the posture of this case makes that
remaining inquiry a narrow one. The state has not argued that it did or could
meet its burden to prove that defendant's consent to search was independent of,
or only tenuously related to, Hunt's unlawful seizure of defendant in violation
of Article I, section 9, of the Oregon Constitution. Therefore, as the Court
of Appeals correctly concluded, the trial court should have suppressed the
evidence found in the ensuing search -- viz., the prescription pill
bottle containing methamphetamine.
We turn to the second part of the
state's argument -- that, after defendant was given Miranda warnings,
the incriminating statements that he made, and the evidence eventually found in
his backpack, were admissible notwithstanding the prior illegality. The state
asserts:
"In the state's view, the giving of Miranda warnings
always suffices to break the chain between a prior illegality and post-Miranda
admissions or statements. Even if that is not true, at a minimum the giving of
the warnings is an extremely strong indicator that post-Miranda
statements were not obtained through exploitation of the prior
illegality."
The state also argues that, in holding that the Miranda
warnings did not attenuate the taint of the preceding illegality, the Court of
Appeals improperly minimized the effect of those warnings in this case. In
fact, according to the state, the Court of Appeals went so far as to suggest
that the giving of Miranda warnings itself has a coercive effect that
negates the voluntariness of the subsequent statements, when the court stated that
the warnings
"'could perpetuate the person's perception that his or
her liberty continued to be restrained as the officer pursued a criminal
investigation by seeking consent to a search.'"
Ayles, 220 Or App at 614 (quoting State v. La France, 219 Or App 548, 557, 184 P3d 1169 (2008)). On the contrary, the
state notes, this court stated in Thompkin that Miranda warnings
could, in fact, be an intervening circumstance adequate to break the causal chain
between the defendant's statements and the prior illegality. See Thompkin,
341 Or 380 (so stating). The state then concludes that where (as it
characterizes the situation), "the prior illegality amounted only to
taking and retaining defendant's identification[,] * * * the [later] giving of Miranda
warnings, followed by defendant's admission that more methamphetamine was in
his backpack, served to dissipate the taint of the illegal proceeding."
We agree with the state that the
Court of Appeals' statement creates an incorrect impression: The giving of the
warnings, which is intended to assure voluntariness, cannot be used in the way
that the Court of Appeals used it to prove a contrary theory. To be sure, it
is clear from context that the Court of Appeals was not talking specifically about
coercion or the voluntariness of post-Miranda statements at all.
Rather, the court merely made the observation that, in the "totality of
the circumstances" surrounding a defendant's consent to search during an
ongoing unlawful seizure, the Miranda warnings themselves could have an
effect on a defendant's feeling that his liberty was being restrained and,
therefore, on his consequent decision to consent. We think, however, that the
court's statement is too prone to misinterpretation, and therefore should not
be used in this way again.
We return to the central issue. As
with defendant's consent to search, defendant concedes that the statements that
he made in response to Hunt's questions after Hunt administered the Miranda warnings
were voluntary -- that is, they were not actually coerced by police conduct
that overcame his free will. Nonetheless, like the evidence found after
defendant's consent to search, those statements, and the methamphetamine and
related paraphernalia found as a result of those statements, are inadmissible
unless the state can demonstrate that the statements and evidence did not
derive from the preceding illegal seizure of defendant's person.(5)
Again, Hall provides the paradigm for our analysis of whether the state
has met that burden. For convenience, we repeat that paradigm here:
"Deciding whether the state has satisfied that burden
requires a fact-specific inquiry into the totality of the circumstances to
determine the nature of the causal connection between the unlawful police
conduct and the defendant's consent. * * * Although determining the existence
of such a causal connection requires examination of the specific facts at issue
in a particular case, we view several considerations to be relevant to that
determination, including (1) the temporal proximity between the unlawful police
conduct and the defendant's consent, (2) the existence of any intervening
circumstances, and (3) the presence of any circumstances -- such as, for
example, a police officer informing the defendant of the right to refuse
consent -- that mitigated the effect of the unlawful police conduct."
339 Or at 35. As noted, the state argues that the giving of Miranda
warnings was an "intervening circumstance" sufficient to
attenuate any taint from Hunt's unlawful conduct in taking and retaining
defendant's identification.
Hall requires us to conduct a
"fact-specific inquiry into the totality of the circumstances to determine
the nature of the causal connection between the unlawful police conduct"
and the statements and evidence that defendant asks be suppressed. In this
case, that totality of the circumstances includes the facts that Hunt gave defendant
the Miranda warnings after Hunt arrested defendant for possessing the
prescription pill bottle containing methamphetamine. That arrest was unlawful
because it was based on evidence found in an unlawful search of defendant's
person. Moreover, after defendant's arrest, and at the time that Hunt asked defendant
about the backpack, defendant was handcuffed and in custody in the back of a
patrol car. Hunt's questions pertained to defendant's possession of additional
quantities of the same drug that he had already been arrested for possessing,
and, at the time of the questioning, Hunt was holding the backpack that
contained those drugs. Those facts all suggest that the initial unlawful
police conduct -- the unconstitutional seizure of defendant's person --
affected defendant's actions from his initial consent to be searched through the
time that he responded to Hunt's questions about the backpack. That is, the
"temporal proximity" factor plainly weighs in defendant's favor.
The question then is whether, notwithstanding
those ongoing effects of the prior illegality, the state has met its burden to
show that the Miranda warnings alone (the state has pointed to nothing
else) were sufficient to ensure that the unlawful police conduct did not
affect, or had only a tenuous connection to, defendant's responses to Hunt's
questions or the later discovery of the methamphetamine in the backpack. This
court considered a very similar question in State v. Olson, 287 Or 157,
598 P2d 670 (1979). In that case, the police had probable cause to arrest
defendant for burglary. They went to his house late in the evening and knocked
and announced their presence. After receiving no response, the officers opened
the defendant's door, entered his house, and found the defendant in bed with
his girlfriend. They then searched the house without a warrant and, finding
some items taken in the burglary, arrested the defendant and advised him of his
Miranda rights. The defendant subsequently confessed. In deciding that
the defendant's statements must be suppressed, the court stated,
"The burden is also upon the state to prove that
despite the illegal entry, arrest and search, the incriminating statements and
ultimate confession were acts of defendant's free will and that the primary
taint of illegality was thus purged. It can be contended that the receiving of
the Miranda warning by defendant was such an intervening circumstance
indicating voluntariness. In Brown v. Illinois, 422 US 590, 602, 95 S
Ct 2254, 45 L Ed 2d 416 (1975), as here, incriminating statements were made
almost immediately upon defendant's arrest followed shortly by a more detailed
statement of the crime. There the Court suppressed the statements, which it
found to be the product of an invalid arrest and search, even though given
after a Miranda warning. Such a warning is evidence which may be
considered in deciding whether a statement or a confession was unaffected by an
illegal arrest and search. That decision is dependent upon all the
circumstances, and we believe that in the present case the warning is inadequate
to relieve the obvious taint resulting from breaking in, arresting defendant,
and searching the premises."
Olson, 287 Or at 166.
We think that here, as in Olson,
the Miranda warning is "inadequate to relieve the obvious
taint" of the unlawful police conduct. Given that defendant's illegal
seizure led to an illegal search of defendant's person that revealed
defendant's possession of a controlled substance and that that discovery, in
turn, led to defendant's arrest (which triggered the giving of the Miranda warnings),
it is impossible to conclude that the Miranda warnings alone were adequate
to break the causal chain between the illegal police conduct and the subsequent
incriminating statements and discovery of evidence. The Court of Appeals
correctly held that the trial court should have suppressed defendant's
statements in response to Hunt's questions along with the evidence found in
defendant's backpack.
The decision of the Court of Appeals
is affirmed. The judgment of the circuit court is reversed, and the case is
remanded to the circuit court for further proceedings.
DURHAM, J., concurring.
I join the majority's answer to the
narrow issues that it decides in this case. However, I do not join much of the
reasoning that the majority uses to arrive at its answer, and I write
separately to explain the basis for this concurrence.
This case concerns the admissibility
of two categories of evidence: (1) evidence obtained from a consent search of
defendant's person, and (2) statements that defendant made to the police after
they advised defendant of his rights under Miranda v. Arizona, 384 US
436, 86 S Ct 1602, 16 L Ed 2d 694 (1966), as well as other drug-related
evidence obtained from defendant's backpack as a consequence of those
statements to the police. The majority concludes that unlawful police conduct
-- an unconstitutional seizure of defendant -- tainted the consent search of
defendant's person and that the later delivery of Miranda warnings was
inadequate to sever the causal link between the unlawful seizure and the
incriminating statements and drug evidence found in defendant's backpack. Those
admissibility determinations, according to the majority, each find their root
in the conduct of the police officer in requesting defendant's consent to
search his person during the unlawful seizure.
Applying State v. Hall, 339 Or
7, 115 P3d 908 (2005), and its progeny, the majority decides that the trial
court should have suppressed all evidence that came to light during the events
that followed the seizure. The majority stresses, however, that the key issue
that it decides concerning the initial consent search is a narrow one
concerning causation, and that no issue exists here about whether Hall
was correctly decided. The majority states:
"Before we begin our analysis of the legal
issues presented in this case, we pause to observe how limited the state, as
petitioner here, has chosen to make them. First, the state has not asked this
court to reconsider Hall. Second, the state does not argue that the
Court of Appeals was wrong to conclude that the state had not met its
burden to show that the consent would have occurred independent of the
illegality or that the connection between the unlawful stop and the consent was
attenuated. Rather, as the state has presented the case to this court, the
only issues are whether (1) defendant met his initial burden to show a minimal
factual nexus between the unlawful police conduct and his consent to search,
and whether (2) the giving of Miranda warnings was a sufficient
intervening circumstance, standing alone, to mitigate the taint of the
preceding unlawful police conduct on defendant's later statements about the
evidence in the backpack. We turn to those issues."
State v. Ayles, 348 Or ___, ___, ___ P3d ___ (Aug 12,
2010) (slip op at 6-7) (emphasis in original).
In response to the majority's narrow
statement of the issue here, the dissent seeks to distinguish the factual
circumstances in Hall from those presented here, all in an effort to
demonstrate that the causal link between the unlawful stop and defendant's
voluntary consent to a search of his person was weak or nonexistent. In
arguing that point, the dissent acknowledges that this case presents only a
question of the factual nexus between the police illegality and the consent
search, and does not raise a challenge to the correctness of Hall:
"This case does not require us to decide
whether Hall was correctly decided, and the state has not asked to
reexamine that decision. Rather, the state argues, and I would hold, that any
causal connection in this case between the retention of defendant's
identification and defendant's decision to consent is so much weaker than it
was Hall that we should give effect to defendant's voluntary consent to
the patdown search."
Ayles, 348 Or at
___ (Kistler, J., dissenting) (slip op at 7) (footnote omitted).
I dissented in Hall,
arguing that the majority there had distorted the relevant legal analysis when
the police, after committing an illegality, obtain incriminating evidence
against a defendant. Hall, 339 Or at 37 (Durham, J., concurring in part
and dissenting in part). I contended that new mode of analysis adopted in Hall
was not supported by any existing precedent, state or federal, and that the
reasoning in Hall would lead to the needless suppression of evidence
obtained by the police with the specific, voluntary consent of the owner or
possessor of the evidence. More recently, I dissented from the court's
extension of the Hall paradigm to the arena of the traffic stop. State
v. Rodgers/Kirkeby, 347 Or 610, 631, 227 P3d 695 (2010) (Durham, J.,
dissenting).
This case specifically concerns the
application of the part of the Hall analysis that obliged defendant to
demonstrate that a factual link exists between his unlawful detention by the
police officer and, later, the officer's request for consent to conduct a
patdown search of defendant's person. The state raises no claim that the Hall
court erred in creating that requirement. Given the temporal and physical
circumstances of the stop and the officer's request, the majority has the
better of the argument on that point. Therefore, I join the majority's conclusion
that defendant met his initial burden, as described in Hall.
Further, I join the majority's second
conclusion, which follows from its first, that a Miranda warning alone
was not sufficient to nullify the causal link between the initial police illegality
and the statements and drug-related evidence that defendant seeks to suppress.
I do not join in the majority's recital at length of the rationale in the Hall
line of cases that has nothing to do with the disposition of this case.
The court, in the future, may face
other arguments that question the logic of Hall and its progeny in ways
that this case does not. This court has said:
"[W]e remain willing to reconsider a previous ruling
under the Oregon Constitution whenever a party presents to us a principled
argument suggesting that, in an earlier decision, this court wrongly considered
or wrongly decided the issue in question. We will give particular attention to
arguments that either present new information as to the meaning of the
constitutional provision at issue or that demonstrate some failure on the part
of this court at the time of the earlier decision to follow its usual paradigm
for considering and construing the meaning of the provision in question."
Stranahan v. Fred Meyer, Inc., 331 Or 38, 54, 11 P3d
228 (2000). Counsel for any party who chooses to challenge the correctness of
the decision in Hall in a future case is well-advised to bear in mind
the guidance that this court provided in Stranahan for that endeavor.
For the reasons stated above, I
concur in the majority's decision.
KISTLER, J., dissenting.
An officer lawfully stopped a car in
which defendant was a passenger. The majority holds that the officer
unconstitutionally seized defendant when the officer retained defendant's
identification card and that all the evidence that followed was a product of
that seizure and must be suppressed. Although I agree that the officer stopped
defendant without reasonable suspicion, the rest of the majority's reasoning
sweeps too broadly. As an initial matter, defendant would not have left the
scene of the stop, even if the officer had not retained his identification. In
that circumstance, defendant's later, voluntary consent to a patdown search was
sufficient to break the causal chain. Beyond that, the officer lawfully
discovered evidence during a search incident to the arrest of the driver and
defendant chose to answer the officer's questions about that evidence after
having been advised of his Miranda rights. Those events occurred
independently of the retention of defendant's license and were not the product
of that act. This case differs in those respects from State v. Hall,
339 Or 7, 115 P3d 908 (2005), and the majority errs in treating this case as if
Hall governed it. I respectfully dissent.
The question whether a voluntary
consent that follows an unconstitutional stop is a product of that stop is a
fact-intensive one, and it is worth recounting the facts in this case before
turning to the legal issues that they raise. One morning, a police officer
lawfully stopped a car in which defendant was a passenger. The car was missing
a license plate and exceeding the speed limit. The stop occurred at a remote
location in the Coast Range along Highway 26.(1)
There were five people in the car (including the driver) and only a single
officer. On approaching the car, the officer noticed that the driver of the
car appeared to be under the influence of methamphetamine. As the officer
explained:
"[The driver's] body was contorting and twisting. She
couldn't sit still. She was running her fingers through her hair at a very
high and unusual rate of speed. I saw her jaw muscles * * * and her face
muscles were spasming and relaxing. I asked her for her driver's license. She
was making just some random statements that I really didn't hear and
understand. She made a couple of comments that were basically irrelevant to
anything."
The driver found her license and gave it to the officer.
After giving the officer her license, the driver continued to rummage through
her wallet, even though the officer had asked only for her license.
Given the driver's behavior, the
officer asked her if she had any methamphetamine in the car. At that point,
defendant, who was sitting in the front passenger seat, spoke up and said,
"Sir, what do we have to do to rectify this so that we stop getting
stopped. So that we don't get stopped anymore." The timing of
defendant's question and the overly polite way in which he asked it raised the
officer's suspicions. The officer asked defendant for identification, and
defendant gave him a veteran's identification card. The officer took both the
driver's license and defendant's identification card and put them in his car.
He then asked the driver to step out of the car, spoke to her briefly, and
returned to his car where he "ran a computer check on both the defendant
and [the driver]." That check did not reveal any outstanding warrants for
either person.
The officer went back to the car
where defendant was sitting.(2)
He asked defendant "if he would mind stepping out of the car and talking
to [him] for a minute." Defendant said "[s]ure" and stepped
out. At that point, the officer asked defendant to step to the back of the
car, where the driver was seated, so that he could keep an eye on defendant,
the driver, and the three other passengers who were still in the back seat of
the car. As defendant walked to the back of the car, the officer noticed that
defendant walked with an exaggerated limp, but he did not see any obvious signs
that defendant was under the influence of any substance.
Once they reached the back of the
car, the officer explained to defendant that, when he talks to someone outside
of a car, he "like[s] * * * to pat them down for weapons" and then he
asked defendant "for consent to pat him down." Defendant replied,
"'Yeah.'" As the officer explained, "[h]e told me that I could
pat him down." As the officer started to pat defendant down, he could see
from his vantage point into defendant's shirt pocket. Inside the pocket, he
"saw a prescription pill bottle with no label on it[,] and [he] could see
inside the pill bottle was plastic wrapping and [he] immediately suspected it
was drugs." He took the bottle out of defendant's pocket and asked,
"Is that the meth[,]" and defendant said, "Yeah, I guess it must
be." The officer placed defendant under arrest and advised him of his Miranda
rights.
At that point, the officer turned his
attention back to the driver, whom he "ran * * * through a field sobriety
test and subsequently arrested her for driving under the influence of methamphetamine."
After the officer arrested the driver, he searched the car for "additional
means of intoxication." During that search, the three passengers in the
back seat got out of the car. One of them told the officer that there was a
backpack in the car, which the passenger identified as defendant's. The
officer asked defendant if there were methamphetamine in the backpack.
Defendant said that there was and described the contents of the backpack in
detail. The officer then looked in the backpack and found more
methamphetamine.
Before trial, defendant moved to
suppress all the evidence found during the stop. Specifically, defendant moved
to suppress: (1) the methamphetamine found in the pill bottle during the pat
down search; (2) defendant's statements to the officer regarding the backpack;
and (3) the contents of the backpack. The trial court denied that motion, and
the Court of Appeals reversed the resulting judgment of conviction.
Before turning to the issue that this
case presents, it is important to note what is not at issue. Defendant does
not contend that the officer lacked probable cause to stop the car for a
traffic infraction, nor does he dispute that the officer acquired reasonable
suspicion that the driver was under the influence of methamphetamine once he
approached the car and spoke with her. Defendant has not challenged the
voluntariness of his consent to the patdown search. He has not questioned the
officer's testimony that the prescription bottle in defendant's shirt pocket
was in plain view when the officer began to pat him down, and he has not argued
that the officer acted unconstitutionally when he removed the prescription
bottle from his shirt pocket and asked him about its contents. Relatedly,
defendant does not argue that the officer lacked probable cause to arrest the
driver for driving under the influence of methamphetamine, once she performed
field sobriety tests, and he has not challenged the officer's authority to
search the car for additional evidence of intoxication, as a search incident to
the driver's lawful arrest. Defendant's argument accordingly reduces to the
proposition that every lawful act that followed the retention of his
identification must fall because it was a product of that single, initial
illegality.
The state, for its part, does not
dispute that the officer's retention of defendant's identification card
prevented him from leaving and thus stopped defendant without reasonable
suspicion. The state argues, however, that there is no causal connection between
that illegality and defendant's voluntary consent to the patdown search because
defendant would not have left the scene, even if the officer had not retained
his identification. It follows, the state contends, that defendant's voluntary
consent to the patdown search was not the product of the prior illegality.
Alternatively, the state argues that, even if the consent were the product of
the retention of defendant's identification, the Miranda warnings that
defendant subsequently received were, in the totality of the circumstances,
sufficient to break the causal chain, rendering defendant's post-Miranda statements
and the contents of the backpack admissible.
In my view, both of the state's
arguments are well taken. Under this court's decisions, when the officer
retained defendant's identification card, he prevented him from leaving and
accordingly stopped him without reasonable suspicion. See, e.g.,
State v. Thompkin, 341 Or 368, 379, 143 P3d 530 (2006) (so reasoning).
Defendant, however, also was prevented from leaving the scene of the stop for
an independent and completely lawful reason. The officer lawfully had stopped
the car in which defendant was riding and, on stopping the car, reasonably
suspected that the driver was under the influence of methamphetamine. The stop
occurred in a remote wooded location, three miles from the nearest home, and
the trial court reasonably could have found that defendant would not have left
the scene of the lawful stop of the car even if the officer had not retained
his identification.(3)
In this case, as long as the driver's car was lawfully detained, so was
defendant.
As a matter of causation, two
independent causes prevented defendant from leaving. One was lawful; the other
was not. Under those circumstances, any causal connection between the
retention of defendant's identification card and his voluntary consent to the
patdown search was so faint that defendant's voluntary consent was sufficient
to break the causal chain. To be sure, this court held in Hall that the
defendant's voluntary consent that followed an unlawful stop did not break the
causal chain. 339 Or at 36. In that case, however, the unlawful seizure was
the only reason that the defendant in Hall remained at the scene. In
this case, by contrast, the lawful retention of the car and its driver
prevented defendant (the passenger) from leaving, without regard to whether the
officer retained the defendant's identification or gave it back.
Not every causal connection, however
faint, will be sufficient to disable a defendant's voluntary consent from
breaking the causal chain, and the causal connection in this case is, if
existent at all, far weaker than the causal connection in Hall. This
case does not require us to decide whether Hall was correctly decided,
and the state has not asked us to reexamine that decision. Rather, the state
argues, and I would hold, that any causal connection in this case between the
retention of defendant's identification and defendant's decision to consent is
so much weaker than it was in Hall that we should give effect to
defendant's voluntary consent to the patdown search.(4)
As noted, defendant does not
challenge the voluntariness of his consent to the patdown search, nor has he
argued that the officer did not lawfully see, in plain view, what the officer
reasonably suspected was contraband once he started to conduct the patdown
search. Because everything that followed defendant's voluntary consent to the
patdown search was constitutionally obtained and because, in these
circumstances, defendant's voluntary consent was not the product of the
unlawful retention of his identification, I would hold, on that ground alone,
that all the evidence that the officer discovered was admissible.
The majority reaches a different
conclusion. It holds that, under Hall, a minimum factual nexus will
exist between an illegality and a defendant's consent as long as the consent
occurs while the unlawful stop is ongoing. The majority's holding is at odds
with the reasoning in Hall. The question under Hall is not
whether there is a temporal connection between the illegality and the
defendant's decision to consent. Rather, the question is whether there is a
causal connection. The majority's decision either assumes incorrectly that all
events that occur contemporaneously are causally connected, or it dispenses
with the requirement that the illegality must be the cause of the decision to
consent. Either way you cut it, the majority errs.
The majority, for its part, invokes
the decision in Hall and two cases that follow it as support for
its holding. The analysis in Hall, however, undercuts the majority's
rationale, and the two cases that follow Hall add nothing to the
analysis. The question in Hall was whether evidence discovered as a
result of the defendant's voluntary consent to a search "derived from a
preceding violation of the defendant's rights under [Article I, section 9, of
the Oregon Constitution]." 339 Or at 21. The question that the court
posed in Hall was at base a causal one. See id. at 24
("[T]he critical inquiry is whether the state obtained the evidence sought
to be suppressed as a result of a violation of the defendant's rights
under Article I, section 9.") (emphasis added). Consistently with that
focus, the court described the minimum factual nexus that defendants must
establish as a causal connection between the illegality and the defendant's
decision to consent. See id. at 25 ("[A] minimum factual
nexus * * * is, at minimum, * * * a 'but for' relationship[.]"). The
standard that the majority announces in this case -- that the illegality and
the decision to consent need share only a temporal link -- is inconsistent with
the court's recognition in Hall that the connection must be causal.
To be sure, it often will be the case
that consent obtained during an illegal stop also will be causally connected to
the stop. But that is not always so, as this case illustrates. Any causal
link in this case was so faint that defendant's voluntary consent was
sufficient to break the causal chain. Not only is the majority's reasoning at
odds with the analysis in Hall, but this case differs factually from Hall
in that the illegal detention in that case was the only reason that the
defendant in Hall remained at the scene. No independent lawful reason
prevented the defendant in Hall from leaving, and this court presumed
without further discussion that there was a sufficient causal connection
between the illegality and the consent to shift the burden to the state to
prove independent source, inevitable discovery, attenuation, or the like. 339
Or at 36.(5)
The two other cases that the majority
cites add nothing to the analysis. One case, State v. Rodgers/Kirkeby,
347 Or 610, 227 P3d 695 (2010), is factually similar to Hall. In
that case, the illegal detention was the only reason that each defendant
remained at the scene. Because no independent, lawful reason prevented either
defendant from leaving, that case did not present the causation question that
this case does.
The other case, State v. Thompkin,
341 Or 368, 143 P3d 530 (2006), is factually closer. In Thompkin, the
defendant was a passenger in a lawfully stopped car. The police stopped the
passenger (the defendant) when they retained her identification without
reasonable suspicion. Id. at 377-79. Although the trial court's
findings are not particularly clear, its findings can be read to suggest that
the defendant in Thompkin would have remained at the scene of the lawful
stop without regard to whether the police unlawfully retained her
identification.(6)
In that respect, Thompkin is factually closer to this case.
Despite that possible similarity, Thompkin
provides no precedential support for the majority's decision because the state
never argued and this court never considered in Thompkin whether the
possible presence of an independent, lawful reason for remaining at the scene
meant that there was no minimum factual nexus between the unlawful retention of
the defendant's identification and her voluntary decision to disclose evidence
to the police. See 341 Or at 380-81. Indeed, the decision in Thomkin
omits any discussion of whether the defendant had established a minimum
factual nexus that shifted the burden to the state. See id. The
opinion is silent on that point, and we should not treat Thompkin's
silence as if it were binding precedent. See Coast Range Conifers v. Board
of Forestry, 339 Or 136, 148-49, 117 P3d 990 (2005) (reaching that
conclusion regarding an issue that an earlier decision could have but did not
address).
As the majority ultimately
recognizes, this court has assumed without discussion, both in Hall and
also in Rodgers/Kirkeby and Thompkin, that a minimum factual
nexus existed, and those cases thus provide little or no analytical help in
determining what a defendant must show to establish that nexus. The majority
attempts to supply the analytical deficiency in those decisions with the
following explanation:
"We think that the reason both that the court sometimes
assumes without discussion that a defendant has shown the required nexus when
consent occurs during an ongoing seizure and that no case exists holding that
there is no minimum connection in such circumstances is that the existence of a
minimal factual nexus is obvious in cases in which the defendant consents to a
search (or takes other incriminating action) during an illegal seizure."
348 Or at ___ (emphasis in original) (slip op at 13). In my
view, the majority's explanation still leaves something to be desired. However
obvious the causal connection may be in some cases, it is not obvious in every
case. The majority errs in sweeping away all factual distinctions with an
uncritical assertion that a minimum factual nexus will always exist when
consent occurs during an illegal detention; in so doing, it incorrectly
substitutes a temporal connection for a causal one.
One final point requires discussion.
The majority says, in a footnote, that the state has not argued the first issue
that this opinion discusses. The state, however, argued in its brief to the
Court of Appeals that, under Hall, a defendant must show "'at
minimum, the existence of a "but for" relationship'" between the
evidence sought to be suppressed and the police illegality to establish a
factual nexus. Respondent's Brief at 8 (quoting Hall, 339 Or at 25.)
The state contended that the evidence in this case was not sufficient to
establish even that minimal causal connection. It followed, the state
reasoned, that "[t]here is no reason to suppose * * * that taking and
retaining defendant's ID had any effect on his decision to consent to the
patdown[.]" Id. at 9-10
In this court, the state raised the
same issue. It contended that, because the traffic stop was lawful and
ongoing, any connection between the retention of defendant's identification and
the officer's request for consent to the patdown search was not sufficient to
establish even "but for" causation.(7)
In my view, the state's arguments in both the Court of Appeals and this court
properly raised the question whether the causal connection between the
retention of defendant's identification and his consent to the patdown search
was so weak that defendant's voluntary consent broke the causal chain. As
explained above, on that issue, I would hold that, because the detention in
this case resulted equally from a lawful and an unlawful cause, the illegality
did not have a sufficient effect on defendant's voluntary decision to consent
to the patdown search to prevent that decision from breaking the causal chain,
even under Hall.
A second, more limited basis for
reversing the Court of Appeals decision exists. Even if one assumes that
defendant's consent to the patdown search was not sufficient to break the
causal chain, four later events, viewed collectively, were. First, the officer
lawfully arrested the driver for driving under the influence of methamphetamine.
Second, the officer lawfully searched the car for more evidence of intoxicants
incident to his lawful arrest of the driver. See State v. Caraher, 293
Or 741, 759, 653 P2d 942 (1982) (authorizing a search incident to arrest when
"it is relevant to the crime for which defendant is being arrested and so
long as it is reasonable in light of all the facts").(8)
Third, during that search, one of the passengers got out the car, told the
officer that there was a backpack in the car, and identified it as defendant's.(9)
Fourth, the officer asked defendant whether there was methamphetamine in the
backpack, and defendant, having previously received Miranda warnings,
chose to answer the officer's questions.
Even if defendant's voluntary consent
to the patdown did not break the causal chain, his receipt of the Miranda warnings
did. Admittedly, giving a defendant Miranda warnings does not always
break the causal connection between an Article I, section 9, violation, and a
defendant's subsequent statements. See Hall, 339 Or at 35
(identifying several considerations, in addition to Miranda warnings, to
account for in assessing a causal connection); see Brown v. Illinois,
422 US 590, 603, 95 S Ct 2254, 45 L Ed 2d 416 (1975) ("Miranda
warnings, alone and per se, cannot always make the act
sufficiently a product of freewill to break, for Fourth amendment purposes, the
causal connection[.]"). Rather, determining whether those warnings were
sufficient to break "a causal connection requires examination of the specific
facts at issue in a particular case." Hall, 339 Or at 35. That
is, the question whether the warnings purged the taint requires consideration
of the nature and the extent of the taint.
Here, any taint was minimal. The
only illegality that defendant has identified was the fact that the officer's
retention of defendant's identification card prevented defendant from leaving
and thus stopped him without reasonable suspicion. As explained above,
however, defendant could not leave for an independent, completely lawful
reason. In those circumstances, the effect of retaining his identification
card was minimal, if not nonexistent. The subsequent, independent discovery of
defendant's backpack and the Miranda warnings that defendant
received were sufficient to attenuate any taint deriving from the officer's
retention of his identification. If defendant's voluntary statements were not
the product of the officer's retention of defendant's identification, then the
subsequent search of his backpack was lawful, based solely on those statements,
either under the automobile exception or as a search incident to defendant's
arrest.
Relying on State v. Olson, 287
Or 157, 598 P2d 670 (1979), the majority reaches a different conclusion.
However, this is not a case in which the officers broke into the defendant's
house without justification and roused the defendant and his companion from
their bed, as they did in Olson. Cf. id. at 159. Nor
is this a case in which the defendant, on entering his home, found an officer
unlawfully inside his home pointing a gun at him and saying, "Don't move,
you are under arrest." Cf. Brown, 422 US at 592. In that
case, neither the officers' entry into the defendant's house nor their arrest
of him at gun point was constitutionally justified. Id. at 596. In
those cases, this court and the United States Supreme Court respectively held
that the mere fact that the officer gave the defendants Miranda warnings
before the defendants made incriminating statements was not sufficient to purge
the taint of the officers' unconstitutional entries into the defendants'
homes. Olson, 287 Or at 166; see also Brown, 422 US at 603. In
light of the nature and severity of the Fourth Amendment and Article I, section
9, violations in those cases, something more than Miranda warnings was
required. Olson, 287 Or at 166; Brown, 422 US at 604-05.
In this case, by contrast, the nature
and severity of the violation was minimal. The officer retained defendant's
identification and prevented him from leaving in a situation where defendant
had no ability to go anywhere until the officer concluded his lawful stop of
the car. The degree of attenuation necessary to purge the taint varies with
the extent of the taint, and where, as here, any taint is minimal, the required
degree of attenuation is correspondingly reduced. The point has nothing to do
with deterrence. Rather, under a rights-based suppression analysis, the degree
of attenuation necessary to purge the taint (and thus restore the defendant to
the position he or she would have been in had no constitutional violation
occurred) varies with the extent, nature, and severity of any illegality.(10)
Any other rationale would give a constitutional violation that had only minimal
effect far greater reach than either the constitution requires or good sense
warrants. Because I would uphold the trial court's judgment in this case, I
respectfully dissent.
Balmer and Linder, JJ., join in this
opinion.
1. The
trial court noted, however, that, if the taking and retaining of defendant's
identification were considered an illegal detention, then suppression would
have been required because, the trial court found,
"[d]efendant's identification was held during the stop
where a reasonable person would not feel free to leave. The consent for search
was in close proximity to obtaining defendant's identification and asking him
to exit. The state did not produce any evidence regarding inevitable discovery,
independent discovery or a tenuous factual link that would still allow the
search."
2. This,
therefore, is not a case in which the unlawful police conduct merely "preceded"
defendant's giving of consent. The record is clear that the unlawful detention
here was ongoing -- Hunt continued to retain defendant's identification -- when
defendant gave his consent to the search.
3. It
is important to emphasize again that we need not determine whether the state
has met its burden to show that there is no causal connection between
the preceding illegality and defendant's consent that would require suppression
of the evidence found as a result of the ensuing search. That is so because
the state did not argue below, and does not argue in this court, that, if
defendant had not established the requisite minimal nexus, the state did or
could meet its burden to prove that defendant's consent (and the consequent
discovery of the prescription pill bottle containing methamphetamine) was
independent of, or only tenuously related to, the unlawful police conduct. As
noted, the trial court observed that "[t]he state did not produce any
evidence regarding inevitable discovery, independent discovery or a tenuous
factual link that would still allow the search." The state has never
challenged that observation.
The dissent does not acknowledge this
posture of the case. The dissent states:
"As a matter of causation, two independent
causes prevented defendant from leaving. One was lawful; the other was not.
Under those circumstances, any causal connection between the retention of
defendant's identification card and his voluntary consent to the patdown search
was so faint that defendant's voluntary consent was sufficient to break the
causal chain."
348 Or at ___ (Kistler, J., dissenting) (slip
op at 6-7). The dissent then goes on to explain why, in its view, the
state had met its burden to prove attenuation with respect to the consent to
the patdown search. The problem with the foregoing, of course, is that it
purports to explain why the state should prevail here, when the state did not
argue the dissent's theory either to this court or to the Court of Appeals.
The state is the petitioner here. It must live with what it has raised and
argued -- a small enough requirement, but one from which the dissent is not
entitled to relieve it.
4. We
say "normally," because this is not a per se rule. Among many
other scenarios, it is always possible that the state will be able to produce,
for example, an admission by defendant to some other person to the effect that
he would have remained at the scene or consented in any event.
5. As
we held in the first part of this opinion, defendant met his initial burden to
establish a minimal factual nexus between the illegal police conduct and his
decision to consent to the first patdown of his person. The burden then
shifted to the state to prove that all of defendant's subsequent statements,
including his later consent to the search of his backpack, and the evidence
discovered as a result of those statements, including the drugs and
paraphernalia found in the backpack, did not derive from exploitation of the illegal
seizure of his person. As noted, the state did not argue that it had met its
burden with respect to the evidence found in the search of defendant's person.
However, the state does argue that defendant's consent to the search of his
backpack was so attenuated from the initial illegal police conduct that the
evidence found therein should not be suppressed.
1. The
officer testified that the closest home "would probably be three miles
away[.]" Later, the officer explained that there was one house on Saddle
Mountain Road about a quarter to a half mile up that road from where it
"leaves [Highway] 26." There was no testimony regarding how far
Saddle Mountain Road was from the scene of the stop and thus nothing to call
into question the officer's earlier testimony that the nearest home was three
miles away. As defense counsel put the issue to the officer, "So as far
as people in the car * * * would be able to observe by driving through that
area, they're three miles from anything in one direction out there * * * [and
they're] -- I don't know -- six or seven miles I think in the other direction."
The officer answered, "Approximately. Yes, sir."
2. It
is not clear when the officer returned the license to the driver and the
identification card to defendant. The state, however, does not dispute that
the officer did not return the identification card before he began speaking
with defendant.
3. The
majority notes in passing that the facts "do not establish that it would
have been impossible, or even extremely difficult, for defendant to leave the
scene." 348 Or at ___ (slip op at 11). The majority uses the wrong
standard of review. Whether defendant could or would have left the scene if
the officer had not retained his identification is a factual issue for the
trial court, which ruled in the state's favor.
4. In
that connection, it is worth noting that the United States Supreme Court and
almost every state supreme court that has considered the issue have held that
stopping a car seizes both the driver and the passengers. See Brendlin v.
California, 551 US 249, 257, 259 n 5, 127 S Ct 2400, 168 L Ed 2d 132 (2007)
(so holding and noting the holdings of the state supreme courts). Reasonable
suspicion to stop the car justifies the stop of both the driver and the
passengers. See Arizona v. Johnson, ___ US ___, 129 S Ct 781,
172 L Ed 2d 694 (2009) (same) (citing Brendlin, 551 US at 255, 263).
Under those decisions, the officer's retention of defendant's identification in
this case would not have constituted an unlawful stop. Rather, it simply would
have been a permissible inquiry during the lawful stop of the car, the driver,
and all four passengers. As a practical matter, this case is no different.
The stop of this car stopped defendant as well and, in the circumstances
of this case, the officer's retention of defendant's identification contributed
nothing additional to the restraint effectively placed on defendant's freedom
to leave as a result of the lawful stop of the car in which defendant was a
passenger.
5. It
is worth noting that the procedural paradigm that the court announced in Hall
is difficult to square with the reasoning in both Hall and other
cases. The court explained in Hall, 339 Or at 25, and reaffirmed
in State v. Crandall, 340 Or 645, 652, 136 P3d 30 (2006), that
the fact that an illegality is the "but for" cause of a defendant's
voluntary consent does not render the resulting evidence inadmissible.
However, in describing how the Hall paradigm works, the court stated
that proof of a "but for" causal connection will be sufficient to
establish a minimum factual nexus and thus to presume that the consent was the
product of the illegality, unless the state offers some evidence other than the
defendant's voluntary consent to prove independent source, inevitable
discovery, attenuation, or the like. Hall, 339 Or at 25. In my
view, there is a substantial question whether proof of "but for"
causation is by itself sufficient to disable the effect of a defendant's
voluntary consent. In this case, it is especially troubling that the majority
finds that something less than "but for" causation suffices to
establish a minimum factual nexus.
6. The
court noted in Thompkin that the trial court had found that
"'there's no evidence that [the defendant] would have gotten out of the
car or left the scene, that she didn't feel free to leave because [the officer
retained her identification].'" 341 Or at 373-74 (quoting the trial
court's findings).
7. In
this court, the state focused on the absence of a "but for" causal
connection between the retention of defendant's identification and the officer's
request for consent, but it did so presumably because that was what the Court
of Appeals had held was the correct focus in determining the existence of a
minimal causal connection under Hall. See State v. Ayles, 220 Or
App 606, 612, 188 P3d 378 (2008).
8. This
court recognized in State v. Owens, 302 Or 196, 729 P2d 524 (1986),
that, under Article I, section 9, a search incident to arrest permits officers
to look in the trunk of the defendant's car for evidence of the crime for which
they had arrested him. See id. at 203-04 (quoting, with approval, an
earlier case for that proposition).
9. Under
Article I, section 9, an officer may look for evidence of the crime for which
he or she arrested a person to the extent that the evidence "reasonably
could be concealed on the arrestee's person or in the belongings in [the
arrestee's] immediate possession at the time of the arrest." Owens,
302 Or at 200. In this case, the state has not argued that the driver was in
possession of defendant's backpack at the time of her arrest. Accordingly,
although the officer lawfully discovered defendant's backpack as part of a
search incident to the driver's arrest, he could not, incident to the driver's
arrest, go further and search the contents of defendant's backpack.
10. This
court has rejected, in a footnote and in dicta, any reliance on the
purpose and flagrancy of the constitutional violation to the extent that it
bears on deterrence. Hall, 339 Or at 35 n 21. That reasoning is
consistent with the rights-based suppression analysis that this court has
adopted. To the extent, however, that the dictum in Hall goes
further and suggests that the nature of the violation is irrelevant to the
degree of attenuation necessary to purge the taint flowing from that violation,
the suggestion lacks persuasive value. Not only is the suggestion dictum
and thus not binding, but the assumption that underlies it -- that all
constitutional violations have the same effect -- is erroneous. | 1b2320513061e8b52031d4e4fc4b38260b71280cba901692cff2ca3a2e298aa9 | 2010-08-12T00:00:00Z |
e60eca69-05b7-4dc3-b81a-a62e8632411f | In re Smith | null | S056148 | oregon | Oregon Supreme Court | FILED: July 15, 2010
IN THE SUPREME COURT OF THE STATE OF OREGON
In re Complaint as to the Conduct
of
FREDERICK T. SMITH,
Accused.
(OSB 07-53; SC S056148)
En Banc
On review of the
decision of a trial panel of the Disciplinary Board.
Argued and
submitted May 13, 2010.
Frederick T.
Smith argued the cause and filed the briefs in propria persona.
Mary A. Cooper,
Assistant Disciplinary Counsel, argued the cause and filed the brief for the
Oregon State Bar.
PER CURIAM
The accused is
suspended from the practice of law for a period of 90 days, commencing 60 days
from the date of this decision.
PER CURIAM
In this lawyer disciplinary
proceeding, the Oregon State Bar charged Frederick T. Smith (the accused) with
four violations of the Oregon Rules of Professional Conduct (RPC) in connection
with his representation of a client, Rochelle Leveque, in 2005. Specifically,
the Bar alleged that the accused violated RPC 3.1 (taking action on behalf of a
client with no nonfrivolous basis); RPC 4.1(a) (making a false statement of
material fact or law to a third person in the course of representing a client);
RPC 8.4(a)(2) (committing a criminal act that reflects adversely on a lawyer's
honesty, trustworthiness, or fitness as a lawyer in other respects); and RPC
8.4(a)(3) (conduct involving dishonesty, fraud, deceit, or misrepresentation
that reflects adversely on the lawyer's fitness to practice law). Following a
hearing, a trial panel of the Disciplinary Board concluded that the accused had
violated the rules as alleged and suspended the accused for 90 days.
The accused seeks review pursuant to
ORS 9.536(1) and Bar Rule of Procedure (BR) 10.1, challenging the findings and
conclusions of the trial panel with respect to each alleged violation. We
review bar disciplinary matters de novo. ORS 9.536(2); BR 10.6. The
alleged misconduct must be proved by clear and convincing evidence. BR 5.2.
For the reasons that follow, we conclude that the accused violated the four
rules listed above. We also conclude that the accused should be suspended for
90 days.
I. FACTUAL BACKGROUND
The charges against the accused arise
out of his advice to Leveque and his conduct in connection with a dispute
between Leveque and her employer, The Hemp & Cannabis Foundation (the
corporation),(1)
which operated a clinic that helped patients register for the Oregon Medical
Marijuana Program. In brief, Leveque, who had been asked to leave the clinic
premises in early October 2005 due to an issue with another employee -- and who
had not thereafter returned to work -- entered the clinic with several other
individuals before business hours on November 14, 2005, and attempted to
physically take over management of the clinic. The accused also came to the
clinic that morning, in the course of his representation of Leveque, and
participated in the events as described below. Eventually, after the
corporation's attorney and the police arrived, the accused, Leveque, and the
others who had come with Leveque left.
Many of the facts were disputed
during the hearing, and the trial panel (and this court) faced the added
difficulty that Leveque died before the hearing and did not testify.
Nevertheless, the trial panel generally found the facts as alleged by the Bar.(2) Although the
accused correctly identifies certain factual errors in the trial panel's
opinion, based on our de novo review, the findings that we make are
consistent with most of the trial panel's findings. We first describe the
context of the event that led to the Bar's charges and then, in discussing each
alleged violation, we set out additional facts related to that violation.
Except as otherwise noted, we find each of the facts stated below by clear and
convincing evidence.
The accused met Leveque in 2004 when
he became a patient at the clinic while Leveque was employed there. In 2005,
Leveque asked the accused for legal advice about difficulties that she was
having with her employer and Paul Stanford, who ran the clinic and several
similar clinics in other states. The accused agreed to represent Leveque.
Although the parties disagree about Stanford's exact position with the
corporation in 2005, it is undisputed that he was the sole incorporator of the
corporation when it was established in 1999, that an October 2005 printout from
the Secretary of State's online business names registry identified him as
president, and that, at the time of the events at issue here, employees of the
corporation (including Leveque) considered him to be in charge of the
corporation's business.
On October 7, 2005, as noted above,
the clinic manager asked Leveque to go home. She attempted to file an
unemployment claim, although she told the accused that she was uncertain
whether she had been fired. Over the next month, Leveque did not return to
work at the clinic; however, she was apparently attempting to get back (or
retain) her job and still had a key to the clinic.
Meanwhile, the accused contacted Ann Witte,
the corporation's attorney, to attempt to resolve Leveque's employment dispute.
Leveque also had a number of concerns about the way the corporation was being
run by Stanford -- including whether revenues were being appropriately accounted
for, whether corporate assets were improperly being used to advocate for
marijuana legalization, and other corporate governance issues -- and the
accused advised Leveque in connection with those issues. As part of his legal
work for Leveque, the accused researched the corporation's status.
We pause briefly to discuss the law
regarding the administrative dissolution of nonprofit corporations, because it
relates to the accused's position that he gave sound legal advice and that he
relied in good faith on information that he had received from the Secretary of
State's office. A nonprofit corporation, like the corporation here, that fails
to file an annual report (or to take certain other required actions) may be
dissolved by action of the Secretary of State if it does not correct the
grounds for dissolution after receiving notice of its deficiencies. See ORS
65.647 (describing grounds for administrative dissolution); ORS 65.651
(describing procedure for administrative dissolution). A corporation that is
administratively dissolved "continues its corporate existence but may not
carry on any activities except those necessary to wind up and liquidate its
affairs." ORS 65.651(3). However, within five years of the dissolution,
a corporation may apply for "reinstatement," which, if allowed,
relates back to the date of the administrative dissolution, "and the
corporation resumes carrying on its activities as if the administrative
dissolution had never occurred." ORS 65.654(1), (3). (Moreover, the
five-year reinstatement deadline can be waived by the Secretary of State for "good
cause." ORS 65.654(4).) Expert testimony at the disciplinary hearing
established that it is common for nonprofit corporations to fail to file
required reports or notices, to be administratively dissolved, and then to be
reinstated. Indeed, the corporation here has been administratively dissolved
and reinstated at least three times.
In researching the corporation's
status, the accused obtained a certificate dated October 31, 2005, from the
Secretary of State, which stated that the corporation had been "administratively
dissolved" for more than five years. That certificate, however, was
inaccurate. The person who prepared the certificate inserted the original date
of incorporation (August 19, 1999) in the certificate as the date of
dissolution, rather than the actual date of the most recent administrative
dissolution (October 14, 2005), thus incorrectly indicating that the dissolution
had occurred more than five years before the date of the certificate. In fact,
the Secretary's business names registry, available to the public through the
Secretary's website, shows (accurately) that the corporation had been dissolved
for less than a month on October 31, 2005, and therefore easily could have been
reinstated. As discussed further below, the accused maintains that he did not
check the website and did not know, at the time of the events that led to this
proceeding, that the certificate that he had obtained from the Secretary of
State was inaccurate.
The accused also claims that in
November 2005 he believed -- because he believed that the corporation had been
administratively dissolved for more than five years, and because he had found
no records indicating that Stanford was an officer or director of the
corporation -- that Stanford had no legal authority within the corporation and
that he had improperly "operated it as though it was his personal asset."
The accused explained to Leveque, however, that she "had no claim against
the corporation because she had no standing." He told her, "the only
route that you can take here is to go through the attorney general." The
accused and Leveque agreed that the appropriate course for her to raise her
concerns about the governance of the corporation would be to file a complaint
with the Attorney General.
On November 9, 2005, when Witte had
not responded to the accused's attempts to contact her, the accused sent Witte
a letter discussing Leveque's employment issue and her complaints about
Stanford's running of the corporation. He noted that Leveque's "route to
right the wrongs which have occurred on the former leader[']s watch is to file
a complaint with the Oregon Attorney General's office." He stated that he
was "very familiar with the process" and that, after a complaint is
filed, the Attorney General "issues an immediate Cease and Desist Order
and enforces that order." The accused informed Witte that if she did not
contact him by November 15, he would file a complaint with the Attorney
General.
After sending the November 9 letter,
the accused met with Leveque. According to the accused, once Leveque saw the
threat to go to the Attorney General in writing, she "freaked out."
Leveque was concerned that the Attorney General might shut down the clinic and
that, as a result, thousands of patients would not be able to get access to
medical marijuana. The accused told Leveque that he could not assure her with
certainty that the Attorney General would not shut down the clinic if he filed
the complaint.
According to the Bar, the accused
then advised Leveque that another option would be to go to the clinic, use her
key to enter before business hours, and physically take over. The accused
claims, however, that Leveque decided on her own that she would use her key to
open the office and attempt to take over management of the clinic. He then
advised her that she had "equal rights with Mr. Stanford" to run the
clinic and that he could defend her from criminal or civil actions that might
arise out of an attempted takeover.
On November 14, 2005, as noted,
Leveque and some other individuals (including a nurse, a doctor, a computer
technician, and a locksmith) arrived at the clinic before it opened and before
any employees were there. Leveque used her key to let them in. The locksmith
began changing the locks, and others attempted to begin working on the clinic's
computers. The accused also came to the clinic that morning, although he states
that he came separately from Leveque. The first employee of the clinic to
arrive was Kim Murphy, whose job was to open the clinic for business. Murphy
testified that Leveque, her associates, and the accused were inside the clinic
when she arrived at about 7:45 a.m. When Murphy asked Leveque what was going
on, Leveque told her, "We're taking over the clinic." Other clinic
employees who arrived testified that Leveque made similar statements to them.
At one point, Leveque began taking patient schedules and placing them in her
bag.
At least two clinic employees, office
manager Janus Brown and clinic administrator Scott Carr, told Leveque and the
accused to leave. They refused. The accused maintains that he believed at
that time that the lease was in the corporation's name and that, because he
believed that Stanford had no legal authority to run the corporation, neither Stanford
nor those working for him had any right to direct them to leave the premises.
At some point, a clinic employee
called the police. According to police records, the initial call came at 9:32
a.m., and the first police officers arrived at the scene at 9:37 a.m. A clinic
employee also phoned Stanford, who was in Hawaii; Stanford phoned Witte. Witte
arrived at the clinic at about the same time as the police.
According to the Bar, the accused
told clinic employees and the police that he and Leveque had a court order or
some written authorization from the Attorney General to be there. According to
the accused, he said only that he had a complaint letter that he had drafted to
send to the Attorney General. He claims that he showed the complaint letter to
the police and Witte and told them that he was going to go to the Attorney
General the following day if Leveque's issues could not be resolved.
The police attempted to resolve the
dispute. Sergeant Kim Keist understood that Leveque believed that the clinic
was not being properly operated and that there was a disagreement over who had
the right to run the clinic. It was her view at the time, which she explained
to Leveque and the accused, that this was a civil dispute that would have to be
resolved in court and that Leveque -- because she had "walked away from
[the clinic]" -- was not authorized to enter the clinic and take it over.
In the meantime, someone had contacted the landlord, who faxed the lease
agreement to the clinic. The lease showed the corporation as the lessee and
Stanford as the "guarantor." After the accused saw the lease, he
advised Leveque and her associates to leave, and they all left the premises.
The police left the scene at 10:27 a.m.
II. ALLEGED VIOLATIONS
A. RPC 3.1
The Bar argues that the accused
violated RPC 3.1 when he told Leveque that (1) she was legally entitled to take
over the clinic and (2) she was legally entitled to enter the clinic's premises
when it was closed to the public. Indeed, the Bar suggests that the accused
knew in advance that Leveque intended to try to take over the clinic and that
he assisted in that effort, also in violation of RPC 3.1. RPC 3.1 provides:
"In representing a client or the lawyer's
own interests, a lawyer shall not knowingly bring or defend a
proceeding, assert a position therein, delay a trial or take other action on
behalf of a client, unless there is a basis in law and fact for doing so that
is not frivolous, which includes a good faith argument for an extension,
modification or reversal of existing law, except that a lawyer for the
defendant in a criminal proceeding, or the respondent in a proceeding that
could result in incarceration may, nevertheless[,] so defend the proceeding as
to require that every element of the case be established."
(Emphases added.)
Although the Bar and the accused
focus on whether the accused's legal advice to Leveque had a
nonfrivolous basis, we note that the Bar did not charge the accused with
failing to "provide competent representation to a client," in
violation of RPC 1.1. The text of RPC 3.1 refers not to legal advice, but to a
lawyer's "action on behalf of a client." The word "action,"
in this context, appears to mean "a thing done : DEED." See Webster's
Third New Int'l Dictionary 21 (unabridged ed 2002) (defining
"action"). Moreover, the rule uses the phrase "other action on
behalf of a client," in contrast to the "actions" mentioned
earlier in the rule, viz., "bring[ing] or defend[ing] a proceeding,
assert[ing] a position therein[, or] delay[ing] a trial." RPC 3.1
(emphasis added). Giving legal advice to a client is "a thing done,"
a "deed." So is appearing with a client at premises over which the
client believes she has a right to assert control and acting with and on behalf
of the client in discussions with other persons on the premises and with
police. We conclude that the accused's advice to Leveque and his conduct on
November 14, 2005, in the course of representing her were "action[s]"
within the scope of RPC 3.1. The pivotal factual issue, then, is whether
defendant took the actions alleged by the Bar. If he did, the pivotal legal
issue is whether there was a nonfrivolous basis in law or fact for the accused's
actions.
As to the factual dispute, the
accused argues that he did not advise Leveque that she had the right to take
over the clinic or to enter the premises before the clinic was open to the
public. Instead, he argues, the actions that Leveque took on November 14,
2005, were on her own initiative; he advised her only that she had as much
right as Stanford to run the clinic and that he thought that he could defend
her in any resulting civil or criminal proceedings if she chose to attempt to
take over the clinic.(3)
He claims that, based on his understanding of the facts when he gave the advice
(including the legal status of the corporation), his advice was legally sound.
He also appears to argue that, even if he had advised Leveque that she had a
right to take over the clinic, that advice would have been sound as well. He
asserts that the legal doctrines of "choice of evils" and "self-help"
support his position.
The Bar's theory that defendant
assisted Leveque in planning to take over the clinic is plausible and is
supported by some circumstantial evidence. Nevertheless, in the absence of
testimony from Leveque, and given the accused's denials, we do not find by
clear and convincing evidence that the accused worked with Leveque in advance to
plan the attempted "takeover." That said, clear and convincing
evidence does support the Bar's contentions that (1) the accused appeared at
the clinic early on the morning of November 14 in the course of his
representation of Leveque and asserted to Witte and Officer Keist that Leveque
had the same right to operate the clinic as did Stanford and therefore had the
right to take over physical control of the clinic, and (2) the accused previously
had told Leveque that she could assert the defenses of "choice of evils"
and "self-help" in response to any civil or criminal proceedings that
might arise if she attempted to take over the clinic.
We turn to the legal issue, whether
the accused made those statements and gave that advice without "a basis in
law and fact for doing so that is not frivolous." Id. We conclude
that he did.
Even if the accused's advice that
Leveque and Stanford had an "equal" right to operate the clinic had a
nonfrivolous basis in law or fact, that nevertheless would not justify his
position that Leveque could use "self-help" to take physical control
of the clinic's operations or the accused's participation in her efforts to do
just that. Both the Bar's and the accused's experts agreed that the nonprofit
corporation laws do not give an employee any legal authority to walk in and
take over an operating nonprofit corporation, even if the corporation has been
administratively dissolved for more than five years. Although certain statutes
authorize "self-help" remedies in some contexts, see, e.g.,
ORS 79.0609(2)(b) (secured party's right to self-help under Uniform
Commercial Code), the accused cites no statute or case that supports his
contention that Leveque, as a current or former employee of the clinic, was
authorized to enter the clinic and claim that she was "taking over"
because she disagreed with various aspects of the way the clinic was being
operated. Further, the accused has not demonstrated that he acted in furtherance
of a "good faith argument for an extension" of the self-help remedies
that are permitted, in certain limited circumstances, under current law. See
RPC 3.1 (defining "frivolous").
The accused also argues that the "choice
of evils" doctrine supports his advice to Leveque and his and Leveque's
conduct, although the precise nature of his argument is unclear. He appears to
be attempting to demonstrate that his statement that he could defend Leveque
from a trespass action for entering the clinic before business hours was not
frivolous. He also appears to argue that the choice of evils defense applies
to Leveque's attempt to take over the clinic.
In describing the defense, the
accused cites Black's Law Dictionary, which defines "necessity"
as "[a] privilege that may relieve a person from liability for trespass or
conversion if that person, having no alternative, harms another's property in
an effort to protect life or health." He argues that Leveque was
attempting to "protect life or health" by taking over the clinic,
because she believed that, if she complained to the Attorney General, he would
shut down the clinic and the patients would have no way to get their medical
needs met. To state the accused's argument is to refute it. Leveque had an "alternative"
-- not complaining to the Attorney General. Moreover, even if she had
complained to the Attorney General, the accused does not indicate why Leveque
would have been justified in believing that the Attorney General would act in a
way that would harm "life or health" and why, as a result, her only
alternative was to trespass and attempt to take over the clinic.(4)
The accused also cites two cases -- La
Grande/Astoria v. PERB, 281 Or 137, 576 P2d 1204 (1978), and Sizemore v. Myers, 327 Or 456, 964 P2d 255 (1998) -- that he claims demonstrate "the
breadth that Oregon courts apply to this concept of choice between competing
values." In La Grande/Astoria, the court noted that competing
policies advanced by state and local governments "must often involve a
choice among values," and then noted that "[s]uch choices are the
essence of political, not judicial, decision." 281 Or at 148. The
accused claims that that "choice among values" is "directly
analogous to the [a]ccused's dilemma when navigating the uncharted waters of
non-profit corporation law."
Sizemore involved a challenge
to a ballot title explanatory statement composed by a committee directed by statute
to prepare such a statement. In determining that that statute did not require
the explanatory statement to explain the effect of the measure, the court
examined the statute's legislative history. The court concluded that that
history showed that "the requirement that the explanatory statement
committees explain such effects left divided committees with a choice of two
evils -- either have an acrimonious debate concerning the potential effect
of a measure or disobey the law and omit the effect from the explanatory
statement altogether." Sizemore, 327 Or at 466 (first
emphasis in original; second emphasis added).
We are not persuaded. Neither LaGrande/Astoria
nor Sizemore has any bearing on the accused's claim that the
positions he took in the course of representing Leveque were not frivolous.
They were.
The accused claims that, to the
extent that he is incorrect in his legal conclusions, he believed, when
advising Leveque and acting on her behalf, that those conclusions were
correct. We find, however, that the accused knew that the positions he took in
the course of representing Leveque were frivolous. First, the accused's claim is
undermined both by his advice to Leveque that her only redress for any concerns
that she had about the corporation was to seek the assistance of the Attorney
General and by his letter to Witte, in which he made a similar statement. Second,
as discussed in greater detail below, on the morning of November 14, the
accused lied to various individuals at the clinic, telling them that he had
some written authorization permitting Leveque and her associates to take over
the clinic. That supports the Bar's position that the accused knew that,
without some such authorization, he and Leveque had no legal right -- self-help
or otherwise -- to take over the clinic. Finally, the accused has practiced
law in Oregon for more than 40 years, has substantial experience in securities
and corporate litigation, and has some experience working with nonprofit
corporations. He is a sophisticated lawyer with extensive experience. We find
that the accused knew that his advice to his client -- that she had some legal
basis for her attempt to take control of the clinic's operations -- was
frivolous.
B. RPC 4.1(a) and RPC 8.4(a)(3)
The Bar alleged that, during the
attempted takeover, the accused told various people that he had written
authorization from some government entity to take over the clinic. The trial
panel agreed and concluded that the accused had violated RPC 4.1(a) and RPC 8.4(a)(3).
RPC 4.1(a) provides:
"In the course of representing a client a
lawyer shall not knowingly:
"(a) make a false statement of material
fact or law to a third person[.]"
RPC 8.4(a)(3) provides:
"It is professional misconduct for a lawyer
to:
"* * * * *
"(3) engage in conduct involving
dishonesty, fraud, deceit or misrepresentation that reflects adversely on the
lawyer's fitness to practice law[.]"
The accused responds that the Bar did
not demonstrate that he violated either rule because it failed to prove, by
clear and convincing evidence, that he had told anyone that he or Leveque had
written authorization to take over the clinic. We disagree. Two clinic
employees who were present at the time of the attempted takeover testified that
the accused told them that he had authorization from the Attorney General or a
court order to take over the clinic.
First, Janus Brown, the clinic
manager, in describing the attempted takeover, testified as follows:
"So when [the accused] addressed me by my name I just
said, What is going on and how come you can do this?
"And he said something about the attorney
general, like they've got permission to do this. And I was just floored, and I
immediately went to my desk * * * and called Paul [Stanford] * * *.
"* * * * *
"And I'm going, Oh, my god, Paul, I don't
know what's going on but, you know, she's got a lawyer here. And he said, you
know, in essence, what it seemed to me that he had permission from the attorney
general to be in and I don't know what's going on."
Scott Carr, a clinic administrator,
testified that when he asked the accused to leave during the attempted
takeover, the accused "stepped forward and said that he had a court order
to be there[.]" When asked if the accused showed him the order, Carr
testified,
"No. He was kind of, you know, fondling his * * *
briefcase as if he, you know, had * * * you know, he held it up halfway * * *
you know, as if he was prepared to produce it, but I didn't know what he was
talking about."
He also testified,
"He had a leather briefcase as I remember. And when I
had asked him to leave, he stepped forward and held it up halfway in front of
his torso and said, I have a court order, I believe he said, from the attorney
general to be here."
In addition, Witte similarly testified that she heard the
accused state or imply to the police that he had an order from the Attorney
General authorizing Leveque to take control of the clinic.
Although the accused cross-examined
the witnesses at length as to the specific persons to whom the accused
allegedly made his remarks and whether he referred to a "court order"
or to some official document from the Attorney General, the three witnesses all
clearly testified that they heard the accused state that he had a government
document that authorized Leveque's actions.(5)
We find that the Bar proved by clear and convincing evidence that the accused
made such statements. We also find that the statements were false. The
accused did not at that time (or at any later time) have any official
authorization from the Attorney General or a court for Leveque or the accused
to take control of the clinic or any other aspects of the corporation's
operations.
A lawyer violates RPC 4.1(a) if, in
the course of representing a client, he or she knowingly makes a "false
statement of material fact." A lawyer violates RPC 8.4(a)(3) if he or she
engages in conduct involving "dishonesty, fraud, deceit or
misrepresentation that reflects adversely on the lawyer's fitness to practice
law." Here, the Bar contends that the accused engaged in conduct
involving "misrepresentation." The Bar therefore can demonstrate
both violations by demonstrating that the accused made a material
misrepresentation of fact. See In re Kluge, 332 Or 251, 255-56, 27 P3d
102 (2001) (describing requirements for violation of former rules). A fact is
material if hearing that fact "would or could significantly influence the
hearer's decision-making process." Id. at 255.
The accused argues that, even if he
made the statements described above, he did not engage in "conduct
involving * * * fraud [or] deceit" under RPC 8.4(a)(3). He maintains that
the terms "fraud" and "deceit" are used "in their
tortious sense" in the disciplinary rules. See In re Brown, 326 Or
582, 595, 956 P2d 188 (1998) (so noting). He argues that the Bar must
therefore prove each element of the torts of fraud and deceit, including that
the persons to whom the representation was made relied on the representation. See
id. (describing elements). The accused contends that none of the employees
relied on his alleged misrepresentation. Instead, they "insisted that the
[a]ccused and his client depart [and] called the police," exactly as they
would have if he had not made the misrepresentation.
Although this court did state in In
re Brown that "fraud" and "deceit" were used in their
tortious sense in former DR 1-102(A)(3), it also noted that a lawyer can
violate the rule by engaging in "dishonest" conduct and that the Bar
need not prove fraud or deceit to show a violation of the rule. The court
explained the meaning of fraud and deceit because, "if the accused did
violate the rule, it may be important to place a specific name on the conduct,
for purposes of determining the appropriate sanction." Id. Here,
the Bar argues that the accused engaged in conduct involving "misrepresentation"
(not conduct involving "fraud" or "deceit"). Proof of
reliance is not necessary to establish that the accused engaged in conduct
involving misrepresentation. Kluge, 332 Or at 256.
We conclude that the accused made
statements to several individuals that he had an order or some other written
authorization from the Attorney General or a court permitting the takeover.
Those statements were false and the accused knew them to be false. The
statements were intended to convince the employees of the corporation or the
police that Leveque was authorized to take over the clinic and therefore that
they should permit her to do so. They were material.(6) The accused therefore
violated RPC 8.4(a)(3) and RPC 4.1(a).
C. RPC 8.4(a)(2).
The Bar argues that the accused
violated RPC 8.4(a)(2) by (1) trespassing at the clinic and (2) advising
Leveque to trespass at the clinic. A lawyer violates RPC 8.4(a)(2) when he or
she "commit[s] a criminal act that reflects adversely on the lawyer's honesty,
trustworthiness or fitness as a lawyer in other respects[.]" The accused
maintains that neither he nor Leveque trespassed at the clinic.(7)
ORS 164.245(1) provides:
"A person commits the crime of criminal
trespass in the second degree if the person enters or remains unlawfully in a
motor vehicle or in or upon premises."
An individual "enters or remains unlawfully" if he
or she "enter[s] or remain[s] in or upon premises when the premises, at
the time of such entry or remaining, are not open to the public or when the
entrant is not otherwise licensed or privileged to do so." ORS
164.205(3)(a). Although the Bar stated in its brief that the accused arrived
at the clinic during "normal business hours," and thus when the
premises were "open to the public," we disagree. Testimony before
the trial panel demonstrated that the accused arrived before 7:45 a.m. -- when
Leveque and her associates were at the clinic and before the arrival of the
clinic employee who was to open the clinic for business that day.
The accused argues, however, that Leveque
was "otherwise licensed or privileged" to enter because she had a key
that still worked and that no one had asked her to return. Because the accused
entered the clinic with Leveque, then, he, too, was "licensed or
privileged" to enter.
The Bar argues that Leveque's
permission to enter by way of her key was limited to use as an employee of the
clinic. It argues (1) that Leveque was no longer an employee at the time she
attempted to take over and (2) that, even if she could be considered an
employee, she did not have permission to use the key "for purposes hostile
to" the corporation. We agree with the Bar that Leveque's permission to
use her key to enter the clinic was limited and that she acted outside of the
scope of her "license or privilege" when she entered the clinic's
premises before business hours on November 14, 2005, to execute her plan to
take over the clinic's operations. Because Leveque did not have authority to
use her key to enter the clinic for that purpose, she also did not have authority
to permit the accused to accompany her onto the clinic's premises for that
purpose.
Moreover, we find that the accused
knew that Leveque was not authorized to use her key to enter the clinic or to grant
him entry. See State v. Hartfield, 290 Or 583, 595, 624 P2d 588 (1981)
(to prove that a person is "not otherwise licensed or privileged" to
enter, state must prove that "the person extending the permission or
invitation was without actual authority to do so and that the entrant knew or
believed there was no such actual authority"). The accused knew that
Leveque was engaged in an employment dispute with the clinic and that she had
not been to work at the clinic in weeks. Indeed, the accused had issued a
demand letter on Leveque's behalf, and he testified before the trial panel that
he had advised Leveque not to return to work until the problems with Stanford
were resolved. Even assuming that Leveque remained an employee, the accused knew
of her status at the clinic; he knew that she was not entering the clinic on
the morning of November 14 to perform her duties as an employee.(8)
The Bar therefore proved, by clear and convincing evidence, that the accused
committed criminal trespass when he entered the clinic before business hours.(9)
The accused does not dispute that, if
he engaged in criminal trespass, that act "reflects adversely" on his
"fitness as a lawyer." Because the criminal act here was committed "in
furtherance of his legal services," the Bar argues, "[t]he connection
between the criminal conduct and the [a]ccused's fitness to practice * * *
requires no special analysis." We agree.
We find by clear and convincing
evidence that the accused engaged in conduct that constituted the crime of
criminal trespass in the second degree. Because he did so as part of his
representation of a client, that conduct reflects adversely on his fitness as a
lawyer. The accused violated RPC 8.4(a)(2).(10)
III. SANCTION
In determining the appropriate
sanction, we identify a presumptive sanction based on "(1) the ethical
duty violated; (2) the lawyer's mental state; and (3) the actual or potential
injury caused" by the conduct. In re Paulson, 346 Or 676, 712, 216
P3d 859 (2009). We then adjust that sanction based on the presence of
aggravating or mitigating circumstances. Id. As a final step, we
consider whether the sanction is consistent with Oregon case law. Id. Here,
the Bar argues that the accused should be suspended for "at least"
the 90 days that the trial panel imposed. The accused does not address the
issue of the appropriate sanction.
The accused in this case violated the
duties he owed to his client and to the legal system, see American Bar
Association's Standards for Imposing Lawyer Sanctions 4.0, 6.0 (1991)
(amended 1992) (ABA Standards) (describing duties to client and to legal system),
when he knowingly provided frivolous legal advice to Leveque. He also violated
his duties to the public when he engaged in criminal conduct and made
misrepresentations to further that conduct. See ABA Standard 5.0 (describing
duties to public).
We turn to the accused's mental state.
A lawyer acts "knowingly" if he acts with the "conscious
awareness of the nature or attendant circumstances of the conduct but without
the conscious objective or purpose to accomplish a particular result." ABA
Standards at 7. With respect to the accused's advice to Leveque, for the reasons
discussed above, we conclude that the accused "knowingly" took action
on behalf of Leveque that did not have a nonfrivolous basis in fact or law.(11)
We also conclude that the accused knowingly or intentionally committed trespass
in the second degree. As discussed previously, he knew that Leveque had been
asked to leave the clinic premises following a dispute with another employee.
Although Leveque still had her key to the clinic and her employment status was
unclear, the accused knew that she was not authorized by Stanford or any other
corporate official to use her key to enter the clinic for the purpose of taking
it over. Finally, we agree with the Bar that the accused acted intentionally
when he misrepresented to clinic employees and police that he had a document
from the Attorney General or a court order authorizing Leveque to take over
control of the clinic.
Turning to the injury caused by the
accused's conduct, we conclude that the accused caused actual injury and
created a risk of potential injury. First, his advice created the risk of
potential injury to Leveque. Acting at least in part on the accused's advice,
Leveque could have been (although she was not) prosecuted for trespass. In
addition, she lost any chance to return to her employment at the clinic. The
accused's advice, and his participation with Leveque when she acted on his
advice, also created a risk of potential injury to Leveque and others because
of the potential for a physical confrontation. The accused's
misrepresentations, as well as his other conduct supporting Leveque's efforts, posed
a risk of potential injury to the clinic because they might well have caused
the employees to relinquish control of the clinic to Leveque, when there was no
legal requirement that they do so. The clinic and its patients also suffered at
least some actual injury, because its business operations were disrupted for
over two hours during the attempted takeover.
The presumptive sanction is
suspension. As to the accused's criminal conduct, suspension is appropriate
when a lawyer "knowingly engages in criminal conduct" that is not
listed in ABA Standard 5.11 (which trespass is not) and "that seriously
adversely reflects on the lawyer's fitness to practice." ABA Standard
5.12. As to the accused's frivolous actions, the ABA Standards do not address
the sanction for taking such action outside the context of litigation. RPC 3.1
prohibits both asserting frivolous positions in litigation and taking other
frivolous "action" on behalf of a client. The closest analogy is the
ABA standard that provides that a suspension is appropriate when a lawyer "knowingly
violates a court order or rule, and there is injury or potential injury to a
client or party." ABA Standard 6.22. We find that standard useful in
suggesting, as a preliminary matter, that a lawyer who violates RPC 3.1 by knowingly
taking action, including advising a client, that is without a nonfrivolous
basis in law or fact, should be suspended. Finally, regarding the accused's
misrepresentation, a reprimand is generally appropriate when a lawyer knowingly
engages in noncriminal conduct involving misrepresentation. ABA Standard
5.13.
The Bar argues that there are two
aggravating factors: the accused refused to recognize the wrongful nature of
his conduct, ABA Standard 9.22(g); and the accused had substantial experience
in the practice of law, ABA Standard 9.22(i). There is no dispute as to the
second factor. As to the first factor, the accused, in his responses to the
Bar's investigation and before the trial panel, continued to assert that he had
given sound legal advice to his client. That was his principal defense to the
Bar's charges. In our view, the accused's reliance on those arguments --
although unavailing -- cannot be used to enhance the penalty that would
otherwise be imposed for his violations. The Bar also notes three mitigating
factors, which we also find to be present here: the accused had no prior
disciplinary record, ABA Standard 9.32(a); the accused did not have a dishonest
or selfish motive, ABA Standard 9.32(b); and the accused had a cooperative
attitude toward the disciplinary proceedings, ABA Standard 9.32(e).
We therefore conclude that a
suspension of some term is appropriate in this case. The Bar notes several
Oregon cases that it argues are similar to this one.(12) It argues that the
accused's conduct is most similar to that of the accused in In re Strickland,
339 Or 595, 124 P3d 1225 (2005). In Strickland, the accused was
involved in a dispute concerning the construction of a reservoir across the
street from his mother's (and his) home. The accused staged a disturbance
between himself and the construction workers and then called 9-1-1, claiming
that the workers had threatened him. When police arrived, the accused claimed,
falsely, that a construction worker had assaulted him. The Bar alleged that
the accused had engaged in criminal conduct reflecting adversely on his fitness
to practice law and in conduct involving dishonesty. After noting several
aggravating factors (selfish motive, substantial experience, refusal to
acknowledge wrongdoing, multiple offenses) and mitigating ones (no disciplinary
record, cooperated with disciplinary proceedings, received other sanctions in
criminal justice system), this court imposed a one-year suspension. The Bar
argues that the accused's conduct here was similar to that of the accused in Strickland
because he "unlawfully created a situation that predictably required
police intervention."
Although Strickland bears some
similarities to this case, it involved a lawyer acting with a selfish motive
and with the intent to protect his own interests (and those of his mother).
Moreover, the accused in Strickland clearly initiated the disruptive
plan himself and was the principal actor in the plan, whereas here the accused,
based on the facts as we have found them, was not the instigator of the
takeover plan, although he was a participant in Leveque's effort. We do not
discount the seriousness of the accused's conduct or the potential for a
physical confrontation caused by his advice, but in fact the matter was
resolved quickly and peacefully and, so far as this record shows, without later
charges of any kind.
A case involving somewhat similar
conduct to that at issue here is In re Glass, 308 Or 297, 779 P2d 612
(1989). In Glass, the accused registered an assumed business name for a
fraudulent purpose.(13)
The court noted that the accused had acted with a selfish motive but also
determined that two mitigating factors applied -- the accused had acted on the
advice of his lawyer and later recognized that his conduct was wrongful. There
is one important difference between Glass and this case, however. In Glass,
the accused had failed to cooperate with the Bar in the disciplinary
proceedings. The court noted that a 60-day suspension had been deemed
appropriate for similar conduct in In re Hopp, 291 Or 697, 634 P2d 238
(1981) (accused registered an assumed business name to harass opponent), but
determined that the accused's conduct in Glass was "compounded"
by his failure to cooperate, resulting in a 91-day sanction. Glass, 308
Or at 305 n 7. However, the conduct here is more serious than that in Glass
and Hopp, because the accused engaged in criminal conduct and his
conduct resulted in greater potential injury (police involvement, risk of
physical confrontation).(14)
In our view, the conduct involved
here was more serious than in Glass and Hopp, but less serious
than in Strickland.(15)
We conclude, as did the trial panel, that the appropriate sanction is a suspension
of 90 days.
The accused is suspended from the
practice of law for a period of 90 days, commencing 60 days from the date of
this decision.
1. As
described in greater detail in the text, around the time of the events at issue
in this proceeding, the corporation failed to file required reports with the
Secretary of State's office and therefore was "administratively
dissolved" under ORS 65.651 for a period of several months. During that
time, a third party registered the name "The Hemp and Cannabis
Foundation" under Oregon's assumed business name statute and incorporated
a different nonprofit corporation using that name. Because the third party had
acquired the right to that name, in January 2006 the corporation changed its
name to "THCF."
2. The
public member of the trial panel agreed with the panel's findings but included
an additional statement of his views in the trial panel's opinion. The public
member was more skeptical of the accused's veracity than the other members.
3. Before
the trial panel, the accused offered different versions of events. At one
point, he claimed that he did not know that Leveque was going to attempt a
takeover; at another, he admitted that he knew and advised against it, but that
he could not stop her. In a letter to the Bar during its investigation of the
case, the accused wrote, "I then arranged for my client to meet me on
November 14 at the clinic to try to catch Mr. Stanford and tell him that we felt
constrained to either complain to the Attorney General's Office or take over
the clinic with new management."
4. In
this court, the accused makes clear that he is not relying on ORS 161.200,
which codifies "choice of evils" as a defense to a criminal
prosecution. Under that statute, the defense is available only when illegal
conduct is necessary to avoid an imminent injury and "[t]he threatened
injury is of such gravity that, according to ordinary standards of intelligence
and morality, the desirability and urgency of avoiding the injury clearly
outweigh the desirability of avoiding the injury sought to be prevented by the
statute defining the offense in issue." The accused could not justify
Leveque's conduct using that statute; any harm caused by the Attorney General
shutting down the clinic was not "imminent." Indeed, as of the time
of the attempted takeover of the clinic, neither the accused nor Leveque had
had any contact with the Attorney General at all regarding the corporation.
5. As
noted previously, the accused testified that those witnesses were wrong and
that he had stated only that he had a letter that he had written to the
Attorney General regarding the alleged irregularities at the corporation.
Based on the consistent testimony of two of the clinic's employees and the
clinic's outside counsel, we find those witnesses, rather than the accused, to
be credible on this point.
6. The
accused makes no argument that, if proved, his conduct did not "reflect[]
adversely on [his] fitness to practice law," under RPC 8.4(a)(3).
7. The
accused does not distinguish between his alleged trespass and his participation
in Leveque's alleged trespass.
8. The
accused testified before the trial panel that he believed that Leveque was
going to the clinic on November 14, 2005, to open the clinic and perform her
normal duties as an employee. We do not find that testimony credible, however,
considering the accused's conduct on November 14, along with the accused's
testimony that he told Leveque, before the attempted takeover, that he could
defend her against criminal or civil charges arising out of her entry and that
he believed that the doctrine of self-help could apply to the situation.
9. The
accused argues that the Bar was required to prove every element of criminal
trespass beyond a reasonable doubt. However, to prove a violation of RPC
8.4(a)(2), the Bar need only prove, by clear and convincing evidence, that the
accused engaged in the relevant conduct and that that conduct constituted
criminal trespass. See BR 5.2 (clear and convincing evidence standard
in disciplinary cases); see also In re Leisure, 338 Or 508, 516, 113 P3d
412 (2005) (noting, under the predecessor to RPC 8.4(a)(2), that the Bar
"must 'establish the criminal act by clear and convincing evidence'").
10. The
Bar also contends that the accused violated RPC 8.4(a)(2) by the criminal act of
acting as an accomplice to Leveque's criminal trespass. Because we have
already concluded that the accused violated RPC 8.4(a)(2), we do not address
that issue.
11. The
trial panel opined that the accused's mental state with respect to this
violation was "negligent," because he continued to maintain that his
advice was justified. However, RPC 3.1 specifically identifies
"knowingly" as the mental state required to prove a violation of that
rule. For the reasons stated in the text, we believe that the Bar proved by
clear and convincing evidence that the accused acted "knowingly" when
he gave the advice he did.
12. The
Bar cites several cases "in which a lawyer has pursued a frivolous claim
to the extent of committing criminal conduct" that resulted in disbarment
or a lengthy sanction. Those cases, however, involved more serious misconduct,
more aggravating circumstances, or both. See, e.g., In re Kluge,
332 Or 251, 27 P3d 102 (2001) (three-year suspension for lawyer who falsely
represented that he was a notary, engaged in the practice of law without PLF
coverage, falsely represented to PLF that he did not require coverage, and
failed to withdraw when required to give testimony prejudicial to client;
aggravating factors included pattern of misconduct, bad-faith obstruction of
disciplinary proceeding, refusal to acknowledge wrongful behavior, and
substantial experience; the only mitigating factor was lack of disciplinary
history).
13. An
individual, John Pearce, had filed a construction lien against the accused and
initiated an action to foreclose the lien in the name "John Pearce, dba
Quicksilver Construction Company." Pearce had not registered the name
Quicksilver Construction Company; the accused registered that name to avoid the
suit.
14. In
Glass and Hopp, each attorney registered an assumed business name
for an inappropriate purpose; we note that, in this case, we do not find that
the accused was involved in the third party's registration of the corporation's
name. Instead, the conduct in Glass and Hopp is analogous to the
accused's conduct because here, as in those cases, the accused attempted to
take advantage of the corporation's failure to maintain appropriate administrative
records.
15. In
Glass, as noted, the court concluded that the accused's conduct was
similar to the conduct in Hopp and ordinarily would result in a 60-day
suspension. The court imposed a 91-day suspension in Glass because the
accused did not cooperate with the Bar's investigation. Although the conduct
here was more serious than that in Glass, a similar sanction is
appropriate, because this case does not involve the same aggravating factors as
in Glass. | 8f2c8c69141ca30febdaf89079a75bcc2351ed1ed4d84b50a7750788d44ecf7d | 2010-07-15T00:00:00Z |
615f42be-974e-4ed0-8d4f-dd73c80c6f69 | Estate of Michelle Schwarz v. Philip Morris Inc. | null | null | oregon | Oregon Supreme Court | FILED: June 24, 2010
IN THE SUPREME COURT OF THE STATE OF OREGON
THE ESTATE OF MICHELLE SCHWARZ,
Deceased, by and through her Personal Representative,
PAUL SCOTT SCHWARZ,
Petitioner on Review,
v.
PHILIP MORRIS INCORPORATED,
a foreign corporation
Respondent on Review,
(CC
000201376; CA A118589; SC S053644)
On appeal from the
Court of Appeals.*
Argued and submitted November
2, 2009.
Maureen Leonard,
Portland, argued the cause and filed the briefs for petitioner on review. With
her on the briefs were Robert K. Udziela, D. Lawrence Wobbrock, Charles S.
Tauman, and Richard A. Lane.
William F. Gary, Harrang
Long Gary Rudnick P.C., Eugene, argued the cause and filed the briefs for
respondent on review. With him on the briefs were Sharon A. Rudnick and Susan
D. Marmaduke.
W. Eugene Hallman, Pendleton,
filed a brief for amicus curiae Oregon Trial Lawyers Association.
Before De Muniz, Chief
Justice, and Durham, Balmer, Walters, and Kistler, Justices.**
WALTERS, J.
The decision of the
Court of Appeals is affirmed. The judgment of the circuit court is affirmed in
part and reversed in part, and the case is remanded to the circuit court for
further proceedings.
*On appeal from
Multnomah County Circuit Court, Roosevelt Robinson, Judge. 206 Or App 20, 135 P3d
409 (2006).
** Gillette, J., did
not participate in the decision of this case. Linder, J., did not participate
in the consideration or decision of this case.
WALTERS, J.
The
Due Process Clause of the Fourteenth Amendment(1)
prohibits a jury from imposing punitive damages to punish a defendant directly for
harm caused to nonparties. However, a jury may consider evidence of harm to
others when assessing the reprehensibility of the defendant's conduct and the appropriate
amount of a punitive damages verdict. Philip Morris USA v. Williams,
549 US 346, 356-57, 127 S Ct 1057, 166 L Ed 2d 940 (2007) (Williams II).
In this "low-tar" tobacco case, we decide that the trial court
correctly refused defendant's requested instruction that would have informed
the jury on the impermissible uses of evidence of harm to others without also
instructing the jury on its permissible use, but that the trial court erred in
giving an instruction on punitive damages that was, conversely, incomplete and
therefore incorrect. We affirm the decision of the Court of Appeals vacating
the jury's punitive damages award, Estate of Michelle Schwarz v. Philip Morris Inc., 206 Or App 20, 135 P3d 409 (2006), and remand the case to the trial court for a new
trial limited to the question of punitive damages.
I. FACTS AND PROCEDURAL POSTURE
In
2000, plaintiff, the husband and personal representative of decedent Michelle
Schwarz, brought this action against defendant, Philip Morris. Plaintiff asserted
three claims for relief based on allegations of negligence, strict product
liability, and fraud in the manufacture, marketing, and research of defendant's
brand of low-tar cigarettes. At trial in 2002, plaintiff adduced the following
evidence.
Michelle
Schwarz began smoking cigarettes in 1964 when she was 18 years old. She
attempted to quit smoking numerous times but was unable to do so. In 1976,
defendant introduced a new product, Merit cigarettes, to the market for tobacco
products. Advertisements for the new brand touted that the cigarettes contained
less tar than existing "full-flavor" cigarettes but still tasted like
the full-flavor brands. Out of a belief that "low tar and nicotine
filters are better for you," decedent switched from a full-flavor brand that
defendant manufactured to its low-tar Merit brand. After switching brands,
decedent continued to smoke the same quantity of cigarettes -- approximately
one pack per day -- but subconsciously altered her method of smoking. She took
longer puffs, inhaled the smoke more deeply, and held it longer in her lungs. In
1999, at the age of 53, decedent died from a brain tumor that was the result of
metastatic lung cancer.
The method
of smoking that decedent had adopted after switching to defendant's low-tar
brand was consistent with the behavior of smokers generally. Persons addicted
to nicotine in cigarettes tend to develop a certain "comfort level"
of nicotine, and, when smoking cigarettes that contain less nicotine, those
smokers are likely to "compensate" -- that is, adjust subconsciously the
manner in which they smoke -- in order to achieve that "comfort level."
Compensation causes smokers of low-tar cigarettes to inhale the same levels of tar,
the primary carcinogen found in cigarettes, as they would ingest by smoking a full-flavored
brand. Defendant was not only aware of that phenomenon, that awareness played
a major role in the development of its low-tar brand. A primary purpose of defendant's
decision to bring low-tar cigarettes to market was to give smokers what one
tobacco executive labeled a "crutch," that is, a product that enabled
smokers to rationalize continued indulgence of a habit that they otherwise
would consider to be deadly.
Defendant's
behavior with respect to the development and marketing of low-tar cigarettes
was but one iteration of a larger pattern of deceiving smokers and the rest of
the public about the dangers of smoking. See Schwarz, 206 Or App at
29-35; Williams v. Philip Morris Inc., 340 Or 35, 39-43, 127 P3d 1165
(2006) (Williams I) vacated on other grounds by Williams II, 549
US 346, 127 S Ct 1057, 166 L Ed 2d 940 (2007), on remand, 344 Or 45, 176 P3d
1255 (2008), cert dismissed, ___ US ___, 129 S Ct 1436, 173 L Ed 2d 346
(2009) (explaining in greater detail defendant's conduct). Beginning in the
mid-1950s (when reports first emerged about a link between smoking and lung cancer
and other deadly diseases) and enduring throughout decedent's smoking life, defendant
conspired with other cigarette manufacturers to wage a massive disinformation
campaign designed to create the perception of uncertainty about the health
risks of cigarettes, when in fact secret research by those same tobacco
companies confirmed the adverse health consequences of smoking.
Plaintiff offered expert testimony on the substantial
harm that that pattern of fraud and deception had imposed on others not party
to the litigation in this case. Each year, in the United States, there are
approximately 400,000 deaths attributable to cigarette smoking, and
approximately 15 million Americans have died from cigarette smoking in the last
century.
At the
close of evidence, the trial court gave the jury the following instruction on
punitive damages, tailored on Uniform Civil Jury Instruction (UCJI) 75.05A (Oct
1997) (the uniform jury instruction):
"To recover punitive damages, [plaintiff]
must show by clear and convincing evidence that defendant Philip Morris
"has shown a reckless and outrageous
indifference to a highly unreasonable risk of harm and has acted with a conscious
indifference to the health, safety, and welfare of others[.]
"Clear and convincing evidence is evidence
that makes you believe that the truth of the claim is highly probable.
"If you decide that the defendant has acted
as claimed by the plaintiff, you have the discretion to award punitive damages.
"Punitive damages, if any, shall be
determined and awarded based on the following:
"(1) The likelihood at the time that
serious harm would arise from the defendant's misconduct;
"(2) The degree of the defendant's
awareness of that likelihood;
"(3) The profitability of the defendant's
misconduct;
"(4) The duration of the misconduct and
any concealment of it;
"(5) The attitude and conduct of the
defendant upon discovery of the misconduct;
"(6) The financial condition of the
defendant; and
"(7) The total deterrent effect of other
punishment imposed on the defendant as a result of the misconduct, including,
but not limited to, punitive damages awards to persons in situations similar to
the claimant's and the severity of criminal penalties to which the defendant
has been or may be subjected.
"The amount of punitive damages you award
may not exceed $300,000,000.00."
At the
time of trial, the United States Supreme Court had not yet indicated that the
constitution required any particular instruction on punitive damages. Indeed,
the leading punitive damages cases at that time had arisen in the context of
post-verdict judicial review of jury awards. See, e.g., Cooper
Industries, Inc. v. Leatherman Tool Group, Inc., 532 US 424, 121 S
Ct 1678, 149 L Ed 2d 674 (2001) (conducting post-verdict analysis of jury
award); Pacific Mut. Life Ins. Co. v. Haslip, 499 US 1, 7, 111 S Ct 1032;
113 L Ed 2d 1 (1991) (same); see also BMW of North America, Inc. v. Gore,
517 US 559, 586, 116 S Ct 1589, 134 L Ed 2d 809 (1996) (leaving
to states to determine in the first instance whether adjustment to
"grossly excessive" award should be made by independent appellate review
or remanded for new trial on punitive damages). Consistent with those cases,
the uniform jury instruction informed jurors of the factors that Oregon law
permitted them to consider in awarding punitive damages. If a jury returned a
verdict for any amount of punitive damages, then a defendant could
seek judicial review on the constitutionality of the amount of that award. See
Parrott v. Carr Chevrolet, Inc., 331 Or 537, 555, 17 P3d 473 (2001)
(federal constitution requires the availability of post-verdict judicial adjustment
of grossly excessive punitive damages awards).
Defendant
acknowledged that the uniform jury instruction correctly stated Oregon law, and
that, as a descriptive matter, courts in Oregon and elsewhere had tended to
reserve for themselves the gate-keeping function of ensuring that punitive damages
awards were constitutional. However, defendant argued that the uniform jury
instruction was incomplete. In order to be an adequate instruction, defendant
asserted, the instruction also must inform the jurors of the limits that the
constitution places on the jury's discretion to award punitive damages. Specifically,
defendant asserted that the uniform jury instruction was incomplete because it "allow[ed]
the finder of fact to award or calculate punitive damages based on harms to
persons other than Michelle Schwarz."
To
rectify the problem it perceived, defendant offered its proposed instruction
41, which provided:
"You are not to impose punishment for harms suffered by
persons other than the plaintiff before you."
As an alternative to proposed
instruction 41, defendant also offered its proposed instruction 42, which
provided:
"You are not to punish a defendant for the impact of
its conduct on individuals in other states."
When defendant advanced its
request for those instructions, it stated that it was
"incorporat[ing] the argument [it] already made [when
objecting to the uniform jury instruction] that Philip Morris can't be punished
in this case based on harms to others. Harms to others can be considered in
terms of the reprehensibility of Philip Morris's conduct, but we cannot be
punished for harms suffered by people who, themselves, could sue because
inevitably it would result in over punishment."
Without supplementation to the
uniform jury instruction, defendant contended, "we're really inviting the
jurors to make an unconstitutional ruling and only have the court be a check on
it."
The
trial court declined to give defendant's requested instructions, in part on the
basis that "when I tell them who the plaintiff is and who the defendant is,
I think the jury is going to limit their findings to those two entities."
The trial court also overruled defendant's objection to the adequacy of
the uniform jury instruction, reasoning that
instructing the jury on the factors that enter into a constitutional
determination "may confuse or mislead them." Instead, the court
stated that the constitutionality of a punitive damages award "is more of
a legal determination" for the court to make after a jury has returned a
verdict.
In a
special verdict, the jury found defendant liable on all three claims for relief
asserted. However, on the negligence and strict product liability claims, the
jury apportioned 49 percent of the fault to plaintiff. The jury awarded $118,514.22
in economic damages, $50,000 in noneconomic damages, and punitive damages on
each of plaintiff's three claims: $25 million on the negligence claim, $10
million on the strict product liability claim, and $115 million on the fraud
claim, for a total punitive damages award of $150 million. Defendant made a post-verdict
motion to reduce the punitive damages award. The trial court ruled that that
award was "grossly excessive" and, without apportionment among the
claims, reduced the punitive damages award to a total of $100 million.
Defendant
appealed and plaintiff cross-appealed. Defendant asserted 21 assignments of
error. Relevant to the issue before this court, defendant assigned error to
the trial court's refusal to include defendant's proffered instructions.(2)
Plaintiff sought reinstatement of the jury's total punitive damages award.
A
divided Court of Appeals sitting en banc vacated the punitive damages award.
The majority held that the trial court had erred in refusing to give defendant's
requested instruction that "[y]ou are not to punish a defendant for the
impact of its conduct on individuals in other states." Schwarz,
206 Or App at 57. The majority relied primarily on a Supreme Court case that
was decided after the trial of this case and during the pendency of appeal, State
Farm Mut. Automobile Ins. Co. v. Campbell, 538 US 408, 123 S Ct 1513, 155 L
Ed 2d 585 (2003). In Campbell, the Court stated that due process
dictates that
"[a] defendant should be punished for the conduct that
harmed the plaintiff, not for being an unsavory individual or business. Due process
does not permit courts, in the calculation of punitive damages, to adjudicate
the merits of other parties' hypothetical claims against a defendant under the
guise of the reprehensibility analysis[.]"
Id. at 423. In Campbell, the Court for the first
time definitively stated that a trial court was required, upon request, to
instruct the jury on at least some aspects of the limits that due process
places on punitive damages awards. Id. at 422.
The Court
of Appeals divided over whether the instruction that defendant had proffered
accurately stated the law. Schwarz, 206 Or App at 48. See Hernandez
v. Barbo Machinery Co., 327 Or 99, 106, 957 P2d 147 (1998) (party is
entitled to jury instructions on its theory of case only if proffered
instructions are accurate). The majority held that
defendant's proposed instruction 42 met that standard and accurately informed the
jury that it could not punish defendant for the impact of its conduct on
individuals in other states. Schwarz, 206 Or App at 50. The majority
stated that "no party under Oregon law is required to request a jury
instruction that advances the use of evidence in a way that benefits the party's
adversary." Id. at 49. The dissent contended that it was defendant's
burden to propose a jury instruction that was not misleading. In the dissent's
view, defendant's proposed instructions "would have misled the jury into
thinking that it could not consider defendant's out-of-state conduct for any
purpose." Id. at 85-86 (Rosenblum, J., concurring in part, dissenting
in part) (emphasis in original). The court vacated the punitive damages award
and remanded the case for a new trial on punitive damages. Id. at 67.
The court's disposition rendered plaintiff's cross-appeal moot. Id.
II. DEFENDANT'S CLAIM OF INSTRUCTIONAL ERROR
In
this court, defendant asserts two interrelated objections to the trial court's
rulings on jury instructions: that the court erred in failing to give either
of its proffered instructions 41 and 42, and that the court erred in giving the
uniform jury instruction without informing the jury of the purposes for which the
jury could consider harm to nonparties.(3)
Oregon law recognizes
"two different types of error respecting jury
instructions: (1) error in the failure to give a proposed jury instruction,
and (2) error in the jury instructions that actually were given. See
Bennett v. Farmers Ins. Co., 332 Or 138, 152-53, 26 P3d 785 (2001) (so
indicating)."
Williams v. Philip Morris
Inc., 344 Or 45, 55-56, 176 P3d 1255
(2008) (Williams III).
A. Refusal to Give Defendant's Proposed
Instructions
With respect to the first of the
errors asserted by defendant -- error in the failure to give its proposed jury
instructions -- Oregon law entitles a party to have a proffered instruction
given only if that instruction correctly states the law and engages the
pleadings and the evidence. Hernandez, 327 Or at 106. In Williams II, decided after the decision of
the trial court and the Court of Appeals, the Supreme Court concluded that
"a jury may not * * * use a punitive damages verdict to punish a defendant
directly on account of harms it is alleged to have visited on nonparties"
to the litigation. 549 US at 355. However, the Court held that evidence of
harms to others could be appropriate and relevant to determining the reprehensibility
of defendant's conduct. Id. The Court went on to explain:
"How can we know whether a jury, in taking account of
harm caused others under the rubric of reprehensibility, also seeks to punish
the defendant for having caused injury to others? Our answer is that state
courts cannot authorize procedures that create an unreasonable and unnecessary
risk of any such confusion occurring. In particular, we believe that where the
risk of that misunderstanding is a significant one -- because, for instance, of
the sort of evidence that was introduced at trial or the kinds of argument the
plaintiff made to the jury -- a court, upon request, must protect against that
risk. Although the States have some flexibility to determine what kind
of procedures they will implement, federal constitutional law obligates them to
provide some form of protection in appropriate cases."
Id. at 357 (emphases in original). Defendant argues
that, by virtue of its request, the trial court was required to eliminate the
risk of jury misunderstanding and give its proposed instructions, which correctly
stated the law.
Plaintiff contends that the instructions that defendant proffered were
inaccurate, incomplete, and misleading because the instructions not to
"punish" defendant for harms suffered by nonparties or for the impact
of its conduct on nonparties, without saying more, directed the jury not to use
evidence of such harm or impact for any purpose. Plaintiff asserts that a
complete, accurate, and correct instruction "would have told the jury that
the evidence [of harm to others] was relevant to reprehensibility, but it could
not be used to increase the amount of punitive damages in order to punish directly
for harm to others." To illustrate that point, plaintiff notes that,
since the Supreme Court's decision in Williams II, the Oregon State Bar
Committee on Uniform Civil Jury Instructions has developed a uniform civil jury
instruction that captures the Court's ruling. UCJI 75.02B (Nov 2009) states:
"Evidence has been received of harm suffered by persons
other than the plaintiff as a result of the defendant's conduct. This evidence
may be considered in evaluating the reprehensibility of defendant's conduct.
However, you may not award punitive damages to punish the defendant for harm
caused to persons other than the plaintiff."(4)
Defendant
argues that each of the instructions that it proffered were accurate statements
of the law and that, particularly when considered in the context of the uniform
jury instruction that the trial court gave, its proffered instructions
communicated to the jury the distinction between the proper and improper use of
evidence of harm to others. Defendant notes that the uniform jury instruction
told the jury that it had discretion to award punitive damages if it found that
defendant
"ha[d] shown a reckless and outrageous indifference to
a highly unreasonable risk of harm and ha[d] acted with a conscious
indifference to the health, safety, and welfare of others."
(Emphasis added.) Thus,
defendant asserts, the court did instruct the jury that it could consider harm
to others in its analysis of the reprehensibility of defendant's conduct.
As
noted, a proposed instruction must be complete and accurate in all respects. Hernandez,
327 Or at 106. That standard must be understood in the context of the general purpose
of jury instructions, which is to "reduce the relevant law to terms readily
grasped by the jury without doing violence to the applicable legal rule." Rogers
v. Meridian Park Hospital, 307 Or 612, 616, 772 P2d 929 (1989). For
appellate courts reviewing claims of instructional error, the touchstones are
legal accuracy and clarity:
"The parties to any jury case are entitled to have the
jury instructed in the law which governs the case in plain, clear, simple
language. The objective of the mold, framework and language of the instructions
should be to enlighten and to acquaint the jury with the applicable law.
Everything which is reasonably capable of confusing or misleading the jury
should be avoided. Instructions which mislead or confuse are ground for a
reversal or a new trial."
Williams et al. v. Portland
Gen. Elec., 195 Or 597, 610, 247 P2d
494 (1952).
The distinction that the Supreme Court has created
between constitutionally permissible and impermissible uses of evidence of harm
to others is a fine one that easily may be lost. See
Williams II, 549 US at 360 (Stevens, J., dissenting) ("This nuance
eludes me."); White v. Ford Motor Co., 312 F3d 998, 1016-17 n 69
(9th Cir 2002) (the distinction recognized by the Supreme Court "might be
so gossamer as to be difficult for a jury to apply"). Although it is
possible that a jury could glean that distinction from defendant's
proposed instructions in combination with the uniform jury instruction, it is
not probable. Defendant's proposed instructions expressly directed the jury to
refrain from using evidence of harm to nonlitigants to "punish"
defendant. The uniform jury instruction was not similarly clear in permitting
the jury to use that evidence in assessing the reprehensibility of defendant's
conduct and arriving at a punitive damages award. When the law draws a line
between the proper and improper use of evidence, a jury instruction must be
equally explicit in describing what falls on each side of that line.
It
is of course true that, under Oregon law, no party is required to request a
jury instruction that advances the other party's theory of the case. So, for
instance, a plaintiff's proposed instructions would not be incomplete simply
because they failed to inform the jury that the defendant had asserted an
affirmative defense. But the Court of Appeals overstated that principle when
it observed that no party is required to request a jury instruction that
"advances the use of evidence in a way that benefits the party's
adversary." Schwarz, 206 Or App at 49. Where an instruction is necessary
to inform the jury of the parameters that it must apply in considering
particular evidence, an instruction that does not completely and accurately
describe those parameters is erroneous and objectionable, even if the omitted
portion of those parameters would benefit the opposing party. We hold that the
trial court did not err in refusing to give the instructions that defendant proffered.
B. Error in Giving Uniform
Jury Instruction
We
next consider defendant's argument that the trial court erred in giving the
uniform jury instruction. As a threshold matter, plaintiff argues that the
rules of appellate procedure preclude this court from reaching that argument.
ORAP
9.20(2) defines the scope of this court's discretion to consider questions on
review. It provides, in part, that unless the court otherwise limits the
questions before it on review, "the questions before the Supreme Court
include all questions properly before the Court of Appeals that the petition or
the response claims were erroneously decided by that court." Plaintiff petitioned
for review in this court, and defendant submitted a response to the petition. In
that response, defendant did not present the issue of the accuracy of the
uniform jury instruction. Therefore, plaintiff contends, defendant abandoned the
argument it now urges.
Defendant
acknowledges that it did not include a question about the adequacy of the
uniform jury instruction in the eight supplemental questions that it listed in
its response to plaintiff's petition for review. Nonetheless, defendant
asserts, ORAP 9.20(2) recognizes additional authority for this court to "consider
other issues that were before the Court of Appeals." In this case, the
question whether defendant took the necessary steps to place the accuracy of
the uniform jury instruction properly before the Court of Appeals is a close
one.
Although
the record plainly reveals that, at the trial court level, defendant objected
and took proper exception to the uniform jury instruction, defendant's opening
brief to the Court of Appeals did not raise the uniform jury instruction issue
as a discrete claim. In that brief, defendant asserted as its sixteenth
assignment of error:
"The trial court erred by instructing the jury solely
on the Oregon statutory factors for assessing punitive damages without also
providing defendant's proposed instructions on constitutional limits."
In the preservation section of its opening brief, defendant
noted that it had objected in the trial court to the uniform jury instruction
and, in the argument section, defendant asserted that, as a result of omissions
in that instruction, the court had given the jury "a roadmap to
error." Plaintiff understood defendant's
sixteenth assignment of error to assert that the trial court had erred in
failing to give defendant's proposed instructions 41 and 42. As to the giving
of the uniform jury instruction, plaintiff, in his answering brief, argued that
defendant "ha[d] waived any challenge to this instruction." In a
reply brief, defendant disputed that characterization and asserted that
"[t]he trial court also erred in giving instructions [on punitive damages]
that were affirmatively misleading."
In
Dunlap v. Dickson, 307 Or 175, 180 n 4, 765 P2d 203 (1988), this court
indicated that it would exercise its discretion to reach an issue presented to
the Court of Appeals (1) when there was a "close connection" between
the issues, and (2) "to avoid unnecessary technicality when we may do so
and doing so resolves issues fairly raised below."(5)
Those conditions also are present here and militate for review. Although defendant's
statement of its sixteenth assignment of error did not present a clear
objection to the trial court's giving of the uniform jury instruction, defendant's
briefs did disclose its intent to assert that error. More importantly, both the
court's failure to give defendant's proposed instruction and its giving of the
uniform jury instruction raised precisely the same legal issue: whether the
trial court correctly instructed the jury on the use of evidence of harm to
nonparties. Having accepted review of the decision of the Court of Appeals and
having decided that defendant's proffered instructions were incomplete and
thereby inaccurate, we think it important also to decide the accuracy of the
instructions that the jury did receive.
Turning
to the merits of defendant's argument, we observe that, when this case was
tried, neither Campbell nor Williams II had been decided. We therefore
understand the reason for the trial court's failure to instruct the jury on the
law regarding evidence of harm to nonparties. Nevertheless, we must
acknowledge that omission and the fact that the trial court did, in giving the
uniform jury instruction, permit the jury to consider evidence of harm
to nonparties in assessing punitive damages. In giving the uniform jury
instruction, the court informed the jury:
"To recover punitive damages, [plaintiff]
must show by clear and convincing evidence that defendant Philip Morris
"has shown a reckless and outrageous
indifference to a highly unreasonable risk of harm and has acted with a
conscious indifference to the health, safety, and welfare of others.
"* * * * *
"Punitive damages, if any, shall be
determined and awarded based on the following:
"(1) The likelihood at the time that
serious harm would arise from the defendant's misconduct;
"(2) The degree of the defendant's
awareness of that likelihood[.]"
Plaintiff
contends that the jury would have understood from that instruction the fine
distinction that the law makes; namely, that evidence of harm to others may be
used only in the assessment of reprehensibility and not to impose direct
punishment for harm to nonparties. Plaintiff asserts that the other general
instructions that the court gave focused the jury's attention on damage to the
named plaintiff and prevented a misunderstanding of the punitive damages
instruction that the court gave. We do not agree. The jury could have
understood the uniform jury instruction to permit it to use evidence of harm to
others in arriving at its punitive damages verdict and, without an explicit
statement of the impermissible use of that evidence, such as that included in UCJI
75.02B (Nov 2009), the instruction was incomplete and unclear. The trial court
erred in giving the uniform instruction.
III. REMEDY
The
question of appropriate remedy remains. Plaintiff argues that, notwithstanding
any error in jury instruction, this court may affirm the jury's verdict if,
upon "careful appellate weighing," that verdict accords with the
limits that substantive due process places on the punitive damages award. See
Clemons v. Mississippi, 494 US 738, 748, 110 S Ct 1441, 108 L Ed 2d 725
(1990) (where the jury was erroneously instructed on an aggravating factor to
be considered in sentencing, "careful appellate weighing" of whether
the evidence supported the jury verdict was sufficient to meet constitutional
objections). Plaintiff further indicates that, with respect to punitive
damages awards, the Supreme Court has been careful to preserve "some
flexibility" in the procedures that states craft to give effect to the
constitutional protections that due process provides. See Williams
II, 549 US at 357-58 (stating that Oregon Supreme Court's application of
the wrong constitutional standard "may lead to the need for a new
trial, or a change in the level of the punitive damages award")
(emphases added). See also Campbell, 538 US at 429 ("proper
calculation of punitive damages * * * should be resolved, in the first
instance, by the Utah courts"); BMW of North America v. Gore, 517
US 559, 586, 116 S Ct 1589, 134 L Ed 2d 809 (1996) ("Whether
the appropriate remedy requires a new trial or merely an independent
determination by the Alabama Supreme Court of the award necessary to vindicate
the economic interests of Alabama consumers is a matter that should be
addressed by the state court in the first instance.").
Plaintiff's
argument has its draw. However, the Oregon Constitution makes plain that this
court does not have the authority in the first instance to make its own factual
determination of the appropriate punitive damages award that should be imposed
in light of defendant's conduct and the harm that it caused decedent: "In
all civil cases the right of Trial by Jury shall remain inviolate." Or
Const, Art I, § 17. This court has interpreted that provision to create a
right for litigants to have "a jury determine all issues of fact[.]"
Lakin v. Senco Products, Inc., 329 Or 62, 69, 987 P2d 463 (1999)
(internal quotation marks omitted). The Supreme Court has thrust upon state
courts the role of determining whether a jury award of punitive damages exceeds
the outer limits that substantive due process allows, but it is still the
constitutional role of the jury to decide all facts, including those necessary
to assess punitive damages in the first instance. We cannot decide the damages
that a correctly instructed jury would award, and we therefore must remand this
case for a jury's decision.
As a
final matter, defendant asserts that common law and state constitutional law
require a retrial of the entire case on remand. Defendant points to a
case in which this court held that, as a matter of general fairness, "[i]n
the ordinary two-party personal-injury case" the same jury that determined
fault should consider the question of damages. Maxwell v. Port. Terminal
RR. Co., 253 Or 573, 577, 456 P2d 484 (1969). However, in instances when
this court has vacated a punitive damages award because it could not "determine
the standard actually used by the jury in arriving at its verdict for punitive
damages," it has remanded for the limited purpose of retrial on punitive
damages only. Wolf v. Nordstrom, 291 Or 828, 835-36, 637 P2d 1280 (1981). See
also Weiss v. Northwest Accept. Corp., 274 Or 343, 358, 546 P2d
1065 (1976) (remanding for a new trial on punitive damages only).(6)
We adopt the same disposition in this case.
In
summary, we hold that the trial court erred in its instructions to the jury on
punitive damages. We vacate the punitive damages award and remand this case to
the trial court for a new trial limited to the question of punitive damages.
The
decision of the Court of Appeals is affirmed. The judgment of the circuit
court is affirmed in part and reversed in part, and the case is remanded to the
circuit court for further proceedings.
1. The
Fourteenth Amendment to the United States Constitution provides, in part:
"No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the United States; nor
shall any State deprive any person of
life, liberty, or property, without due process of law[.]"
2. Defendant's
other assignments of error covered numerous aspects of the trial, including:
"challenges to the denial of motions for directed
verdicts for defendant on plaintiff's claims, challenges to the trial court's
decision to give or not to give certain jury instructions regarding those
claims, [and] a challenge to the court's failure to grant a mistrial[.]"
Schwarz, 206 Or App at 26. The Court of Appeals
unanimously rejected all of defendant's assignments of error except the one
that addressed the jury instructions pertaining to the constitutionality of
punitive damages awards.
3. We
decline to reach the other questions that defendant listed in its response to
plaintiff's petition for review and briefed in this court.
4. The
Committee on Uniform Civil Jury Instructions also has developed a uniform
instruction on the proper use of evidence of a defendant's out-of-state conduct
in the imposition of punitive damages. UCJI 75.02A (Nov 2009) states:
"Evidence has been received of conduct by
the defendant occurring outside Oregon. This evidence may be considered in
evaluating the reprehensibility of the defendant's conduct in Oregon if the
out-of-state conduct is reasonably related to the conduct of the defendant
directed toward the plaintiff in Oregon.
"You may not award punitive damages against
the defendant based on evidence of out-of-state conduct that was lawful in the
state where it occurred. Further, when considering reprehensibility, you may
not consider conduct of the defendant, wherever it might have occurred, that is
not similar to the conduct upon which you found the defendant liable to the
plaintiff."
5. The
court cited former ORAP 10.15(2) (1988) as a description of its
discretion to reach the issue. That rule was nearly identical to the current
ORAP 9.20(2).
6. Defendant
also argues, citing Clark v. Strain et al., 212 Or 357, 364, 319 P2d 940
(1958), that "the minimum number of jurors required for a valid verdict
must be the same jurors voting on each separate issue demanding
resolution." Clark involved the unusual circumstance in which one
group of nine jurors found that the defendant was liable for damages, but one
member of the majority refused to agree on the level of damages. Id. at
360-63. The jury broke the stalemate by cobbling a different group of nine
jurors who concurred on damages. Id. Defendant contends that the
constitutional provision on which the court in Clark relied, Article VII
(Amended), section 5(7), requires a complete new trial here. That provision
requires that "[i]n civil cases three-fourths of the jury may render a
verdict." Again, defendant raises concerns that this case does not
present. We remand this case for a new trial on a limited issue, and
three-fourths of the jury that considers that issue is sufficient to render a
verdict on that issue. | b031af29342660a8d4efbd6853e95ea581035ed8968264ca7ee563c74f3d3667 | 2010-07-24T00:00:00Z |
59ed759b-a163-442d-8b43-b0d39eaa285f | Kloor v. West One Automotive Group, Inc. (Alternative Writ) | null | null | oregon | Oregon Supreme Court | MISCELLANEOUS SUPREME COURT DISPOSITIONS
CERTIFIED QUESTIONS, CERTIFIED APPEALS,
MANDAMUS PROCEEDINGS, AND OTHER MATTERS
August 18, 2010
Kloor v. West One Automotive Group, Inc., dba Hertz Auto Sales (S058709). Alternative writ of mandamus issued. Alternative writ of mandamus dismissed, 349 Or 172. | 491f28216c00adc8d7b8094929095358d681a6be1e8d9d408514dd8005c15acc | 2010-08-18T00:00:00Z |
caaa8bc8-20e0-4e34-be10-179cacf4018e | Dewsnup v. Farmers Ins. Co. | null | S057895 | oregon | Oregon Supreme Court | FILED: September 16, 2010
IN THE SUPREME COURT OF THE STATE OF OREGON
BETH DEWSNUP
AND TIM DEWSNUP,
Petitioners on Review,
v.
FARMERS INSURANCE COMPANY OF OREGON,
Respondent on Review.
(CC 06CV4790CC; CA
A136394; SC S057895)
En Banc
On review from the Court of Appeals.*
Argued and submitted June 8, 2010.
Kathryn H. Clarke, Portland, argued the cause
and filed the brief for petitioners on review. With her on the brief was Robert
E.L. Bonaparte.
Beth Cupani, Maloney Lauerdorf Reiner PC, Portland,
argued the cause and filed the brief for respondent on review. With her on the
brief was Francis J. Maloney III.
KISTLER, J.
The decision of the Court of Appeals is
reversed. The judgment of the circuit court is reversed, and the case is remanded
to the circuit court for further proceedings.
Balmer, J., filed a dissenting opinion, in which
Linder, J., joined.
*Appeal from Douglas County Circuit Court, Randolph Garrison, Judge. 229 Or App 314, 211 P3d 354 (2009).
KISTLER, J.
The primary question
in this case is what is a "roof" within the meaning of plaintiffs'
homeowners' insurance policy. Plaintiffs Beth and Tim Dewsnup sustained losses
due to water damage while their roof was undergoing repair. Although their
insurance policy generally excludes coverage for water damage, they contended
that an exception to that exclusion applies. The trial court ruled otherwise
on defendant's motion for summary judgment, and the Court of Appeals affirmed.
Dewsnup v. Farmers Ins. Co., 229 Or App 314, 324, 211 P3d 354 (2009).
The Court of Appeals reasoned that the exception to the water damage exclusion
did not apply because, at the time of the loss, plaintiffs' roof was not a
"roof" within the meaning of the policy. Id. In particular,
the court held that a "roof," by its ordinary definition, is
permanent, and because plaintiffs' roof was undergoing repair at the time of
the loss, no permanent roof was in place to which the exception could apply. Id.
We allowed plaintiffs' petition for review and now reverse the Court of Appeals
decision and the trial court's judgment.
Because this case
arises on defendant's motion for summary judgment, we state the facts in the
light most favorable to plaintiffs. Bergmann v. Hutton, 337 Or 596,
599, 101 P3d 353 (2004). Plaintiffs' roof, which consisted of a plywood
sublayer and an outer layer of wood shakes, was in need of repair. Plaintiff
Tim Dewsnup is a contractor and took it upon himself to perform the repairs.
In doing so, he removed the layer of wood shakes in its entirety, replacing it
with a layer of six-mil-thick polyethylene plastic that completely covered the
plywood sublayer beneath.(1)
The polyethylene sheets(2)
were secured to the plywood sublayer with one-half-inch long T-50 staples located
at the center of each sheet. The edges of the polyethylene layer were secured
with roof tacks driven through plastic washers to prevent tearing. The edges
were further secured with wooden bats spaced at 24 to 30 inches on center.
According to plaintiffs' expert, the polyethylene sheets were secured in such a
way that they "would have been adequate to protect [plaintiffs'] home for
one or two years if necessary under normal circumstances."
On the first night
of plaintiffs' roof repair project, a storm moved through the area. Rising
winds caused part of the polyethylene sheeting to loosen and eventually blow
away. Tim Dewsnup attempted to replace the sheeting but, in doing so, fell off
of the house, taking one or more of the plastic sheets with him to the ground.
Dewsnup injured himself when he fell. While he was injured and unable to secure
the sheets over the now-exposed areas of the plywood sublayer, rain began to
enter the home through the joints in the sublayer. The rain caused water
damage to plaintiffs' personal property inside the home, for which plaintiffs
filed an insurance claim. Defendant denied the claim on the ground that water
damage was excluded under plaintiffs' policy.
Plaintiffs brought
an action in the trial court for breach of contract. In response, defendant
moved for summary judgment, claiming that plaintiffs' insurance policy excluded
loss resulting from water damage. Defendant reasoned that water damage is
generally excluded except when a windstorm or hail creates an opening in a
roof. Defendant contended that, because the polyethylene "tarp" was
not a "roof," the policy did not cover plaintiffs' water damage.
Alternatively, defendant argued that, to the extent that the plastic tarp could
be considered a "roof," the loss resulted from "faulty or
inadequate workmanship" and was, for that reason, also excluded from
coverage under the policy.
The trial court
granted defendant's summary judgment motion. Rather than doing so on the
grounds set forth by defendant, the court interpreted plaintiffs' insurance
policy to cover only the "dwelling" described in the policy
declarations; that is, a dwelling of "frame" construction with a
"wood shingle or shake" roof. According to the trial court, at the
moment plaintiffs removed the wood shakes, the building was no longer the
"dwelling" insured under the policy. As a result, coverage was not
merely excluded under the circumstances; coverage simply did not exist. The
trial court accordingly entered judgment in defendant's favor.
On appeal, the Court
of Appeals rejected the trial court's conclusion that, by removing the wood
shakes, the entire structure was no longer insured under the policy. The court
reasoned that no plausible interpretation of the insurance policy supported
such a conclusion, pointing out that "[i]f, for example, the policy
happened to describe the house as having been painted white, the fact that the
owners later decided to paint it yellow would not mean that the house would no
longer be covered." Dewsnup, 229 Or App at 320. The Court of
Appeals reasoned that the policy declarations should not be construed as
"condition[s] of coverage." Id. (emphasis omitted).
The Court of Appeals
nevertheless affirmed the trial court's judgment, holding that "in no
reasonable sense would the sheet of plastic constitute [a] roof." Id. at
322. Noting that the policy did not define the term "roof," the
court looked to the ordinary meaning of the terms "roof" and
"roofing" and determined that, "[a]s defined, 'roofing' is the
outermost layer of the cover of a building and consists of materials that are
suitable for construction and for application to a roof as protection from the
weather." Id. at 321-22 (emphasis omitted). According to the
court, "a temporary, plastic sheet * * * is not, itself, a 'roof'
or part of the roof," id. (emphasis added); rather, the sheet was
simply a temporary protective covering in place of an actual roof, and
therefore, the loss was not covered. Because the court found its definition of
"roof" dispositive, it did not address defendant's alternative grounds
for affirming the trial court's grant of summary judgment.
We allowed
plaintiffs' petition for review to consider what constitutes a "roof"
within the meaning of plaintiffs' insurance policy and whether, viewing the facts
in the light most favorable to plaintiffs, a reasonable juror could find that
plaintiffs' roof came within that definition. We begin with the meaning of the
term "roof" in plaintiffs' policy.
The insurance policy
at issue here, like other insurance policies, is organized in terms of
coverages and exclusions; in this policy, the coverage clauses bring certain
property within the protection of the policy, while the exclusion clauses deny
protection to property that, but for the circumstances to which the particular
exclusion applies, would otherwise be covered. See Cimarron Ins. Co. v.
Travelers Ins. Co., 224 Or 57, 61, 355 P2d 742 (1960)
(distinguishing coverage and exclusion clauses in the context of an automobile
insurance policy). The policy also contains exceptions to the exclusions and
specifies the particular circumstances in which those exceptions apply.
Generally speaking, this case turns on an interpretation of one specific
exception to the policy's exclusion of water damage from general coverage. For
the sake of clarity, we begin by describing the content of the policy in terms
of its organizational structure.
The general coverage
clauses in plaintiffs' insurance policy are found in the section entitled
"LOSSES INSURED." These clauses extend coverage to plaintiffs'
"[d]welling," to "[s]eparate structures," and to certain
personal property located within the dwelling or separate structures.
Exclusions from that coverage are listed in the section entitled "SECTION
I -- LOSSES NOT INSURED." The policy excludes coverage for water damage,
but provides exceptions to that exclusion. It states, in part:
"Whenever water damage occurs, the resulting loss is
always excluded under this policy, however caused; except we do cover:
* * * * *
"2. Loss
or damage to the interior of any dwelling or separate structures, or to
personal property inside the dwelling or separate structures caused by water
damage if the dwelling or separate structures first sustain loss or damage
caused by a peril described under SECTION I -- LOSSES INSURED -- Coverage C --
Personal Property."
The perils described under "SECTION I --
LOSSES INSURED -- Coverage C -- Personal Property" include
"[w]indstorm or hail."(3)
Where "loss to property contained in a building" is sustained, as is
the case here, coverage is limited to situations where "the direct force
of wind or hail damages the building causing an opening in a roof or
wall and the rain, snow, sleet, sand or dust enters through this opening."
(Emphasis added.)
The practical effect
of this string of coverages, exclusions, and exceptions is that, for coverage
to extend to water damage, the "direct force of wind or hail" must
first damage a building by causing an opening in a roof. Only if rain enters
the building through that opening and causes damage to personal property
contained in the building will the policy cover that loss. It necessarily
follows, and the parties agree, that the building must first have a
"roof" in order for the exception to the water damage exclusion to
apply. That raises the question: What is a "roof?" -- a question
that entails two related but separate issues. First, what is the meaning of
the term "roof," as used in plaintiffs' insurance policy? Second,
could an objectively reasonable juror, viewing the facts in the light most
favorable to plaintiffs, find that the condition of the plaintiffs' roof at the
time of the water damage came within that definition?
On the first issue,
plaintiffs contend that, contrary to the Court of Appeals' conclusion, the
plain meaning of the term "roof" does not include a durational component.
More specifically, plaintiffs argue that nothing in the definition of
"roof" requires that it be permanent. On that point, plaintiffs note
that the policy expressly authorized them to "make * * * repairs to the
residence" and that the Court of Appeals' reasoning would effectively read
that authorization out of the policy. Defendant, on the other hand, contends
that a "roof" must be permanent and relies on three cases to support
that contention. Defendant argues alternatively that polyethylene plastic
sheeting cannot, as a matter of law, constitute a roof.
In interpreting the
meaning of an insurance policy, "'[t]he primary and governing rule * * *
is to ascertain the intention of the parties.'" Hoffman Construction
Co. v. Fred S. James & Co., 313 Or 464, 469, 836 P2d 703 (1992)
(quoting Totten v. New York Life Ins. Co., 298 Or 765, 770, 696 P2d 1082
(1985) (brackets in Hoffman)). To that end, we examine the terms and
conditions of the policy, Groshong v. Mutual of Enumclaw Ins. Co., 329
Or 303, 307, 985 P2d 1284 (1999) (citing Interstate Fire v. Archdiocese of
Portland, 318 Or 110, 117, 864 P2d 346 (1993)), and where a particular term
is not defined in the contract, we begin by identifying that term's plain
meaning. Groshong at 308. If the term has no plain meaning; that is,
if the term is ambiguous, we examine that term within the context of the policy
as a whole. Hoffman, 313 Or at 470. If two or more plausible
interpretations still remain, we construe the term against the drafter and in favor
of the insured. Id. at 470-71. Accordingly, because the policy
does not define "roof," we begin by asking whether that term has a
plain meaning.
Without a definition
of the term "roof" in the policy, both parties look to the dictionary
to identify its plain meaning. According to Webster's, the term
"roof" means "the outside cover of a building or structure
including the roofing and all materials and construction necessary to maintain
the cover upon its walls or other support." Webster's Third New Int'l
Dictionary 1971 (unabridged ed 2002). The term "roofing," in
turn, is defined as:
"a material used or suitable for the construction of a
roof; specif : a material designed for application to a roof as
protection from the weather
."
Id. The
terms enclosed in the angle brackets -- "slate [roofing],"
"aluminum [roofing]," and "mineral-surfaced [roofing]" -- serve
as "verbal illustrations," illustrating appropriate uses of the term
"roofing" in context. See id. at 17a (describing the
purpose of examples following a definition).
The ordinary meaning
of the terms "roof" and "roofing" do not expressly require that
a roof must be permanent, as defendant argues. To be sure, a "roof,"
which consists, in part, of "roofing" materials, should be reasonably
suitable to "maintain a cover upon [a building's] walls" in order to
serve its function. See id. at 1971 (so defining the term).
"Roofing," to do the same, must provide some level of
"protection from the weather." See id. Taken together, those
definitions imply requirements of structural integrity and protection from the
elements; those are functional elements, not necessarily durational ones. No
roof is permanent. When a roof is sufficiently durable to serve the functional
purposes described above, it is still a "roof" within the ordinary
understanding of that term, even if it is not necessarily permanent.
Defendant, however,
relies on three cases to support its argument that a roof, by its plain
meaning, must be permanent: Camden Fire Ins. Ass'n v. New Buena Vista Hotel
Co., 199 Miss 585, 24 So 2d 848 (1946); Diep v. California Fair Plan Ass'n,
15 Cal App 4th 1205, 19 Cal Rptr 2d 591 (1993); and Aginsky v.
Farmers Ins. Exch., 409 F Supp 2d 1230 (D Or 2005). In our view, those
cases provide less support than defendant perceives, and the most persuasive of
the three cases cuts against defendant's position. We discuss those cases at
greater length than we ordinarily would because we think that the reasoning in
those cases helps put the issue in this case in perspective.
The first case, Camden
Fire Ins. Ass'n, cuts in plaintiffs' favor in one respect. The roof in
that case was a flat composition roof, composed of a pine sublayer, five layers
of alternating felt and pitch, and a gravel layer on top. 24 So 2d at 849. In
the course of repairing the roof, the plaintiffs' contractor cut a
12-by-46-foot opening in the roof, down to the pine sublayer. Id. When
a storm came up suddenly, only two layers of felt, unsecured by any pitch, had
been placed over half of the opening. Id. The workers sought to cover
the remainder of the opening by covering it with felt and "casting
themselves upon [the felt], seeking to h[o]ld it against the wind and
rain." Id. Their efforts proved unsuccessful, and the building's
owner brought a claim for damage caused by water entering through the opening
that the contractor had cut in the roof, under an insurance policy
substantially similar to the policy at issue here.
In resolving that
claim, the Supreme Court of Mississippi held that the building did not have a
"roof" within the meaning of the policy. Id. at 850. The
court noted that "[s]uch a so-called roof would not be a roof, but only a
part thereof * * *." Id. In reaching that conclusion, the court in
Camden did not hold that a roof must be permanent. Rather, the court
concluded that, in order to constitute a "roof,"
"its construction or reconstruction must have reached the
point where a reasonably prudent householder would consider it, if left in that
condition for a month or months, or longer, as adequate against all risks of
wind and rain which could be reasonably anticipated as likely to happen
according to the general and recurrent experiences of the past * * *."
Id. As we
read the court's decision in Camden, it adopted a functional definition
of a roof that required that the construction or reconstruction be sufficient
to protect against the elements and sufficiently durable to last a month or
more. The court concluded that no reasonable juror could find that a layer or
two of felt, without anything to seal or secure it, would come within that
functional definition.
Camden cuts
against defendant's position in two respects. First, it does not hold that
construction or reconstruction must provide a permanent seal against the
weather to qualify as a roof. Its temporal requirements are far more modest. Second,
the court was careful in Camden to examine the nature and construction
of the roof. As it noted, the purported "roof" in that case
consisted of only the pine sublayer, not both the pine sublayer and a
waterproof covering. The court made clear that, under the facts in that case,
the pine sublayer, either by itself or with an insecure layer of felt, did not
serve the function of a roof and therefore did not bring the loss within the
scope of the exception to the water damage exclusion. See id. at
850 ("Such a so-called roof would not be a roof, but only a part thereof,
as are the rafters, or the sheeting on the rafters."
The second case
relied on by defendant, the California Court of Appeals decision in Diep,
appears at first glance to provide greater support for defendant's argument. However,
the court's cursory description of the facts makes it difficult to determine
the breadth of its holding. The court explained in Diep only that a
contractor had "removed a portion of [a warehouse] roof and covered the
opening with plastic sheeting." 19 Cal Rptr 2d at 592. The decision
contains no further discussion of the nature of the opening in the roof or the
way in which the plastic sheeting covered it; for instance, the decision omits
any explanation whether the sheeting was securely attached to a plywood
sublayer, as in this case, or was simply thrown over an otherwise gaping hole.
There is a suggestion in the opinion that the latter view of the facts is the
correct one. See id. at 593 (explaining that "part of the roof was
missing, and [even the plaintiff] could not have considered [that] the plastic
sheeting constituted anything other than a nonstructural band-aid").(4) But ultimately, the
opinion provides such a limited recitation of the facts that the breadth of its
holding is difficult to gauge.
Diep's
reasoning is similarly unhelpful. In defining what constitutes a roof, the
court quoted three dictionary definitions, none of which contained any
durational component. See id. The court then added, "We could go
on, but a roof is commonly considered to be a permanent part of the structure
it covers." Id. The court in Diep thus deduced a
requirement of permanency from three sources that do not mention duration.
Having done so, it then relied on the Mississippi Supreme Court's decision in Camden,
which defined a roof primarily in terms of its function. Not only is the
court's reference to permanence unsupported, but its requirement that a roof be
permanent is inconsistent with its later reliance on Camden. It
may be that on its facts, few of which are mentioned, the court reached the
correct result in Diep, but we do not find its reasoning persuasive.
In the third case
relied on by defendant, Aginsky, the district court noted that it was
"persuaded by the authority cited by [the insurer], and in particular by Diep,"
that a roof has to be a permanent structure. 409 F Supp 2d at 1236. The court
accordingly concluded that a temporary tarp, put over a roof that had been
completely removed, could not be considered a roof. (5) Id. at 1231,
1236. The district court's decision in Aginsky provides support for
defendant's position that one essential quality of a roof is permanence.
However, the district court in Aginsky relied particularly on Diep
in reaching that conclusion, and its conclusion is no more persuasive than the
authority on which it relied.
In our view, neither
Diep nor Aginsky provides persuasive support for defendant's
contention that a roof must be permanent, and Camden is at odds with
defendant's argument on that point. Beyond that, we note that defendant does
not offer any explanation of what "permanent," in the context of a
roof, means. It is not clear whether defendant defines "permanency"
as one to two years, five years, ten years, or more. We find the term "permanent,"
in this context, unhelpful, and decline to set a necessarily arbitrary limit on
the length of time that a roof must last in order to qualify as such. Rather,
a roof should be sufficiently durable to meet its intended purpose: to cover
and protect a building against weather-related risks that reasonably may be
anticipated. In our view, the meaning of the term "roof" is
sufficiently plain that we need go no further to define its meaning. See
Hoffman, 313 Or at 470-71 (describing methodology for interpreting
insurance agreements).(6)
Having defined a
roof for the purposes of plaintiffs' insurance policy, the remaining issue is
whether no reasonable trier of fact could find that plaintiffs' roof came
within that definition. See ORCP 47 C ("No genuine issue as to a
material fact exists if, based upon the record before the court viewed in a
manner most favorable to the adverse party, no objectively reasonable juror
could return a verdict for the adverse party * * *."). On that issue, the
record before the trial court on defendant's motion for summary judgment showed
that plaintiffs' "roof," at the time of the storm, did not solely
consist of a "plastic tarp," as defendant argues. Rather, it
consisted of a plywood sublayer, a six-mil-thick polyethylene covering, and a
system of staples, roof tacks, and wooden bats to secure the roof components in
place. In plaintiffs' expert's opinion, the polyethylene sheeting was secured
to the plywood sublayer in such a way that it "would have been adequate to
protect the home for one or two years if necessary * * *." The expert
further described the roof construction as "functionally permanent."
Taking that evidence as true, as we must on review of defendant's motion for
summary judgment, we conclude that a reasonable trier of fact could find that
plaintiffs' roof was sufficiently durable to meet its intended purpose, which
was to provide protection from the elements while plaintiffs undertook the roof
repair work that the policy expressly authorized.
Defendant's
remaining arguments reduce, in our view, to factual disagreements with plaintiffs'
expert's opinion. Defendant contends that the "[t]he plastic tarp [p]laintiffs
adhered to the top of their house" cannot be a "material that can
protect the structure from the elements." The only evidence in the record
says otherwise, however. To the extent that defendant relies on the definition
of "roofing" in Webster's to argue that a "roof," in
order to function as such, must be composed of certain, specific materials, we
think it reads too much into that definition. Webster's definition of
"roofing" includes "verbal illustrations," examples of
possible materials commonly used in the construction of a roof. See Webster's
at 1971 (listing examples). Those examples, however, are not intended to
be exhaustive, and the question whether a particular material is "suitable
for the construction of a roof" is a factual issue for the jury. Given
the record before the trial court, we cannot say that no reasonable juror could
find that polyethylene sheeting, properly secured to a plywood sublayer, was
not suitable to protect the house for the duration of the repair.
Defendant argues
alternatively that, because the polyethylene sheeting suffered wind damage on
the first day of its use, it is "self-evident" that polyethylene
sheeting is not a suitable material for the construction of a roof. Perhaps
defendant could ask a trier of fact to draw that inference, but defendant
cannot elevate a permissible factual inference to a legal rule. Under
defendant's logic, if plaintiffs had used a commercially acceptable roofing
material (e.g., wood shakes) and if that covering had blown off on the
first evening after it was installed, then wood shakes could not be considered
a suitable material for use as roofing. There are a multitude of reasons why a
roof may blow off on the first, second, or some successive day after its
installation. Defendant errs in seeking to convert one of a multitude of
potential causes into the only possible cause of the breach in plaintiffs'
roof. Certainly, nothing in this record requires the inference that defendant
contends we must draw.(7)
Given the record
before the trial court, we cannot say that no reasonable juror could find that
securing the polyethylene sheeting to the plywood sublayer constituted a roof
for the purposes of plaintiffs' homeowners' insurance policy. It follows that
the primary ground on which defendant relies did not provide a basis for
granting summary judgment in its favor. As noted, before the trial court,
defendant advanced an alternative ground for its summary judgment motion. It
contended that, even if plaintiffs' roof could be considered a "roof"
within the meaning of the policy, the damage to plaintiffs' roof resulted from
"faulty or inadequate workmanship or materials" and was excluded from
coverage for that reason. We turn to that argument, which, if correct, would
provide an alternative ground for affirming the Court of Appeals decision and
the trial court's judgment.
One section of the policy
denies coverage for losses caused by "[f]aulty, inadequate or defective *
* * workmanship, construction, * * * maintenance repair materials, * * * or
maintenance of part or all of any property * * *." In response to defendant's
summary judgment motion, plaintiffs offered their expert's opinion that
"Tim Dewsnup's workmanship was neither faulty nor defective." Taking
that statement as true, as we must on defendant's motion for summary judgment,
we conclude that it is sufficient to defeat defendant's alternative ground for
summary judgment.(8)
Plaintiffs did not
move for summary judgment. Only defendant did. For the reasons set out above,
we conclude that the trial court erred when it granted defendant's motion for
summary judgment. It goes without saying that, on remand, the question whether
plaintiffs' roof constituted a roof within the meaning of the policy will
present a factual issue for the jury. The same is true of the question whether
the workmanship was either faulty or defective. We hold only that, on this
record, the grounds that defendant has raised do not provide a basis for
granting summary judgment in its favor.
The decision of the
Court of Appeals is reversed. The judgment of the circuit court is reversed,
and the case is remanded to the circuit court for further proceedings.
BALMER, J.,
dissenting.
When interpreting an
insurance policy, Oregon courts examine the terms and conditions contained in
the policy to determine the intentions of the parties. Groshong v. Mutual
of Enumclaw Ins. Co., 329 Or 303, 307, 985 P2d 1284 (1999). In this case,
the majority concludes that the term "roof" in a homeowner's
insurance policy can include an arrangement of polyethylene plastic sheeting,
six one-thousandths of an inch thick, that the homeowner temporarily stapled to
the plywood sublayer of what had been his roof after removing the existing wood
shakes.(1)
If the homeowner and a representative of the insurance company had examined the
house together before the policy was issued, observed temporary plastic
sheeting rather than wood shakes covering the sublayer, and discussed whether
the policy's term "roof" would apply to the temporary plastic
sheeting -- and thus that the policy would cover a loss from damage to the
plastic sheeting for the same premium that would cover a loss from damage to an
intact wood shingle or shake roof -- they undoubtedly would have agreed that it
did not.(2)
It follows, in my view, that no reasonable juror could conclude that the term
"roof" in the policy includes the plastic sheeting at issue here.
For that reason, I respectfully dissent.
The majority
accurately describes the coverage, exclusions, and exceptions that, when
considered together, determine the kinds of losses -- and the causes of those
losses -- that are covered by the policy at issue here. The dispute is over
the meaning of the term "roof" as used in the policy.
The majority begins
well enough with the proposition, "No roof is permanent." ___ Or at
___ (slip op at 8). It certainly is true that, at some level, nothing human is
permanent, and, even at a more mundane level, we can all agree that house roofs
need to be replaced from time to time. But the majority then jumps off a roof
of its own by declaring that the concept of permanency is "unhelpful"
in determining the definition of "roof." Id. at ___ (slip op
at 12). How can that be? "Permanency" is one aspect of determining
whether the materials and arrangement of the covering of a dwelling constitute
a "roof," as that term is used in a homeowner's insurance policy.
Simply put, there are differences in useful life -- as well as in strength and
imperviousness to the elements -- of plastic tarps used as the covering for a
dwelling, compared to a wood shake or shingle roof.
The majority instead
adopts what it calls a "functional approach" to defining a roof:
"When a roof is sufficiently durable to serve the functional purposes [of
covering and protecting a building against weather-related risks], but is not
necessarily permanent, it is still a 'roof' within the ordinary understanding
of that term." ___ Or at ___ (slip op at 8). It is true, of
course, that, in some "ordinary" sense, any material that covers the
top of a structure is a "roof" -- whether it be a sheet of galvanized
steel over a backyard shed, a canvas tarp atop a tree house, or a piece of
plywood over a chicken coop. But context is key, and here the term
"roof" is not used in an advertisement for a garden shed or an
ordinance setting standards for keeping chickens. Rather, the context here is
a homeowner's insurance policy and, although the term itself is not
defined in the policy, it is a "term[ ] of a writing," and therefore is
"presumed to have been used in [its] primary and general
acceptation," ORS 42.250, in such a policy. See Hoffman Construction
Co. v. Fred S. James & Co., 313 Or 464, 470, 836 P2d 703 (1992) (When
examining a disputed term in an insurance policy, this court considers "the particular context in which that term
is used in the policy and the broader context of the policy as a whole.").
The "functional approach" adopted by the majority glosses over the
context in which the term "roof" is used.(3)
This policy covers a
"dwelling" and describes the roof of the covered dwelling as
"wood shake or shingle." No reasonable juror could conclude that the
insurer and the homeowner, when they entered into the insurance contract,
intended the term "roof," as it applies to this insured
"dwelling," to cover a single sheet of galvanized steel, a canvas
tarp, or a piece of plywood. Similarly, no reasonable juror could conclude that
the parties intended the term "roof" to include the plastic tarps
that the homeowner stapled to the plywood sublayer after he removed the wood
shakes as a temporary measure until he could install new wood shakes.(4)
In deciding this
case, we must, of course, put to one side the fact that the plastic tarps at
issue here obviously did not adequately cover or protect the house -- indeed,
although the homeowner's expert stated that the arrangement "was adequate to
protect the home for one or two years in normal circumstances" and that it
was "functionally permanent," the plastic sheeting in fact was
partially blown off the very next day after the homeowner had installed it.(5) We can also put to one side the
question of just how much difference there is between the concept of "permanent"
relied upon by the insurer and the Court of Appeals and the majority's concept
of "durable."
Even without those
considerations, the majority still returns to the very concept of permanency that
it had just rejected in relying on the opinion of the homeowner's expert that
the plastic sheeting stapled to the plywood was "functionally permanent."
___ Or at ___ (slip op at 14) (quoting expert affidavit). The expert's wording
reveals what should be apparent to all: that no roof lasts forever, but that
homeowners and insurers routinely distinguish between materials and types of
construction that are intended to be "permanent" and materials
and types of construction that are intended to be
"temporary." The majority, appropriately, does not want to decide
whether "permanency" is one or two years or five or ten. ___ Or at
___ (slip op at 13). And this case does not require us to make that
distinction. Rather, notwithstanding the expert's affidavit, it is plain that
the plastic tarps were not intended to be permanent -- they were a temporary
expedient, which the homeowner installed on his own after he removed the shakes
as part of "replacing the roof." In agreeing to provide coverage for
certain losses when the "roof" was damaged, the insurer did not
undertake the increased risk of insuring the kind of temporary covering that
the homeowner substituted for the roof referred to in the policy. Because the
policy does not cover losses that resulted from damage to the covering at issue
here, the trial court correctly granted the insurer's motion for summary
judgment.
Linder, J., joins in this
dissenting opinion.
1. The
expert's affidavit states that the polyethylene plastic was "six
millimeter[s] thick," but defendant noted at oral argument that this
measurement should read "six mil." A "mil" is a unit of
measurement commonly used to measure the thickness of plastic sheeting. One
mil is equal to one one-thousandth of one inch. The question whether the
plastic was six mils or six millimeters thick is not essential to resolving the
issue on review.
2. The
record indicates that the polyethylene plastic layer was composed of multiple
sheets that, when placed adjacent to one another, completely covered the
plywood sublayer. Specifically, the exhibit attached to plaintiffs' expert's
affidavit contains a diagram showing that three sheets were used to cover the
sublayer completely.
3. "SECTION
I -- LOSSES INSURED -- Coverage C -- Personal Property" provides coverage
for a second peril that plaintiffs assert also applies here: "Falling
objects." The "[f]alling objects" clause generally excludes
coverage to personal property unless "the roof * * * is first damaged by a
falling object." Plaintiffs argue that Tim Dewsnup was a "falling
object" when he fell from the roof, pulling a portion of the polyethylene
sheeting with him. Defendant moved for summary judgment on the ground that plaintiff's
roof, while under repair, was not a roof within the meaning of the policy. It
did not move for summary judgment on the ground that Dewsnup was not a falling
object. Accordingly, we do not address that issue.
4. Similarly,
the decision notes that even the plaintiff in Diep did not consider that
"'[the plastic sheeting], if left in that condition for a month or months,
or longer, [would be] adequate against all risks of wind and rain.'" 19
Cal Rptr 2d at 594 (quoting Camden, 24 So 2d at 850; first
brackets in original).
5. It
appears that the contractor in Aginsky first removed the roof of an
apartment building and put a tarp in its place. 409 F Supp 2d at 1231. It is
not clear, however, from the decision what, if any, structural elements supported
the tarp. The court noted only that the tarp was "burned up," id.,
which we assume means that the contractor used some heat source, such as a blow
torch, to seal the edges of the tarp to the sides of the building. Because of
unexpected delays in completing the project, the contractor built a
"temporary roof structure," consisting of "installed walls and a
ridge and joisting system in the form of a pitched roof to run the water to the
outside of the building." Id. The contractor put that temporary
structure over the "original flat-tarped system [which it] also left in
place." Id.
6. Defendant
has not identified any other provisions in the policy that would lead to a
different understanding of the word "roof." Under Hoffman,
even if another meaning were plausible, we would still adopt the interpretation
that favors the insured. See 313 Or at 470-71 (describing methodology
for interpreting insurance agreements).
7. Defendant
advances a series of additional arguments that require only brief discussion.
Defendant contends that, under its policy, there must be damage to the
building, but here there was no damage. It argues alternatively that, even if
the building was damaged, the wind did not cause the damage; Tim Dewsnup did
when he removed the wood shakes and exposed the joints in the plywood
sublayer. In a variation on the second argument, defendant contends that the
wind did not cause the opening in the roof; Dewsnup did when he removed the
wood shakes. All those arguments assume, incorrectly on summary judgment, that
the polyethylene sheeting secured to the plywood sublayer either did not
constitute a roof or was not part of the building.
8. As
explained above, on this record defendant cannot prevail on summary judgment on
the ground that the loss was caused by "[f]aulty, inadequate, or defective
* * * maintenance repair materials."
1. In
his complaint, homeowner tellingly states that he had removed the shakes
because he was "replacing the roof."
2. To
be sure, the insurer might have been willing to provide coverage for the
dwelling and its contents, notwithstanding the fact that plastic sheeting
rather than wood shakes covered the sublayer, but the insurer likely would have
required a higher premium to offset the greater risk that the less robust
material would be damaged by a storm.
3. This
dissent responds to the analysis undertaken in the majority opinion. One might
also question, however, the majority's premise that "whether a particular
material is 'suitable for the construction of a roof' is a factual issue for
the jury." ___ Or at ___ (slip op at 14). On the contrary, this court
has said that the interpretation of an insurance policy is "a question of
law." Hoffman, 313 Or at 469. Accordingly, as the Court of
Appeals concluded, the determination of whether the temporary covering over
plaintiff's house was a "roof" for purposes of the insurance policy
is for the court, not for the jury. Certainly, if there was a dispute over
what the covering consisted of, when it was installed, or some other issue of
fact, that question would be for the jury. But here, where there is no such
dispute, to submit to the jury the legal question of whether the covering came
within the meaning of the term "roof" in the policy seems inconsistent
with Hoffman.
4. The
majority reviews three cases cited by the insurer, which it either dismisses as
not persuasive because they rely on "permanency" as an aspect of a
"roof" -- a proposition that the majority had earlier rejected -- or
because they differ on the facts. See, e.g., ___Or at ___ (slip op at
12) (distinguishing contrary holding in Aginsky v. Farmers Ins. Exchange,
409 F Supp 2d 1230 (D Or 2005), because the temporary roof structure,
consisting of walls and a ridge and joisting system, was put over a roof that
had been completely removed, in contrast to the plastic here that was attached
to the sublayer). The majority ignores the larger point: federal and state
courts around the country have held, on summary judgment, that a temporary
covering put in place while a "more permanent" roof is repaired or
replaced is not a "roof" for purposes of a homeowner's insurance
policy. This court should follow those decisions.
5. The
expert also inaccurately described the plastic sheeting as being six
millimeters thick, rather than six mils thick -- an error of approximately 3,930
percent. | 6cfb3526c922f403a80646647500c5a011a27aed852f7110508944ba345b746a | 2010-09-16T00:00:00Z |
af7da506-a3f7-416b-b0e2-9496468b4b16 | Datt v. Hill | null | null | oregon | Oregon Supreme Court | FILED: February 11, 2010
IN THE SUPREME COURT OF THE STATE OF OREGON
VERENDRA DATT,
Respondent on Review,
v.
JEAN HILL,
Superintendent,
Snake River Correctional Institution,
Petitioner on Review.
(CC
05024238M; CA A130434; SC S056842)
En Banc
On review from the
Court of Appeals.*
Argued and submitted
September 18, 2009.
Stacy RJ Guise,
Assistant Attorney General, Salem, argued the cause and filed the brief for
petitioner on review. With her on the brief were John R. Kroger, Attorney
General, and Jerome Lidz, Solicitor General.
David J. Celuch,
argued the cause and filed the brief for respondent on review.
WALTERS, J.
The decision of the
Court of Appeals is affirmed in part and reversed in part. The judgment of the
circuit court is reversed, and the case is remanded to the circuit court for
further proceedings.
*Appeal from Malheur
County Circuit Court, C. Gregory West, Judge. 220 Or App 657, 188 P3d 384
(2008).
WALTERS,
J.
In
this post-conviction case, the post-conviction trial court denied petitioner's
claim for relief and recorded on the judgment that it based its decision on a "failure
of proof." In a divided decision, the Court of Appeals reversed that
judgment, concluding that the post-conviction trial court's explanation did not
satisfy the requirement of ORS 138.640(1)(1)
that the post-conviction judgment "clearly state the grounds on which the
cause was determined." Datt v. Hill, 220 Or App 657, 188 P3d 384
(2008). The majority reasoned that ORS 138.640(1) was intended to require post-conviction
trial courts to make findings sufficient to facilitate appellate review and
that, as to one of petitioner's claims, but not another, the terse explanation "failure
of proof" did not meet that standard. Id. at 665. The dissent asserted
that ORS 138.640(1) "does not require express findings" and that an
appellate court's ability to engage in meaningful review is not the standard
that the statute sets. Moreover, the dissent opined, even if meaningful
appellate review were the touchstone, the explanation provided by the post-conviction
trial court was minimally adequate. Id. at 668-69 (Rosenblum, J.,
dissenting). We allowed the state's petition for review and, for reasons that we
explain, affirm the decision of the Court of Appeals in part and reverse in
part. We reverse the judgment of the post-conviction trial court and remand
for further proceedings.
The relevant
facts are chiefly procedural. A jury convicted petitioner of multiple counts
of first-degree sexual abuse and other crimes. He sought post-conviction relief
under the Oregon Post-Conviction Hearing Act, ORS 138.510 to 138.680. Petitioner
asserted that the inadequate performance of his criminal trial counsel resulted
in a substantial denial of his state and federal constitutional rights.(2)
In particular, petitioner alleged that counsel had performed inadequately in
two distinct respects: (1) by failing to interview and call a witness, Rogers,
to testify at trial; and (2) by requesting a jury instruction that called
unnecessary attention to petitioner's custodial status.(3)
Using
a standardized three-paragraph form, the post-conviction trial court issued its
judgment denying relief. In paragraph (1), the court checked boxes to indicate
that the court had considered a "Petition for Post Conviction Relief"
and that the petition was "denied based on the following findings and
conclusions." Thereafter, on blank lines provided, the court inserted: "FAILURE
OF PROOF." (Capitalization in original.) In
paragraph (2), the court checked boxes to indicate that "[t]his matter
involve[d] * * * Federal [and] State Constitutional issue(s)" and that
"[a]ll questions were presented and decided." Paragraph (3) of the
judgment consisted of a single boilerplate sentence: "This order shall
constitute a final judgment for purposes of appellate review and for purposes
of res judicata."
On
receipt of the judgment, petitioner sent a letter to the post-conviction trial
court, objecting that the judgment did not "clearly state the grounds on
which the cause was determined." ORS 138.640(1). The court took no
action in response. Petitioner then appealed. He assigned error both to the substance
of the court's decision -- the denial of post-conviction relief -- and to the
form of its judgment -- its failure to comply with ORS 138.640(1). The Court
of Appeals interpreted ORS 138.640(1) to require that a post-conviction trial
court provide an explanation of the basis for its decision sufficient "to
enable the appellate court to determine whether the [post-conviction] trial
court committed a legal error that affected the result." Datt, 220
Or App at 660.
On
review, the state challenges that interpretation, arguing that it is not supported
by the statute's text, context, or legislative history. According to the
state, a post-conviction trial court complies with the requirements of ORS
138.640(1) if it provides a clear indication that it resolved the merits of
each of the "types of claims" that a petitioner asserts. Petitioner,
in response, argues that ORS 138.640(1) requires more. He contends that, to
comply with that statute, a post-conviction trial court must "state the
premise, reason, or collection of data (i.e., evidence) on which
the cause was determined."
ORS
138.640(1) requires that a post-conviction judgment "clearly state the
grounds on which the cause was determined."(4)
"Grounds" is not defined statutorily, and we therefore give it its "plain,
natural, and ordinary meaning." PGE v. Bureau of Labor and Industries,
317 Or 606, 611, 859 P2d 1143 (1993). Used in a legal context, "ground"
denotes "[t]he reason or point that something (as a legal
claim or argument) relies on for validity." Black's Law Dictionary
772 (9th ed 2009) (emphasis added); see also Webster's Third New Int'l
Dictionary 1002 (unabridged ed 2002) (defining "ground," in part,
as "the foundation or basis on which knowledge, belief, or
conviction rests") (emphasis added). At first blush, then, ORS 138.640(1)
would seem to require post-conviction trial courts to state clearly the reason
or point, or foundation or basis, for their judgments.
The
state contends that, if this court were to interpret ORS 138.640(1) to require that
the reasons for a decision include a statement of the facts on which that
decision is based, then the court inappropriately would be adding words to the
statute. See ORS 174.010 (court may not insert what legislature has
omitted); Davis v. Campbell, 327 Or 584, 589, 965 P2d 1017 (1998) (same).
When the legislature intends to require findings of fact, contends the state,
it uses the term "finds" or "findings," rather than the
term "grounds." For example, ORS 138.500(1)(b) requires a post-conviction
trial court to appoint counsel when it "finds" that petitioner is
without funds.(5)
As another example, ORCP 62A provides a procedure by which parties may "demand[]
prior to the commencement of * * * trial [that] the court * * * make special
findings of fact, and * * * state separately its conclusions of law thereon."(6)
Thus, the
state asserts, if the legislature had intended that post-conviction trial courts
"find" facts or make "findings of fact," it would have imposed
that requirement explicitly rather than using the word "grounds" to
achieve that result. Although the state's point is a reasonable one, it is
useful primarily to suggest a negative, viz., that the legislature did
not intend to require post-conviction trial courts to make "findings of
fact." The state's point is less useful in helping us to answer
definitively what the legislature did intend when it provided that a judgment
must state the "grounds" on which a decision rests.
To
that end, the state suggests that the word "grounds" has a specific
meaning within the context of the Post-Conviction Hearing Act: it refers to
the "types of claims" raised or decided. As its primary exhibit for
that understanding, the state points to ORS 138.530(1), which provides, in part,
that post-conviction relief shall be granted:
"when one or more of the following grounds is
established by the petitioner:
"(a) A substantial denial in the
proceedings resulting in petitioner's conviction, or in the appellate review
thereof, of petitioner's rights under the Constitution of the United States, or
under the Constitution of the State of Oregon, or both, and which denial
rendered the conviction void.
"(b) Lack of jurisdiction of the court to
impose the judgment rendered upon petitioner's conviction.
"(c) Sentence in excess of, or otherwise
not in accordance with, the sentence authorized by law for the crime of which
petitioner was convicted; or unconstitutionality of such sentence.
"(d) Unconstitutionality of the statute
making criminal the acts for which petitioner was convicted."
(Emphasis added.) Indeed, in
that provision of the act, the legislature appears to have used the word "grounds"
to mean the "types of claims" that a petitioner may bring. The "grounds"
or "types of claims" that give rise to post-conviction relief are
those in which a petitioner asserts a denial of constitutional rights, lack of
jurisdiction, excessive sentence, or the unconstitutionality of a statute.
The state
identifies two other statutes within the Oregon Post-Conviction Hearing Act that
use the term "grounds" in a way that, the state argues, also
demonstrates that that word means "type
of claims." ORS 138.550 provides, in part:
"(2) When the petitioner sought and
obtained direct appellate review of the conviction and sentence of the
petitioner, no ground for relief may be asserted by petitioner in a
petition for relief * * * unless such ground was not asserted and could
not reasonably have been asserted in the direct appellate review proceeding. *
* *.
"(3) All grounds for relief claimed
by petitioner in a petition * * * must be asserted in the original or amended
petition, and any grounds not so asserted are deemed waived unless the
court on hearing a subsequent petition finds grounds for relief asserted
therein which could not reasonably have been raised in the original or amended
petition. * * *."
(Emphases added.) ORS 138.580
provides, in part:
"The petition shall set forth specifically the grounds
upon which relief is claimed, and shall state clearly the relief desired."
(Emphasis added.)
Both
of those provisions reasonably could be read to use the word "grounds"
and the phrases "grounds for relief" and "grounds upon which
relief is claimed" to mean "types of claims." That is not,
however, the only plausible interpretation of those terms. One also could understand
those terms to refer to the facts that
give rise to a claim for relief. In cases in which this court has considered
the effects of a petitioner's failure to raise a "ground for relief,"
it has discussed whether particular facts should have been raised in an earlier
petition. See, e.g., Church v. Gladden, 244 Or
308, 310, 417 P2d 993 (1966) (determining whether "grounds" asserted
by petitioner, including that guilty plea was coerced and that indictment was
based on inadmissible testimony, should have been raised in an earlier petition
for post-conviction relief). And, in setting forth the pleading requirements
applicable to all civil actions, ORCP 18 A requires that a party plead the
ultimate facts constituting the "claim for
relief."(7)
It is not inconceivable that in ORS 138.550 and ORS 138.580 the legislature also
used the term "grounds" and the phrases "grounds for
relief" and "grounds upon which relief is claimed" to refer to
the facts giving rise to a claim for relief.
We
need not decide that issue, however, because those two statutes use those terms
and phrases to describe the necessary components (whether legal or factual) of
a petitioner's claim. ORS 138.640(1), the statute that we interpret in this
case, uses the key term, "grounds," differently to prescribe, not the
components of a petitioner's claim, but the components of a court's decision. ORS
138.640(1) requires that a post-conviction trial court "clearly state the grounds
on which the cause was determined." A court does not base its determination
of a cause on the "types of claims" that it resolves; rather, a court
bases its determination on the facts that it finds to be true and the legal
conclusions that it draws from those facts. That distinction leads us to
conclude that, even though the legislature may have used the term "grounds"
to mean "types of claims" in other provisions of the Oregon
Post-Conviction Hearing Act, the legislature did not intend that same meaning
when it used that term in ORS 138.640(1).
However,
what the legislature did intend remains unresolved, and we turn to the
legislative history of the act for further guidance. See State v. Gaines,
346 Or 160, 171-72, 206 P3d 1042 (2009) (after considering text and
context, court considers pertinent legislative history). In 1959, the
legislature enacted the Oregon Post-Conviction Hearing Act as a comprehensive
overhaul of Oregon's procedures for collateral attacks on criminal convictions.
Or Laws 1959, ch 636.(8)
The Oregon Post-Conviction Hearing Act is taken from the 1955 Uniform
Post-Conviction Procedure Act (UPCPA). Compare UPCPA, 9B ULA 541 (1957),
with Or Laws 1959, ch 636; see also Jack G. Collins and Carl R.
Neil, The Oregon Postconviction-Hearing Act, 39 Or L Rev 337, 340-41 (1960)
(citing UPCPA as major source for the act). We therefore examine the history
of the uniform act and the context that led to its creation. See Western
Helicopter Services v. Rogerson Aircraft, 311 Or 361, 364, 811 P2d 627
(1991) (consulting Commissioners' Comments to the Uniform Certified Questions
of Law Act to inform analysis of Oregon statute taken from uniform law).
Beginning
in 1867, persons who had been convicted of crimes in state courts could bring
claims of violations of federal constitutional rights under the federal Habeas Corpus
Act. Act of Feb 5, 1867, ch 28, § 1, 14 Stat 385 (codified as amended at 28
USC § 2254 (1996)). That law has required, however, that petitioners exhaust all
available state remedies before seeking federal relief. 28 USC § 2254(b)(1)(A).(9)
In 1949, the United States Supreme Court commented on the difficulties that
petitioners faced in pursuing state remedies and urged that states provide
inmates with "some clearly defined method by which they may raise claims
of denial of federal rights." Young v. Ragen, 337 US 235, 239, 69
S Ct 1073, 93 L Ed 1333 (1949).
In
1952, the Conference of Chief Justices convened a special committee to study
post-conviction issues. In its report, the committee made seven "Suggestions
* * * for the Improvement of Post-Conviction Procedures in State Courts,"
including that states provide mechanisms for obtaining relief at least as broad
as the relief available in federal court and that "procedural steps which
must be taken in the exhaustion of State remedies * * * be as few, simple and
clearly defined as possible." Report of the Special Committee on
Habeas Corpus to the Conference of Chief Justices, 1 (1953). To address
the difficulty of determining whether petitioners had exhausted state remedies,
the committee recommended:
"State courts of first instance or of last resort, in
denying relief in habeas corpus or similar post-conviction procedures, * * * specify
whether the judgment is based on procedural grounds under State law or upon
consideration of the merits of the claim of Federal constitutional right."
Id. The committee explained:
"It * * * appears to be the duty of State courts,
wherever possible, to indicate in the judicial record, or in an opinion,
whether a question of Federal right has been presented and decided, or whether
the case is decided upon State grounds only. Since the assumption of
jurisdiction by the Federal courts ordinarily depends upon the exhaustion of
all State remedies, it is of vital importance that the procedural steps in the
State courts should be clearly outlined so that litigants may know when they
have exhausted State remedies."
Id. at App, 12.
In
1954, the National Conference of Commissioners on Uniform State Laws (NCCUSL) undertook
the drafting of a UPCPA to implement the recommendations of the special committee.
See Commissioners' Prefatory Note to the UPCPA, 9B ULA at 541-42 (UPCPA
intended to create state-law modifications recommended by the Special Committee
on Habeas Corpus). In 1955, NCCUSL approved the UPCPA for adoption by the
states. Id.
Section
seven of the UPCPA contained the analog to the statute at issue in this case,
ORS 138.640(1). That section provided, in part, that "[t]he order making
final disposition of the petition shall clearly state the grounds on which the
case was determined and whether a federal or a state right was presented and
decided." Id. at 559. The Commissioners' Note that accompanies
the UPCPA is explicit that that requirement was included "[t]o assist a
federal court in its determination of jurisdiction in case the petitioner files
a claim for relief in that court." Id. at 560. As noted, federal jurisdiction
depended on whether, before coming into federal court, the petitioner had pursued
available state remedies and sought in state court the same relief that he or
she was seeking in federal court. The drafters of the UPCPA certainly intended,
therefore, that a post-conviction trial court include in the
"grounds" for a decision denying a claim for post-conviction relief sufficient
information to enable a federal court to determine whether the denial was based
on a petitioner's failure to comply with state procedural requirements, or
whether the petitioner had appropriately utilized state procedures but failed
to prove the merits of the federal claim asserted.
However,
the history of the UPCPA does not indicate an intent to further require, as
petitioner contends, that a post-conviction trial court articulate its decisions
with the detail that would be required if the legislature had mandated that the
court make findings of fact. Neither does that history indicate a more limited
intent to require, as the state contends, simple recitation of the "types
of claims" that a post-conviction trial court has resolved. Findings of
fact are not necessary, and identification of types of claims is not sufficient,
to provide federal courts with the information that they need to determine habeas
corpus jurisdiction.
Having
navigated away from the extremes, we still find ourselves in the middle of the
river. We must determine how extensive the Oregon legislature intended a post-conviction
trial court's explanation of its reasons to be and whether the statement,
"failure of proof," meets that statutory standard.
As
noted, in this case, the Court of Appeals assumed that the test of the adequacy
of the post-conviction trial court's statement of reasons was whether the court
provided information sufficient to enable appellate review of claimed error. Datt,
220 Or App at 666. To conduct that assessment, the Court of Appeals considered
the nature of the claims that petitioner had asserted. Petitioner had alleged
that his counsel was constitutionally inadequate in two respects: (1) in
failing to interview a witness, Rogers, and call him to testify at trial; and (2)
in requesting a jury instruction that drew attention to petitioner's custody
status. For both claims, petitioner was obligated to make two distinct
constitutional showings: that counsel failed to exercise reasonable professional
skill and judgment and that petitioner suffered prejudice as a result. Trujillo
v. Maass, 312 Or 431, 435, 822 P2d 703 (1991).
The
Court of Appeals explained that the post-conviction trial court's statement that
it had denied petitioner's claims on the basis of "failure of proof" was
insufficient to enable the appellate court to determine whether petitioner had
failed on one (and if so, which one) or both of the prongs of his proof. With
respect to petitioner's claim that counsel was inadequate in failing to
investigate, the Court of Appeals concluded that the post-conviction trial
court's lack of specificity precluded appellate review. Datt, 220 Or
App at 665. The Court of Appeals reasoned that, if the post-conviction trial
court determined that petitioner had proved inadequacy, but not prejudice, it committed error. In the view of the Court of
Appeals, Rogers was an unbiased witness and, if counsel had been inadequate in
failing to interview or call him, his testimony could have affected the result
in the case. Id. However, if the post-conviction trial court
determined that petitioner had not proved inadequacy, its decision should
be affirmed.
With
respect to petitioner's claim that counsel was inadequate for drawing attention
to petitioner's custody status, the Court of Appeals ruled that a more detailed
statement by the post-conviction trial court was not necessary to appellate
review. No matter how the post-conviction trial court resolved the issue of
inadequacy, there could be no prejudice because the post-conviction trial court
had instructed the jurors to disregard petitioner's custody status and, absent
evidence in the record to the contrary, the Court of Appeals would presume that
the jurors had acted accordingly. Id. at 667.
Because
the Court of Appeals held that compliance with ORS 138.640(1) turns on whether
a post-conviction judgment provides information sufficient for judicial review,
it reversed the post-conviction trial court's judgment as to the former claim
but affirmed it as to the latter. Id. at 666. We disagree with the premise
for the court's conclusion.(10)
It is a truism, and an important one,
that a post-conviction trial court can be of great assistance to appellate
courts by making findings of historical facts and explaining how its
conclusions derive from those findings. Petitioners have the right to request
findings of fact and conclusions of law under the procedure set forth in ORCP
62 A, and, if they do so, trial courts are required to comply.(11)
When parties make such a request or courts independently make that effort, an
appellate court is not required to make assumptions about how the trial court
resolved issues of credibility or disputed facts. See Ball v. Gladden,
250 Or 485, 487, 443 P2d 621 (1968) (absent express findings of fact, disputed
facts presumed to have been resolved consistently with trial court's legal
conclusion). An understanding of how a post-conviction trial court actually,
rather than presumptively, arrived at its decision enhances the effectiveness
of appellate review. However, whether appellate courts would benefit from
findings of fact or conclusions of law, does not determine the meaning of ORS
138.640(1).
We do not discern from the text of
ORS 138.640(1), or its history, a legislative intent to use appellate court
interest as the measure of the adequacy of a post-conviction judgment. Of greater
assistance to us in deriving that standard is the legislature's requirement
that the judgment "clearly state the grounds on which the cause was
determined." ORS 138.640(1) (emphasis added). A "clear"
statement is one that is "easily understood: without obscurity or
ambiguity." Webster's at 419.
We conclude that, to be clear, and to
enable federal courts to determine habeas corpus jurisdiction, a judgment
denying claims for post-conviction relief must, at a minimum: (1) identify the claims for relief that the court
considered and make separate rulings on each claim; (2) declare, with regard to
each claim, whether the denial is based on a petitioner's failure to utilize or
follow available state procedures or a failure to establish the merits of the
claim; and (3) make the legal bases for denial of relief apparent.(12)
In
this case, the judgment of the post-conviction trial court meets the first two requirements.
By reference to the petition and the trial court's statement that "all
questions were presented and decided," we can identify the claims that the
court considered and decided: all of the claims that petitioner pleaded. We
also can discern, from the court's statement that it denied relief based on a
"failure of proof," that the court reached the merits of petitioner's
claims and did not base its denial of each claim for relief on petitioner's
failure to utilize or follow available state procedures.
However,
the judgment of the post-conviction trial court does not clearly state the
legal basis for the court's denial of each claim for relief. When success
on the merits obligates a petitioner to make two distinct legal showings -- in
this case, that trial counsel's performance was constitutionally inadequate and
that petitioner suffered prejudice as a result -- a court does not clearly
state the legal bases for its denial of each claim for relief unless it
explains, with regard to each claim for relief, whether petitioner failed to
prove one (and if so, which one) or both of those requirements. In this case, the
judgment does not indicate, as to both of the claims that petitioner asserted, whether
petitioner failed to prove inadequacy, prejudice, or both. The judgment therefore
fails to meet the standard that ORS 138.640(1) sets.
The
decision of the Court of Appeals is affirmed in part and reversed in part. The
judgment of the circuit court is reversed, and the case is remanded to the
circuit court for further proceedings.
1. ORS
138.640(1) provides, in part:
"After deciding the issues raised in the
proceeding, the court shall enter a judgment denying the petition or granting
the appropriate relief. * * * The judgment must clearly state the grounds on
which the cause was determined, and whether a state or federal question was
presented and decided."
2. ORS
138.530(1) provides, in part:
"Post-conviction relief * * * shall be
granted by the court when one or more of the following grounds is established
by the petitioner:
"(a) A substantial denial in the proceedings
resulting in petitioner's conviction or in the appellate review thereof, of
petitioner's rights under the Constitution of the United States, or under the
Constitution of the State of Oregon, or both, and which denial rendered the
conviction void."
3. In
his petition for post-conviction relief, petitioner initially asserted five
distinct allegations of inadequate assistance of counsel. On appeal, however,
petitioner raised only the two inadequacies described in the text. For that
reason, we do not discuss the other three allegations further.
4. In
the half century since its passage, the particular subsection with which we are
concerned, ORS 138.640(1), has received little attention in this court's
decisions. This court has cited it in only five cases, none of which is
relevant to the issue currently before us. See, e.g., Stelljes v.
Maass, 306 Or 655, 657, 761 P2d 925 (1988) (whether summary judgment could
be construed as order disposing of case).
5. ORS
138.500(1) is the current version of a requirement that was included in the
Post-Conviction Hearing Act when it originally was enacted. See Or Laws
1959, ch 636, § 23(1) (circuit court shall appoint counsel "if it finds
that petitioner or defendant is without funds to employ counsel")
(emphasis added).
6. ORCP
62 A applies in post-conviction proceedings. See Young v. Hill, 347 Or
165, 171, 218 P3d 125 (2009) (citing Mueller v. Benning, 314 Or 615, 621
n 6, 841 P2d 640 (1992) for proposition that, "unless otherwise provided
for in the post-conviction statutes, Oregon Rules of Civil Procedure apply in
post-conviction proceedings"). Thus, ORCP 62 A is a procedural mechanism
by which a party in a post-conviction case can obtain specific factual findings
and separately stated conclusions of law on the issues resolved by the
judgment.
A similar procedure also existed when
the original Post-Conviction Hearing Act was enacted in 1959. See former
ORS 17.430 (1957), repealed by Or Laws 1965, ch 177, § 1 ("Upon the
trial of an issue of fact by the court * * * [a]ll parties appearing in the
case shall have the right to request either special or general findings.").
7. In 1959, when the Oregon Post-Conviction Hearing Act was passed, plaintiffs in
their initial pleading were required to include "[a] plain and concise
statement of the facts constituting the cause of action." Former
ORS 16.210(2)(b) (1957), repealed by Or Laws 1979, ch 284, § 199.
8. What
is now ORS 138.640(1) was section 14 of the 1959 act. That section provided,
in part:
"The order making final disposition of the petition
shall state clearly the grounds upon which the cause was determined, and
whether a state or federal question, or both, was presented and decided."
Or Laws 1959, ch 636, § 14. Although the current version of
ORS 138.640(1) refers to the "judgment" rather than the "order
making final disposition," that alteration does not affect our analysis of
what the legislature intended when it required post-conviction trial courts to
"state clearly the grounds upon which the cause was determined."
9. 28
USC § 2254(b) provides, in part:
"(1) An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the judgment of a State court shall
not be granted unless it appears that --
"(A) the applicant has exhausted the
remedies available in the courts of the State[.]"
10. Our
statement of explicit disagreement with that aspect of the Court of Appeals
opinion is not intended to indicate agreement with all other aspects of its
decision. For example, we do not intend to indicate agreement with the point
that petitioner necessarily failed to prove prejudice with respect to his claim
that counsel was inadequate for requesting a jury instruction that acknowledged
his custody status, Datt, 220 Or App at 667. We simply do not reach
that or other issues that we leave unaddressed.
11. ORCP
62 A provides, in part:
"Whenever any party appearing in a civil action tried
by the court so demands prior to the commencement of the trial, the court shall
make special findings of fact, and shall state separately its conclusions of
law thereon. In the absence of such a demand for special findings, the court
may make either general or special findings. If an opinion or memorandum of
decision is filed, it will be sufficient if the findings of fact or conclusions
of law appear therein."
12. In
reaching this result, we do not intend to indicate that post-conviction trial
courts cannot use standardized forms to record their decisions. However, if
forms are used, they must contain all the information required by ORS
138.640(1). | 45553a9dd0c369b594b47816a32afa084266ba77ce4c21deba9dce5b8c5eb3ed | 2010-02-11T00:00:00Z |
8fb22ec7-d167-4d6e-865a-695684654743 | Siporen v. City of Medford | null | null | oregon | Oregon Supreme Court | FILED: November 18, 2010
IN THE SUPREME COURT OF THE STATE OF OREGON
WENDY SIPOREN,
Petitioner,
and
IVEND HOLEN
and MEDFORD CITIZENS FOR RESPONSIBLE DEVELOPMENT,
Petitioners
on Review,
v.
CITY OF MEDFORD
and WAL-MART STORES, INC.,
Respondents
on Review.
(LUBA 2008185; CA A142541; SC S058025)
En Banc
On review from the
Court of Appeals.*
Argued and submitted
May 18, 2010, at N. Medford High School, Medford, Oregon.
Kenneth D. Helm,
Beaverton, argued the cause and filed the brief for petitioners on review.
John R. Huttl, City
Attorney's Office, Medford, argued the cause and filed the brief for respondent
on review City of Medford.
Gregory S. Hathaway,
of Davis Wright Tremaine, LLP, Portland, argued the cause and filed the brief
for respondent on review Wal-Mart Stores, Inc. With him on the brief was E.
Michael Connors.
Peter A. Kasting, Chief
Deputy City Attorney, Office of City Attorney, Portland, and Sandra N. Duffy,
Multnomah County Counsel's Office, Portland, filed the joint brief for amici
curiae League of Oregon Cities and Association of Oregon Counties.
GILLETTE, J.
The decision of the
Court of Appeals is affirmed. The order of the Land Use Board of Appeals is reversed.
*Judicial review of an
order of the Land Use Board of Appeals, 231 Or App 585, 220
P3d 427 (2009).
GILLETTE, J.
The subject of this land use case is
a decision by the Medford City Council approving a "site plan and
architectural review" application for a large store that Wal-Mart Stores,
Inc., proposes to build within the city's boundaries. Certain individual
citizens of Medford and a citizens' group, Medford Citizens for Responsible
Development (collectively, petitioners) appealed the city's decision to the
Land Use Board of Appeals (LUBA), arguing that Wal-Mart's application did not
comply with certain provisions of the Medford Land Development Code (MLDC), which
(in petitioners' view) required Wal-Mart to comprehensively address the traffic
impacts of the proposed development as a condition for obtaining site plan and
architectural review approval. Wal-Mart responded that, under the city's
interpretation of the MLDC, the provisions on which petitioners relied did not
apply to site plan and architectural review decisions. LUBA sustained
petitioners' claim of error and remanded the matter for further proceedings. Siporen
v. City of Medford, 59 Or LUBA 78 (2009). Wal-Mart sought judicial review
of that decision in the Court of Appeals. That court reversed LUBA's decision,
holding that the city's interpretation of the relevant MLDC provisions was
plausible and that LUBA and the Court of Appeals therefore were required to
accept that interpretation for purposes of review. Siporen v. City of Medford,
231 Or App 585, 220 P3d 427 (2009). We allowed petitioners' request for review
and now affirm the decision of the Court of Appeals.
As noted, the controversy in this
case arose out of Wal-Mart's proposal to build a large store in an area of
Medford that is zoned for such retail/commercial uses. To obtain a permit to
build the store, Wal-Mart was required to obtain certain "plan
authorizations,"(1)
including approval of an application for "site plan and architectural
review." Wal-Mart submitted an application for site plan and
architectural review, which contained information required for such
applications under the relevant provisions of the code,(2) to the body authorized to review such applications -- the Site Plan and
Architectural Review Commission (SPAC). Wal-Mart attached to its application a
Traffic Impact Analysis (TIA) that dealt with the ingress and egress points for
the proposed store's parking areas, but not with the impact its development
might have on nearby arterial and collector streets. The limited TIA
apparently had originally been submitted in response to earlier decisions by
LUBA with respect to Wal-Mart's application for site plan and architectural
review of an earlier proposal to build a slightly larger store in Medford.(3)
In the ensuing proceeding before
SPAC, petitioners argued that, as part of the site plan and architectural
review process, Wal-Mart was required to submit a comprehensive TIA and to show
that its proposed development would not cause the "level of service"
(LOS) on the roads surrounding the project to fall below a certain designated
level -- LOS level "D." Petitioners relied on three provisions of
the development code, MLDC 10.460, MLDC 10.461 and MLDC 10.462, which appear in
a section of the MLDC that pertains generally to "the establishment and
application of development standards for public improvements," including
streets. MLDC 10.007. The first of those provisions, MLDC 10.460, describes
the function and purpose of a TIA in terms of "specifically identif[ying]
the generation, distribution, and assignment of traffic to and from a proposed
development" and "identify[ing] the traffic impacts that a proposed
development will have on the existing and future street network." The second
provision, MLDC 10.461, describes the process of determining the appropriate
scope of a TIA and, as relevant here, when a TIA is required:
"If a proposed application has the potential of
generating more than 250 net average daily trips (ADT) or the Public Works
Department has concerns due to the operation or accident history, a TIA will be
required to evaluate development impacts to the transportation system. The
Public Works Department may waive a TIA if it is concluded that the impacts are
not substantial."
MLDC 10.461(3). The third provision cited by petitioners, MLDC
10.462, describes six potential levels of service (Levels A through F) for
arterial and collector streets in terms of average speeds, delays, volume-to-capacity
ratio and similar considerations, and then provides:
"Whenever level of service is determined to be below
level D for arterials or collectors, development is not permitted unless the
developer makes the roadway or other improvements necessary to maintain level
of service D respectively."
Petitioners took the position that,
by their clear terms, the foregoing provisions are directed at analyzing and
controlling the traffic impacts of proposed "development[s]."
Petitioners argued that, because Wal-Mart's store construction proposal incontrovertibly
was a proposed "development,"(4)
the TIA requirement at MLDC 10.461 and the LOS requirement at MLDC 10.462
therefore applied to it. Finally, petitioners argued that, as long as Wal-Mart
failed to comply with those two requirements, SPAC could not lawfully approve Wal-Mart's
site plan and architectural review application. That was so, in petitioners'
view, because, under yet another MLDC provision, MLDC 10.290(2), SPAC must find
that a proposed development "complies with the applicable provisions of
all city ordinances" in order to approve a site plan and architectural
review application.
SPAC rejected that analysis of the
ordinances. It concluded that the TIA requirement at MLDC 10.461 and the level
of traffic service requirement at MLDC 10.462 were not within SPAC's scope of
authority as defined in other provisions of the MLDC and that, as such, those
provisions were not "applicable provisions" that, under MLDC
10.290(2), SPAC was required to enforce through its site plan and architectural
review process. SPAC observed that, for 20 years, the city had been
interpreting the MLDC as placing authority over the subject matter of MLDC
10.461 and MLDC 10.462 solely in the Planning Commission and as
requiring that agency, at the time of any zone change, to analyze
the level of traffic service and ensure that the specific minimum level of
traffic service would be maintained. SPAC concluded that, because zone change
decisions regarding street capacity and adequacy are directed not only at the
existing uses, but also at the allowed uses within a zone, the traffic
issues relating to site development are dealt with as part of zoning decisions,
rendering MLDC 10.461 and MLDC 10.462 inapplicable at the time of site
development. Having thus explained its interpretation of the ordinances that
petitioners had cited (including the city's conclusion that the TIA and level-of-traffic-service
requirements were not applicable to site plan and architectural review), SPAC
approved Wal-Mart's application without applying those requirements. The City
Council affirmed that approval and adopted SPAC's reasoning.
Petitioners appealed the City Council's
decision to LUBA. At the outset, LUBA observed that its focus was only on the city's
interpretation of the MLDC, and that, under the relevant standard-of-review
statute, ORS 197.829(1), it was required to affirm that interpretation unless
it determined that it was inconsistent with the express language, purpose, or
underlying policy of the MLDC.(5)
Siporen, 59 Or LUBA at 85. LUBA went on to determine that MLDC
10.290(2) (requiring SPAC to limit approvals to applications that comply with
all "applicable provisions") was textually ambiguous with
respect to whether the two provisions upon which petitioners relied -- MLDC
10.461 and MLDC 10.462 -- were "applicable." Id. at 86-87. But,
after examining the contextual material that the city offered in support of its
conclusion that those provisions were not "applicable" --
specifically, various other provisions of the MLDC that, in the city's view,
placed the requirements set out in MLDC 10.461 and MLDC 10.462 under the
authority of the Planning Commission at the time of zone changes -- LUBA
concluded that the city's interpretation was not sustainable, even under the
deferential standard of review that it believed that it was required to use. Id.
at 91-92. Accordingly, LUBA remanded the case to the city, stating that, if the
city wished to approve the Wal-Mart proposal without applying the TIA and level-of-traffic-service
requirements, it would have to amend MLDC 10.290(2). Id. at 93.
Wal-Mart and the city sought judicial
review, arguing that LUBA had failed to apply the correct standard of review --
i.e., that it failed to acknowledge that the text of MLDC 10.290(2) is
capable of supporting more than one interpretation, and that the city's
reconciliation of conflicting provisions should be given deference.
In response to that argument, the
Court of Appeals attempted to translate the statutory standard at ORS
197.829(1)(a) into terms that would be useful in reviewing the city's decision.
The court began by observing that, under its own decision in Foland v.
Jackson County, 215 Or App 157, 168 P3d 1238 (2007), the determination
whether a local government's interpretation of its own ordinance was "inconsistent"
with the express wording of the ordinance for purposes of ORS 197.829(1)(a)
depends on
"'whether the interpretation is plausible, given
the interpretive principles that ordinarily apply to the construction of
ordinances under the rules of PGE [v. Bureau of Labor and Industries,
317 Or 606, 859 P2d 1143 (1993)].'"
Siporen, 231 Or App at 598 (quoting Foland, 215
Or App at 164) (emphasis added). The court then explained that that meant that
LUBA's task, and its own, in reviewing LUBA's order,
"is not to determine whether the city's interpretation
of the code was 'correct' in some absolute sense of choosing among various
plausible interpretations, but, instead, merely whether that interpretation
satisfied PGE's first level threshold of plausibility. If it does,
then, under ORS 197.829(1)(a), LUBA should have, and we must, sustain that
interpretation, even if another interpretation might be 'better' or more
sensible or persuasive."
Siporen, 231 Or App at 598-99. Having assigned that
meaning to the statutory standard of review, the court examined petitioners'
contention that the city's interpretation of the relevant MLDC provisions could
not be reconciled with various other code provisions that petitioners believed
were central to the issue. The court concluded that
"[f]undamentally, because there is no code provision
that expressly [addresses whether MLDC 10.462 is 'applicable'], the parties'
arguments are entirely contextual and the code provisions on which either party
relies do not foreclose the other party's interpretation. Notwithstanding that
neither party's contentions fully harmonize all cited provisions of the city's
code, both parties present plausible interpretations of the code. Under such
circumstances, LUBA must affirm the city's interpretation."
Id. at 602.
Before this court, petitioners argue
that the Court of Appeals is setting the analytical bar too low when it
suggests that ORS 197.829(1) looks to the "plausibility" of a local
government's interpretation:
"According to the Court [of Appeals'] analysis, if the
local government interpretation is plausible in isolation, then LUBA may not
exercise its review authority to check the interpretation for consistency with
the express language, purpose [or] policy of the local code. Furthermore, the
Court's holding essentially forbids LUBA from considering countervailing
arguments raised during the local land use proceedings."
Petitioners overstate the Court of
Appeals' position. That court never suggested that LUBA is precluded from
considering countervailing arguments or from checking the local government's
interpretation for consistency with, among other things, the express wording of
local ordinances. What the court did suggest is that, when both parties'
interpretations necessarily are based on context, i.e., the
surrounding provisions, and the surrounding provisions are such that neither
party's interpretation fully harmonizes them, then the fact that the opposing
party can identify some part of the surrounding provisions with which the local
government's interpretation does not easily fit does not mean that LUBA is
excused from accepting the local government's interpretation in accordance with
ORS 197.829(1). Siporen, 231Or App at 602.
Petitioners respond that, when ORS 197.829(1)(a)
speaks of a local government's interpretation being "inconsistent with the
express language" of a land use regulation, it includes in that concept any
incompatibility with any arguably relevant wording in the land use
code. The logical outfall of that position is that the interpretive approach
prescribed by ORS 197.829(1)(a) will apply to a local government's
interpretation that is directed at a single ambiguous term or provision, but
not to an interpretation that seeks to harmonize arguably conflicting terms or provisions
within a land use code.(6)
We think that the approach to ORS
197.829(1)(a) that petitioners offer cannot be what the legislature intended. "Interpretation"
of a body of regulations can occur at at least two levels: (1) an attempt to
determine what was intended by a single ambiguous term or statement in a single
provision; and (2) an attempt to determine what was intended when separate
provisions within a body of regulations contain terms or statements that appear
to conflict. In addition, those two levels of interpretation may intersect, as
in the present case, when the parties' competing interpretations of a single
term ("applicable") are informed by their interpretation of supposedly
conflicting provisions elsewhere in the regulations.
There is every reason to believe
that, when the legislature enacted ORS 197.829, it intended to impose the
standard of review spelled out in the statute to both situations. Both fall
within the ordinary meaning of the term "interpretation."
Furthermore, the policy choice that ORS 197.829 reflects is relevant to both
situations. In that regard, we note that ORS 197.829(1) is, in large part, a
codification of this court's holding in Clark v. Jackson County, 313 Or
508, 836 P2d 710 (1992).(7)
As Clark implied, 313 Or App at 515 (citing and describing Anderson
v. Peden, 284 Or 313, 587 P2d 59 (1978)), and as this court's decision in Gage
v. City of Portland, 319 Or 308, 316-17, 877 P2d 1187 (1994), later spelled
out, at least one of the fundamental ideas behind applying that standard is
that, 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. We think that that assumption is equally relevant to a governing body's
understanding of what, in the face of apparent inconsistencies, the governing
body's intention was.
If a governing body's efforts at
resolving conflicts in its land use code are "interpretations" that
are entitled to the deference described in ORS 197.829(1) (and we conclude that
they are), then we must discuss what it means for such an interpretation to be "inconsistent
with the express language" of the code. Such an exercise frequently involves
choosing among arguably inconsistent statements in a body of regulation, giving
more force to some statements than to others.
Wal-Mart suggests that, in such
circumstances, a local government's interpretation is not inconsistent with the
express language "if it is supported by some express provisions in the * *
* land use regulations." In other words, Wal-Mart reads ORS 197.829(1)(a)
as requiring LUBA to affirm the local government's interpretation unless it
finds that that interpretation is inconsistent with all the express wording
in the body of regulations. That approach seems to accommodate the wording of
the statute, but it is unsatisfying insofar as it does not require any explicit
consideration of the potentially relevant but apparently competing provisions
to determine the intent of the provisions as a whole. That concern is
resolved, however, when we consider that a local government's stated position
in these circumstances would hardly qualify as an "interpretation" of
its own land use code unless it directly confronted the allegedly conflicting
provisions and purported to make a choice between them or otherwise resolved
the conflict. Cf. Friends of Columbia Gorge v. Columbia River
(S055722), 346 Or 366, 404-05, 213 P3d 1164 (2009) (court would not defer
to Columbia River Gorge Commission's stated position that geological resources
were not "natural resources" for purposes of commission's revision of
its own management plan unless and until the commission took action that
reflected a considered choice between two possible definitions of the term "natural
resources").
Based on the foregoing analysis, we
conclude that, when a local government plausibly interprets its own land use regulations
by considering and then choosing between or harmonizing conflicting provisions,
that interpretation must be affirmed, as held in Clark and provided in
ORS 197.829(1)(a), unless the interpretation is inconsistent with all of
the "express language" that is relevant to the interpretation, or inconsistent
with the purposes or policies underpinning the regulations. We therefore
reject petitioners' contrary contention.(8)
Petitioners also contend that, to the
extent that ORS 197.829(1)(a) provides that LUBA "shall affirm" a
local government's interpretation of the local government's land use regulation
unless it determines that that interpretation is inconsistent with the express
language of the regulation, it means only that LUBA should not engage in a
process of "initially and independently" interpreting the local code
when considering a local government's interpretation of the code. The statute
does not mean, petitioners assert, that LUBA must refrain from using its full review
authority under a related statutory standard, ORS 197.835(9)(a)(D), to examine
the local government's interpretation for consistency with the express wording
of the local code (including consideration of countervailing arguments and
interpretations that may be more rational).
In support of their argument,
petitioners observe that, prior to this court's decision in Clark and
the legislature's subsequent codification of the rule of Clark in ORS
197.829(1), Oregon's appellate courts treated the question of whether a local
land use decision "improperly construed applicable law," for purposes
of former ORS 197.835(7)(a)(D) (the predecessor to ORS 197.835(9)(a)(D)),
as a question of law to be decided by the courts and other reviewing bodies.
Petitioners argue that, when the legislature later enacted the standard of
review at issue here, ORS 197.829(1), it did not intend to remove the authority
that LUBA previously had enjoyed to determine for itself whether the local
government had "improperly construed the applicable law" under former
ORS 197.835(7)(a)(D), including whether the local interpretation was
inconsistent with the express wording of a local ordinance. Petitioners
purport to find evidence of that intent in the legislative history of ORS
197.829(1), particularly in statements in committee to the effect that the bill
under consideration would codify Clark only to the extent that the local
provision at issue is aimed at implementing some local purpose or object.
We disagree. Certainly, there is no textual
support for the idea that, under ORS 197.835(9)(a)(D), LUBA retains some broad
review authority that is unaffected by the subsequently enacted and very specific
direction to LUBA in ORS 197.829(1) to affirm a local government's
interpretation of its own land use regulations that is not inconsistent the regulation's
express wording, purpose, or policy.(9)
Neither do we find support for petitioners' reliance on legislative history, a
further discussion of which is unnecessary.
Petitioners argue, finally, that the
Court of Appeals applied an erroneous standard of review to LUBA's
decision. Petitioners observe that the relevant statutory standard, ORS
197.850(9), does not confer authority on the Court of Appeals to review local
government decisions directly but, instead, instructs the court to review LUBA's
orders to determine if they are "unlawful in substance or procedure."(10)
From that premise, petitioners suggest that the court is limited to reviewing
for errors in LUBA's application of ORS 197.835(9)(a)(D) and ORS 197.829(1) -- particularly,
for failure to employ the applicable rules of statutory construction. It
follows, petitioners argue, that the Court of Appeals has no authority to
conduct a new and separate review of the underlying local government's decision
and that the court acted improperly when, based on its own determination
that the city's interpretation of its own land use regulations was "plausible,"
it reversed LUBA's order.
Petitioners misunderstand the
applicable standard of review. A LUBA decision is "unlawful in substance"
(in at least one way) if, in contravention of the standard of review set out at
ORS 197.829(1), LUBA substitutes its own interpretation of a local government's
land use regulations for a plausible interpretation of those regulations offered
by the local government. In the face of a claim that LUBA violated that
standard, the Court of Appeals must determine whether the local government's
interpretation in fact is "plausible." The fact that the Court
of Appeals makes its own determination about the plausibility of the local
government's interpretation does not mean that it has bypassed its duty to
review LUBA's order; that determination is a necessary component of the court's
analysis of a question subsumed into the court's own "unlawful in
substance" standard of review. The specific question for the Court of
Appeals (and, on review, for this court) therefore is: Did LUBA violate the statutory
requirement that it affirm a local government's interpretation unless it is
"inconsistent with the express language" of a relevant regulation?
To determine whether LUBA ignored the
relevant statutory standard when it reversed the city's decision, this court (like
the Court of Appeals) must determine for itself whether the
interpretation underpinning the local government's decision is "inconsistent
with the express language" of the provision or provisions at issue. To
the extent that the interpretation is directed at a single term or statement,
that means determining whether the interpretation plausibly accounts for the
text and context of the term or statement. But, to the extent that the
interpretation is directed at multiple statements that may be in conflict, the
inconsistency determination is a function of two inquiries: (1) whether the
interpretation in fact is an interpretation, i.e., a considered determination
of what was intended that plausibly harmonizes the conflicting provisions or identifies
which ones are to be given full effect; and (2) the extent to which the
interpretation comports with the "express language" of the relevant
provisions (including, necessarily, those provisions that, according to the
interpretation at issue, are to be given full effect).
We turn to the city's interpretation
of the code. As discussed, MLDC 10.290(2) directs SPAC to approve a site plan
and architectural review application if it can find that the proposed
development conforms, or can be made to conform through the imposition of
conditions, with "the applicable provisions of all city ordinances."
(Emphasis added.) The city contends that the provisions on which petitioners
rely, MLDC 10.460, MLDC 10.461, and MLDC 10.462, are not "applicable"
for purposes of MLDC 10.290(2). Because nothing in the text of MLDC
10.290(2) (or in the text of any other provision of the MLDC) expressly states
whether the provisions cited by petitioner are "applicable," the
arguments with respect to that question necessarily are based on context.
We already have described petitioners'
argument in that regard -- that the requirements set out in MLDC 10.461 and MLDC
10.462 are, by their clear terms, directed at proposed "development"
and, because the Wal-Mart project is a proposed "development," the
requirements therefore are "applicable." The city's argument is
somewhat more involved. In a nutshell, the city posits that (1) the MLDC's
organizational provisions, which set out the roles and responsibilities of SPAC
and other commissions and individuals who are authorized to review various land
use actions, dictate which provisions of the MLDC are "applicable" to
SPAC review, and (2) under those organizational provisions, requirements
pertaining to the adequacy of public streets like those set out in MLDC 10.461
and MLDC 10.462 are not within SPAC's purview and thus are not "applicable"
within the meaning of MLDC 10.290(2).
The city begins with MLDC 10.100,
which describes the purpose of Article II -- the section of the MLDC that
contains most of the organizational provisions that are the focus of the issue on
which the city's argument depends. That provision states:
"The purpose of [Article II] is to designate and define
the responsibilities of the approving authorities and to set forth the
procedural requirements and substantive criteria for plan authorizations and
the development permit."
The city then points to provisions within Article II that
pertain specifically to SPAC. The first provision, MLDC 10.132, assigns
exclusive responsibility for approving site plan review applications to SPAC. Another
provision, MLDC 10.287, sets out the required contents of a site plan review
application. In the city's view, that provision is significant because, with
respect to traffic impacts, the required content is limited to information
about parking, points of ingress and egress, and adjacent street improvements.(11)
Finally, the city relies on MLDC 10.285, which describes the
scope of site plan review in the following terms:
"The Site Plan and Architectural Review process is established
in order to provide for review of the functional and aesthetic adequacy of
development and to assure compliance with the standards and criteria set forth
in this chapter for the development of property as applied to the improvement
of individual lots or parcels of land as required by this code.
"Site Plan and Architectural Review
considers consistency in the aesthetic design, site planning and general
placement of related facilities such as street improvements, off-street
parking, loading and unloading areas, points of ingress and egress as related
to bordering traffic flow patterns, the design, placement and arrangement of
buildings as well as any other subjects included in the code which are
essential to the best utilization of land in order to preserve the public
safety and general welfare, and which will encourage development and use of
lands in harmony with the character of the neighborhood within which the
development is proposed."
Again, the city observes that, with regard to transportation impacts,
SPAC's review authority is limited to considering street improvements adjacent
to the site and "points of ingress and egress related to bordering traffic
flow." The city concludes, from the foregoing provisions, that SPAC's
site plan review authority is limited to the site itself and the public streets
bordering it, and does not extend to the broader traffic impacts with which
MLDC 10.461 and MLDC 10.462 are concerned.
The city further contends that, in
fact, it is clear that the broader traffic impacts that are the subject of MLDC
10.461 and 10.462 are within the purview of an entirely different reviewing
authority -- the Planning Commission -- and are to be dealt with by that body
in the process of zone change review.(12)
The city points to MLDC 10.227, which sets out the criteria that must be met in
order for the Planning Commission to approve a zone change. That section
expressly requires that such zone changes meet the minimum standards provided
in MLDC 10.462 and that they be consistent with the city's Transportation
System Plan (TSP). MLDC 10.227(2);(13)
MLDC 10.227(1) (requiring consistency with TSP).
Under that provision, the Planning
Commission must determine whether street capacity is "adequate[ to] serve
the subject property with the permitted uses" that a requested zone change
would allow before it approves the zone change. MLDC 10.227(2). That, in the
city's view, is when MLDC 10.461 and MLDC 10.462 come into play. Thereafter,
when particular developments on particular sites are proposed and require site
plan and architectural review, SPAC may (and, in fact, must) consider traffic
issues on the site and the streets that border it ("street
improvements, off-street parking, loading and unloading areas, points of
ingress and egress as related to bordering traffic flow patterns") as
provided in MLDC 10.285. But the city insists that SPAC has no authority, at
that point or any other, to revisit the broader adequacy-of-traffic-service analysis
and determination that the Planning Commission was required to make at the time
of the zone change.
In our view, the city's argument is
persuasive. The city reads the more generic statements in MLDC 10.285 as being
narrowed by the more specific wording with which they are conjoined, and also
reads MLDC 10.227 as explicitly requiring a TIA at the time of any zone
change. That reading is plausible, and is not inconsistent with the "express
language" of the provisions at issue or the purposes or policies underpinning
them. Thus, both LUBA and this court are required to accept the city's
determination that the MLDC rules on which petitioners rely are not
applicable. LUBA erred in concluding otherwise, but the Court of Appeals
appropriately reversed that error.(14)/p>
The decision of the Court of Appeals
is affirmed. The order of the Land Use Board of Appeals is reversed.
1. Under
the MLDC, a prospective developer cannot build on or otherwise develop land
until the developer obtains a "development permit," which is a
"comprehensive permit, running with the land, setting forth the general
procedural policies and improvement requirements necessary for the development
of a specific property." MLDC 10.101. When a prospective developer
applies for a development permit, the Medford planning department must
determine which of 13 potentially applicable "plan authorizations"
must be obtained prior to the permit's issuance. Id. The developer may
request any or all of the required plan authorizations from the appropriate
approving authority at any time thereafter and, "[u]pon satisfactory
completion of all conditions required of the plan authorizations, as identified
on the development permit application, a development permit shall be
issued." Id.
A "plan authorization" is a
"specific planning and development review process which sets forth
specific conditions for development consistent with the policies, standards and
criteria of the [Medford] Comprehensive Plan and [the MLDC]." MLDC
10.102. The MLDC lists and classifies the 13 different plan authorizations,
MLDC 10.102, and designates which of five different "approving authorities"
(the City Council, the Planning Council, the Site Plan and Architectural
Commission, the Landmarks and Historic Preservation Commission, and the
Planning Director), is authorized to act on each of those plan authorizations.
MLDC 10.110. Of particular relevance to the present case are the plan
authorizations designated as "Site Plan and Architectural Review"
(for which the Site Plan and Architectural Review Commission (SPAC) is the
approving authority, MLDC 10.132), and "Zone Changes" (for which the
Planning Commission is the approving authority, MLDC 10.122).
2. The
relevant provision, MLDC 10.287, requires applicants to submit, among other
things, a landscape plan, architectural plans, stormwater plans, and a site
plan showing lot dimension, all proposed and existing buildings and structures,
yards and open space, walls and fences, any proposed off-street parking, points
of ingress and egress, loading spaces, lighting, etc.
3. The
city's decision on that application had generated two appeals to LUBA and two
remands from that body -- Wal-Mart Stores, Inc. v. City of Medford, 49
Or LUBA 52 (2005), and Siporen v. City of Medford, 55 Or LUBA 29
(2007). The upshot of those remands was a direction to the city to either
apply MLDC 10.462 (a provision of the development code requiring traffic impact
analysis of certain proposed developments) to its review of Wal-Mart's site
plan and architectural review application, or explain why that provision did
not apply.
4. MLDC
10.012 defines the term "development," for purposes of the MLDC, as
"[t]he improvement of a parcel of land; including
partitioning or subdividing of any improved or unimproved real property, for
any purpose, and by any person, association, or other entity."
The same provision defines the term "developer"
as
"[a] person, firm, corporation, partnership, syndicate,
local agency, city, county, state or federal government or any district of or
division thereof, who or which causes the development of real property and is
the owner of record or owner under contract to purchase or lease for purposes
of development, the real property to be developed or improved."
5. ORS
197.829 provides:
"(1) The Land Use Board of Appeals shall
affirm a local government's interpretation of its comprehensive plan and land use
regulations, unless the board determines that the local government's
interpretation:
"(a) Is inconsistent with the express
language of the comprehensive plan or land use regulation;
"(b) Is inconsistent with the purpose for
the comprehensive plan or land use regulation;
"(c) Is inconsistent with the underlying
policy that provides the basis for the comprehensive plan or land use
regulation; or
"(d) Is contrary to a state statute, land
use goal or rule that the comprehensive plan provision or land use regulation
implements.
"(2) If a local government fails to
interpret a provision of its comprehensive plan or land use regulations, or if
such interpretation is inadequate for review, the board may make its own
determination of whether the local government decision is correct."
The parties appear to agree that, in the present proceeding,
the relevant portion of the statute is paragraph (1)(a).
6. As
the city puts it in its brief, in this latter situation,
"the very inconsistency among competing code sections
which creates the ambiguity [that the governing body is attempting to resolve]
also forms the 'inconsistency with the express language' which [in petitioners'
view] supports the Board's or a court's rejection of the local government
interpretation."
7. ORS
197.829(1)(d), pertaining to review of local land use provisions that purport
to implement state statutes or rules, is not drawn from the Clark decision.
In Clark, this court considered LUBA's reversal of a conditional surface
mining permit that had been issued by Jackson County. LUBA concluded that
Jackson County was barred from issuing the permit by a county land use
ordinance that limited conditional use permits to cases where the proposed use
was to be situated on land that was "generally unsuitable" for
agricultural purposes. LUBA rejected Jackson County's interpretation of the
ordinance as focusing only on the portion of the land where the proposed use
would occur, and concluded that "generally unsuitable land" must
refer to the larger agricultural tract on which the portion at issue was
located. Based on the LUBA review statute, former ORS 197.835(7)(a)(D)
(now ORS 197.835(9)(a)(D)), and cases that referred to that statute, this court
held that LUBA had exceeded its statutory scope of review by imposing on the
county's ordinance an interpretation that LUBA preferred to the county's
permissible interpretation. The Clark court held that
"LUBA is to affirm the county's interpretation of its
own ordinance unless LUBA determines that the county's interpretation is
inconsistent with the express language of the ordinance or its apparent purpose
or policy. LUBA lacks authority to substitute its own interpretation of the
ordinance unless the county's interpretation was inconsistent with that ordinance,
including its context."
313 Or at 515. The resemblance of that holding to the
wording of ORS 197.829(1)(a) - (c) is obvious.
8. Of
course, the city could commit a separate legal error if it were to conclude
that two or more code provisions were in conflict when, correctly read, they
were not. But that is not the kind of case that is before us now.
9. In
addition, this court's discussion of Clark in Gage is
inconsistent with petitioner's view that former ORS 197.835(7)(a)(D)
was, and the current version of ORS 197.835(9)(a)(D) continues to be, a source
of plenary review authority that can be separated from the deference
requirement by Clark and ORS 197.829(1):
"The [Clark] court pointed out that LUBA's
authority to review a local land use decision is derived from statute and that
the relevant statute requires LUBA to reverse or remand such a decision if LUBA
finds that the local government 'improperly construed the applicable law.' ORS
197.835(7)(a)(D). The [Clark] court then proceeded to identify the
boundaries of LUBA's authority, under that statutory standard of review, to
substitute its own interpretation of a local ordinance for that of the local
government."
Gage, 319 Or at 314.
10. ORS
197.850(9) provides, in part:
"The court may affirm, reverse or remand
the order. The court shall reverse or remand the order only if it finds:
"(a) The order to be unlawful in
substance * * *."
11. MLDC
10.287 provides that a site plan and architectural review application will
include various information about the site, including, for example, lot
dimensions and the location, size, and height of all proposed and existing
buildings. Arguably relevant to traffic impacts are the following
requirements:
"(1) Site Plan:
"* * * * *
"(e) Existing and proposed off-street
parking: location, number, type and dimensions of spaces, parking area,
internal circulation pattern.
"(f) Access: pedestrian, vehicular,
service, points of ingress and egress.
"(g) Loading: location, dimension, number
of spaces, type of space (A or B), internal circulation.
"* * * * *
"(i) Street dedication and improvements
"* * * * *
"(k) Location of existing public
improvements including streets, curbs, sidewalks, street trees, utility poles,
light fixtures, traffic signs and signals, and such other data as may be
required to permit the Site Plan and Architectural Commission to make the
required findings."
12. Zone
Changes are one of five actions or "plan authorizations" for which
the Planning Commission is designated as the approving authority. MLDC
10.122. A zone change "may be initiated by the Planning Commission either
on its own motion or at the request of the City Council, or by application of
the property owner(s) in the area subject to the zone change." MLDC
10.225.
13. MLDC
10.227(2) provides, in relevant part:
"(2) It shall be demonstrated that Category
A urban services and facilities are available or can and will be provided, as
described below, to adequately serve the subject property with the permitted
uses allowed under the proposed zoning, except as provided in subsection (c)
below. The minimum standards for Category A services and facilities are
contained in Section 10.462 and Goal 2 of the Comprehensive Plan "Public
Facilities Element" and Transportation System Plan.
"* * * * *
"(b) Adequate streets and street capacity
must be provided in one (1) of the following ways:
"(i) Streets which serve the subject
property, as defined by Section 10.461(2), presently exist and have
adequate capacity; or
"(ii) Existing and new streets that will
serve the subject property will be improved and/or constructed, sufficient to
meet the required condition and capacity, at the time building permits for
vertical construction are issued; or
"(iii) If it is determined that a street
must be constructed or improved in order to provide adequate capacity for more
than one (1) proposed or anticipated development, the Planning Commission may
find the street to be adequate when the improvements needed to make the street
adequate are fully funded * * *."
(Emphasis added.)
14. Our
affirmance does not, however, endorse the Court of Appeals' statement that
"neither party's contentions fully harmonize all cited provisions of the
city's code." In fact, the city's position does harmonize all the
cited provisions by demonstrating plausibly that the provision on which
petitioners rely are not "applicable" to SPAC's task. That
disagreement notwithstanding, the Court of Appeals reached the correct result. | 6b829f5b39ab38c6d46b93b05a9f8b7005e4c0c739a326d976e5b8bfca5161a1 | 2010-11-18T00:00:00Z |
b882f430-bec2-4547-83ea-09cc9fc3463b | State v. Machuca | null | S057910 | oregon | Oregon Supreme Court | FILED: February 11, 2010
IN THE SUPREME COURT OF THE STATE OF OREGON
STATE OF OREGON,
Petitioner on Review,
v.
THOMAS GREGORY MACHUCA,
Respondent on Review.
(CC
050647097; CA A133362; SC S057910)
En Banc
On review from the
Court of Appeals.*
Argued and submitted
December 16, 2009.
John R. Kroger,
Attorney General, Salem, argued the cause for respondent on review. With him
on the briefs were Joanna L. Jenkins, Assistant Attorney General, and Jerome
Lidz, Solicitor General.
Peter Gartlan, Chief
Defender, Office of Public Defense Services, Salem, argued the cause and filed
the briefs for respondent on review.
Kevin L. Mannix, Sarah
Hunt Vasche, Ross A. Day, and Tara Lawrence, Kevin L. Mannix, P. C., Salem,
filed a brief on behalf of amici curiae Oregon Anti-Crime Alliance and
Crime Victims United of Oregon.
Kevin M. Sali, Hoffman Angeli LLP, Portland, and John Henry Hingson III, John Henry Hingson III P.C., Oregon City, filed a brief on behalf of amici curiae ACLU Foundation of Oregon, Inc.
DE MUNIZ, C. J.
The decision of the
Court of Appeals is reversed. The judgment of the circuit court is affirmed.
*Appeal from Multnomah
County Circuit Court, Nely L. Johnson, Judge. 231 Or App 232, 218 P3d 145
(2009).
DE MUNIZ, C. J.
The state seeks review of a Court of Appeals decision that reversed and remanded
defendant's DUII conviction. The Court
of Appeals concluded that the trial court had erroneously admitted test results
of defendant's blood alcohol content. The court reasoned that (1) defendant's
consent to have his blood drawn and tested had been unlawfully coerced because
he had been read the legal consequences for refusing to consent to those procedures
as required by Oregon's implied consent statutes, ORS 813.095 to 813.136; and
(2) the dissipation of alcohol from defendant's bloodstream over time did not,
by itself, provide an alternative justification for a warrantless blood draw
conducted to secure evidence of defendant's blood alcohol content. State v.
Machuca, 231 Or App 232, 218 P3d 145 (2009). We allowed the state's
petition for review, and, for the reasons that follow, we now reverse the Court
of Appeals decision.
We
take the facts from the Court of Appeals opinion and the record below:
"Defendant was involved in a single-car
accident on Naito Parkway in Portland; he suffered injuries and was transported
to the hospital emergency room facilities at Oregon Health and Science
University (OHSU). Officer Oelke, the first officer on the scene, arrived at
approximately 1:52 a.m. Officer Ladd arrived a few minutes later and took over
the investigation. By 2:10 a.m., Ladd concluded that there was probable cause
to believe that defendant had committed the crime of DUII. Ladd then went to
OHSU to investigate further.
"After Ladd's arrival, hospital personnel
allowed him to enter the emergency room facilities through a locked entry door,
and he was directed by security staff to 'emergency room two.' Defendant was
alone in the room, 'lying on a hospital bed receiving some care.' There was a
very strong smell of alcohol in the room. Defendant, snoring loudly and in a
deep sleep, was slow to wake. Ladd asked defendant several questions to
evaluate his comprehension. Ladd explained why he was there and that defendant
was under arrest for DUII and reckless driving. He gave defendant Miranda
warnings and asked defendant questions from the standard DUII Interview Report
form. Defendant responded to the questions slowly but directly. Ladd
testified that defendant 'understood he'd bee[n] in a wreck, knew where he was,
he was in Portland at the hospital * * *. So he was fully aware of his
situation, surroundings and why he was at the hospital.' Then Ladd read
defendant his Driver and Motor Vehicle Services Division 'implied consent
rights and consequences' and asked defendant if he would like to take a blood
test. Defendant agreed to take the test, and Ladd summoned a nurse who
administered the test, extracting defendant's blood at 3:18 a.m.
"Defendant was charged with reckless
driving and DUII. He moved to suppress the evidence obtained by the officer at
the hospital, arguing that it was obtained in violation of Article I, section
9, of the Oregon Constitution and the Fourth Amendment to the United States
Constitution."
Machuca, 231 Or App at 234-37 (footnotes omitted; brackets in
original).
At
the suppression hearing, the state argued that the warrantless taking of
defendant's blood did not violate Article I, section 9, of the Oregon
Constitution because (1) defendant had consented to the blood draw, and (2) the
evanescent nature of blood alcohol evidence in the human body had created an
exigency that, combined with probable cause to believe that defendant's blood
contained evidence pertaining to the crime of DUII, was sufficient under
Article I, section 9, to excuse any warrant requirement. As part of the state's
case, the forensic scientist who had tested defendant's blood sample testified
regarding the procedures used to ascertain the sample's alcohol content. Among
other things, the scientist explained the concept of blood alcohol dissipation:
"The longer it is between when the person last consumed
the alcohol and when the blood sample is drawn for analysis, the longer that
time period is, the lower the blood alcohol content will be. So if there's an
initial blood draw at the hospital for the hospital to do a testing -- I mean,
I don't know the facts of this case, but sometimes it's another hour or two
later when they finally do the blood draw that is then going to come to the
Crime Lab."
When
asked how the dissipation rate was assessed for testing purposes, the scientist
answered:
"Well, there's an average dissipation rate
that we use in the lab to estimate the difference, and so, you know, it depends
-- it varies from person to person, but our average dissipation rate that we
use for calculations is .015 per hour. So that's how much lower the blood
alcohol content would get per hour, .015 percent."
The
trial court denied defendant's motion to suppress the blood alcohol evidence.
In its written opinion, the trial court concluded:
"The state established its burden of
proving, by a preponderance of the evidence, that the defendant's consent to
have his blood drawn and analyzed was given voluntarily based on the totality
of the circumstances. The state did not meet its burden, however, with respect
to the second proffered exception to the warrant requirement, i.e., the
existence of probable cause and exigent circumstances. More specifically, the
state failed to prove that the evidence it sought would have been sacrificed by
the time it would take the officers to obtain a search warrant."
Machuca,
231 Or App at 337. Based on the trial court's ruling, defendant entered
a conditional plea of guilty,(1)
reserving the right to appeal the trial court's denial of his motion to suppress.
On
appeal, defendant contended that the trial court had erred in refusing to
suppress the results of the blood alcohol test.(2)
Among other things, defendant claimed that he had agreed to the blood draw only
after Officer Ladd had read him the required Department of Motor Vehicles (DMV)
implied consent form setting out the consequences for refusing to consent to having
his blood drawn.(3)
Defendant argued that his decision to allow his blood to be taken and tested therefore
was not a free exercise of his will and could not be viewed as a valid consent
to a warrantless search and seizure for purposes of Article I, section 9.
In an en
banc decision, a divided Court of Appeals agreed, citing this court's decision
in State v. Newton, 291 Or 788, 636 P2d 393 (1981) overruled in part
on other grounds by State v. Spencer, 305 Or 59, 750 P2d 147 (1988):
"What is determinative in this context, however, is
that the consent was procured through a threat of economic harm and loss of
privileges. It was obtained only after defendant was given the warnings
required by ORS 813.130(2) about the consequences of a refusal to allow a blood
test. Under State v. Newton, a consent to search obtained in that
fashion is coerced by the fear of adverse consequences and is ineffective to
excuse the requirement to obtain a search warrant."
Machuca, 231 Or App at 240 (internal citation omitted).
In reaching that conclusion, the majority relied on the following statement from
Newton:
"Where a person's consent to a seizure is solicited,
and the person consents only after being warned that he will suffer a
substantial penalty if he refuses, the resulting consent cannot be regarded as
a free exercise of will. We therefore hold that defendant's submission to the
breath test was not a voluntary consent to seizure because it was
coerced."
291 Or at 801. According to
the Court of Appeals' majority, that statement, when considered together with
the "views expressed in the separate concurring and dissenting opinions
[in that case]," announced the opinion of the court with respect to the Article
I, section 9, analysis used in that case. Machuca , 231 Or App at 243 n
7. As a result, although the majority expressed some misgivings regarding the
abstract correctness of Newton's coercion statement, it nevertheless
concluded that it was required to acknowledge and follow that holding:
"[W]e cannot turn a blind eye, as the dissent suggests,
to a determination by a majority of the Supreme Court that is labeled as a
holding by the court and is relevant to the outcome reached by that majority
and that has not been distinguished, questioned, or implicitly overturned in
subsequent opinions of that court."
Id. at 243.
After
holding that defendant's consent to the blood draw had not been voluntary for
purposes of Article I, section 9, the Court of Appeals' majority went on to
examine whether exigent circumstances justified the blood draw as a
constitutionally permissible warrantless search. Citing this court's decision
in State v. Moylett, 313 Or 540, 548-49, 836 P2d 1329 (1992), the Court
of Appeals' majority opined that, in order to draw defendant's blood without a
warrant and not violate Article I, section 9, the state was required to prove
that: (1) police authorities had probable cause to believe that defendant's
blood contained relevant evidence that would be revealed once that blood was
analyzed; (2) a warrant could not have been obtained without sacrificing that
evidence; and (3) the extraction of defendant's blood was made promptly once
defendant had been taken to a place where the extraction could be made. Noting
that the state had failed to provide any evidence demonstrating that the
arresting officer could not have quickly obtained a warrant to draw and test
defendant's blood, the majority held:
"[t]he
state was not relieved of its duty to obtain a warrant under Article I, section
9. The requirement to obtain a warrant is not excused by the mere fact that
alcohol dissipates in the bloodstream over time."
Machuca, 231 Or App at 247. The Court of Appeals therefore
concluded that the trial court erred in not suppressing the blood alcohol test results.
Four
Court of Appeals judges dissented. The dissent opined that treating Newton's
statement respecting coercion as a binding precedent for purposes of
interpreting the implied consent law was erroneous because: (1) that analysis
was joined by only three members of this court; and (2) under settled Oregon
law, an accurate statement regarding the lawful consequences that may occur if
consent to a legal search is withheld is not coercive with respect to a
defendant's decision to allow such a search to take place.(4)
231 Or App at 248-50 (Haselton, J., dissenting).
As
noted, we allowed the state's petition for review and now examine the Court of
Appeals' Article I, section 9, analysis regarding (1) the role that exigent
circumstances play in blood draws conducted under scenarios like the one at
issue here, and (2) defendant's participation in the blood draw obtained in
this case.(5)
We
begin with the Court of Appeals' exigent circumstances analysis, focusing, in
particular, on the Court of Appeals' reliance on Moylett for the
proposition that the state was required to prove that the arresting officer could
not have obtained a warrant to draw defendant's blood without inevitably
sacrificing evidence of defendant's blood alcohol content. The state argues
that Moylett's exigency analysis is, essentially, an anomaly -- a
holding that is at odds with the case on which it is based -- State v.
Milligan, 304 Or 659, 748 P2d 130 (1988) -- and that Moylett has not
been followed since it was announced. To determine the correctness of that
assertion, we turn to this court's previous decisions regarding the evanescent
nature of alcohol in the blood stream as an exigent circumstance justifying a
warrantless seizure of a person's blood.
This
court first recognized the "highly evanescent" nature of blood
alcohol content over 30 years ago in State v. Heintz, 286 Or 239, 594 P2d
385 (1979). The defendant in Heintz was found guilty of second-degree
manslaughter after the vehicle that he was driving left the road and crashed
into a power pole, killing the passenger riding with him. The defendant's
conviction was based, for the most part, on evidence that the defendant was
intoxicated at the time of the accident, a determination that had turned primarily
on evidence derived from warrantless blood draws and subsequent blood alcohol tests
that police authorities had had medical personnel conduct after the defendant
was taken to a hospital. On review, this court concluded that the warrantless blood
draws did not violate Article I, section 9. Among the factors that the court
cited in reaching that conclusion was the observation that -- due to the
tendency of alcohol to rapidly dissipate from the blood stream once alcohol
consumption has stopped -- the warrantless blood draws had been necessary to
preserve that evidence. In that regard, the court stated:
"Finally, it is also clear that alcohol in
blood after drinking is 'highly evanescent evidence' in that 'the percentage of
alcohol in the blood begins to diminish shortly after drinking stops, as the
body functions to eliminate it from the system.'"
Heintz,
286 Or at 248 (quoting Cupp v. Murphy, 412 US 291, 296, 93 S Ct 2000, 36
L Ed 2d 900 (1973), and Schmerber v. California, 384 US 757, 770, 86 S
Ct 1826, 16 L Ed 2d 908 (1966) (internal citations omitted)).
This
court emphasized that same proposition nine years later in State v. Milligan,
304 Or 659, 748 P2d 130 (1988). Like Heintz, Milligan involved a
defendant who, while intoxicated, crashed the car that he was driving, killing
his passenger. The defendant was convicted of negligent homicide based, in
part, on blood alcohol evidence obtained without a warrant after police
officers had samples of the defendant's blood drawn at the hospital to which he
was taken after the accident. In concluding that the search of the defendant's
body and the seizure of his blood did not violate Article I, section 9, this
court began with the observation that, at the time that the defendant was
seized, the police had probable cause to believe that the blood alcohol
evidence in his body was rapidly dissipating:
"When he was seized, the officers had probable cause to
believe that defendant was a vessel containing evidence of a crime he had
committed -- evidence that was dissipating with every breath he took. See
State v. Heintz, supra, 286 Or at 248, 249."
Milligan,
304 Or at 665. Citing State v. Matsen/Wilson, 287 Or 581, 601 P2d 784
(1979), the court then observed:
"Warrantless seizure and search under such circumstances
therefore is constitutionally justified, unless a warrant can be obtained
without sacrificing the evidence."
Millligan,
304 Or at 665-66 (citation omitted).
Matsen/Wilson,
one of the principal decisions cited in Milligan, was a case in which
police had, through a protracted period of surveillance, developed probable
cause to search a residence that was being used for drug trafficking. Police
officers had not yet obtained a search warrant when the individual they
suspected of being the primary drug supplier for the operation unexpectedly
arrived at the house. At that point, police officers raided the house without
a warrant. On review, the state argued that the warrantless incursion into the
residence had been necessary to prevent a loss of evidence. This court
disagreed, observing:
"More specifically, the evidence does not
support the trial court's finding of exigent circumstances because the state
failed to prove that destruction of contraband or the escape of the defendants
was imminent. The fact that drugs are usually of a destructible nature,
and the fact that suspects are likely to run out the back door when police
enter the front door[,] does not ipso facto create exigent circumstances."
Matsen/Wilson,
287 Or at 587 (emphasis added).
Milligan,
however, differed from Matsen/Wilson in that the state had provided
evidence underscoring exactly the type of exigency that had necessitated a
warrantless blood draw from the defendant in that case. In Milligan, this
court explained how testimony before the trial court had demonstrated the need
to secure evidence of the defendant's blood alcohol content before it had
dissipated:
"In order to determine accurately the level
of alcohol in a suspect's blood at the time of the alleged crime, the police
must obtain an initial sample of the suspect's blood with as little delay as
possible. Testimony at the hearing on defendant's motion to dismiss
established that alcohol dissipation rates vary from person to person. To
determine the dissipation rate of any particular individual, it is necessary to
take more than one blood sample. A nurse at the hospital testified that the 'usual
practice' was to draw the blood samples one hour apart. Thus, the first blood
sample must be drawn early enough so that a measurable amount of alcohol will
still be present in the suspect's blood an hour later. This evidence
established that exigent circumstances existed justifying the warrantless
extraction of at least the initial blood sample, so long as the extraction
was made promptly after the suspect was taken to a place where it could be
made. He was taken to such a place in this case. No warrant was required for
the initial testing of defendant's blood."
Milligan,
304 Or at 666 (emphasis added). Later, in a footnote, the court reiterated
that the testimony in Milligan relating to blood alcohol dissipation had
been sufficient to establish exigent circumstances in that case:
"The trial court held that no exigent
circumstances existed vis-a-vis the initial extraction of blood because
no evidence showed the amount of time that would have been lost in obtaining a
warrant. As we have already noted, this legal conclusion asks too much of the
evidence. From the testimony the trial court accepted, exigent circumstances
existed justifying the initial, warrantless extraction because alcohol was dissipating
at some significant rate."
Id.
at 666 n 5 (emphasis in original).
Milligan
became, in turn, the foundation for the court's subsequent decision in Moylett,
albeit with a significant alteration. In Moylett, the defendant had
rear-ended a stopped pickup truck. The defendant was hospitalized soon after
the collision, but not before the investigating police officer had noted the odor
of alcohol on the defendant's breath, along with other indicia of
intoxication. Three blood samples were taken from the defendant while at the
hospital, the first one drawn without a warrant. The trial court subsequently suppressed
the evidence obtained from the warrantless sample. This court affirmed that
ruling. In doing so, the court relied extensively on Milligan, citing
that case for the proposition that
"[i]n
the context of an alcohol-related crime, there commonly will be an exigency
because, as we already have noted, a suspect is 'a vessel containing evidence
of a crime he had committed -- evidence that [i]s dissipating with every breath
he t[akes].'"
Moylett,
313 Or at 550 (quoting Milligan, 304 Or at 665 (brackets in original)).
The court also acknowledged that, as in Milligan, there was evidence in
the record before it that
"[t]he loss of alcohol evidence which creates the
exigency occurs because of the biological fact that the human body metabolizes
and expels alcohol."
Id.
The court nevertheless determined that, in addition to that evidence, Milligan's
exigency analysis also required the state to prove that a warrant could not
have otherwise been expeditiously obtained:
"The exigency created by the dissipating
evidence of blood alcohol, however, did not make the blood sample seizures per
se reasonable under Article I, section 9. The state was still required to
prove, in order to justify the warrantless extraction of defendant's blood,
that it could not have obtained a search warrant 'without sacrificing the
evidence' and that the blood sample that it obtained had been extracted
'promptly.' State v. Milligan, supra, 304 Or at 666."
Moylett,
313 Or at 550-51. Concluding that there was evidence in the record that police
officers could have quickly obtained a warrant to test the first sample of the
defendant's blood, the court affirmed the trial court order suppressing that
evidence. Id. at 551.
After
examining the cases set out above, we conclude that the exigent circumstances
analysis set out in Moylett, which required the state to prove
"that it could not have obtained a search warrant without sacrificing the
evidence," unnecessarily deviated from this court's established case law.
Until Moylett, the court's focus had been on the exigency created by
blood alcohol dissipation. Moylett, however, shifted that focus away
from the blood alcohol exigency itself and onto the speed with which a warrant
presumably could have issued in a particular case. In our view, that shift was
unsupported by the cases that preceded it, and we disavow it now.
Milligan
was not, and is not now, to the contrary. We agree with the observation in
Milligan that a "[w]arrantless seizure and search under such circumstances
therefore is constitutionally justified, unless a warrant can be obtained
without sacrificing the evidence." 304 Or at 665-66. Milligan,
however, illustrates that when probable cause to arrest for a crime involving
the blood alcohol content of the suspect is combined with the undisputed evanescent
nature of alcohol in the blood, those facts are a sufficient basis to conclude
that a warrant could not have been obtained without sacrificing that evidence.
It
may be true, phenomenologically, that, among such cases, there will be
instances in which a warrant could have been both obtained and executed in a
timely fashion. The mere possibility, however, that such situations may occur
from time to time does not justify ignoring the inescapable fact that, in every
such case, evidence is disappearing and minutes count. We therefore declare
that, for purposes of the Oregon Constitution, the evanescent nature of a
suspect's blood alcohol content is an exigent circumstance that will ordinarily
permit a warrantless blood draw of the kind taken here. We do so, however, understanding
that particular facts may show, in the rare case, that a warrant could have
been obtained and executed significantly faster than the actual process otherwise
used under the circumstances. We anticipate that only in those rare cases will
a warrantless blood draw be unconstitutional.
Applying
the foregoing rule, this is not the rare case. Here, the state's evidence was
sufficient to establish an exigency justifying the warrantless seizure of
defendant's blood for constitutional purposes, and the Court of Appeals erred
in concluding otherwise.
As
noted earlier, the state argued before the trial court and the Court of Appeals
that, in addition to probable cause/exigent circumstances, the warrantless
blood draw also was permissible under Article I, section 9, because defendant
had voluntarily consented to it. In rejecting that argument, the Court of
Appeals' majority concluded that the plurality opinion in State v. Newton,
291 Or 788, established that advising a suspect of the "adverse legal
consequences" for refusing to permit a blood draw is coercive as a matter
of law, rendering a suspect's consent to a blood draw constitutionally involuntary.
According to the Court of Appeals' majority:
"[A] consent to search obtained in that fashion is
coerced by the fear of adverse consequences and is ineffective to excuse the
requirement to obtain a search warrant."
Machuca, 231 Or App at 240. The state
challenges that ruling. However, because we have concluded that the state
established exigent circumstances justifying the warrantless blood draw under
the Oregon Constitution, we need not determine whether defendant's consent was
valid under Article I, section 9, nor do we need to determine whether the Court
of Appeals correctly interpreted and relied on the plurality opinion in Newton.
Although the warrantless blood draw in
this case did not violate Article I, section 9, the legislature has nevertheless
expressed a policy preference against physically compelling blood draws or
breath tests, by permitting a suspect to refuse the test. ORS 813.100(2)
provides:
"No chemical test of the person's breath or
blood shall be given, under subsection (1) of this section, to a person under
arrest for driving a motor vehicle while under the influence of intoxicants in
violation of ORS 813.010 or of a municipal ordinance, if the person refuses the
request of a police officer to submit to the chemical test after the person has
been informed of consequences and rights as described under ORS 813.130."
At the same time, however, the
legislature has imposed penalties for refusing the test, mandating longer
license suspensions for refusing a test than for failing it, and permitting a
refusal to be used as evidence against the person in a civil or criminal court proceeding.
ORS 813.130(2)(a); ORS 813.310. As this court stated in State v. Spencer,
305 Or 59, 71, 750 P2d 147 (1988):
"[T]he statute's references to a driver's 'refusal' do
not evince a legislative concern that the driver make a voluntary and fully
informed decision whether to submit to the test. Consent being implied by law,
a driver may not legally refuse. A driver, however, can physically
refuse to submit, and the implied consent law, recognizing that practical
reality, forbids the use of physical force to compel submission."
(Emphasis in original.) Thus, the legislative policy
embodied in the implied consent law was "'designed to overcome the
possibility of physical resistance, despite legal consent, without resort to
physical compulsion' by imposing adverse legal consequences on a refusal to
submit to the test." Id. at 67 (quoting Newton, 291 Or at
793).
Here, defendant had been validly
arrested for DUII and was accurately informed of his rights and the prescribed
consequences that would flow from a refusal to consent to the blood draw. To
the extent that defendant's decision to permit the blood draw was influenced,
even significantly, by the statutory advice of rights and adverse consequences
of refusing the blood draw, the implied consent law operated exactly as the
legislature intended.
The
decision of the Court of Appeals is reversed. The judgment of the circuit
court is affirmed.
1. ORS
135.335(3) provides:
"With the consent of the court and the
state, a defendant may enter a conditional plea of guilty or no contest
reserving, in writing, the right, on appeal from the judgment, to a review of
an adverse determination of any specified pretrial motion. A defendant who
finally prevails on appeal may withdraw the plea."
2. The
blood sample that the hospital took for Officer Ladd revealed that,
approximately an hour and a half after defendant's accident, his blood-alcohol
content was .20. ORS 813.010(1)(a) provides:
"A person commits the offense of driving
while under the influence of intoxicants if the person drives a vehicle while
the person:
"(a) Has 0.08 percent or more by weight of
alcohol in the blood of the person as shown by chemical analysis of the breath
or blood of the person made under ORS 813.100, 813.140 or 813.150[.]"
3. Under
ORS 813.100(1), persons operating motor vehicles on Oregon highways are deemed
to have implicitly given their consent to a chemical blood test to determine
blood alcohol content if (1) they are receiving medical care in a health care
facility immediately after a motor vehicle accident, and (2) they have been
arrested for driving under the influence of an intoxicant. Before such a test
is administered, however, ORS 813.100(1) also requires that a person requested
to take the test be informed of the consequences of refusing to do so as set
out in ORS 813.130. ORS 813.130(2) provides, in part:
"(a)
Driving under the influence of intoxicants is a crime in Oregon, and the person
is subject to criminal penalties if a test under ORS 813.100 shows that the
person is under the influence of intoxicants. If the person refuses a test or
fails, evidence of the refusal or failure may also be offered against the
person.
"* * * * *
"(c)
If the person refuses or fails a test under ORS 813.100, the person's driving
privileges will be suspended. The outcome of a criminal charge for driving
under the influence of intoxicants will not affect the suspension. The
suspension will be substantially longer if the person refuses a test.
"(d) If the person refuses a test or fails
a breath test under ORS 813.100 and has an Oregon driver license or permit, the
license or permit will be taken immediately and, unless the person does not
currently have full valid driving privileges, a temporary driving permit will
be issued to the person.
"(e) If the person refuses a test under ORS
813.100, the person will not be eligible for a hardship permit for at least 90
days, and possibly for one year, depending on the person's driving record. The
person may possibly qualify for a hardship permit in 30 days if the person
fails a test, depending on the person's driving record."
4. In
support of that proposition, the Court of Appeals' dissent cited, among other
cases, this court's decision in State v. Hirsch, 267 Or 613, 518 P2d 649
(1974). Machuca, 231 Or App at 249-50 (Haselton, J., dissenting). In Hirsch,
the defendant argued that his consent to a search was involuntary, because it
was preceded by an officer's statement that the officer would get a search
warrant if necessary. This court rejected the defendant's argument, relying on
a statement in Chief Justice O'Connell's dissent in State v. Douglas,
260 Or 60, 81, 488 P2d 1366 (1971):
"'* * * The officer's threat that he would
obtain a warrant if defendant did not consent to the search did not constitute
the kind of coercion that renders a search involuntary. Concededly such a
threat may be coercive in the sense that an accused would not have consented to
the search in the absence of the threat. But not all coercion inducing consent
to a search is constitutionally impermissible. If the officers threaten only
to do what the law permits them to do, the coercion that the threat may produce
is not constitutionally objectionable.'"
Hirsch, 267 Or at 622.
5. We decline, however, to take up defendant's request --
presented as part of his response to the state's petition for review -- that we
also review an issue that the Court of Appeals decided against defendant;
namely, whether police officers must have either a warrant or consent before
entering a criminal suspect's hospital room. See ORAP 9.20(2) (party's
questions raised in response to petition for review are properly before the
court, although the court need not address them). | b32b16345241162b062488d7ee2914c36347a2d00530b55a30f74c69e4f20abd | 2010-02-11T00:00:00Z |
34e85752-858e-41dd-b34e-56e282a74148 | Charles v. Palomo | null | S057493 | oregon | Oregon Supreme Court | FILED: February 19, 2010
IN THE SUPREME COURT OF THE STATE OF OREGON
STELLA A. CHARLES,
personal representative for the
Estate of Kenneth Charles, deceased,
Petitioner on Review,
v.
ANDRES PALOMO, JR.,
Respondent on Review.
(CC 04C17458; CA A133122; SC
S057493)
En Banc
On review from the Court of Appeals.*
Submitted on the briefs December 8, 2009.
Conrad E. Yunker, Conrad E. Yunker, P.C.,
Salem, filed the brief for petitioner on review. With him on the brief was
Thomas Melville.
Thomas M. Christ, Cosgrave Vergeer Kester
LLP, Portland, filed the brief for respondent on review.
Cody Hoesly, Larkins Vacura LLP, Portland, filed a brief for amicus
curiae Oregon Trial Lawyers Association.
BALMER, J.
The decision of the Court of Appeals is
reversed. The judgment of the circuit court is reversed, and the case is
remanded to the circuit court for further proceedings.
*Appeal from Marion County Circuit Court, Claudia M. Burton, Judge. 227 Or App 335, 206 P3d 200 (2009).
BALMER, J.
The issue in this personal injury
action is whether, in a jury trial, a plaintiff is entitled to both an initial
closing argument and an opportunity to rebut the defendant's closing argument.
Plaintiff filed this action for negligence against defendant after the parties
were involved in a car accident. At the end of the jury trial, plaintiff
presented an initial closing argument to the jury, and defendant followed with
his closing argument. When the trial court began instructing the jury,
plaintiff requested an opportunity for a rebuttal argument, which the court
denied. After deliberating, the jury returned a verdict for defendant.
Plaintiff appealed, arguing that the trial court had erred when it denied him
the opportunity to rebut defendant's closing argument. The Court of Appeals
affirmed, concluding that plaintiff had failed to preserve the issue. Charles
v. Palomo, 227 Or App 335, 206 P3d 200 (2009). We allowed review and now reverse
the decision of the Court of Appeals and the judgment of the trial court.
In his action, plaintiff alleged that
defendant had negligently caused a car accident and that plaintiff had suffered
injuries as a result. At the jury trial, the parties testified regarding the
details of the accident. Plaintiff testified that he had been driving in his
truck along the highway at night during a heavy rain when there was a car
accident in front of him. To avoid the accident, he tapped on his brakes and
began slowing down. "About a couple seconds" after that, defendant
rear-ended plaintiff's truck. Plaintiff testified that his headlights and
taillights were in good working condition and were turned on at the time of the
accident.
Defendant told a different story. He
testified that he was attempting to pass a semi-truck as he was cresting a
hill. After he drove down the hill, defendant's car and the semi-truck both
hit puddles of water, covering his windshield and blocking his view for several
seconds. Defendant testified that plaintiff's truck was stalled in the roadway
and that, by the time defendant was able to see the truck, "[t]here was
nothing [he] could do but hit it." When plaintiff's counsel asked
defendant how he knew that the truck had been stalled, defendant responded,
"The police officer that took the report told me that [plaintiff] told him
that." Defendant also testified that he did not remember seeing any
lights on plaintiff's truck before or after the collision.
At the close of the evidence,
plaintiff's counsel presented his closing argument to the jury. Defense
counsel then presented his closing argument. Immediately thereafter, the court
began to instruct the jury, and the following exchange ensued:
"[PLAINTIFF'S COUNSEL]: Rebuttal, Your Honor?
"THE COURT: Approach.
"(whispered) You don't get any.
"(Pause)"
The court then showed plaintiff a copy of ORCP 58 B(6), which
we set out and discuss in detail below.(1)
Plaintiff then responded:
"[PLAINTIFF'S COUNSEL]: (whispered) Okay.
"(Pause)
"(whispered) Thank you.
"(Pause)
"(Unintelligible).
"THE COURT: (whispered) I can certainly do
that."(2)
Having denied plaintiff's request for rebuttal, the trial
court then instructed the jury. The jury deliberated and returned a verdict
for defendant.
After the trial court entered
judgment for defendant, plaintiff filed a motion for a new trial pursuant to
ORCP 64 B,(3)
arguing that the trial court had erred in denying plaintiff's rebuttal closing
argument. At the hearing on plaintiff's motion, the trial court first ruled
that the motion had been "deemed denied" by ORCP 64 F(4)
because the court had not ruled on it within 55 days of entry of judgment. The
court nonetheless addressed the merits of plaintiff's argument "as a
fall-back." The court concluded that plaintiff was not entitled to a
rebuttal argument and that, in any event, plaintiff had not properly preserved
the issue.
Plaintiff appealed and again argued
that the trial court had erred in denying him a rebuttal argument. As noted,
the Court of Appeals affirmed, concluding that plaintiff had not properly
preserved the issue. The court determined that plaintiff had "merely requested
rebuttal argument" and had failed to "disagree with the [trial]
court's ruling" denying rebuttal. Charles, 227 Or App at 339. The
Court of Appeals also refused to exercise its discretion to review the error as
error apparent on the face of the record, concluding, "It is not clear
that the error had any effect on the jury's decision that would warrant a new
trial in this case." Id. at 341. Plaintiff petitioned for review
of the Court of Appeals decision, and we allowed review to consider whether
plaintiff was entitled to make a rebuttal closing argument.
On review, plaintiff argues that the
text of ORCP 58 B(6) makes clear that plaintiffs are entitled to both an
initial closing argument and an opportunity to rebut the defendant's closing
argument. Defendant responds that plaintiff failed to preserve the issue in
the trial court and that, even if plaintiff preserved the error, any error in
denying his rebuttal argument is not reversible error because it did not
substantially affect plaintiff's rights.
We turn first to defendant's
contention that plaintiff failed to preserve his claim that he was entitled to
a rebuttal argument. Ordinarily, this court will not consider an issue unless
it was first presented to the trial court. ORAP 5.45(1). However, the
determination whether a particular issue was preserved for appeal is a
"practical one"; it will depend on whether the policies behind the
preservation requirement -- judicial efficiency, full development of the
record, and procedural fairness to the parties and the trial court -- are met
in an individual case. State v. Parkins, 346 Or 333, 340-41, 211 P3d
262 (2009). Therefore, we will review an issue advanced by a party on review as
long as that party raised the issue below with enough particularity to assure
that the trial court was able to "identify its alleged error" so as
to "consider and correct the error immediately, if correction is
warranted." State v. Wyatt, 331 Or 335, 343, 15 P3d 22 (2000). We
conclude that plaintiff did so here.
As noted, when the trial court began
instructing the jury, plaintiff interrupted to request rebuttal. With that
objection, plaintiff notified the court that he wished to make a rebuttal
argument. The court then asked the attorneys to approach the bench. Anticipating
plaintiff's objection, the court had a copy of the rules ready and showed
plaintiff ORCP 58 B(6). Thus, although plaintiff did not have a chance to
identify the source of his claimed right to rebuttal, the court was aware of
it. The foregoing demonstrates that the plaintiff apprised the trial court of
the issue (whether plaintiff was entitled to a rebuttal argument) and that the
trial court was aware of the source of plaintiff's claimed right (ORCP 58 B(6)).
It was not necessary for plaintiff to further expand on his argument and
explain the particulars of why he believed that the rule provided him with a
right to rebuttal. See State v. Hitz, 307 Or 183, 188, 766 P2d 373
(1988) (raising an issue at trial "ordinarily is essential,"
identifying a source "less so," and making a particular argument
"least" important). Thus, although plaintiff could have pressed his
argument before the trial judge and provided a clearer or more detailed record
-- and it might have been prudent to do so -- his objection, given the sequence
of events at the close of trial, was sufficient to preserve for appellate
review his claim that the trial court erred in not permitting him to make a rebuttal
closing argument.
Defendant's preservation argument focuses
on what happened after plaintiff raised the issue, namely, that plaintiff said
"Okay" after the trial court had denied his request for rebuttal. Defendant
argues that plaintiff did not "object to the denial of rebuttal" or
"otherwise indicate his opposition to the ruling." Similarly, the
Court of Appeals concluded that plaintiff did not preserve his argument because
he did not indicate that he "disagree[d] with the court's ruling." Charles,
227 Or App at 339. As we explained above, however, after plaintiff's initial
closing and defendant's closing, the court immediately began instructing the
jury. That was the point at which plaintiff voiced his objection by asking,
"Rebuttal, Your Honor?" It was apparent from plaintiff's comment
that he disagreed with the trial court's action in proceeding to instruct the
jury without giving him the opportunity for rebuttal. The fact that plaintiff made
his request politely and did not use the word "objection" does not
make his objection inadequate. It is true that plaintiff did not make a
further objection to the court's oral ruling -- denying rebuttal -- once
that ruling had already been made. But parties are not required to repeat
their objections after the trial court has ruled against them. See Hitz,
307 Or at 187 (party did not waive objection by "not pressing it in her
oral argument to the trial court").
For the same reason, we disagree with
the Court of Appeals' implication that, by saying "Okay," plaintiff
effectively withdrew his request for rebuttal. Plaintiff made his objection
known to the court when he requested rebuttal; when the court denied his
request, plaintiff acknowledged the court's ruling by saying, "Okay. * *
* Thank you." He did not withdraw his objection merely because he courteously
accepted the court's ruling rather than further express his disagreement with
it. See State v. Fanus, 336 Or 63, 83, 79 P3d 847 (2003) (decision not
to repeat objection does not constitute waiver of objection).(5)
We turn, therefore, to the merits of
plaintiff's claim that he was entitled to a rebuttal argument. The Oregon
Rules of Civil Procedure control the manner of proceedings in civil actions in
circuit court. ORCP 1 A. In particular, ORCP 58 B(6) governs the sequence and
timing of the parties' closing arguments. That rule provides:
"When the evidence is concluded, unless the
case is submitted by both sides to the jury without argument, the plaintiff
shall commence and conclude the argument to the jury. The plaintiff may waive
the opening argument, and if the defendant then argues the case to the jury,
the plaintiff shall have the right to reply to the argument of the defendant,
but not otherwise."
The first sentence of ORCP 58 B(6) demonstrates
that plaintiffs are entitled to rebut defendants' closing arguments. The rule
provides that "the plaintiff shall commence and conclude the
argument to the jury." (Emphasis added.) In other words, the plaintiff
has the right both to begin the sequence of closing arguments to the
jury and to end the sequence of arguments, "unless the case is submitted
by both sides to the jury without argument." That is the only
qualification on the plaintiff's right to rebuttal.(6)
Thus, because the parties here did not waive argument, the rule recognizes the
following sequence of closing arguments: (1) plaintiff's initial closing
argument; (2) defendant's closing argument; and (3) plaintiff's rebuttal.
Indeed, our interpretation of ORCP 58
B(6) is so apparent from the text of the rule that this court has accepted that
construction with little discussion. In State v. Stevens, 311 Or 119,
147-48, 806 P2d 92 (1991), for example, the defendant in a capital case argued
that the prosecution should be limited to one closing argument at the penalty
phase of trial. This court noted that the identically worded predecessor to
ORCP 58 B(6) -- former ORCP 58 B(4) -- applied.(7)
Because that rule provided that "the plaintiff shall commence and conclude
the argument to the jury," the court concluded that "the state, as
the plaintiff, ha[d] the right to present a rebuttal argument." Id. at
148. Similarly, in State v. McNeely, 330 Or 457, 468, 8 P3d 212 (2000),
this court held that former ORCP 58 B(4) provided the state with that
"right to rebuttal" even on issues for which the state did not bear
the burden of proof.
The trial court acknowledged that,
"if you just read [the first] sentence [of ORCP 58 B(6)], you could say
commence means you make the opening and then you make the last." However,
the court concluded that the second sentence foreclosed that interpretation by
permitting a plaintiff to make a rebuttal argument if he or she waives the
initial closing argument and the defendant then argues the case to the jury,
"but not otherwise." Thus, the court determined that "you don't
get to reply to the defense closing unless you waived your opening." The
court then explained its interpretation of the first sentence: "[C]ommence
and conclude I guess means you get to finish your opening closing
argument."(8)
We disagree.
As described above, the first
sentence of ORCP 58 B(6) describes the ordinary sequence of closing arguments:
the plaintiff "commence[s]" closing argument, the defendant presents its
closing argument, and the plaintiff "conclude[s]" with a rebuttal
argument. The second sentence then provides, "The plaintiff may waive the
opening argument, and if the defendant then argues the case to the jury, the
plaintiff shall have the right to reply to the argument of the defendant, but
not otherwise." The trial court interpreted the second sentence as
providing the only situation in which a plaintiff has a right to rebuttal,
because of the dependent phrase "but not otherwise." That is, the
court concluded that a plaintiff has a right to rebuttal only if he or she
first waives the initial closing argument and the defendant then presents a
closing argument.
The second sentence of ORCP 58 B(6),
however, pertains only to a particular set of circumstances -- when the
plaintiff has waived the initial closing argument. In that situation,
the plaintiff may respond to the defendant's argument "if the defendant *
* * argues the case to the jury, * * * but not otherwise." Thus, the rule
avoids the situation where a plaintiff waives initial closing argument, the
defendant then waives argument, and the plaintiff attempts to make the only closing
argument under the guise of a rebuttal. When a plaintiff does not waive
the initial closing argument, the first sentence applies, and the plaintiff is
entitled to both commence and conclude closing arguments.(9)
Having concluded that the trial court
erred, we turn to whether that error requires reversal. We will reverse a
trial court's judgment only if the trial court's error "substantially
affect[ed] the rights of a party." See ORS 19.415(2) (stating
standard). For the reasons that follow, we hold that the error here did.
Closing arguments are an integral part
of trial. They provide the attorneys with their final opportunity to "persuade
the jury to adopt a particular view of the facts." Ireland v. Mitchell,
226 Or 286, 295, 359 P2d 894 (1961). It is through closing arguments that the
attorneys are able to fully frame the issues and remind the jury of evidence
that they may have heard days earlier. Further, arguments give the attorneys a
chance to explain the evidence in narrative form. That narrative function of
arguments -- the opportunity to tell the story of the case -- is essential to
effective advocacy, and the ability to do so can alter the jury's understanding
of the evidence and ultimately change the outcome of a given case.
As noted, here, the issue of
liability depended on the jury's credibility determination. The parties
disputed whether plaintiff's truck had been stopped on the highway when
defendant collided with it; they were the only fact witnesses to testify as to
what happened during the accident. Plaintiff testified that he had slowed down
and began tapping his brakes when he saw an accident in front of him and that
defendant's vehicle had hit plaintiff's truck while it was still moving.
Defendant testified that plaintiff's truck had been stalled with no brakes or
warning lights and that, once defendant could see plaintiff's vehicle, it was
too late to stop.
Much of the closing arguments centered
on the parties' testimony and their credibility. At one point, defense counsel
explained why the jury should believe defendant's claim that plaintiff's
vehicle had stalled on the highway by reminding them of defendant's testimony
from the day before:
"[W]hen [plaintiff's counsel] asked [defendant], well,
how do you know he stalled. [Defendant] told you, the police officer told him
when he came back down, he talked to [plaintiff] and [plaintiff] told [the
police officer] he had stalled. That's how he knows."
Plaintiff's counsel had not attempted to refute that portion
of defendant's testimony in his initial closing argument.(10)
He argues that, had he been permitted to rebut defendant's argument, he would
have taken that opportunity to refute the likely accuracy of defendant's
statements. Specifically, he might have pointed out to the jury that defendant
did not call the police officer to testify, that plaintiff's alleged statement to
the officer was not noted in the police report, and that there was no other
evidence to support defendant's claim, even in defendant's deposition. Then,
he argues, he could have explained that the jury should not believe defendant's
explanation of the police officer's statements without any supporting evidence,
because defendant had a motive to make up the story.
Instead of giving plaintiff an
opportunity to point out the possible flaws in defendant's argument and
reiterate his own explanation of the facts, the court told plaintiff that he
was not entitled to further argument. Thus, the last thing that the jury heard
before the jury instructions was defendant's description of the
evidence. The trial court gave defendant an advantage -- the final argument
before the jury -- to which plaintiff had a right under ORCP 58 B(6). Given
the importance and persuasive value of closing arguments, as well as the
particular missed opportunities in this case, we conclude that the denial of
rebuttal argument substantially affected plaintiff's rights.
We conclude that plaintiff adequately
preserved his claim and that the trial court erred in denying him the
opportunity to present a rebuttal closing argument. Because that error
substantially affected plaintiff's rights, we reverse the judgment of the trial
court.
The decision of the Court of Appeals
is reversed. The judgment of the circuit court is reversed, and the case is
remanded to the circuit court for further proceedings.
1. The
trial record itself does not demonstrate that the court showed plaintiff the
rule. However, at the hearing on plaintiff's motion for a new trial, the court
explained what happened at trial as follows:
"I began reading jury
instructions. [Plaintiff's attorney] said, what about my rebuttal. I brought
counsel up to the side bar, I did put my hand over the microphone with the
intention that the jury not hear our discussion because it was certainly not my
intention, you know, to embarrass anybody in front of the jury or have anybody
in an awkward position in front of the jury, and I said you don't get one and I
showed [plaintiff's attorney] the rule, and [plaintiff's attorney] looked
at the rule and said okay."
(Emphasis added.) Defendant argues that, in determining what
happened at trial, we should consider only the transcript of the trial itself,
and not the trial court's statement at the later hearing on plaintiff's motion
for a new trial. However, the uncontested record is sufficient to demonstrate
that the trial court did show plaintiff the rule at trial. At the hearing on
plaintiff's motion for a new trial, defense counsel did not disagree with the
foregoing description of what happened at trial. Indeed, defense counsel
specifically stated to the court that, at trial, "you showed [plaintiff's
counsel] the rule you were relying upon, he said okay." We therefore
consider the colloquy that occurred at the hearing on the motion for a new
trial inasmuch as it aids us in determining that the trial court showed
plaintiff the rule at trial -- an action that would not be apparent from the
record of the trial itself, which captures only sounds.
2. The
original transcript stated only that, after the court asked the parties to
approach, there was a "pause," after which the court began
instructing the jury. After trial, however, the parties agreed to correct the
transcript. We quote the foregoing exchange from the trial court's stipulated
order settling the transcript.
3. ORCP
64 B provides, in part:
"A former judgment may be set aside and a
new trial granted in an action where there has been a trial by jury on the
motion of the party aggrieved for any of the following causes materially
affecting the substantial rights of such party:
"B(1) Irregularity in the proceedings of
the court, jury or adverse party, or any order of the court, or abuse of
discretion, by which such party was prevented from having fair trial.
"* * * * *
"B(3) Accident or surprise which ordinary
prudence could not have guarded against.
"* * * * *
"B(6) Error in law occurring at the trial
and objected to or excepted to by the party making the application."
4. ORCP
64 F(1) provides that a motion for new trial shall be heard and determined by the court within 55 days
from the time of the entry of the judgment, and not thereafter, and if not so
heard and determined within said time, the motion shall conclusively be deemed
denied."
5. Defendant
also argues that the record is insufficient for our review because it is
"unintelligible" at a "key point in the proceedings." The
record indicates that, after plaintiff said "Okay" to the trial
court, he said something more because the transcript states that the audio tape
is "unintelligible." The trial court then said, "I can
certainly do that." Defendant argues that we cannot determine whether the
error was preserved without speculating as to what plaintiff said. As described
above, however, the record is sufficient to demonstrate that plaintiff
adequately raised the issue. Further, the trial court and the parties all
later explained their recollection of what had happened at trial, and none
remembered plaintiff expressly withdrawing his objection. We will not presume,
simply because there is an unintelligible point in the audio tape, that
plaintiff expressly withdrew his objection or otherwise directed the trial
court away from the issue of rebuttal.
6. The
trial court may also alter the sequence of events "for good cause stated
in the record." ORCP 58 B. Here, however, the trial court simply
interpreted the rule as prohibiting plaintiff from making a rebuttal closing
argument.
7. Although
Stevens was a criminal case, ORS 136.330(1) made certain rules of civil
procedure, including former ORCP 58 B(4), applicable in criminal
proceedings.
8. On
review, defendant does not argue that the rule should be so interpreted.
Instead, he argues only that plaintiff failed to preserve the issue and that
any error in denying his rebuttal argument was harmless.
9. Indeed,
the second sentence supports that interpretation, by providing that plaintiffs
"may waive the opening argument." It therefore implies that,
ordinarily, plaintiffs are entitled to two separate closing arguments -- an
"opening" closing argument and a rebuttal argument.
10. Plaintiff
concedes that defense counsel's closing argument accurately described
defendant's testimony. However, as plaintiff's counsel later explained, he had
forgotten about that part of defendant's testimony and so had failed to raise
the issue in his initial closing argument. | 16b1de184eedcb578645bcaccf462dc3dfe15f4af9b901184c1f9f91fdc08738 | 2010-02-19T00:00:00Z |
5048a11c-ff36-4601-9f22-e3e183cfb7a7 | Caruthers v. Kroger (Ballot Title Certified) | null | S058332 | oregon | Oregon Supreme Court | MISCELLANEOUS SUPREME COURT DISPOSITIONS
BALLOT TITLE CERTIFIED
April 29, 2010
Caruthers et al v. Kroger, (S058332). Petitioner's argument that the Attorney General's certified ballot title for Initiative Petition No. 78 (2010) does not comply substantially with ORS 250.035(2) to (6) is not well taken. The court certifies to the Secretary of State the Attorney General's certified ballot title for the proposed ballot measure. | f1e5626225b20c13a30bd3d29eef8fcbe2e252d03255782496d5265cf4fc143b | 2010-04-29T00:00:00Z |
35428529-74b8-4545-b555-1aaa04340fbe | State v. Mejia | null | S056560 | oregon | Oregon Supreme Court | FILED: March 4, 2010
IN THE SUPREME COURT OF THE STATE OF OREGON
STATE OF OREGON,
Respondent on Review,
v.
LUIS ARMANDO MEJIA,
Petitioner on Review.
(CC 0401-30443; CA A128080;
SC S056560)
En Banc
On review from the Court of Appeals.*
Argued and submitted June 11, 2009.
Laura A. Frikert, Deputy Public Defender, Salem, argued the cause and filed the brief
for petitioner on review. With her on the brief was Peter Gartlan, Chief
Defender, Office of Public Defense Services.
Stacey RJ Guise, Senior Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. With her on the brief were John R. Kroger,
Attorney General, and Jerome Lidz, Solicitor General.
GILLETTE, J.
The decision of the Court of Appeals and the judgment of the circuit court are affirmed.
*Appeal from the Multnomah County Circuit Court, Edward J. Jones, Judge. 218 Or App 736, 180 P3d 764 (2008).
GILLETTE, J.
The issue in this criminal case is
whether the evidence was sufficient to permit a trier of fact to find defendant
guilty of kidnapping in the second degree. The trial court determined that
that evidence was sufficient and denied defendant's motion for a judgment of
acquittal. Defendant appealed, and the Court of Appeals affirmed without
opinion. State v. Mejia, 218 Or App 736, 180 P3d 763 (2008). We
allowed defendant's petition for review and now affirm the decision of the
Court of Appeals and the judgment of the trial court.
Because defendant appeals from the
trial court's denial of his motion for a judgment of acquittal, we state the
facts of the case in the light most favorable to the state. See
State v. Casey, 346 Or 54, 56, 203 P3d 202 (2009) (restating that rule). In
1999, defendant and the victim met in Las Vegas, where they began a romantic
relationship and had a child together. Later, after the relationship soured,
the victim moved to Portland with the child. The victim remained in touch with
defendant, but the couple continued to have problems with their relationship.
Eventually, the victim obtained a restraining order against defendant.
On the evening of November 20, 2003,
while the restraining order was still in effect, the victim put her daughter to
bed at her brother's house and went to her own apartment to change clothes, intending
to go out to a movie. After taking a bath and changing her clothes, the victim
opened the door to her apartment to leave. As she started out her doorway,
with "probably * * * one foot out," defendant -- who apparently had
been lurking outside -- grabbed her and pushed her back inside the apartment.
Defendant forced the victim into the apartment's
living room. The victim struggled with defendant and told him to leave, but
defendant kept insisting, "I want to talk to you." The victim
attempted to call for help on her cell phone, but defendant grabbed the phone
and put it in his pocket. Defendant then forced the victim down the hallway of
the apartment, toward her bedroom. The victim became aware that defendant was,
as she phrased it, "trying to seclude" her, and she began screaming
for help. Defendant put his hand over the victim's mouth. The victim
continued to struggle, kicking and biting defendant. Defendant pushed the
victim into the bedroom. Police officers later estimated that the distance
from the front door to the area in front of the victim's bedroom was about 12
feet, and the distance from that point to the back of the bedroom was another
17 feet.
Once in the bedroom, defendant forced
the victim up against a dresser, saying, "If I can't have you, nobody
will." He took out a handgun and pointed it at the victim's upper body
and head, telling her, "I'll kill myself and I'll kill you. I have
nothing to live for." The victim, terrified and crying, attempted to reason
with defendant, saying that he was going to leave their daughter without a
mother. Defendant began to relax his hold on the victim and, at that point,
the victim made a dash for the bedroom window in an attempt to escape.
Defendant grabbed the victim by the legs, causing the victim to fall on the
bed, which was against the back wall of the bedroom. The victim continued to
kick and struggle, and defendant "smashed" a comforter into the
victim's face, making it difficult for her to breathe. Defendant then pinned
the victim to the floor, straddling her, and began choking her with both hands,
saying that he would kill her. As the victim would begin to lose
consciousness, defendant would ease his grip on her and allow her to breathe;
the victim would then attempt to get up and away from defendant, at which point
defendant would begin choking her again. That pattern repeated itself several
times over the next few minutes.
Eventually, the victim stopped
struggling and began talking to defendant, telling him that she "wanted to
work it out" with him, and other "things I know that he's always been
wanting to hear." The victim told defendant that she loved him and that
she would not call the police; defendant indicated that if she did, he would
shoot her and the police. The victim agreed to meet with defendant in the
morning, and defendant slowly let her get to her feet. Defendant wiped some
blood off of the victim's face with toilet paper, helped her put her coat on,
and walked her to her car. After stating that he would call the victim the
next morning, defendant returned the victim's cell phone to her and left. The
victim drove to her brother's house and told him what had happened. The
brother called the police. By the victim's estimation, the episode with
defendant had lasted "an hour and a half, at least."
The state charged defendant with two
counts of first-degree kidnapping; one count each of first-degree burglary,
unlawful use of a weapon, and menacing; and five counts of fourth-degree
assault. Both kidnapping charges alleged that defendant "did unlawfully
and knowingly, without consent or legal authority, take [the victim] from one
place to another, with intent to interfere substantially with the said
[victim's] personal liberty * * *." At the close of the state's case during
defendant's jury trial, defendant moved for a judgment of acquittal, arguing,
with respect to the kidnapping charges, that a reasonable trier of fact could
not find that defendant moved the victim from one place to another, or that he
had intended to interfere substantially with her personal liberty. Instead,
defendant argued, any movement of the victim was "incidental" to his
assault of her. The trial court denied the motion. The jury convicted
defendant of the lesser-included offense of second-degree kidnapping (both
counts), burglary, menacing, and assault (three counts).
Defendant appealed the denial of his
motion for a judgment of acquittal on the kidnapping charges, arguing, inter
alia, that his "minimal movement of the victim" was insufficient,
as a matter of law, to prove an "intent to interfere substantially with
[the victim's] personal liberty." ORS 163.225(1).(1)
Specifically, defendant framed the issue before the Court of Appeals in terms
of
"whether movement from one area of an apartment, to
another area in the same apartment, during the course of threats and assaults,
evidenced an intent on defendant's part to interfere substantially with [the
victim's] personal liberty, or whether the movement was merely incidental to
the commission of the assaults."
Defendant did not renew in the Court of Appeals his argument
to the trial court that there was insufficient evidence that he had moved the
victim "from one place to another." The Court of Appeals affirmed
defendant's convictions without opinion, and we granted review.
When this court reviews the denial of
a motion for a judgment of acquittal, the relevant question is "whether,
after viewing the evidence in the light most favorable to the state, any
rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt." State v. King, 307 Or 332, 339, 768
P2d 391 (1989). Kidnapping in the second degree is defined by ORS 163.225,
which provides, in part:
"(1) A person commits the crime of
kidnapping in the second degree if, with intent to interfere substantially with
another's personal liberty, and without consent or legal authority, the person:
"(a) Takes the person from one place to
another; or
"(b) Secretly confines the person in a
place where the person is not likely to be found."
The state charged defendant with kidnapping the victim by
taking her from one place to another, i.e., kidnapping under ORS
163.225(1)(a). Accordingly, the state had to establish that defendant, (1)
with intent to interfere substantially with [her] personal liberty, (2) took
the victim from one place to another (3) without consent or legal authority. See
State v. Walch, 346 Or 463, 468, 213 P3d 1201 (2009) (listing essential
elements of kidnapping).
The dispute on review centers on the first
of those elements, viz., whether there was evidence of defendant's
intent to interfere substantially with the victim's personal liberty.(2)
Defendant argues that the state was required to prove that intent by proving
that he either moved or intended to move the victim a "substantial
distance." Defendant asserts that his movement of the victim -- a total
distance of no more than 29 feet, primarily (if not exclusively) within her own
home -- is insufficient to establish an intent to move the victim a substantial
distance and, therefore, is insufficient to establish the element of intent to
interfere substantially with the victim's liberty. As for his other actions,
such as taking the victim's cell phone and preventing her from escaping the
apartment, defendant argues that those actions were incidental to his other
crimes, such as assault and menacing, and that they also do not evince an
intent to move the victim a substantial distance.
The state responds that defendant has
misconstrued the intent element of kidnapping. According to the state, it may
establish an intent to interfere substantially with the victim's personal
liberty by demonstrating "that [defendant] intended either to move
the victim a substantial distance or to confine the victim for a substantial
period of time." (Emphasis the state's.) In effect, the state argues
that, regardless of which act element is charged in the indictment, it
may establish the requisite intent -- "to interfere substantially
with another's personal liberty" -- by proving that the defendant intended
to take or to confine the victim. That argument about the purpose,
meaning, and scope of the second-degree kidnapping statute leads us to an
examination of the legislative history of that statute.
The legislature adopted the current
kidnapping statutes in 1971. Or Laws 1971, ch 743, §§ 97-103. Before that
time, kidnapping statutes were broadly drafted. Prosecutors could take
advantage of those broad statutes by charging defendants with kidnapping when
they had "moved their victims only a short distance or confined their
victims for a short duration," often "incidentally to the commission
of another crime, such as rape or robbery." Walch, 346 Or
at 470.(3)
To avoid the potential for such a broad
application, the legislature sought to draft the current version of the kidnapping
statutes more narrowly. As this court has described it, the legislative
purpose was to avoid any use of kidnapping as a substitute for some other
crime. State v. Garcia, 288 Or 413, 416-20, 605 P2d 671 (1980). In Garcia,
this court studied the history of those statutes and determined that the
legislative intent was that "there be no conviction of the defendant for
the separate crime of kidnapping where the detention or asportation of the
victim is merely incidental to the accomplishment of another crime * * *."
Id. at 420 (emphasis added). Rather, the legislature reserved the
prosecution and punishment of kidnapping for situations "where the
detention or asportation is not merely incidental to the commission of the
underlying crime." Id. (emphasis omitted). The intent element
of kidnapping was the legislature's means to achieve that goal. Walch, 346
Or at 473 (noting that "[t]he drafters' wording of the intent element * *
* makes it apparent that it was through that element that they sought to
avoid an over-inclusive definition of second-degree kidnapping" (emphasis
in original)). In other words, the legislature adopted the requirement that a
defendant intend to substantially interfere with a victim's personal liberty in
order "'to distinguish kidnapping from incidental conduct that might
accompany some other crime.'" State v. Wolleat, 338 Or 469, 477,
111 P3d 1131 (2005) (quoting Minutes, Criminal Law Revision Commission, June
17, 1969, 20).
In Wolleat, this court, after again
reviewing the legislative history of the kidnapping statute, provided a further
explanation of what the legislature meant when it enacted the requirement that
a defendant must intend to interfere substantially with a victim's personal
liberty:
"The decision in Garcia removes some
of the ambiguity from the phrase 'intent to interfere substantially with
another's personal liberty.' It confirms that the liberty interest that the
statute protects from interference is the interest in freedom of movement and
concludes that, in order for the interference to be substantial, a defendant
must intend either to move the victim a 'substantial distance' or to confine
the victim for a 'substantial period of time.'"
338 Or at 475.
Two recent cases provide examples of facts
from which a reasonable trier of fact could not infer that the defendant
intended to interfere substantially with the victim's personal liberty. In Wolleat,
the defendant returned home from a night of drinking and entered the bedroom
that he shared with the victim, his fiancée. The defendant grabbed the victim
by the hair, pulled her out of bed, dragged her approximately 15 to 20 feet
into the living room, and proceeded to assault the victim until she fled the
house. This court held that "[m]oving a victim from one room to another
while committing another crime does not constitute moving the victim a
substantial distance." Id. at 478. In other words, that movement
was "not sufficient, by itself, to give rise to an [inference of
an] intent to interfere substantially with the victim's liberty to move freely."
Id. (emphasis added). Furthermore, the record did not contain any other
basis from which a reasonable juror could infer that the defendant had intended
either "to move the victim a greater distance" than he had during the
assault, or to "transport [the victim] to a place of confinement." Id.
Therefore, there was no evidence that the defendant had intended to
interfere substantially with the victim's personal liberty. Put another way,
there was no kidnapping because the defendant's forceful movement of the victim
was merely incidental to his commission of an assault and, therefore, was
insufficient, standing alone, to establish an intent to interfere substantially
with the victim's liberty.
In State v. Zweigart, 344 Or
619, 188 P3d 242 (2008), cert den, ___ US ___, 130 S Ct 56, 175 L Ed 2d
45 (2009), the defendant conspired with another individual to stage a robbery at
the house that the defendant shared with the victim, and to kill the victim
during the staged robbery. As planned, the co-conspirator entered the house,
roused the victim and the defendant from their bed, and led them downstairs at
gunpoint. While the co-conspirator held the victim at gunpoint downstairs, the
defendant rounded up guns and money from the house to give to his
co-conspirator. The victim was then shot and killed. This court held that the
movements of the victim "were incidental to the robbery and shooting"
and, therefore, were insufficient, standing alone, to establish intent to interfere
substantially with the victim's liberty:
"[M]inimal movement that amounts to incidental conduct
that might accompany some other crime is, standing alone, insufficient proof of
intent to support a conviction."
Id. at 636 (citing Wolleat, 338 Or at 478).
Not surprisingly, defendant relies on
Wolleat and Zweigart here. But both Wolleat and Zweigart
involved situations in which the actual physical movement of the victims was
the only evidence available to prove whether the defendants intended to kidnap
the victims by substantially interfering with their personal liberty. Those
cases demonstrate that, when the only evidence of a defendant's intent is
physical movement of the victim, a reasonable juror may only infer intent to
interfere substantially with a victim's freedom of movement if there is "evidence
that the defendant moved the victim a substantial distance." Zweigart,
344 Or at 636 (emphasis added). Consequently, if the defendant did not move
the victim a substantial distance, and there is no other evidence from which a
trier of fact may infer an intent to interfere substantially with the victim's
personal liberty, then the evidence will not support a conviction for
kidnapping.(4)
This is not a case in which there was
no other evidence, however. As the court stated in Garcia:
"As finally enacted the [kidnapping]
law does not even require that there actually be a substantial interference
with the victim's personal liberty; it is only necessary that the perpetrator
have the 'intent to interfere substantially' with the victim's personal
liberty to make the malefactor guilty of kidnapping if he commits an act
proscribed by ORS 163.225."
288 Or at 421 (emphasis in original). The state points to
evidence, albeit circumstantial, in the record before this court that the state
asserts distinguishes this case from Wolleat and Zweigart. We
turn to that argument.
The state contends that, when it
charges a defendant with kidnapping by taking the victim from one place to
another, it may establish the defendant's intent to interfere substantially
with the victim's personal liberty by, inter alia, demonstrating that a
defendant intended to confine a victim for a substantial period of time when
she wished to leave. In so arguing, the state relies on this court's statement
in Wolleat that
"in order for the interference [with a victim's
personal liberty] to be substantial, a defendant must intend either to move the
victim a 'substantial distance' or to confine the victim for a 'substantial
period of time.'"
338 Or at 475.
Defendant responds that to permit the
state to prove the defendant's state of mind in that way would allow the state
to prove a violation of ORS 163.225(1)(a) (taking a person from one
place to another) by proving what was, in fact, a violation of ORS 163.225(1)(b)
(secretly confining a person in a place where she is unlikely to be found). As
we shall explain, however, the state's argument is not quite what defendant
claims it to be. In this case, the state urges, there was evidence that
defendant intended to confine the victim in her apartment for a substantial
period of time -- an act which, if carried out, certainly would "interfere
substantially" with the victim's personal liberty. The state specifically
points to the evidence that defendant reversed the victim's direction of
movement, took the victim's cell phone, covered the victim's mouth to silence
her, and prevented the victim from escaping by pulling her away from the
window. The state contends that, from this evidence, a reasonable trier of
fact "could infer that defendant had the separate intent to keep the
victim in her apartment and hold her captive." Accordingly, the state argues,
the evidence supports a finding of intent to interfere with the victim's
personal liberty.
We agree with the state. In our
view, the requisite intent, viz., the "intent to interfere
substantially with another's personal liberty," may be shown in at least
those two ways, and possibly in others. The fact that the method of proof of
that intent here resembles the alternative definition of the act of kidnapping,
viz., "[s]ecretly confining [a] person in a place where the person
is not likely to be found," ORS 163.225(1)(b), is no impediment; such
evidence is probative of defendant's state of mind, and it was permissible for
the trier of fact to use it in that way.(5)
Applying the foregoing holding to the
facts, there is evidence from which the trier of fact could have found that defendant's
acts were more than just incidental to his acts of menacing and assaulting the
victim. Defendant moved the victim from her front doorway into her bedroom,
took away her cell phone, stifled her screams, physically restrained her,
pinned her down and choked her when she attempted to escape, all with the plausible
intent to interfere with her liberty. In fact, he did interfere with
the victim's liberty: He kept the victim confined for about an hour and a
half. Such evidence would be sufficient to allow a reasonable trier of fact to
find that, apart from his various assaultive and menacing acts, defendant
intended to interfere substantially with the victim's personal liberty. The
trial court did not err in denying defendant's motion for judgment of acquittal
on the kidnapping charges.
The decision of the Court of Appeals
and the judgment of the circuit court are affirmed.
1. Defendant
does not challenge his convictions for burglary, assault, and menacing.
2. Before
this court, defendant also asserts, in a cursory
fashion, that there was not sufficient evidence to establish that he took the
victim from one place to another. However, defendant concedes that he did not
raise that argument before the Court of Appeals. It therefore is not properly
before this court, and we do not address it.
3. As
Walch notes, the commentary to the 1971 statute does not specify
"whether the drafters believed that that specific problem existed in
Oregon under the pre-1971 Oregon statute." 346 Or at 470 n 5.
4. We
reemphasize, as we did in Walch, that it is not necessary to prove that
a defendant actually moved the victim over a "substantial distance"
in order to prove the act element of a kidnapping by asportation -- i.e.,
to prove that the defendant took the victim "from one place to
another," as required by ORS 163.225(1)(a). Walch, 346 Or at 476 n
7 (noting that this court's cases "do not state * * * that 'substantial
movement' is the only way to prove that a defendant moved a victim from one
place to another.").
5. We
say "resemble" because, although the evidence shows that defendant confined
the victim, the evidence did not permit the inference that the locale of the
confinement -- the victim's own apartment -- was a place where the victim
"[was] not likely to be found." | 240fa046911c4c4fcfcc7a1d9ee917f9f724ce80afbf05e0c64bf706be95170f | 2010-03-04T00:00:00Z |
e25f3573-06df-43eb-9b41-0f5d72987677 | State ex rel Juv. Dept. v. M. A. D. | null | S057403 | oregon | Oregon Supreme Court | FILED: June 10, 2010
IN THE SUPREME COURT OF THE STATE OF OREGON
In the Matter of M. A. D.,
a Youth.
STATE ex rel JUVENILE DEPARTMENT OF CLACKAMAS COUNTY,
Petitioner on Review,
v.
M. A. D.,
Respondent on Review.
(CC 031120J02; CA A132290; SC
S057403)
En Banc
On review from the Court of Appeals.*
Argued and submitted February 22, 2010.
Paul L. Smith, Assistant Attorney
General, Salem, argued the cause and filed the brief for petitioner on review.
With him on the brief were John R. Kroger, Attorney General, and Jerome Lidz,
Solicitor General.
Angela Sherbo, Juvenile Rights Project,
Portland, argued the cause and filed the brief for respondent on review.
Morgan Smith, Salem, filed a brief for amicus
curiae Oregon School Boards Association.
Nancy J. Hungerford, The Hungerford Law
Firm, Oregon City, filed a brief for amici curiae Centennial School
District, Eagle Point School District, Hermiston School District, and Neah-Kah-Nie
School District.
Professor Carrie Leonetti, pro hac
vice, University of Oregon School of Law, Eugene, and Rankin Johnson IV, Portland,
filed a brief for amicus curiae Oregon Criminal Defense Lawyers
Association.
BALMER, J.
The decision of the Court of Appeals is reversed.
The judgment of the circuit court is affirmed.
*Appeal from Clackamas County Circuit
Court, Douglas V. Van Dyk, Judge. 226 Or App 21, 202 P3d 249 (2009).
BALMER, J.
This juvenile delinquency case
requires us to decide when a public school official's search of a high school
student for illegal drugs is permissible under Article I, section 9, of the
Oregon Constitution. We conclude that, when school officials at a public high
school have a reasonable suspicion, based on specific and articulable facts, that
an individual student possesses illegal drugs on school grounds, they may respond
to the immediate risk of harm created by the student's possession of the drugs
by searching the student without first obtaining a warrant.
After school officials received a tip
from a named student that the youth who is the subject of this proceeding (youth)
had been attempting to sell drugs earlier that morning near school property, one
of the school officials reached into youth's pocket and discovered marijuana
and other contraband. The state filed a delinquency petition, alleging that
youth had committed an act that, if committed by an adult, would constitute
delivery of a controlled substance. In the delinquency proceeding, youth moved
to suppress the marijuana that school officials had found on his person,
arguing that the school officials had violated his rights under Article I,
section 9, of the Oregon Constitution. The juvenile court denied youth's
motion. Youth appealed, and the Court of Appeals reversed, holding that the
search of youth was invalid because the school officials lacked probable cause
to believe that youth possessed illegal drugs. State ex rel Juv. Dept. v.
M. A. D., 226 Or App 21, 202 P3d 249 (2009). The state petitioned for
review, arguing that the Court of Appeals had erred in concluding that the
school officials' search of youth violated Article I, section 9, and we allowed
review.
Before this court, the state concedes
that the school officials did not have probable cause to search youth. The
state asserts, however, that the appropriate standard for determining the
validity of a search by a school official under Article I, section 9, is the
"reasonable suspicion" standard, rather than the probable cause
standard that the Court of Appeals applied. Under that standard, the state
argues, the search was permissible.(1)
Youth maintains that the Court of Appeals was correct in applying the probable
cause standard and in concluding that the evidence should be suppressed because
the facts here did not establish probable cause. For the reasons that follow, we
reverse the decision of the Court of Appeals.
I. FACTS AND PROCEEDINGS BELOW
We take the facts from the juvenile
court record. On January 7, 2005, Brooks, the assistant principal at Rex
Putnam High School, called a student into his office to discuss concerns about
the student's attendance and performance in school. When Brooks confronted the
student about skipping school to smoke, the student responded by telling Brooks
that he had seen youth attempting to sell marijuana that morning in an area
near the school commonly referred to as "the pit." Brooks took the
student's report seriously, based on the student's prior history with drugs, on
"who [the student] hung around with," and on Brooks's knowledge that
students often used drugs in the area known as the pit. Although the student informant
had previously promised to go to class or finish his homework and not followed
through, he had never falsely accused another student of wrongdoing. According
to Brooks, the student "was quick to give up other people if he thought it
would take the heat away from him"; however, Brooks believed that in
making the allegations regarding youth, the student was not only attempting to
take attention away from himself, but also was providing Brooks with accurate
information about youth possessing marijuana on school grounds. Brooks had not
had any interactions with youth, and, until that day, Brooks had not had any
particular concerns about youth and drug use. However, Brooks knew that
youth's records from schools that he had previously attended noted "target
behaviors * * * about attendance and possible indication of drug and alcohol
issues."
Based on the foregoing information,
Brooks was concerned that youth might have sold or attempted to sell drugs to
other students and might have drugs in his possession. As a result, he called
youth to his office, where Brooks and youth's counselor were waiting for him.
Youth arrived at the office with a staff learning specialist, Pogel. Brooks
informed youth that a witness had indicated that youth might be in possession
of drugs and asked youth if there was "anything he needed to tell me or
that he wanted to show me." At that point, youth did not admit to
possessing or attempting to sell drugs; he simply responded by saying,
"This is stupid" or "This is a dumb thing." Brooks told
youth that he had "reasonable cause to search [him]" and then called
youth's mother "as a courtesy" to inform her that they were planning
to search youth. During Brooks's conversation with youth's mother, she
"expressed * * * that she thought [youth] probably was holding
something."
Brooks allowed youth to speak to his
mother, and, afterward, youth indicated that he was willing to turn his pockets
inside out. Youth then emptied his pants pockets and the outside pockets of
his jacket. Brooks noticed a bulge in the inner breast pocket of youth's
jacket and asked youth to empty that pocket. Youth refused, stating that he
did not trust Brooks. Pogel asked if youth trusted him; youth responded that
he did. Pogel then asked if he could look inside youth's pocket, and youth
responded by unzipping his jacket. Pogel reached into the inner pocket of
youth's jacket, pulled out a cloth bag, and dumped the contents of the bag on
the counter, revealing a plastic bag with marijuana in it, about half a dozen
empty plastic bags, and a small pipe used for smoking marijuana. Youth
admitted that the marijuana was his and that he had attempted to sell it.
Brooks then called the police to report what they had discovered.
The state filed a delinquency
petition with the juvenile court, alleging, among other things, that youth had
committed an act that, if committed by an adult, would constitute delivery of a
controlled substance. Youth moved to suppress both the evidence found in his
jacket and his confession, arguing that the school officials had violated his
rights under Article I, section 9, of the Oregon Constitution.(2)
The juvenile court concluded that reaching into youth's pocket constituted a
search and that the school officials did not have probable cause to believe
that youth had drugs in his possession. The court nevertheless upheld the validity
of the search, concluding that it was "reasonable to apply a more flexible
standard than probable cause" in the context of a school search. In the
absence of Oregon appellate cases addressing the application of Article I,
section 9, to a search of a public school student by school officials, the
juvenile court used the standard applied by the United States Supreme Court in
Fourth Amendment cases. Specifically, the juvenile court relied upon the
Court's holding in New Jersey v. T. L. O., 469 US 325, 105 S Ct 733, 83
L Ed 2d 720 (1985), that such a search does not require "probable
cause," but is valid if the official has "reasonable grounds for
suspecting" that the search will reveal evidence of a violation of law or
school rules. The court concluded that, here, the school officials had
reasonable grounds for suspecting that youth had drugs in his possession and
that the search was reasonable in scope; it therefore denied youth's motion and
subsequently found youth to be within the jurisdiction of the juvenile court.
Youth appealed, and the Court of
Appeals reversed in a divided opinion. The majority first observed that juveniles
are entitled to the protections of Article I, section 9. M. A. D., 226
Or App at 25. Because the school officials had conducted a warrantless search
of youth, the majority proceeded to determine whether the search came within
any exception to the warrant requirement. It found that the state had not
proved that youth had consented to the search or that the school officials had probable
cause to believe that youth possessed illegal drugs. Id. at 25-29.(3)
The majority then turned to the state's alternative argument that the court
should adopt an exception to the warrant requirement, similar to that discussed
in T. L. O., that would permit school authorities to conduct searches if
they reasonably suspected that a student possessed illegal drugs, even if they
could not establish probable cause. The majority rejected that argument as
inconsistent with the protection of privacy interests afforded by Article I,
section 9. Id. at 31-32. It therefore concluded that the juvenile
court had erred in denying youth's motion to suppress.
The dissent agreed that the state had
not proved that the school officials acted with probable cause; however, in the
dissent's view, the search was nonetheless "reasonable" under Article
I, section 9, because the school officials had "reasonable suspicion that
a violation of laws or school rules on possession or distribution of drugs had occurred."
Id. at 35 (Sercombe, J., dissenting). As noted, the state sought review,
which we allowed to address the appropriate standard for determining whether
the search for drugs in this case was constitutional.
II. ARTICLE I, SECTION 9, ANALYSIS
The threshold inquiry in any Article
I, section 9, analysis is whether the government action at issue constitutes a "search"
for constitutional purposes. State v. Wacker, 317 Or 419, 426, 856 P2d
1029 (1993). This court has repeatedly emphasized that Article I, section 9,
protects individuals' "privacy" interests and that, as a result, when
government conduct invades those privacy interests, a search has occurred for
purposes of the state constitution. See, e.g., State v. Howard/Dawson,
342 Or 635, 640, 157 P3d 1189 (2007) (stating principle). Although a Fourth
Amendment search occurs when government conduct infringes an individual's
reasonable expectation of privacy, "'the privacy protected by Article I,
section 9, is not the privacy that one reasonably expects but the
privacy to which one has a right.'" Id. at 643 (quoting State
v. Campbell, 306 Or 157, 164, 759 P2d 1040 (1988)) (emphases in Campbell).
The privacy rights protected by Article
I, section 9, include the right of "the people" to be free from unreasonable
searches or seizures of their "persons, houses, papers, and
effects." Here, at Brooks's request, youth emptied several of his
pockets. However, when Brooks asked him to empty a specific pocket in his
jacket in which Brooks had observed a bulge, youth refused. After youth
unzipped the jacket, Pogel opened the jacket so that he could see inside the
inner pocket, reached into that pocket, and removed what he suspected was --
and what proved to be -- contraband. Those facts present a classic example of
a warrantless "search" for purposes of Article I, section 9. See
State v. Hall, 339 Or 7, 11, 20, 115 P3d 908 (2005) (applying Article I,
section 9, to evidence officer obtained by reaching into defendant's pocket).
Having determined that the school
officials conducted a search of youth, the next question is whether that search
was valid under Article I, section 9. Ordinarily, a warrantless search is per
se unreasonable, and therefore invalid, unless it comes within one of the
exceptions to the warrant requirement that this court has recognized. State v. Meharry, 342 Or 173, 177, 149 P3d 1155 (2006). Although the state
concedes that the school officials had no warrant to search youth, it does not
rely on any of the exceptions that this court has identified in past cases. In
particular, it does not contend that the search was conducted pursuant to an
appropriate statutorily authorized administrative program, which, as we have
held, may justify a search without a warrant and without any individualized
suspicion at all. See State v. Atkinson, 298 Or 1, 8-10, 688 P2d 832
(1984) (so holding). Nor does the state argue that youth voluntarily consented
to the search or that the telephone call that the school officials made to
youth's mother constituted a request that she consent to a search of youth. See
State v. Paulson, 313 Or 346, 351-52, 833 P2d 1278 (1992) (describing
consent exception to warrant requirement). As noted, the state also concedes
that probable cause was lacking here, thus making unavailable to the state
another well-recognized exception to the warrant requirement -- a search based
on a combination of probable cause and exigent circumstances. See State v.
Machuca, 347 Or 644, 652-57, 227 P3d 729 (2010) (warrantless search
permissible if officer has probable cause to believe that crime was committed
and exigent circumstances exist).
Instead of relying on a previously established
exception to the warrant requirement, the state urges us to hold that searches of
public school students that are conducted by school officials, on school
grounds, and during school hours, are constitutionally permissible if school
officials have "reasonable suspicion" that the search will reveal
evidence of a crime or a violation of school rules. In other words, the state
argues that the ordinary level of certainty necessary for a search -- probable
cause -- should not apply in the school setting and that this court should
adopt the approach that the United States Supreme Court took in interpreting the
Fourth Amendment in T. L. O.
The state bases its argument for a
"reasonable suspicion" test for school searches on the "unique
mission and circumstances of public schools." Specifically, the state
points to the schools' mission to educate children and argues that "school
officials must take reasonable steps to foster that learning environment."
According to the state, the school context -- including the responsibility of
protecting students from harm, maintaining order, and fulfilling the schools'
educational mission -- makes it inappropriate to hold school officials to the
"probable cause" standard applicable to searches by law enforcement
officials. Instead, the state argues, this court should adopt the less
exacting "reasonable suspicion" test that the Court used in T. L. O.
We agree -- in part -- with the state's argument.
The state is correct that the unique
context of the school setting distinguishes school searches from searches
conducted by law enforcement officers in other settings.(4)
Oregon statutes require children to attend school, unless they come within a
specific exemption. ORS 339.010. For that reason, large numbers of children
are required to gather each day in an institutional setting where government
employees are responsible for their safety and education and where the
necessity for "swift and informal disciplinary procedures," T. L. O.,
469 US at 340, is apparent. Further, various statutes emphasize the
responsibility of school districts to provide a safe school environment for
students, teaching faculty, and classified workers, see, e.g., ORS
339.315 (requiring reporting to officials of any persons believed to possess
unlawful firearms in a school); ORS 339.250(3) (authorizing suspension or
expulsion of student who assaults or menaces a school employee or other
student), and our cases recognize the "special duty arising from the
relationship between educators and children entrusted to their care." Fazzolari
v. Portland School Dist. No. IJ, 303 Or 1, 19-20, 734 P2d 1326 (1987). From
the classroom to the cafeteria to the sports field, we require students to
follow the directions of teachers and other school officials in order to
preserve the safety of all students and further the schools' educational
objectives.
We conclude that the school context
is sufficiently different from the setting in which ordinary police-citizen
interactions occur to justify an exception to the warrant requirement in
certain circumstances, and we turn to the scope and application of the state's
proposed exception. First, we describe what we view as the closest analogy to
that exception, the long-standing and well-defined "officer-safety
exception" to the warrant requirement of Article I, section 9. Under the
officer-safety exception, a police officer may take "reasonable steps"
-- including a limited search -- to protect the officer or others if, "during
the course of a lawful encounter with a citizen, the officer develops a
reasonable suspicion, based upon specific and articulable facts, that the
citizen might pose an immediate threat of serious physical injury to the
officer or to others then present." State v. Foster, 347 Or 1, 8,
217 P3d 168 (2009) (quoting State v. Bates, 304 Or 519, 524, 747 P2d 991
(1987)) (internal quotation marks omitted). The officer-safety exception is
necessary because of the unique circumstances to which it applies:
"'A police officer in the field frequently must make
life-or-death decisions in a matter of seconds. There may be little or no time
in which to weigh the magnitude of a potential safety risk against the
intrusiveness of protective measures. An officer must be allowed considerable
latitude to take safety precautions in such situations. Our inquiry therefore
is limited to whether the precautions taken were reasonable under the
circumstances as they reasonably appeared at the time that the decision was
made.'"
Id. (quoting Bates, 304 Or at 524-25). As
noted, the officer-safety exception requires reasonable suspicion of an
immediate threat of serious physical injury to the officer or others, based on specific,
articulable facts. In assessing whether an officer's actions are permitted
based on those facts, the court "asks only whether safety precautions
chosen by the officer were reasonable under the perceived circumstances."
Id. at 11. Because such "reasonable steps," which may include
at least a limited search, do not violate Article I, section 9, evidence of
wrongdoing obtained as a result of the search will not be suppressed.(5)
In our view, the concerns underlying
the officer-safety exception also apply to some searches conducted by school
officials. As described above, the school context -- characterized by
compulsory attendance and large numbers of students and educators present each
day in a relatively confined area -- raises heightened safety concerns. As
persons responsible for maintaining a safe learning environment, when school
officials perceive there to be an immediate threat to student or staff safety
at a school, they must be able to take prompt, reasonable steps to remove that
threat. As with an officer-safety search, when a school official develops a
"reasonable suspicion," based on "specific and articulable
facts," that a particular individual on school property either personally
poses or is in the possession of some item that poses an "immediate
threat" to the safety of the student, the official, or others at the
school, the school official "must be allowed considerable latitude to take
safety precautions." See Foster, 347 Or at 8 (quoting Bates,
304 Or at 524) (internal quotation marks omitted). Moreover, as this court has
noted with respect to an officer's judgment in that context, it is not our
function to "uncharitably second-guess" the considered protective
actions taken by school officials. See id. (quoting Bates, 304
Or at 524) (internal quotation marks omitted).
For the same reasons that we have
applied the less exacting "reasonable suspicion" standard, rather
than the probable cause standard, to determine whether a limited officer-safety
search is permissible under Article I, section 9, we conclude that the
reasonable suspicion standard should apply to a search, like the one here, for
illegal drugs that is conducted on school property by school officials acting
in their official capacity. We do not mean to suggest that the officer-safety
doctrine and a school official's search of a student for drugs are identical in
all respects. However, we agree with the state that the public school setting
and the obligation of school officials to provide a safe learning environment
requires that they be able to respond quickly to credible information, based on
specific and articulable facts, about immediate threats of serious harm to
students and staff, such as the presence of illegal drugs on school grounds.
There are important limits on the
kinds of searches that may be permitted under this approach. Consistently with
the standards that we have developed in the officer-safety cases, a school
official may not rely on generalizations about suspected drug use or on information
that is not specific or current. Moreover, we specifically reject the state's
request that we adopt, in this case, a general rule that all school
searches should be subject to a "reasonable suspicion" standard. The
state's argument that we should follow T. L. O. and sanction warrantless
searches whenever a school official has reasonable suspicion that a student
possesses evidence of a violation of a school rule or policy goes further than necessary
to decide this case. This case involves a present threat to student safety and
a search by a school official acting in his official capacity and in
furtherance of his responsibility to protect students and staff; our holding is
based on those circumstances. The permissibility of other kinds of searches by
school officials is not before us.
As we have stated above, high school
students, like other citizens, have privacy rights that are protected by
Article I, section 9, against unreasonable intrusions by state officials.
Those rights, however, like the rights of a person searched pursuant to a valid
officer-safety search, must yield if the state officials can point to specific
and articulable facts that reasonably create a risk of immediate and serious harm
to the officials or others. See Foster, 347 Or at 8 (stating test). If
the protective actions taken by the school officials are based on those facts, and
are reasonable, their conduct does not violate Article I, section 9. See id.
at 9-11 (applying test).
Applying that test here, we conclude
that the school officials reasonably suspected that youth possessed illegal
drugs at the time of the search and had sought to distribute those drugs to
other students earlier that morning. Another student told Brooks that he had
seen youth that morning at the pit attempting to sell marijuana. Brooks knew
of the informant's background with drugs and that students often used drugs at
the pit. He also knew from youth's records from schools that he had previously
attended that youth had possible drug issues. When Brooks called youth's mother,
she expressed her opinion that youth "probably was holding
something." The record in this case demonstrates that Brooks was aware of
specific, articulable facts that would lead a reasonable person to suspect that
youth was then in possession of illegal drugs. Moreover, Brooks reasonably
could have concluded that youth's possession and alleged attempt to sell those
drugs earlier that morning created an immediate risk of harm to youth and to
other students at the school. Those facts justified the actions of Brooks and
Pogel, including Pogel's conduct in reaching into youth's jacket pocket and
removing the bag that contained drugs and drug paraphernalia. Pogel's search
was reasonable in scope in light of the information that he had, the immediate
safety risk presented, and the bulge that Brooks had observed in youth's pocket.
The steps that Brooks and Pogel took were reasonable precautions in the
circumstances and were not unreasonably intrusive. Their actions thus did not
violate Article I, section 9.
Because the actions of the school
officials did not violate youth's Article I, section 9, rights, the evidence
that they recovered should not have been suppressed. The juvenile court
correctly denied youth's motion to suppress.
The decision of the Court of Appeals
is reversed. The judgment of the circuit court is affirmed.
1. Because
the state now relies only on its argument that the "reasonable
suspicion" rather than the "probable cause" standard applies to
school searches, we do not address or decide whether the state is correct in
conceding that the school officials did not have probable cause to search
youth, as the trial court and the Court of Appeals determined.
2. Article
I, section 9, provides:
"No law shall violate the right of the
people to be secure in their persons, houses, papers, and effects, against
unreasonable search, or seizure; and no warrant shall issue but upon probable
cause, supported by oath, or affirmation, and particularly describing the place
to be searched, and the person or thing to be seized."
3. Consent
to a search is one exception to the warrant requirement. State v. Paulson,
313 Or 346, 351, 833 P2d 1278 (1992). Similarly, a warrantless search can be
justified by a showing of probable cause and exigent circumstances. State
v. Meharry, 342 Or 173, 177, 149 P3d 1155 (2006). Because the Court
of Appeals concluded that the state had not demonstrated probable cause, it did
not consider whether exigent circumstances existed. M. A. D., 226 Or
App at 29 n 3.
4. The state also argues that we should adopt the "reasonable suspicion"
standard because school officials are not trained in the "fine legal
distinctions between probable cause and reasonable suspicion" and
therefore should be required to understand only the lesser "reasonable
suspicion" standard. We reject that argument as a basis for our
decision. First, we do not decide constitutional requirements based on what is
"easier" to understand. Second, the probable cause standard is not
any more complicated than the reasonable suspicion standard. Like many
constitutional standards, it may present close questions in some cases, but the
concept itself is straightforward: Would the facts on which the government
actor relied lead a reasonable person to believe that the objects seized will
probably be found in the location to be searched? State v. Henderson,
341 Or 219, 225, 142 P3d 58 (2006). We reject the probable cause standard for
school searches for the reasons discussed in the text, not because the standard
is too difficult in application or because school officials have not mastered
it in their training.
5. Our
officer-safety cases make it clear that the permissible scope of a search
depends on the nature of the safety threat. See State v. Morgan, 348 Or
283, 290, ___ P3d ___ (2010) (officer may take "reasonable steps" to
protect officer's safety). If the safety threat is based, for example, on
reasonable suspicion that the person searched is carrying a rifle, that
suspicion would not ordinarily be sufficient to justify a strip search of the
person or a search of the person's wallet. | a4ef10eff3db3a0c7f981b4bc295804cd35949f4a184cfaa72e2c16313ffd501 | 2010-06-10T00:00:00Z |
65bf87b5-3fb8-40b9-b32a-218f972c2f01 | Vannatta v. Oregon Government Ethics Comm. | null | null | oregon | Oregon Supreme Court | FILED: April 8, 2010
IN THE SUPREME COURT OF THE STATE OF OREGON
FRED VANNATTA
and CENTER TO PROTECT FREE SPEECH, INC.,
an Oregon Not-For-Profit Corporation,
Plaintiffs-Appellants,
v.
OREGON GOVERNMENT ETHICS COMMISSION,
formerly known as the Oregon Government Standards and Practices Commission;
and STATE OF OREGON,
Defendants-Respondents.
(CC 07C20464; CA A140080; SC S057570)
En Banc
On plaintiffs-appellants
petition for attorney fees and costs.*
Submitted January 21,
2010.
John DiLorenzo, Jr.,
Davis Wright Tremaine LLP, Portland, and Gregory A. Chaimov, Aaron K. Stuckey,
and Alan J. Galloway, filed the petition for attorney fees, statement of costs
and disbursements, and reply to defendant-respondents objection to petition for
attorney fees.
Anna M. Joyce,
Assistant Attorney General, Salem, John R. Kroger, Attorney General, and Jerome
Lidz, Solicitor General, filed the objection to attorney fees for Oregon
Government Ethics Commission.
DE MUNIZ, C. J.
Petitioners' statement
of costs and disbursements is allowed in the sum of $1,053.00. Petitioners'
petition for attorney fees is denied.
*347 Or 449, 222 P3d 1077 (2009).
Durham, J., specially concurred and filed an opinion.
DE MUNIZ, C. J.
In the underlying litigation,
petitioners sought declaratory and injunctive relief based on various challenges
to certain statutory restrictions on the solicitation, offering, and receipt of
gifts and entertainment by various public officials and private persons. The
trial court granted summary judgment in favor of the Oregon Government Ethics
Commission and the State of Oregon (the state). On review, this court affirmed
in part and reversed in part the trial court's summary judgment determination and
remanded the case to the circuit court for further proceedings. Vannatta v.
Oregon Government Ethics Comm., 347 Or 449, 222 P3d 1077 (2009).
Petitioners now seek costs on appeal and an award of attorney fees under this
court's inherent equitable power to make such awards, as described in Deras
v. Myers, 272 Or 47, 65-66, 535 P2d 541 (1975). For the reasons
that follow, we deny petitioners' attorney fees claim and grant petitioners'
request for costs.
In this court, petitioners claimed
that the statutory gift restrictions and limits on entertainment expenses in
ORS 244.025(1) to (4) and ORS 244.042 violated Article I, sections 8 and 26, of
the Oregon Constitution and the First Amendment to the United States Constitution.
This court held that the parts of ORS 244.025(1) to (4) and ORS 244.042 that
restrict the receipt of gifts and payment of expenses for entertainment
did not violate the constitutional provisions relied on by petitioners. However,
this court also held that the statutory restriction on offering gifts
and payment of entertainment expenses violated petitioners' free expression
rights guaranteed under Article I, section 8, of the Oregon Constitution. Finally,
this court determined that petitioners lacked the requisite standing necessary
under ORS 28.020 to seek declaratory and injunctive relief from the
restrictions on the solicitation of gifts and entertainment expenses in
ORS 244.025(1) to (4) and ORS 244.042.
Petitioners do not assert any
statutory entitlement to attorney fees. Instead, petitioners argue that they
should be awarded attorney fees based on this court's inherent power in equity,
a so-called Deras award. This court summarized the elements necessary
to support such an award in Armatta v. Kitzhaber, 327 Or 250,
287, 959 P2d 49 (1998):
"First, the
proceeding must be one in equity.[(1)]
Second, the party requesting attorney fees must be the prevailing party.
Finally, in filing the action, the party requesting attorney fees must have
been seeking to vindicate an important constitutional right applying to all
citizens without any gain peculiar to himself, as opposed to vindicating
individualized and different interests, or any pecuniary or other special
interest of his own aside from that shared with the public at large."
(Internal quotation marks and citations omitted; punctuation
modified accordingly.)
The parties disagree whether
petitioners satisfy the second and third Deras requirements.
Petitioners argue that they prevailed in this case, noting that this court
designated petitioners as the prevailing party in this court's opinion on the
merits. Petitioners also argue that they brought this action to vindicate an
important constitutional right that protects all citizens of this state. In
support of that argument, petitioners assert that they
"[s]ought to have available to
them the ability to conduct fact-finding trips and pay for meals and
entertainment to facilitate their political speech. [Petitioners] had no
particular pecuniary interest in the outcome however. Rather, their interests
were in safeguarding the right to communicate with public officials, a right
shared by all Oregonians. The relief applied not only to registered lobbyists,
but anyone who had a legislative or administrative interest in matters before
public officials."
The state responds that this court
reversed the trial court on a single ground, noting that this court concluded that
petitioners were entitled to a judgment declaring the restrictions on offering
gifts unconstitutional, but otherwise concluding that petitioners' claims were without
merit. Because this court also held that public officials could be prohibited
from receiving those gifts, the state argues that petitioners have gained "in
essence an empty power to offer gifts or provide entertainment that cannot be
received." Consequently, the state argues that this court should not deem
petitioners prevailing parties for purposes of their attorney fee claim. The
state also argues that petitioners do not meet the third Deras
requirement because petitioners' interests are individualized interests that
are different from those of most Oregonians, "who likely do not desire to
offer their public officials unlimited gifts and trips in connection with
lobbying activities."
We agree with the parties that this
is a proceeding in equity and that the first Deras requirement is
satisfied. We therefore turn to the other requirements that must be satisfied,
beginning with the question whether petitioners are prevailing parties for
purposes of their attorney fee request.
In Pendleton School Dist. v. State
of Oregon, 347 Or 28, 217 P3d 175, adh'd to as modified on recons,
347 Or 344, 220 P3d 744 (2009), this court recently considered a similar
issue. There the petitioners -- school districts and public school students --
filed an action against the state for declaratory and injunctive relief,
alleging that the legislature had violated certain constitutional requirements
concerning funding for public education. This court agreed with petitioners
that the legislature had failed to fund the public school system in accordance
with the constitution. However, the court declined to provide the petitioners
with the affirmative relief that they requested, viz., a judicial
direction to the legislative branch to alter its budgetary choices and increase
public school funding. The petitioners later requested attorney fees. This
court concluded that the petitioners satisfied the first two Deras requirements,
that is -- the proceeding was in equity and the petitioners had obtained a "substantial
modification of the judgment," and thus were the prevailing parties under
ORS 20.077(3).(2)
This court stated:
"In spite of the fact that
petitioners' request for a court-ordered appropriation had eluded them,
however, the court designated them the prevailing party in the case -- a
designation justified by the fact that petitioners had succeeded in obtaining a
direct statement that Article VIII, section 8, imposed a duty on the
legislature to fund primary and secondary public education at a certain level,
a result that the circuit court and the Court of Appeals had refused to give
them."
Pendleton School Dist., 347 Or at 33.
Here, although petitioners succeeded
in only one of their challenges to the gift and entertainment restriction
statutes, this court's opinion reversed the trial court judgment and held that
petitioners were entitled to a declaratory judgment that the restrictions on
offering gifts and entertainment violated petitioners' free expression right
under Article I, section 8. Thus, we conclude that petitioners did obtain a "substantial
modification of the judgment" regardless of whether the public officials involved
ultimately can accept the offers made. Petitioners obtained a holding from
this court that Article I, section 8, protects their right to offer gifts to
public officials. That conclusion is consistent with this court's exercise of
discretion in designating petitioners as the prevailing party pursuant to ORS
20.077(3) in the court's opinion issued in this case. On our further review
occasioned by this attorney fee proceeding, we determine that petitioners are
prevailing parties in this litigation based on the substantial modification of
the trial court judgment they obtained in this court.
We therefore turn to the third
inquiry required under Deras -- that is, whether petitioners were
seeking to vindicate an important constitutional right for all citizens without
any gain peculiar to themselves. At the outset, we note that the mere fact
that petitioners may have some individualized interest will not necessarily
disqualify them from an award of attorney fees. For example, in Armatta,
at least some of the plaintiffs in that case were opposed to the substance of
Measure 40 due to the effect that the measure had on them individually.
Nevertheless this court awarded the plaintiffs' attorney fees, stating:
"plaintiffs primarily sought to enforce the provisions
of the Oregon Constitution that relate to amendment and revision of that
document, and ultimately prevailed on their claim that Measure 40 was not
passed in compliance with the separate-vote requirement of Article XVII,
section 1. Plaintiffs, therefore, sought to benefit all Oregonians, because
they sought to defend the integrity of the amendment and initiative processes.
That is the type of public benefit that, in our view, makes an award of
attorney fees appropriate."
327 Or at 289.
However, where plaintiffs' self-interests
are more central, an award of Deras attorney fees is not appropriate. In
Vannatta v. Keisling, 324 Or 514, 931 P2d 770 (1997) (Vannatta I),
the plaintiffs, who included potential political candidates and a political
action committee, brought a challenge to the constitutionality of a measure
providing for campaign spending limits. The plaintiffs prevailed on some of
their claims and requested attorney fees. This court observed:
"It is true that, to some
degree, the same 'interest of the public in preservation of the individual
liberties guaranteed against governmental infringement of the constitution' on
which this court relied in awarding attorney fees in Deras is present in
this case. * * * That, however, is not enough. Deras was a case in
which the petitioner was attempting only to vindicate interests of the public
at large. By contrast, some of the petitioners, both individual and
institutional, who have brought the present proceeding are not so
disinterested. Their victory may benefit many members of the public at large,
but that is true of virtually any case involving the right to speak, write, or
print freely on any subject whatever. The overall benefit to the public is
only an ancillary result in this case. Petitioners such as the political
action committee and the potential political candidate have individualized and
different interests that they seek to vindicate. Under such circumstances,
this court ordinarily will decline to exercise its equitable power to award
attorney fees. See Dennehy v. Dept. of Rev., 308 Or 423, 781 P2d 346
(1989) (explaining the foregoing rationale for denying request for attorney
fees in the context of a tax case that affected many taxpayers). The request
for an award of attorney fees is denied."
Id. at 548-49 (citation omitted).
Petitioners here are not
disinterested parties -- as they state in their petition for attorney fees,
they "sought to have available to them the ability to conduct
fact-finding trips and pay for meals and entertainment to facilitate their political
speech." (Emphasis added.) In our view, petitioners here have significant
individualized interests that they sought to vindicate, and the potential
benefit to the public was only ancillary.
Moreover, it is questionable whether
petitioners' litigation in this case actually has provided the public at large
with any real substantive benefit that would support an award of Deras attorney
fees. Petitioners have established the right to offer gifts and free
entertainment to public officials, but no public official may accept any such
offer. In similar circumstances, this court has determined that no award of
attorney fees was warranted. In Pendleton School Dist., this court
observed that, although the petitioners successfully had obtained a judicial
declaration that the legislature had failed to fund the public school system at
the appropriate level, that success amounted only to a Pyrrhic victory because
the legislature lawfully could continue to provide less than adequate funding.
Consequently, this court rejected the petitioners' request for attorney fees in
that case, stating that "the result that petitioners have obtained is not
the kind of result for the public at large that calls for the award of attorney
fees under the rationale of Deras and the cases that have followed it."
Pendleton School Dist., 347 Or at 35. Similarly here, although petitioners
have established the right to offer gifts and free entertainment to public
officials, this court simultaneously upheld the statute prohibiting public
officials from accepting them. In our view, the net result of our holding is
not such a significant public benefit that the public at large should pay petitioners'
attorney fees.
Petitioners also have requested an
award of costs in the amount of $1,053.00. Petitioners have supported that
request with a statement detailing the costs and disbursements incurred on
appeal. The state does not object to the request for an award for costs, and
we agree that an award of costs is warranted in this case.
Petitioners' statement of costs and
disbursements is allowed in the sum of $1,053.00. Petitioners' petition for
attorney fees is denied.
DURHAM, J., specially concurring.
The issues before the court concern
plaintiffs' requests for an award of attorney fees and for costs and disbursements.
I join in the majority's decision to award costs and disbursements to
plaintiffs. I also agree with the majority that plaintiffs' request for
attorney fees should be denied. However, I would deny plaintiffs' petition for
attorney fees for a reason that the majority does not discuss: the petition
for attorney fees does not comply with the rule that prescribes the procedure
for claiming attorney fees in this case.
ORAP 13.10 provides in part:
"(1) This rule governs the procedure for
petitioning for attorney fees in all cases [subject to one exception not
applicable here].
"* * * * *
"(5)(a) A petition shall state the total
amount of attorney fees claimed and the authority relied on for claiming the
fees. The petition shall be supported by a statement of facts showing the total
amount of attorney time involved, the amount of time devoted to each task, the
reasonableness of the amount of time claimed, the hourly rate at which time is
claimed, and the reasonableness of the hourly rate.
"(b) If a petition requests attorney fees
pursuant to a statute, the petition shall address any factors, including, as
relevant, those factors identified in ORS 20.075(1) and (2) or ORS 20.105(1),
that the court may consider in determining whether and to what extent to award
attorney fees.
"(6) Objections to a petition shall be
served and filed within 14 days after the date the petition is filed. A reply,
if any, shall be served and filed within 14 days after the date of service of
the objections."
(Footnote omitted.)
Plaintiffs, invoking that rule, filed
a petition seeking recovery of $75,000 in attorney fees in this case. The
petition correctly asserted that plaintiffs had prevailed on their challenge to
several statutory restrictions on giving gifts to public officials, candidates
for office, and relatives and members of their households in connection with
lobbying activities. See Vannatta v. Oregon Government Ethics Comm.,
347 Or 449, 466-68, ___ P3d ___ (2009) (discussing plaintiffs' successful
challenges to ORS 244.025(2), (3), and (4)(b) and (c).
The petition for attorney fees
incorporated a detailed description of the time spent on various services by
plaintiffs' lawyers in this case, producing a total attorney fee of
$113,587.24. The petition asserted that that charge would represent "a
reasonable fee assuming Plaintiffs had prevailed on all of their claims."
The petition also asserted, somewhat inconsistently, that the excerpted time
and charges "represent only a portion of the total time that was actually
expended on this matter." The petition explained how plaintiffs arrived
at the requested fee of $75,000 in the following passage:
"Because Plaintiffs prevailed on some, but not all of
their claims, Plaintiffs believe a fair fee would be $75,000.00. This
discounted amount reflects the fact that Plaintiffs prevailed on one-half of
their significant claims and would have had to incur certain fees
notwithstanding the number of claims they addressed."
The petition also asserted that the
proposed fee award was "fair for additional reasons[,]" including the
facts that plaintiff Center to Protect Free Speech had raised funds to pay for
only part of the legal expenses at the trial level, but nothing for plaintiffs'
attorney fees on appeal, and that plaintiffs' lawyers had devoted effort to
resisting the consolidation of this case with other litigation but had not
included that time in the fee petition in this case. The petition included no
explanation of the assertion that plaintiffs had prevailed on "one-half of
their significant claims."
The state filed an objection. It
asserted, among other things, that the petition provided insufficient detail
about the listed time entries to allow the state (and, by inference, the court)
to determine how much attorney time was spent on plaintiffs' successful claim
concerning the statutory bans on offering of gifts to public officials.
Plaintiffs filed a reply to the
state's objection. In their reply, plaintiffs stated that they had
"suggested $75,000.00 as an appropriate fee based upon a 'rough justice'
discounting of 50%." The reply also stated that a "reasonable range
might also be between $57,000.00 and $75,000.00[,]" and purported to
explain how a figure within that range "could" be justified by
applying an "alternative methodology suggested herein." The reply
then set out different categories of attorney time that, according to
plaintiffs' counsel, "could relate" to various tasks related to
plaintiffs' successful claim.
I would sustain the state's objection,
because the petition for attorney fees fails to comply with ORAP 13.10(5)(a).
The petition fails to show "the reasonableness of the amount of time
claimed," as required by that rule, beyond the bare assertion that a fee
of $75,000 would be, in plaintiffs' opinion, "fair." The petition
contains no statement of the attorney time or legal services devoted to the
successful claim for which plaintiffs' requests a fee award. The practice of
listing all legal services devoted to all claims, both successful and
unsuccessful, forces the court and the responding party to speculate about the
legal services that counsel might have devoted to the claim that was
successful. ORAP 13.10(5) requires the petitioning party to identify in the
petition the time reasonably claimed on the successful claim. Plaintiffs
violated that requirement.
Under some circumstances, a
petitioner may face a difficult if not impossible task in allocating attorney
time to a particular successful claim rather than to other claims that are not
eligible for an award of attorney fees. It is clear that a lawyer must perform
some services in the course of litigation that are not easily divisible between
successful and unsuccessful claims. An example might be the preparation of a
notice of appeal. ORAP 13.10(5) requires, even in that circumstance, that the
petition explain which services, in petitioner's view, cannot be separated and
why the amount of attorney time claimed nevertheless is reasonable.
Petitioners do not satisfy that requirement by stating in a conclusory manner
that the fee sought is "reasonable" or "fair."
It is not the function of the reply,
filed under ORAP 13.10(6), to supply the information that should have been, but
was not, set out in the petition. That approach undermines the responding
party's all-important opportunity to state timely objections to the petition,
thereby framing the issues that the court must address and resolve. This court
has drawn attention in the past to the procedural significance of the responding
party's objection to a petition for attorney fees:
"In [proceedings to recover attorney fees under ORAP
13.10(5)], we generally limit our inquiry to the objections, if any, filed by
the opposing party. See Kahn v. Canfield, 330 Or 10, 13-14, 998 P2d 651
(2000) (so stating). We so limit our inquiry because we are 'loath to
undertake a wide-ranging, independent review * * *, inasmuch as any questions
or doubts that we might have might not be shared by the objecting party.' Dockins
v. State Farm Ins. Co., 330 Or 1, 9, 997 P2d 859 (2000)."
Lehman v. Bradbury, 334 Or 579, 582, 54 P3d 591
(2002). For the reasons identified in Lehman, a petitioner seeking
attorney fees cannot postpone making the required statement of the
reasonableness of the amount claimed until the filing of the reply under ORAP
13.10(6). Petitioners' attempt to do so here is of no avail.
Even if we were to consider the
assertions that petitioners presented in their reply, they do not overcome the
deficiencies regarding the petition noted above. Claims for attorney fees
supported only by a conclusory claim of "rough justice" and fee
formulas that "could" be conceived as justifiable are no substitute
for the statements of fact required by ORAP 13.10(5).
I would permit counsel broad latitude
in presenting the facts called for under ORAP 13.10(5). The rule does not
impose rigid requirements that only the most fastidious petitioner could
satisfy. The petition here, however, falls short of substantial compliance
with ORAP 13.10(5)(a). The state's objection in that respect is well-taken.
I do not necessarily reject the
majority's discussion of substantive shortcomings regarding the petition, but
neither is there a need to address them. Logic suggests that the court should
address first the state's objection that plaintiffs' petition for attorney fees
does not comply with this court's mandatory procedural requirements for a valid
petition. If, as here, the petition falls short on procedural grounds, there
is no need to address and decide the state's more complex or controversial
substantive objections to the petition.
Additionally, petitioners may be
entitled to a more in-depth discussion of the substantive problems that the
majority has identified in its opinion. For example, according to the
majority, plaintiffs have obtained only a small victory here, because their
constitutional right to offer gifts to public officials is qualified by a valid
statutory limit on the ability of public officials to receive gifts. However,
plaintiffs' litigation succeeded in invalidating four separate statutory
provisions that, according to this court, unconstitutionally restricted
protected speech in the form of offers of gifts to public officials: ORS
244.025(2), (3), and (4)(b) and (c). As a result, plaintiffs and other
citizens will be entitled to speak on that matter to their public officials and
representatives without fear of civil enforcement, fines, or other restraints.
Those are not mere "ancillary" benefits to the public, or so it would
seem.
The majority seeks to downplay
plaintiffs' success. But the majority does not demonstrate that plaintiffs'
success has resulted in a narrower right to speak than the plaintiffs claimed.
Plaintiffs won that argument completely. Rather, the majority focuses on the audience
for plaintiffs' protected speech and, specifically, the statutory restraints
that limit the authority of the audience to respond to the speech in
question in a particular way (i.e., by accepting an offer of a gift).
But the majority's focus on statutory regulations on the receipt of
gifts by public officials -- all subject to change or repeal by the legislature
-- may too quickly evade the genuine public interest that gave rise to the
court's practice of awarding attorney fees in these cases in the first place:
"the interest of the public in preservation of the individual liberties
guaranteed against governmental infringement of the constitution * * *." Deras
v. Myers, 272 Or 47, 66, 535 P2d 541 (1975).
The majority cites one case, Pendleton
School District v. State of Oregon, 347 Or 28, 217 P3d 175 (2009), in
support of its assertion that it is "questionable" whether this
litigation has produced a substantive benefit for the public. ___ Or at ___
(slip op at 6-7.) But, in Pendleton School District, the plaintiffs
argued, erroneously, that the state constitution specifically guaranteed the
higher level of school funding for which they advocated. This court concluded
that the plaintiffs' view of the meaning of the state constitution was
incorrect and that the state constitution itself proscribed any judicial remedy
to compel the additional school funding that the plaintiffs sought. Thus, the
court's view of the "Pyrrhic" nature of the plaintiffs' victory
resulted from its conclusion that the state constitution itself denied the
remedy -- increased school funding -- that was the basis for the plaintiffs'
claim, and that the plaintiffs' constitutional law arguments in that regard
were incorrect.
The Pendleton School District
case does not fit easily as a precedent for the majority's action here.
Plaintiffs here were correct, not incorrect, about the validity of the
statutory restrictions on giving gifts to public officials. Additionally,
nothing in Article I, section 8, of the Oregon Constitution limits plaintiffs'
available remedies. On the contrary, plaintiffs have obtained the usual legal
remedy: this court invalidated each of the four statutory provisions, cited
above, prohibiting the offering of gifts to public officials. The plaintiffs
in Pendleton School District could not claim equivalent legal success or
benefit in the public interest from their litigation under the state
constitution.
If plaintiffs have secured more than
a hollow victory for the right of free speech, that result would seemingly
justify a substantively different analysis, and perhaps a different result, by
this court. But, for the reasons stated earlier, there is, in this case, a
logically compelling reason to avoid resolving those difficult substantive
questions about plaintiffs' petition for attorney fees: the petition does not
satisfy the requirements of ORAP 13.10(5)(a). Therefore, I concur in the
result that the majority reaches, but I do not join in its reason for denying
the petition for attorney fees.
I specially concur.
1. In
Swett v. Bradbury, 335 Or 378, 389, 67 P3d 391 (2003), this court
determined that the "proceeding in equity" criterion "is of
limited utility in determining whether to award an attorney fee" and,
depending on the circumstances, may be of no utility at all. The parties here
nonetheless agree that this proceeding is one in equity, for purposes of Deras
and Armatta.
2. ORS
20.077(3) provides
"Notwithstanding subsection (2) of this
section, upon appeal of a judgment in an action or suit in which one or more
claims are asserted for which the prevailing party may receive an award of
attorney fees, the appellate court in its discretion may designate as the
prevailing party a party who obtains a substantial modification of the
judgment." | b22c7e28bc420781809f1686c4bbc46af0d705c31669298680a89b97002d02d0 | 2010-04-08T00:00:00Z |
Subsets and Splits