BREWER, J. Our review of an order of the Workers' Compensation Board (the board) that made a permanent partial disability (PPD) award to claimant requires us to determine whether OAR 436-035-0013 (2009), an administrative rule adopted by the Director of the Department of Consumer and Business Services (DCBS), is inconsistent with the statutes that the Director intended to implement. We review to determine whether the board has erroneously interpreted a provision of law. ORS 183.482(8)(a)(B)....
LINDER, J. Defendant appealed his conviction for resisting arrest, ORS 162.315, raising, among other issues, two claims that the trial court erred in instructing the jury. The Court of Appeals concluded that it was barred from reviewing those claims by ORCP 59 H, which states that "a party may not obtain review on appeal" of an asserted error in giving or failing to give an instruction unless the party objected in a specified manner. We allowed defendant's petition for review to consider...
BALDWIN, J. Plaintiff, an Oregon resident, sustained injuries in a motorcycle accident that occurred in Wyoming. She subsequently filed an action in Oregon seeking damages for her injuries, naming as a defendant Grand Teton Cycles, LLC, a Harley-Davidson franchisee with a physical presence in Idaho and Wyoming. The trial court determined that it lacked personal jurisdiction over defendant and granted defendant's motion to dismiss the complaint. The Court of Appeals affirmed. Robinson v....
WALTERS, J. This case is before us on direct appeal from a general judgment of the Tax Court. See ORS 305.445 (authorizing such appeals). In 2006, the Department of Revenue (department) issued a notice of deficiency against Tektronix, Inc. (taxpayer) for $3.7 million in additional tax for taxpayer's 1999 tax year. Taxpayer contended that (1) the statute of limitations barred the department from assessing that deficiency, and (2) in any event, the department had incorrectly calculated its tax...
LINDER, J. This is one of three cases that we decide today in which we examine the legal standard for what constitutes a seizure under Article I, section 9, of the Oregon Constitution. 1 All three cases involve police contacts with individuals in which, at the outset of the contact, the officers asked the individuals for identification. In the first of the three cases, State v. Backstrand, 354 Or. 392 , 412-13, 313 P.3d 1084 (Nov 15, 2013) (decided this day), we held that an officer's...
BREWER, J. The right to a jury trial under Article I, section 11, of the Oregon Constitution, extends to "all criminal prosecutions." 1 The issue in this mandamus proceeding is whether the state's election under ORS 161.566(1) 2 to "treat" the misdemeanor offense of criminal trespass as a violation effectively decriminalized that offense and thereby deprived defendant of the jury trial right afforded her under Article I, section 11. 3 On October 11, 2011, defendant was arrested, handcuffed,...
WALTERS, J. Petitioner is a crime victim who filed a claim pursuant to ORS 147.515, alleging that the trial court had violated her right to "receive prompt restitution" under Article I, section 42(1)(d), 1 of the Oregon Constitution. The trial court entered an order denying petitioner's claim, and, pursuant to ORS 147.539, petitioner sought direct review of that order in this court. For the reasons that follow, we affirm the trial court's order. The material facts are procedural and...
BREWER, J. Like the defendant in State v. Benoit, 354 Or. 302 , 311 P.3d 874 , 2013 WL 5497271 (2013), also decided today, defendant in this case was arrested and incarcerated on misdemeanor charges that the state later reduced to violations under ORS 161.566(1). 1 The issue is whether the prosecutor's election to treat the offenses as violations precluded defendant from asserting her right to a jury trial and other protections under Article I, section 11, of the Oregon Constitution....
BALMER, C. J. In this medical malpractice case, we decide whether a plaintiff is required to present expert testimony from a medical doctor to establish the standard of care and breach of the standard of care. Plaintiff presented expert testimony from a biomechanical engineer familiar with use of the medical device installed on plaintiff's cervical spine by defendant, a neurosurgeon. For the reasons set out below, we conclude that plaintiff introduced sufficient evidence from an expert witness...
WALTERS, J. In this juvenile case, we consider whether Article I, section 17, of the Oregon Constitution, which requires a trial by jury in "all civil cases," applies to a restitution determination in a juvenile delinquency proceeding. Youth argues that he is entitled to a jury trial because recent constitutional and statutory amendments have transformed the juvenile restitution statute, ORS 419C.450, into a civil device through which victims of crime can recover monetary damages for their...
KISTLER, J. Plaintiffs brought this medical malpractice action to recover for injuries that their son sustained during delivery. On review, the issues are whether ORCP 59 H limits an appellate court's ability to review objections to a trial court's instructional rulings and whether a statutory cap on noneconomic damages constitutionally can be applied to actions brought by children injured during birth. The Court of Appeals held that, because defendant had not excepted to the trial court's...
LANDAU, J. Petitioners seek review of the Attorney General's certified ballot title for Initiative Petition 9 (2014), arguing that the ballot title does not satisfy the requirements of ORS 250.035(2). We review a certified ballot title to determine whether it substantially complies with those statutory requirements. See ORS 250.085(5) (stating standard of review). For the reasons that follow, we refer the ballot title to the Attorney General for modification. Initiative Petition 9, if...
BALMER, C.J. This case requires us to examine Article I, section 20, of the Oregon Constitution — the privileges or immunities provision — in the context of prosecutorial discretion. Specifically, we must determine whether Article I, section 20, applies to prosecutors' charging decisions and, if so, whether a prosecutor must consistently adhere to a coherent, systematic policy in making charging decisions. Defendant was accused of embezzling money from her employer in numerous transactions...
LANDAU, J. In this personal injury action, plaintiff alleges that she was injured as she walked down the aisle of defendant's store and a heavy item of merchandise fell on her foot. She did not see the item fall, nor did she see how it was shelved before it fell. She nevertheless contends that the store was negligent, because the item would not have fallen had it been properly shelved. The trial court entered summary judgment for defendant, concluding that plaintiff had produced no evidence...
BREWER, J. Plaintiff Portland General Electric Company (PGE) seeks review of a Court of Appeals decision that reversed and remanded a trial court order denying defendant Lexington Insurance Company's motion under ORCP 71 to set aside a default judgment entered against it in PGE's favor, on the ground that the trial court lacked jurisdiction to enter the default judgment. On review, the issues are (1) whether a default judgment awarding monetary relief violates ORCP 67 C if the underlying...
BALMER, C.J. The Governor has the power to grant clemency, including pardons, commutations, and reprieves, pursuant to Article V, section 14, of the Oregon Constitution. 1 This case requires us to determine what constitutes a reprieve under that constitutional provision. Specifically, we must decide whether a reprieve must have a stated end date, whether it may be granted only for particular purposes, and whether it must be accepted by the recipient to be effective. After this court affirmed...
BREWER, J. This is the second of two cases this court decides today that is concerned with the nonjudicial foreclosure of trust deeds under the Oregon Trust Deed Act (OTDA) and the mortgage finance industry's practice of naming the Mortgage Electronic Recording System, Inc., (MERS), rather than the lender, as a trust deed's "beneficiary." In Brandrup v. ReconTrust Co., 353 Or. 668, ___ P.3d ___, 2013 WL 2446517 (June 6, 2013), we answered questions certified to us by a United States District...
BREWER, J. These cases come before this court on four certified questions of law from the United States District Court for the District of Oregon. See Brandrup v. ReconTrust Co., 352 Or. 320 , 287 P.3d 423 (2012) (accepting certified questions); ORS 28.200 to 28.255 (providing procedure for certifying questions to the Oregon Supreme Court and authorizing court to answer certified questions). The questions all are concerned with a practice that has arisen in the home mortgage industry in...
WALTERS, J. ORS 90.385 prohibits a landlord from "retaliat[ing] by" serving notice to terminate a tenancy after the tenant has made a complaint that is in good faith and related to the tenancy. 1 In this case, we conclude that, to prove retaliation under ORS 90.385, a tenant must establish that the landlord served the notice of termination because of the tenant's complaint. The tenant need not prove, in addition, that the complaint caused the landlord actual or perceived injury or that the...
BALDWIN, J. Defendant was convicted of felony driving under the influence of intoxicants (DUII), ORS 813.010. At trial, defendant sought to introduce evidence that he suffers from a sleepwalking disorder and was "sleep driving" at the time he was stopped in his vehicle. 1 Defendant argued he did not voluntarily drive his vehicle, an element of proof necessary to establish criminal liability for DUII. The trial court excluded defendant's proffered evidence, concluding it was not relevant...
