April 14, 2005

Cases decided April 14, 2005

The full text of these opinions can be found at http://www.publications.ojd.state.or.us

Mary Li and Rebecca Kennedy et al. v. State of Oregon et al.,
(CC 0403-03057) (CA A124877) (SC S51612)

On certified appeal from the Multnomah County Circuit Court, Frank L. Bearden, Judge. The judgment of the circuit court is reversed and the case is remanded to the circuit court with instructions to dismiss the action. Opinion of the Court by Justice W. Michael Gillette.

Today, in a declaratory judgment action, the Oregon Supreme Court held that the Multnomah County Board of Commissioners (the county) lacked the authority to issue same-sex marriage licenses to remedy what the county perceived as a violation of the Equal Privileges and Immunities clause of the Oregon Constitution. As a result, the Court concluded that the licenses issued to same-sex couples by the county were void ab initio. The Court also held that, following the adoption of Ballot Measure 36 (2004), the state constitution now expressly limits the institution of marriage to opposite-sex couples.

In March 2004, acting on the advice of its legal counsel, the county began issuing marriage licenses to same-sex couples after concluding that to issue such licenses to opposite-sex couples while withholding them from same-sex couples
violated the Equal Privileges and Immunities clause of the Oregon Constitution. Within several weeks, the county had issued over three thousand same-sex marriage licenses. At the direction of the Governor, however, the State Registrar refused to file and register the same-sex marriage records sent by the county on the ground that the licenses did not constitute legal marriage records under Oregon law.

Plaintiffs responded by filing an action in Multnomah County Circuit Court. Arguing that Article I, section 20, of the Oregon Constitution prohibited the denial of a privilege or immunity based on sexual orientation and gender, plaintiffs sought (1) a declaratory judgment stating that the marriage statutes contained in ORS Chapter 106 were unconstitutional; (2) a declaratory judgment stating that the State's refusal to file and register records of same-sex marriages in Oregon was unconstitutional or, alternatively, (3) APA review of the final agency orders prohibiting that action; and (4) in the event that no adequate remedy existed for the first three claims, a writ of mandamus compelling the State Registrar to process the records of the same-sex marriages already licensed and performed in Oregon. The trial court issued a limited judgment for plaintiffs. Although it declined to recognize marriage rights for same-sex couples, the trial court nevertheless held that denying such couples marriage benefits that otherwise were available to their opposite-sex counterparts violated, as a matter of law, the Oregon Constitution. The trial court ordered the legislature to create a remedy consistent with that holding within ninety days of the legislature's next regular or special session. The trial court then issued a writ of mandamus compelling the State Registrar to register the previously unrecorded records of same-sex marriages that already had taken place in the state. While the appeals in this case were pending, however, Oregon voters adopted Ballot Measure 36 (2004), a voter-initiated amendment to the Oregon Constitution that narrowly defines marriage as a relationship between one man and one woman.

In a unanimous opinion by Justice W. Michael Gillette, the Court first held that there was no ambiguity regarding the substantive effect of Measure 36. The Court concluded that marriage in Oregon -- an institution once limited to opposite-sex couples only by statute -- was now similarly limited by the state constitution. Turning to the same-sex marriage licenses issued by the county before Measure 36 was adopted, the Court first noted that, although the county was entitled to question the constitutionality of state statutes, marriage and the laws governing it are matters of statewide, as opposed to local, concern. In such cases, the Court continued, the remedy for perceived constitutional shortcomings must be dispensed state-wide by an entity with authority to so act. The Court held that, although the legislature and the courts have such authority, the county does not; therefore, the same-sex marriage licenses issued by the county were void at the time they were issued. As a result, the Court concluded that it was unnecessary to consider the independent effect of Measure 36 on the licenses in question or whether Oregon's marriage statutes confer marriage benefits in violation of Article I, section 20, of the Oregon Constitution.


Roderick Dolan Tharp v. Psychiatric Security Review Board,
(PSRB 99-1640) (CA A115750) (SC S51046)

On review from the Court of Appeals in an appeal from the Psychiatric Security Review Board. 188 Or App 763, 72 P3d 1011 (2003). The decision of the Court of Appeals is reversed. The order of the Psychiatric Security Review Board is vacated, and the case is remanded to the board for further proceedings. Opinion of the Court by Justice Thomas A. Balmer.

Today, the Supreme Court held that substance dependency is a personality disorder, not a mental disease or defect that would require a person to remain under the jurisdiction of the Psychiatric Security Review Board (board).

Under ORS 161.295, a person is "guilty except for insanity" if, in part, that person was affected by a "mental disease or defect" at the time of the criminal conduct. That statute provides that "personality disorders" are not mental diseases or defects. Petitioner was indicted for robbery, and two mental health experts determined that he had been suffering from paranoid thought disorder and schizophrenia at the time of the robbery. Pursuant to a stipulated judgment, the trial court found him guilty except for insanity, based on his mental disease or defect, and committed him to a state mental hospital under the board's jurisdiction. Approximately two years later, petitioner requested discharge, claiming that he no longer was affected by a mental disease or defect. At a hearing, the evidence showed that petitioner was suffering from "substance dependency." Petitioner argued that, under ORS 161.295, substance dependency is a personality disorder, not a mental disease or defect. The board concluded that petitioner was affected by a mental disease or defect and declined to discharge petitioner. The Court of Appeals affirmed.

The Supreme Court reversed in a unanimous opinion by Justice Thomas A. Balmer. The Court evaluated the parties' competing interpretations of ORS 161.295's "personality disorder" exclusion and determined that the exclusion's plain text supported several interpretations. Therefore, the Court determined that the exclusion was ambiguous. The Court then considered the legislative history of ORS 161.295 and concluded that the legislature intended to treat substance dependency as a personality disorder, not as a mental disease or defect. Finally, because the board's order was unclear, the Court remanded the case to the board with instructions to issue a new order clarifying whether petitioner suffered from any disorder other than substance dependency.


State ex rel Department of Human Services v. Christopher Rardin,
(TC CC2590J) (CA A125045) (SC S51810)

On review from the Court of Appeals in an appeal from the Tillamook County Circuit Court, Richard W. Roll, Judge. The decision of the Court of Appeals is reversed. The case is remanded to the Court of Appeals for further proceedings. Opinion of the Court by Justice Paul J. De Muniz.

A juvenile court terminated father's parental rights. Father did not timely appeal because he had not received proper notice that the judgment had been entered. Father nonetheless filed an untimely notice of appeal in the Court of Appeals. The Court of Appeals dismissed the appeal because of untimeliness and because, alternatively, father had failed to raise a colorable claim of error as required by ORS 419A.200(5)(a).

In a unanimous opinion written by Justice Paul J. De Muniz, the Supreme Court held that, because father raised a plausible argument that his failure to develop a relationship with his child was in part due to the Department of Human Services limiting his contact with his child, father had raised a colorable claim of error for purposes of ORS 419A.200(5)(a). The Court concluded, therefore, that the Court of Appeals had erred in denying the father's motion to file an untimely notice of appeal and in dismissing the appeal.

On April 12, 2005, the Supreme Court:

1. Allowed a petition for review in*:

Umemoto v. Eastmoreland Radiology, P.C., S52096, A121552. As personal representative for the Estate of Giro Umemoto, deceased, Kent Umemoto (decedent's son and plain­tiff below), along with Shirley Umemoto (decedent's wife and plain­tiff below), petition for review of the Court of Appeals decision that affirmed without opinion a trial court order dismissing petitioners' malpractice case against respondents Eastmoreland Radiology and John R. Anderson, D.O. (defendants below).

The deceased had a history of insulin dependent diabetes and renal insufficiency. In January 1996, while decedent was still alive, respondents per­formed a radiology procedure on him that involved intravenous injection of a substance called Optiray. Decedent, however, suffered serious injury during the procedure, allegedly because respondents had been negligent in administering Optiray to him given his diabetes-related medical history.

Decedent and his wife subsequently brought a professional negligence action against respondents. The case was scheduled to be tried in April 2002, but in December 2001, decedent died. In the months that followed, counsel for decedent resigned from the case and decedent's wife and son retained new representation. The new lawyer sought postponement of the April 2002 trial in order to prepare the plaintiffs' case. In a meeting with the parties' lawyers, the Multnomah County judge presiding over the circuit court's malpractice docket suggested dismissing the case and refiling it. The lawyers for both sides agreed, and petitioner's lawyer prepared a stipulated judgment of dismissal without prejudice. As part of the judgment, petitioner's counsel included a statement that the action would be refiled within 120 days of the trial court's order dismissing the case.

Meanwhile, petitioner retained a second lawyer to probate his father's estate. That process took longer than ex­pected, and petitioner's lawyer in the malpractice matter delayed filing the parties' new negligence action until petitioner had been officially appointed as the personal representative of his father's estate. By the time petitioner had informed his lawyer that the appointment had taken place and the new action was filed, 161 days had passed since dismissal of the previous action.

Petitioner, however, had been mistaken regarding the time of his appointment as personal representative. The probate court had not immediately admitted decedent's will to probate and petitioner's appointment as personal representative did not actually occur until March 2003, well after the refiling of petitioners' negligence action had taken place.

In the wake of the refiled action, respondents first moved to dismiss on timeliness grounds, arguing that petitioner had exceeded the 120-day time limit laid out in the previous judgment. The trial court denied that motion, holding that petitioner had substantially complied with the judgment's time requirements. Later, however, upon discovering that petitioner had not actually possessed personal representative status when the new action had been filed, respondents filed a second motion, again seeking dismissal of the action. This time, the trial court held that, in light of the newly-discovered fact, petitioner had not substantially complied with the previous judgment of dismissal and, as a sanction, dismissed petitioners' action with prejudice pursuant to ORCP 54 (B)(1). Under ORCP 54 B(1), civil actions or claims may be dismissed if the plaintiffs either fail to prosecute those actions or fail to comply with any order of the trial court. Petitioners appealed, and the Court of Appeals affirmed the trial court's judgment without opinion.

On review, the issue raised by petitioners is whether the trial court properly dismissed petitioners' malpractice action under ORCP 54 (B)(1) after finding that petitioner Kent Umemoto had not been appointed as decedent's personal representative at the time the action was refiled.


2. Denied petitions for review in:

State v. Lalonde, S49513, A102076
Stroup v. Hill, S52143, A119664
Tristan v. Lampert, S52155, A117514
Briggs v. Lampert, S52157, A121950
State v. Jewell, S52176, A122436
State v. McClintock, S52177, A122763
Fowler v. Bartlett, S52184, A123680
Calvin v. Hill, S52188, A125686
Walker v. Lampert, S52190, A114927
State v. Warren, S52192, A121841
Hoeck v. Schwabe, Williamson & Wyatt, S52216, A121662


3. Denied petitions for reconsideration in:

Grossman and Grossman, S51209, A116358 (Opinion issued on February 17, 2005)


4. Denied petitions for writ of mandamus in:

State v. Phipps, S52194, S52278
State v. Modine, S52206
State v. Parker, S52232


5. Accepted the resignation of Salem attorney Stanley Fields during the pendency of disciplinary proceedings.

*These summaries of cases in which the Supreme Court has allowed review are prepared for the benefit of members of the media to assist them in reporting the court's activities to the public. Parties and practitioners should not rely on the summaries, or the statement of issues to be decided in the summaries, as indicating the questions that the Supreme Court will consider on review. Regarding the questions that the Supreme Court may consider on review, see Oregon Rule of Appellate Procedure 9.20.
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