May 26, 2005

Cases decided May 26, 2005

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

Dixie McFadden, et al. v. Dryvit Systems, Inc.,
(USDC CV-04-103-HA) (SC S51901)

On certified question from United States District Court for the District of Oregon, Ancer L. Haggerty, Chief Judge. Certified question answered. Opinion of the Court by Justice W. Michael Gillette.

Today, the Oregon Supreme Court held that the 2003 amendment to ORS 30.905, reviving certain product liability causes of action for which a court had entered a final judgment of dismissal before the effective date of the amendment, does not violate the separation of powers provisions of the Oregon Constitution.

In 2001, plaintiffs Dixie McFadden, Gregory Byrne, and Debra Byrne, owners of townhouse residences in Portland, Oregon, filed a lawsuit against Dryvit Systems, Inc., among others, for damages allegedly resulting from the improper installation of exterior stucco siding and defective components. In December 2003, a federal district court dismissed all of their claims as time-barred under ORS 30.905 (2001), the then-applicable statute of limitations.

In 2003, the Oregon legislature amended ORS 30.905 to revive certain causes of actions, including those of the plaintiffs here. In early 2004, the plaintiffs filed a new lawsuit in federal court against Dryvit, alleging the same causes of action that they alleged in their earlier lawsuit. Dryvit argued to the federal court that the 2003 amendment to ORS 30.905 was an unconstitutional infringement on judicial power.

The Oregon Supreme Court accepted certification of the following question from the federal district court:

"Whether § 2 of the 2003 amendments to ORS 30.905 (Sec. 2, Chap. 768, Or Laws 2003), which revives certain product liability causes of action for which a final judgment of dismissal has been entered prior to the effective date of the amendments, violates the separation of powers clause in Article VII, § 1, of the Oregon Constitution."

The Court reframed that question to address whether the 2003 amendment to ORS 30.905 violates the separation of powers provisions of Article VII (Amended), section 1, or of Article III, section 1, of the Oregon Constitution.

In a unanimous opinion authored by Justice W. Michael Gillette, the Supreme Court concluded that the 2003 amendment to ORS 30.905 did not burden the courts' ability to adjudicate cases or substantially destroy its ability to exercise a power essential to its adjudicatory function. Nor was it an effort on the part of the legislature to declare what the earlier law meant or to annul or set aside a final judgment of a court. Rather, the Court held, the 2003 amendment to ORS 30.905 merely gave litigants with product liability claims a new right to file an action. Accordingly, the Court held that the legislature, by enacting ORS 18.540, did not interfere impermissibly with the judiciary and violate the separation of powers provisions under either Article VII (Amended), section 1, or Article III, section 1, of the Oregon Constitution.


Chip Terhune, et al., v. Hardy Myers, (SC S52205)

On direct review of a petition to review a ballot title. Ballot title referred to the Attorney General for modification. Opinion of the Court by Justice W. Michael Gillette.

Today, the Supreme Court referred to the Attorney General for modification a ballot title for a proposed initiative measure that would prohibit money collected with public funds from being used for "political purposes," as that phrase is defined in the proposed measure.

Petitioners Chip Terhune, Kris Kain, and Art Towers challenged the "yes" vote result statement, the "no" vote result statement, and the summary of the Attorney General's certified ballot title for Initiative Petition 20 (2006) on the grounds that the certified ballot title fails, in various ways, to comply with the requirements of ORS 250.035(2).

In a unanimous opinion authored by W. Michael Gillette, the Court agreed that the summary fails to comply substantially with the requirements of ORS 250.035(2)(d), which requires that a ballot title summary adequately summarize the measure and its major effect. That is so, according to the Court, because the summary describes the definition of money spent for "political purposes" as money "spent supporting/opposing ballot measure." However, that phrase does not convey that the initiative petition sweeps beyond the normal understanding of "ballot measure," which is a proposed initiative that actually has been placed on the ballot, to encompass activity preliminary to placing a proposed measure on the ballot. According to the Court, the summary, therefore, is underinclusive and, for that reason, does not meet the statutory standard. The Court referred the ballot title to the Attorney General for modification.


Art Towers v. Hardy Myers, (SC S52203)

On direct review of a petition to review a ballot title. Ballot title referred to the Attorney General for modification. Opinion of the Court by Justice W. Michael Gillette.

Today, the Supreme Court referred to the Attorney General for modification a ballot title for a proposed initiative measure that would amend the constitution to add a section that would restrict how a person, corporation, or organization could use money obtained through public employee payroll deductions.

Petitioner Art Towers challenged the summary of the Attorney General's certified ballot title for Initiative Petition 15 (2006) on the ground that the summary fails, in various ways, to comply with the requirements of ORS 250.035(2).

In a unanimous opinion authored by W. Michael Gillette, the Court agreed that the summary fails adequately to summarize the measure and its major effect as required by ORS 250.035(2)(d) for two of the reasons that Towers advanced. The Court held that the ballot title summary inaccurately describes the current state of existing law. The Court also held that the summary improperly uses the pronoun "anyone," a word meaning any person, to describe those affected by the measure, even though corporations and organizations also would be affected by the measure. For those reasons, the Court concluded, the ballot title must be modified. The Court therefore referred the ballot title to the Attorney General for modification.


Art Towers v. Hardy Myers, (SC S52204)

On direct review of a petition to review a ballot title. Ballot title referred to the Attorney General for modification. Opinion of the Court by Justice W. Michael Gillette.

Today, the Supreme Court referred to the Attorney General for modification a ballot title for a proposed initiative measure that would amend the constitution to add a section that would restrict how a person, corporation or organization could use money obtained through employee payroll deductions.

Petitioner Art Towers challenged the summary of the Attorney General's certified ballot title for Initiative Petition 17 (2006) on the ground that the summary fails, in various ways, to comply with the requirements of ORS 250.035(2).

In a unanimous opinion authored by W. Michael Gillette, the Court agreed that the summary fails adequately to summarize the measure and its major effect as required by ORS 250.035(2)(d), for the same reasons that the Court found that the ballot title summary of a similar companion measure, Initiative Petition 15 (2006) also fails to comply with the requirements of ORS 250.035(2)(d) (discussed in Towers v. Myers, S52203, decided this date). The Court referred the ballot title to the Attorney General for modification.


On May 24, 2005, the Supreme Court:

1. Allowed petitions for review in*:

Engweiler v. Board of Parole, S52165, A108469; State ex rel Engweiler v. Cook, S52169, A117264. Petitioner Conrad R. Engweiler seeks review of two Court of Appeals decisions: a decision that dismissed his petition for judicial review of a decision of the Board of Parole and Post-Prison Supervision (board) based on the premise that ORS 144.335 does not provide for judicial review for that type of board order; and a decision that affirmed a trial court's dismissal of an alternative writ of mandamus on the basis that the statute that petitioner sought enforcement of (pertaining to earned time reduction credits) did not apply to him.

Petitioner was convicted of aggravated murder for a crime he committed in 1990 at age 15. Under the law that was in effect at that time, ORS 161.620 (1989), no person under age 17 could be subject to a mandatory minimum sentence. On remand from the Court of Appeals in his original direct appeal, the trial court imposed a life sentence with no minimum prison term. Whether petitioner will remain incarcerated for life, or will be released at some point on parole, depends on decisions of the board.

In 1999, the board held a "prison term hearing" and issued board action form (BAF) #1, which established for petitioner a "prison term" of 480 months and a "review date" of February 2, 2030. In setting the prison term and review date, the board used a matrix and rules it adopted in 1999. Under the board's rules, the board will not determine a parole release date or set future review dates until after the current review date of February 2030. Petitioner unsuccessfully sought administrative review of BAF #1, arguing in part that the board's action violated ex post facto provisions.

Contemporaneous with his efforts seeking review of BAF #1, petitioner wrote to the Department of Corrections (DOC) asking it to reduce his 480-month prison term by crediting him for earned time. DOC responded that the board, and not DOC, would calculate petitioner's release date. Petitioner then sought a writ of mandamus from the circuit court, arguing in part that under the express terms of ORS 421.121, any inmate who committed a crime on or after November 1, 1989, is entitled to have the inmate’s incarcera­tive term reduced based on their earned time credits. Ultimately, the circuit court dismissed the writ.

Petitioner sought judicial review in 1999 of BAF #1. The board filed a motion to dismiss arguing that, under ORS 144.335(3) (1999), the challenged order was not subject to judicial review because it established a parole review date rather than a parole release date. The Court of Appeals initially disagreed, and denied the motion. Engweiler v. Board of Parole, 170 Or App 653, 13 P3d 1009 (2000). Subsequently, the court on its own motion concluded that its earlier ruling concerning the reviewabil­ity of BAF #1 was erroneous. It therefore dismissed the petition for judicial review.

Petitioner also appealed dismissal of the writ. The Court of Appeals determined that the phrase "term of incarceration" in ORS 421.121 means the incarcerative term imposed by the court as part of the sentence, and not any incarcerative term imposed by the board.

Petitioner petitioned for Supreme Court review in both cases. On review, the issues are:

Issues in S52165 (Parole Board):

(1) Whether an order establishing a parole review date is the type of board order that is subject to judicial review under ORS 144.335 (1999);

(2) Whether board rules requiring a minimum incarceration term of 20 years violate the proscription against mandatory minimum terms for remanded juveniles;

(3) Whether board rules authorizing a 480-month prison term for a remanded juvenile violate the privileges and immunities clause of the Oregon Constitution, the equal protection clause of the United States Constitution, or the cruel and unusual punishments clause of the Oregon Constitution, when an adult convicted of the same crime would be eligible for parole after 20 years; and

(4) Whether board rules authorizing a 480-month prison term for a remanded juvenile violate proscriptions against ex post facto laws when the available prison term at the time the offense was committed was between 96 and 240 months.

Issues in S52169 (Cook):

(5) Whether an inmate who is serving a life sentence for a crime committed on or after November 1, 1989, is entitled to earn a reduction in his "term of incarceration" pursuant to ORS 421.121;

(6) Whether the phrase "term of incarceration" in ORS 421.121 means the sentence that is imposed by the court, or whether it means the period of incarceration that is imposed by the Board of Parole and Post-Prison Supervision; and

(7) Whether defendants should be required to grant earned time reductions for the portion of the sentence petitioner actually has served, regardless of whether petitioner asserted that he was entitled to earned time against his entire sen­tence.

State v. Gornick, S52252, A121042. As petitioner in this case, the State seeks review of the Court of Appeals decision vacating defendant Thomas Gornick's sentence and remanding his case for resentencing.

Defendant pleaded guilty to third-degree assault after spitting on a staff member at MacLaren Youth Correctional Facility (MacLaren) where defendant was incarcerated. Under the Oregon Sentencing Guidelines, defendant's presumptive sentence of incarceration was 13 to 14 months. The trial court, however, sen­tenced defendant to an upward departure sentence of 26 months. As the basis for doing so, the trial court found that defendant had broken a window by throwing a chair through it as part of the spitting incident. The trial court also found that, as a general matter, defendant was resistive to treatment, and was not making progress while at MacLaren. A jury was not involved in determining defendant's sentence and defendant did not object to his sentence at the time it was imposed.

Defendant subsequently appealed, arguing that under Blakely v. Washington, 542 US ___, 124 S Ct 2531, 159 L Ed 2d 403 (2004), the trial court had lacked authority to impose a departure sentence based on facts that were neither admitted by defendant nor pleaded in an indictment, submitted to a jury, and proved beyond a reasonable doubt. Defendant conceded that he had failed to preserve that argument at sentencing, but argued that the trial court's error was apparent on the face of the record. The Court of Appeals agreed, vacating defendant's sentence and remanding his case for resentencing. The Court of Appeals written opinion can be read at 196 Or App 397 (2004).

On review, the issue is whether the trial court committed plain error under Blakely when, following defendant's guilty plea, the trial court imposed an upward departure sentence based on facts not found by a jury or admitted by defendant.

State v. Standish, S52290, A118054. Petitioner Wayne Leo Standish seeks review of a Court of Appeals decision affirming the trial court's denial of petitioner's motion to suppress evidence seized from the car he was driving at the time of his arrest.

A Salem police officer attempted to stop the truck petitioner was driving after receiving information that peti­tioner may have been driving the vehicle without its owner's permission. Petitioner, however, attempted to allude the officer and, after a high-speed chase, was eventually stopped and arrested for reckless driving and attempting to allude a law enforcement official. After being given the Miranda warning and when asked what was in the truck, petitioner told the arresting officer that he didn't know because neither the truck nor its contents belonged to him. Before having the truck towed away, the officer inventoried the vehicle's contents and found, among other things, a duffel and backpack containing a shotgun and shotgun shells. The recovery of those items eventually led to peti­tioner's indictment for robbery.

At the trial that followed, the trial court denied petitioner's motion to suppress the evidence taken from the truck, determining that he had relinquished all possessory or privacy interests in that property by denying any knowledge of the items or interest in them. Petitioner was subsequently convicted on two counts of first-degree robbery.

The Court of Appeals affirmed the trial court's decision. In doing so, the Court of Appeals determined that, although a disclaimer of ownership does not necessarily constitute an abandonment of all protected interests in property, such a disclaimer can trigger, for suppression purposes, a defendant's obligation to assert some other interest in the property when no possessory or privacy interest is evident under the circumstances. The Court of Appeals written opinion can be read at 197 Or App 96 (2005).

On review, the issue is whether the driver of a vehicle has protected possessory and privacy interests in the vehicle and its contents, despite disclaiming any knowledge about or interest in the vehicle or its contents.


2. Allowed petitions for writ of mandamus in:

State v. Upton, S52316; State v. Sawatzky, S52332. The Oregon Supreme Court issued alternative writs of mandamus in two separate mandamus proceedings that presented mirror issues. The genesis of both mandamus proceedings lies with the United States Supreme Court in Blakely v. Washington, 542 US ___, 124 S Ct 2531, 159 L Ed 2d 403 (2004) (statutory maximum sentence is presumptive sentence that may be imposed as the result of a jury verdict, absent additional findings of fact; imposition of an exceptional sentence based on facts neither admitted by defendant nor found by the jury violates a defendant's Sixth Amend­ment right to jury trial).

In the Upton case, the State of Oregon (relator) indicted George Washington Upton (defendant) on six counts in Baker County Circuit Court. The indictment included allegations of persistent involvement in criminal activity and particularly vulnerable victim, both aggravating factors listed in OAR 213-008-0002(1)(b)(B) and (D), which would permit the trial court to impose an upward departure at sentencing under ORS 137.671(1) and OAR 213-008-0001. Defendant challenged inclusion of the aggravating factors in the indictment. The trial court ultimately ruled that "[d]efen­dant's involvement in past crimes as well as the language regarding vulnerable victim may not be submitted to the jury." The court reasoned that it had no authority under current law to submit those allegations to the jurors either at trial or in a separate sentencing proceeding because current law provides for upward departure decisions to be made by the trial court. Subsequently, the State sought a writ of mandamus to require the trial court to empanel a sentencing jury.

In the Sawatzky case, Sawatzky (relator) pleaded guilty to 21 counts. At sentencing, the trial court imposed upward departures on each count. On appeal, the Court of Appeals reversed and remanded based on the United States Supreme Court decision in Blakely. On remand, the state asked the trial court to convene a sentencing jury to decide about upward departures. The trial court granted the state's motion. Subsequently, Sawatzky sought a writ of mandamus to prevent the trial court from empaneling a sentencing jury.

On the State's petition, the Court issued an alternative writ of mandamus to the Honorable Gregory Baxter, Circuit Court Judge for Baker County. On defendant Sawatzky's petition, the Court issued an alternative writ of mandamus to the Honorable David Gernant, Circuit Court Judge for Multnomah County. In both cases, the issue is whether a trial court can convene a sentencing jury to impose an upward departure sentence.


3. Denied petitions for review in:

Toten v. SAIF Corp., S51984, A121704
Wilson v. State, S52055, A117350
Dawell v. Appraiser Certification and Licensure Board, S52145, A121345
State v. Bozarth, S52181, A119938
State v. Andrade-Paromo, S52197, A118028
Hardges v. Palmateer, S52198, A121098
Grooms v. Czerniak, S52199, A120926
Franks v. Hall, S52201, A125163
State v. Braughton, S52219, A122426
James v. Hill, S52231, A124518
State v. Schwab, S52243, A119656
State v. Christensen, S52250, A118647
State v. Anderson, S52256, A121088
Dave Glocar Custom Homes, Inc. v. Kay, S52260, A121042
Sullivan v. State, S52264, A122354
State v. Lacy, S52275, A117507
Silvis v. Belleque, S52277, A124390
State v. Young, S52285, A119790
White v. Lampert, S52291, A120458
State ex rel Juvenile Dept. of Crook County v. Parrish, S52295, A122574
Smith v. Hill, S52297, A122056
State v. Reynel, S52304, A119978
State v. Grimes, S52310, A116923
State v. Castillo, S52312, A121308
State ex rel Juvenile Dept. of Douglas County v. Yoder, S52313, A122137
State ex rel Dept. of Human Services v. Thorne, S52330, A125569


4. Denied petitions for reconsideration in:

The Organic Assembly of Yashua v. Miljus, S52196 (Order denying petition for writ of mandamus issued March 23, 2005)
In Re: Humphreys, S52070 (Order of disbarment issued March 8, 2005)


5. Denied a petition for writ of mandamus in:

Motsinger v. Lithia Rose-Ft, Inc., S52333


6. Denied petitions for writ of habeas corpus in:

Ray v. State, S52381
Ray v. State, S52416


7. Suspended Oregon City attorney John P. Bowles from the practice of law for one year pursuant to a stipulation for discipline.


8. Reinstated the following attorneys to the active practice of law:

Everett Walton
Calvin M. Luetjen
Timothy J. Monahan
Jeffrey S. Frasier
Ann E. Habernigg

*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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