Articles Posted in Civil Procedure

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Two sets of petitioners challenged the Oregon Attorney General’s certified ballot title for Initiative Petition 33 (2018) (IP 33). If adopted, IP 33 would require that “government employee unions” annually report certain information to the Secretary of State, primarily how dues would be spent on union administration. Chief petitioners Schworak and Mitchell challenged the summary, while petitioners Lutz and Schwartz challenged all parts of the certified ballot title. After reviewing the petitioners’ arguments, the Oregon Supreme Court concluded that the proposed caption, the “no” result statement, and the summary did not substantially comply and must be modified. The “yes” result statement did substantially comply and did not require modification. View "Lutzv. Rosenblum" on Justia Law

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The Oregon Commission on Judicial Fitness and Disability filed a formal complaint alleging 13 misconduct counts against respondent, the Honorable Vance Day, involving Oregon Code of Judicial Conduct Rule 2.1; Rule 2.2; Rule 3.3(B); Rule 3.7(B); courteous to litigants); and Article VII (Amended), sections 8(1)(b), (c), and (e), of the Oregon Constitution. After conducting a hearing, the commission filed a recommendation with the Oregon Supreme Court, to the effect that clear and convincing evidence supported a conclusion that respondent had violated multiple rules with respect to eight of the counts, including violations not alleged in the complaint. The commission further recommended that respondent be removed from office. Respondent argued the Supreme Court should have dismissed all or several counts for procedural reasons; that the commission did not sufficiently prove the alleged misconduct; and, in any event, that the only appropriate sanction was a censure. After review, the Oregon Court dismissed two of the eight counts of the complaint that were at issue; the Court declined to consider any violation that the Commission did not originally allege in its complaint. The Supreme Court concluded the Commission proved by clear and convincing evidence that respondent engaged in some of the misconduct alleged in the remaining six counts. The Court suspended respondent, without pay, for three years. View "In re Day" on Justia Law

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Plaintiff, Tri-County Metropolitan Transportation District (TriMet), sought a declaration that planned, future collective bargaining sessions between TriMet’s bargaining team and the bargaining team for defendant Amalgamated Transit Union Local 757 (ATU) would not be “meetings” subject to the open meetings requirements of Oregon’s Public Meetings Law, ORS 192.610 to ORS 192.695. ATU opposed the declaration, and the parties filed cross-motions for summary judgment. The trial court agreed with TriMet and granted its motion, but the Court of Appeals vacated and remanded, reasoning that, even if the bargaining sessions were not “meetings” as that term was defined in the Public Meetings Law, ORS 192.610(5), when the TriMet team participates in the sessions, it may be subject to the prohibition in ORS 192.630(2) that, generally: “A quorum of a governing body may not meet in private for the purpose of deciding on or deliberating toward a decision on any matter[.]” The Oregon Supreme Court concluded the Court of Appeals’ construction of that statute was correct, and TriMet failed to establish, on this summary judgment record, that no “quorum” of the TriMet team would “meet” during the negotiations; thus, TriMet failed to establish as a matter of law that the bargaining sessions at issue will not be subject to ORS 192.630(2). Finally, the Supreme Court rejected ATU’s proposal that another provision of the Public Meetings Law, ORS 192.660(3), required that all bargaining sessions of a public body be conducted in an “open meeting” unless both parties consent to private meetings. View "TriMet v. Amalgamated Transit Union Local 757" on Justia Law

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In 2005, the child who was the focus of this proceeding was born. He had an autism spectrum disorder, developmental delays, including speech delays, and other significant health issues. In 2010, when the child was five years old, his mother and father divorced. Mother had been his primary caretaker, and she was awarded sole legal custody. In 2015, when the child was 10 years old, the Oregon Department of Human Services investigated reports that mother was neglecting the child’s basic needs and risking his safety by allowing him to have contact with her significant other, L. The department issued a “founded disposition” based on its administrative determination that mother had neglected the child through a “[l]ack of supervision and protection.” The department then filed a petition to obtain dependency jurisdiction over the child. When a parent appeals a jurisdictional judgment making the Department the legal custodian of the parent’s child and that wardship is subsequently terminated, the department may file a motion to dismiss the appeal as moot. In this case, the Oregon Supreme Court concluded termination of such a wardship did not necessarily render the appeal moot; whether dismissal is appropriate will depend on the particular circumstances presented. In this case, the Supreme Court concluded the department met its burden to prove that a jurisdictional judgment would have no practical effect on the rights of the parties and was therefore moot. View "Dept. of Human Services v. A. B." on Justia Law

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The United States Court of Appeals for the Ninth Circuit certified a certified question of Oregon law to the Oregon Supreme Court. The question related to claims under ORS 124.110 for financial abuse of “vulnerable persons” (here, elderly persons) who purchased long-term care insurance from defendant Bankers Life & Casualty Co. (Bankers) and sought to receive insurance benefits under their policies. Specifically, the Ninth Circuit asked whether a plaintiff states a claim under ORS 124.110(1)(b) for wrongful withholding of money or property where it is alleged that an insurance company has in bad faith delayed the processing of claims and refused to pay benefits owed under an insurance contract. Plaintiffs were elderly Oregonians or their successors who purchased long-term healthcare insurance policies sold by Bankers and its parent company. Plaintiffs alleged Bankers developed onerous procedures to delay and deny insurance claims: failing to answer phone calls, losing documents, denying claims without notifying policyholders, denying claims for reasons that did not comport with Oregon law, and paying policyholders less than what they were owed under their policies. Bankers allegedly collected premium payments and, without good cause, delayed and denied insurance benefits to which Plaintiffs were entitled. The Oregon Supreme Court answered in the negative: allegations that an insurance company, in bad faith, delayed the processing of claims and refused to pay benefits owed to vulnerable persons under an insurance contract do not state a claim under ORS 124.110(1)(b) for wrongful withholding of “money or property.” View "Bates v. Bankers Life and Casualty Co." on Justia Law

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The charging order at issue here was issued over limited partnerships’ and limited liability company’s objections that ancillary provisions included in the charging order, which required them to refrain from certain kinds of transactions and provide extensive financial information to the judgment creditor, were not authorized under the controlling statutes. On appeal, the Court of Appeals held that some, but not all, of the ancillary provisions were authorized. The Oregon Supreme Court held a trial court has either general or specific statutory authority to include, in a charging order, ancillary provisions that it finds necessary to allow a judgment creditor access to a debtor-partner’s distributional interest in a company, as long as those provisions do not unduly interfere with the company’s management. Furthermore, the Court held that in this case, the record did not establish that that standard was met and, therefore, that the trial court erred in imposing the challenged ancillary provisions. The Court reversed the Court of Appeals and vacated the circuit court order, and remanded to the circuit court for further proceedings. View "Law v. Zemp" on Justia Law

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The issue before the Oregon Supreme Court in this matter was whether the Court of Appeals correctly construed the scope of ORS 656.019 in a case arising out of plaintiff’s attempt to allege civil negligence claims against his employer, defendant NuStar GP, LLC, for harm arising out of plaintiff’s exposure to gasoline vapors at work. The trial court denied plaintiff Danny Bundy’s motion to amend his complaint to allege those claims after concluding that the claims were barred by the so-called “exclusive remedy” provision of the Workers’ Compensation Law, ORS 656.018, a provision that generally immunizes employers from civil liability for injuries to a worker arising out of the worker’s employment. Plaintiff argued his negligence claims were not barred because they were allowed by ORS 656.019, a statute that governed negligence actions for an injury “that has been determined to be not compensable [under the Workers’ Compensation Law] because the worker has failed to establish that a work-related incident was the major contributing cause of the worker’s injury.” Although plaintiff alleged that he suffered from medical conditions that were determined to be “not compensable” under that major contributing cause standard, the trial court and Court of Appeals concluded that ORS 656.019 did not apply to plaintiff’s negligence action because the conditions on which plaintiff relied were denied after defendant accepted a compensable workers’ compensation claim for plaintiff’s initial condition arising out of the same workplace incident. The Oregon Supreme Court expressly reserved the comprehensive statutory analysis needed to resolve whether the legislature intended ORS 656.019 to function as a substantive exception to the exclusive remedy provision, and resolved only the single issue of statutory construction that was raised by the petition for review and argued by the parties. Because the parties assumed that ORS 656.019 would allow plaintiff to file his Fourth Amended Complaint if the statute applied to plaintiff’s negligence claims, the Supreme Court reversed the trial court’s denial of plaintiff’s motion to amend. “That limited holding is not intended to preclude these or future parties from properly presenting an argument that the legislature did not intend ORS 656.019 to function as a substantive exception to the exclusive remedy provision.” The decision of the Court of Appeals and the circuit court was reversed, and the case was remanded to the circuit court for further proceedings. View "Bundy v. NuStar GP, LLC" on Justia Law

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In light of the fact that Mountain View Paving has ceased the activities that were identified by Rogue Advocates as the bases for its complaint, the remaining question before the Oregon Supreme Court in this matter was whether the appeal was moot. In their complaint, Rogue Advocates contested Mountain View Paving’s operation of an asphalt batch plant. Mountain View Paving was no longer operating that asphalt batch plant, stated that it has no intention to do so in the future, and did not contend that it had a legal right to do so. Thus, a decision in this case will not have a practical effect on the parties, and this case was now moot. View "Rogue Advocates v. Board of Comm. of Jackson County" on Justia Law

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Petitioners challenged the legal sufficiency of the Attorney General’s certified ballot title for Initiative Petition 21 (2018). IP 21, if enacted, would alter the Oregon tax with respect to certain tobacco products in four ways: (1) increase the tax on cigarettes by 100 mills per cigarette, or $2.00 per pack; (2) eliminate the 50-cent cap on cigar taxes; (3) require that all moneys received from the new cigarette tax be first deposited with the state treasurer and, after the payment of any refunds for overpayments, be credited to the Public Health Account, “to be used for the funding of local public health authorities in all areas of the state for public health programs;” and (4) the tax and the use of cigarette-tax revenues would apply retroactively to the distribution of cigarettes and tobacco products on or after January 1, 2018. In this case, the Oregon Supreme Court concluded that, in two respects, the Attorney General’s certified ballot title did not substantially comply with the law. Therefore, it was referred back to the Attorney General for modification. View "Wilson/Fitz v. Rosenblum" on Justia Law

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The Oregon Supreme Court dismissed this ballot title challenge without addressing the merits. The Court determined it did not have authority to consider a ballot title challenge if the underlying initiative measure had not satisfied all the statutory prerequisites for obtaining a ballot title in the first place. View "Unger v. Rosenblum" on Justia Law