Oregon Decisions

In this lawyer disciplinary proceeding, the Oregon Star Bar (Bar) charged the accused with violating Oregon Code of Professional Responsibility Disciplinary Rule (DR) 9 101(A) (failure to deposit client funds in trust); DR 9 101(C)(3) (failure to render appropriate accounting of client funds); DR 2 106(A) (collecting clearly excessive fee); and DR 2 110(A)(3) (failure promptly to refund unearned fee). (1) A trial panel of the Disciplinary Board found that the accused had violated each of those rules and suspended him for 30 days. On de novo review, court affirm the trial panel's decision.

In this lawyer disciplinary proceeding, the Oregon State Bar alleged that the accused violated former Oregon Code of Professional Responsibility Disciplinary Rule (DR) 6 101(B) ("A lawyer shall not neglect a legal matter entrusted to the lawyer."). (1) The accused concedes that he had violated that rule. A trial panel of the Disciplinary Board imposed a 120-day suspension from the practice of law. The accused sought review, requesting that this court suspend him from the practice of law for 60 days. Court review this case de novo. ORS 9.536(2). For the reasons that follow, court conclude that the appropriate sanction for the accused's violation is a 60-day suspension from the practice of law.

These consolidated ballot title review proceedings brought under ORS 250.085(2) concern the Attorney General's certified ballot title for Initiative Petition 51 (2008). Because petitioners submitted timely written comments to the Secretary of State concerning the Attorney General's draft ballot title, they may seek judicial review of the certified ballot title. See ORS 250.085(2) (stating that requirement). Court review the certified ballot title for substantial compliance with the requirements of ORS 250.035(2). See ORS 250.085(5) (stating standard of review). For the reasons explained below, court refer the ballot title to the Attorney General for modification.

This case is before us on remand from the United States Supreme Court. In our prior decision, court vacated defendant's death sentence and remanded his case to the trial court for a new sentencing proceeding. State v. Guzek, 336 Or 424, 86 P3d 1106 (2004) (Guzek III). In doing so, court addressed not only the issue that required (as the state conceded) remand for a new trial, but also several issues of law that defendant had raised and that we concluded were likely to arise on retrial. One of those issues involved the admissibility of certain "alibi" evidence at defendant's sentencing. Court held that the Eighth Amendment to the United States Constitution provided defendant with the right to introduce that evidence during the penalty phase of his trial. The State of Oregon petitioned for a writ of certiorari from the United States Supreme Court concerning that determination and, on review, the Court subsequently vacated our decision in Guzek IIIand remanded the case to us for further proceedings not inconsistent with its opinion. Oregon v. Guzek, 546 US 517, 126 S Ct 1226, 163 L Ed 2d 1112 (2006). The parties have provided further briefing on the question, and court now are able to announce ruling.

The principal issue in this case concerns the meaning and scope of ORS 153.108(1), (1) a statute that permits the state to prosecute separately a violation and a crime arising out of the same criminal episode, notwithstanding the general statutory prohibition on such prosecutions set out in ORS 131.515 (the "former jeopardy" statute). (2) Defendant contends that ORS 153.108(1) does not overcome that statutory former jeopardy bar when, as in this case, the state separately prosecutes a defendant for careless driving (ORS 811.135) (a traffic violation) and reckless driving (ORS 811.140) (a traffic crime), and both charges arise out of the same traffic accident. For the reasons that follow, court reject that argument. Court also reject defendant's alternative contention that, in spite of its noncriminal label, a careless driving charge under ORS 811.135 is sufficiently criminal in nature to place a defendant in "jeopardy" for purposes of the former jeopardy provision in the Oregon Constitution. Accordingly, court affirm the decision of the Court of Appeals that rejected those arguments and held that defendant could be prosecuted separately for careless driving and reckless driving. SeeState v. Warner, 200 Or App 65, 112 P3d 464 (2005) (so holding).

The indictment in this case alleged that defendant had committed a felony by delivering marijuana to a minor. After the state presented its evidence, defendant moved for a judgment of acquittal on the ground that the indictment failed to allege all the elements of the charged offense. The trial court denied that motion, reasoning that defendant should have raised his objection to the sufficiency of the indictment by way of a demurrer. The Court of Appeals agreed and affirmed the trial court's judgment. State v. Hankins, 194 Or App 140, 93 P3d 826 (2004), on recons, 197 Or App 345, 105 P3d 902 (2005). Court allowed defendant's petition for review and now affirm the Court of Appeals decision.

In this tax case, court decide whether the City of Jacksonville (city) imposed an unconstitutional tax on property, either when it originally adopted an ordinance requiring persons responsible for paying sewer and water bills to pay a public safety surcharge of $15 per unit or when it adopted an amended version of that ordinance. More specifically, court decide whether the original or amended surcharge constituted a tax on property under Article XI, sections 11 ("Measure 50") and 11b ("Measure 5") of the Oregon Constitution or violated either Article I, sections 20 and 32, of the Oregon Constitution or the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution.
Court's review of the record does not indicate that plaintiffs argued for an award of equitable attorney fees in the remedy phase of the case before the Tax Court or by submitting a petition for attorney fees. See TCR 68(C) (setting forth procedure for seeking award of attorney fees). That argument is unpreserved, and we will not consider it for the first time here. See Ailes v. Portland Meadows, Inc., 312 Or 376, 380, 823 P2d 956 (1991) (stating principle); ORAP 5.45(1) ("No matter claimed as error will be considered on appeal unless the claimed error was preserved in the lower court and is assigned as error in the opening brief in accordance with this rule * * * .").

In this lawyer disciplinary proceeding, the Oregon State Bar (the Bar) charged Michael G. Balocca (the accused) with violating five Disciplinary Rules (DR) of the Oregon Code of Professional Responsibility (1) in his representation of Marc Taylor and, subsequently, Carol Brookins. The Bar alleged that the accused violated DR 9 101(A) (requiring lawyer to deposit and maintain client funds in trust), DR 9 101(C)(3) (requiring lawyer to account for client funds), DR 2-106(A) (prohibiting illegal or clearly excessive fee), DR 2 110(A)(3) (requiring lawyer promptly to deliver unearned fee on termination of employment), and DR 5 105(C) (prohibiting representation that would conflict with representation of former client).

In this judicial review proceeding, a long time elementary school teacher challenges a final order of the Teacher Standards and Practices Commission (TSPC) suspending her teaching license for a period of 60 days. She contends that the order does not establish that certain acts that she committed in 2001 constitute either "gross neglect of duty" or "gross unfitness," as those terms are used in the statutes and rules that authorize the TSPC to suspend teachers' licenses. She also challenges the TSPC's order on the ground that the TSPC failed to identify and explain modifications that it made to a proposed order issued by the administrative law judge (ALJ) who heard the case. Court conclude that petitioner's challenges are well taken. Accordingly, court reverse the decision of the Court of Appeals that upheld the TSPC order. Court also reverse the final order of the TSPC and remand the case to the TSPC for further consideration.

The issue in this case is whether petitioner's convictions for being a felon in possession of a firearm must be set aside because the predicate conviction on which his status as a felon was based was overturned three years after the felon-in-possession convictions. The trial court set aside the felon in possession convictions, but the Court of Appeals reversed. Bailey v. Lampert, 203 Or App 45, 125 P3d 771 (2005). Court allowed review and now affirm the decision of the Court of Appeals.

ORS 144.125(3) provides that the Board of Parole and Post Prison Supervision (board) may postpone a prisoner's scheduled release date if the board finds that the prisoner has a "present severe emotional disturbance such as to constitute a danger to the health or safety of the community." In this case, the board found by a preponderance of the evidence that petitioner had such a condition, and petitioner sought judicial review arguing that the Due Process Clause required the board to apply a higher standard of proof. The Court of Appeals affirmed the board's order without opinion. Stogsdill v. Board of Parole, 204 Or App 779, 132 P3d 62 (2006). Court allowed review and now affirm the Court of Appeals decision.

Plaintiffs appeal from a summary judgment in favor of Diverscape, Inc. in a personal injury action. The issue raised on appeal is whether the 1996 Motor Carriers of Property Permit Act imposes a nondelegable duty of care on Diverscape, as a motor carrier of property, making it liable for the negligent acts of an independent contractor it hired to transport materials to a job site. Court concluded that Diverscape was a private carrier as defined by the MCPPA, and that the MCPPA does not impose a nondelegable duty of care on private carriers. Therefore, court affirmed the judgment.

A decision in an extraordinary writ under California Rules of Court, challenges the juvenile court's order denying her reunification services and setting the Welfare and Institutions Code.

Appeal from Circuit Court, Marion County.
Affirmed,