Justia Government & Administrative Law Opinion Summaries

Plaintiff Tyler Turner contended that defendant Oregon Department of Transportation (ODOT) had contributed to a motor vehicle accident by negligently failing to correct hazardous conditions at the highway intersection where he was injured. In a summary judgment motion, ODOT claimed immunity under ORS 30.265(6)(c). ODOT’s claim of immunity rested on the theory that, because it had a policy of seeking highway safety improvement funding from the legislature only for the most crash-prone sites in the state highway system, ODOT’s omission of the crash site from its appropriation requests amounted to a budget-driven, discretionary policy decision not to make improvements at the site. Plaintiff opposed the motion with evidence that ODOT employees knew that the intersection was dangerous but had neglected to make improvements by using ODOT’s other mechanisms for evaluating and funding low-cost highway safety improvements. Although ODOT prevailed at the trial court, the Court of Appeals determined that questions of fact precluded summary judgment. ODOT argued to the Supreme Court that, when a state agency used a global process for setting priorities and allocating limited resources, discretionary-function immunity attached and the agency need not engage in further, particularized decision-making. "The record on summary judgment does not bear out that premise as a matter of undisputed fact. It follows that ODOT’s employment of the ranking process cannot resolve the issue of ODOT’s immunity under ORS 30.265(6)(c) as a matter of law. "Therefore, the trial court erred in granting summary judgment for ODOT on that ground, and the Supreme Court affirmed the decision of the Court of Appeals. View "Turner v. Dept. of Transportation" on Justia Law

The question this case presented for the Oregon Supreme Court's review was whether a statute limiting a state employee’s tort liability violated either the remedy clause of Article I, section 10, of the Oregon Constitution or the jury trial clauses of Article I, section 17, and Article VII (Amended), section 3, of the Oregon Constitution. The trial court held that the statute, as applied to the state employee, violated each of those provisions and entered a limited judgment against the employee for the full amount of the jury’s verdict. Plaintiff’s six-month-old son developed a cancerous mass on his liver. Two doctors at Oregon Health & Science University (OHSU) participated in an operation to remove the mass: Dr. Harrison, a specialist in pediatric surgery, and Dr. Durant, a pediatric surgical fellow in training. During the operation, the doctors inadvertently transected blood vessels going to the child’s liver, resulting in the child having to undergo a liver transplant, removal of his spleen, additional surgeries, and lifetime monitoring due to the risks resulting from the doctors’ act. Plaintiff brought this action on her son’s behalf against Harrison, Durant, OHSU, and Pediatric Surgical Associates, P.C. The trial court granted Pediatric Surgical Associates’ motion for summary judgment, and dismissed Durant as a result of an agreement among plaintiff, OHSU, and Harrison. Pursuant to that agreement, Harrison and OHSU admitted liability for the child’s injuries and plaintiff’s case against Harrison and OHSU went to the jury to determine the amount of the child’s damages. The jury found that plaintiff’s son had sustained and will sustain economic damages of $6,071,190.38 and noneconomic damages of $6,000,000. After the jury returned its verdict, OHSU and Harrison filed a motion to reduce the jury’s verdict to $3,000,000 based on the Oregon Tort Claims Act. The trial court granted the motion as to OHSU. The trial court, however, denied the motion as to Harrison. Harrison appealed. The Supreme Court reversed and remanded, concluding that applying the Tort Claims Act limit to plaintiff’s claim against defendant did not violate the remedy clause in Article I, section 10, nor does giving effect to that limit violate the jury trial clauses in Article I, section 17, or Article VII (Amended), section 3. View "Horton v. OHSU" on Justia Law

Plaintiffs Rockwood Water People’s Utility District (Rockwood PUD), Northwest Natural Gas Company (NW Natural) and Portland General Electric Company (PGE) sought review of a Court of Appeals decision to uphold the validity of municipal enactments by respondent City of Gresham (the city) that increased the licensing fee that each utility was required to pay from five percent to seven percent of the utility’s gross revenues earned within the City. Plaintiffs sought a declaration that the enactments were void and unenforceable because they conflicted with the provisions of ORS 221.450. Alternatively, Rockwood PUD argued that it could not be taxed more than five percent by a city without explicit statutory authority. Trial court agreed with plaintiffs that the enactments violated ORS 221.450, and did not reach Rockwood PUD’s alternative argument. The Court of Appeals reversed, holding that the fee increase was not preempted by ORS 221.450 because the utilities were not operating “without a franchise” and that a city’s home-rule authority to impose taxes or fees on a utility is not affected by a utility’s municipal corporation status. The Supreme Court held that the license fee imposed by the City was a “privilege tax” and that the affected utilities were operating “without a franchise” within the meaning of ORS 221.450. The Court also held that the City was not preempted by ORS 221.450 from imposing the seven percent privilege tax on NW Natural and PGE, but that the City did not have express statutory authority to impose a tax in excess of five percent on Rockwood PUD under ORS 221.450. View "Northwest Natural Gas Co. v. City of Gresham" on Justia Law

In consolidated juvenile dependency cases, father appealed judgments changing the permanent plans for one of his children from reunification with a parent to guardianship and for another child from reunification to another planned permanent living arrangement. Father argued that his trial counsel was inadequate for failing to appear on his behalf at the hearing in which the juvenile court decided to change the permanent plans. The issue this case presented for the Supreme Court's review centered on whether a parent could raise a claim of inadequate assistance of counsel for the first time on direct appeal from judgments changing the permanent plans for his children from reunification with a parent to permanent plans of guardianship and APPLA. After review, the Supreme Court answered that question in the affirmative. The Court concluded: (1) the unchallenged rationale of "Oregon ex rel Juv. Dept. v. Geist" (796 P2d 1193 (1990)), was applicable to a direct appeal from judgments that make such changes in the permanent plans for children who were wards of the court in dependency cases; and (2) the legislature’s enactment, following the Supreme Court's decision in "Geist," of a statute that provided a juvenile court procedure for modifying or setting aside a dependency judgment while an appeal from the judgment was pending, did not obviate the need for a direct appeal remedy for father’s claim of inadequate assistance of counsel. View "Dept. of Human Services v. T. L." on Justia Law

The United States Court of Appeals certified two questions of Oregon law to the Oregon Supreme Court. This case arose when plaintiff, who was legally blind, was injured when she stepped into a hole while jogging in a public park in the City of Portland (the City). Plaintiff filed a complaint against the City and defendants Gibson and Stillson. Defendant Gibson had created the hole to fix a malfunctioning sprinkler head; he was a park technician with primary responsibility for maintenance of the park. Defendant Stillson was the maintenance supervisor for all westside parks in the City. As framed by the Ninth Circuit, the questions were: (1) whether individual employees responsible for repairing, maintaining, and operating improvements on City-owned recreational land made available to the public for recreational purposes are “owner[s]” of the land, as defined in the Oregon Public Use of Lands Act, and therefore immune from liability for their negligence; and (2) if such employees are “owner[s]” under the Act, whether the Act, as applied to them, violated the remedy clause of Article I, section 10, of the Oregon Constitution. The Oregon Supreme Court concluded that the individual employees in this case did not qualify as “owner[s]” under the Act, and that the Court need not address the second certified question. View "Johnson v. Gibson" on Justia Law

In this case, an administrative law judge (ALJ) determined that certain taxicab drivers performed services for Broadway Cab LLC for remuneration and were not independent contractors. Therefore, the ALJ concluded, Broadway was liable for unemployment insurance taxes on the drivers’ wages. The Court of Appeals agreed with the ALJ and affirmed. Broadway appealed, and after its review, the Supreme Court found no reversible error and also affirmed. View "Broadway Cab LLC v. Employment Dept." on Justia Law

In the underlying lawsuit, the Oregon Supreme Court was asked to consider challenges to legislative amendments aimed at reducing the costs of the Public Employee Retirement System (PERS). Those challenges were brought by petitioners, who were active and retired members of PERS. The Supreme Court rejected petitioners’ challenge to the elimination of income tax offset benefits for nonresident retirees but agreed in part with petitioners’ claim that modifications to the PERS cost-of-living adjustment (COLA) formula impaired petitioners’ contractual rights and therefore violated the state Contract Clause, Article I, section 21, of the Oregon Constitution. Although petitioners had argued that the state could not change the COLA formula for any current PERS member, the Court held that the COLA amendments impaired the PERS contract only insofar as the amendments applied retrospectively to benefits earned before the effective dates of the amendments. Claimants, who were pro se petitioners and attorneys representing the original petitioners, sought fees and costs. The Supreme Court remanded this case to a special master to make findings and recommend a reasonable amount of fees and costs. View "Moro v. Oregon" on Justia Law

For the 2006 tax year, taxpayers Mike and Sheri Hillenga claimed, among other things, a deduction based on a net operating loss carryover from their 2004 tax return. The Department of Revenue challenged the 2006 deduction, contending that taxpayers did not actually have a net operating loss in 2004 that could be applied against their 2006 taxes. The Tax Court held that the department could not challenge the 2004 deductions that resulted in the net operating loss carryover, because the 2004 tax year was closed by the statute of limitations. The department appealed. On appeal, the Supreme Court agreed with the department: by attempting to carry over their 2004 net operating loss to apply against their 2006 tax liability, taxpayers put the validity of their 2004 net operating loss at issue. Because the department was not trying to assess a deficiency for 2004, the statute of limitations did not apply. View "Hillenga v. Dept. of Rev." on Justia Law

In a consolidated ballot title case, three sets of petitioners have petitioned the Supreme Court to review the ballot title for Initiative Petition 58. Initiative Petition 58 (IP 58), essentially identical to Initiative Petition 47 (IP 47), would change the way that liquor is sold in Oregon by “eliminat[ing] the current system of state-licensed liquor stores” and allowing "'holders of distilled liquor self-distribution permits' (essentially wholesalers) to distribute liquor to 'qualified retailers,' who would, in turn, sell the liquor to the public." The Attorney General certified the ballot title for IP 58 before we issued the Supreme Court issued its opinion regarding IP 47, and two petitioners argued that the phrase "wholesale sales tax" did not avoid the problem that the Court noted in the IP 47 opinion. As noted in the IP 47 case, the phrase “sales tax” had more potential to confuse voters than to describe IP 47, and by extension IP 58, accurately. "[W]e cannot overlook [petitioners'] point that the phrase 'sales tax' is so commonly associated with a tax imposed at the point of a retail sale that the use of the phrase 'wholesale sales tax' may do more to confuse matters than clarify them." Accordingly, the Court referred the ballot title for IP 58 back to the Attorney General for modification. View "McCann v. Rosenblum" on Justia Law

The Court of Appeals rejected petitioners' contention that Oregon Department of Fish and Wildlife's (ODFW) approval of "channel-spanning fishways" associated with two small, privately maintained dams downstream from their property violated state law, including ODFW's own rules, pertaining to fish passage for native migratory fish. Petitioners argued that the approvals were inconsistent with administrative rules and statutes that, in their view, required that fish passage be provided whenever water is flowing past the dams, whether over the tops of the dams or through outlet pipes required by the state Water Resources Department (WRD). The Court of Appeals held that ODFW had plausibly construed its own rules as requiring passage only when water is flowing over the dams, and that the rules, as interpreted, were not inconsistent with the controlling statutes. Petitioners sought review and the Supreme Court granted their petition. The Supreme Court concluded that ODFW's interpretation of the rules was implausible. The case was remanded to the agency for further action under a correct interpretation. View "Noble v. Dept. of Fish & Wildlife" on Justia Law