Latest 3 Cases: Pulito v. Board of Nursing (Civil Procedure), Oregon v. Payne (Constitutional Law), Buel/Markley v. Rosenblum (Constitutional Law)

Reflections on the Movement in California to Repeal the State’s Ban on Affirmative Action

VIKRAM DAVID AMAR

Illinois law dean and professor Vikram David Amar offers three observations on a measure recently approved by the California legislature that would, if approved by the voters, repeal Proposition 209, the voter initiative that has prohibited affirmative action by the state and its subdivisions since its passage in 1996. Amar praises the California legislature for seeking to repeal Prop 209 and for seeking to do so using the proper procedures, and he suggests that if Prop 209 is repealed, legal rationales for the use of race should be based not only on the value of diversity (as they have been for some time now), but also on the need to remedy past wrongs against Black Americans.

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Pulito v. Board of Nursing

Docket: S066569

Opinion Date: July 2, 2020

Judge: Nelson

Areas of Law: Civil Procedure, Government & Administrative Law, Professional Malpractice & Ethics

The issue this case presented for the Oregon Supreme Court's review centered on a final order of the Oregon State Board of Nursing (the board) and the meaning of the term “time limitations” in ORS 183.645(1). That statute required the chief administrative law judge (ALJ) to assign a different ALJ to a contested case on written request from a party, subject to applicable “time limitations” that the chief ALJ has established by rule for submitting such requests. The chief ALJ established OAR 471-060-0005, under which the chief ALJ evaluated the timeliness of a request by determining whether a party had a “reasonable opportunity” to make an earlier request. Licensee Rebecca Pulito challenged a preliminary decision of the chief ALJ that denied her request for a different ALJ. In that decision, the chief ALJ determined that licensee had failed to take advantage of a “reasonable opportunity” to make an earlier request. The contested case proceeded on the merits, and the board issued a final order revoking licensee’s nursing license. The Court of Appeals affirmed without opinion. Licensee then petitioned the Oregon Supreme court for review. Licensee argued OAR 471-060-0005 was invalid because it did not impose a “time limitation” as authorized by ORS 183.645(1). Alternatively, she contended the chief ALJ erred in applying OAR 471-060-0005 because her request for a different ALJ was made within a reasonable time. The Supreme Court concluded OAR 471-060-0005 was invalid as written and that the error in denying licensee’s request for a different ALJ required reversal. Because that ruling was dispositive, the Supreme Court did not reach licensee’s alternative argument that the chief ALJ erred in applying the rule. The final order was reversed and the matter remanded for a new hearing.

Oregon v. Payne

Docket: S066919

Opinion Date: July 2, 2020

Judge: Nakamoto

Areas of Law: Constitutional Law, Criminal Law

During defendant Isaiah Payne's trial for third-degree sexual abuse, the complainant denied including a racial description of defendant in her statement to police and accused defense counsel of trying to make her look racist. The author of the police report testified that he had included that racial description in quotation marks because it was a direct quote from the complainant. Based on the difference between the officer’s testimony and the complainant’s testimony, defendant requested the uniform witness-false-in-part jury instruction. The trial court denied that request, and the jury found defendant guilty. The Court of Appeals affirmed, concluding that, even if the trial court had erred in failing to deliver the requested witness-false-in-part instruction, any error was harmless. The Oregon Supreme Court granted certiorari review to address whether a trial court had to give a requested witness-false-in-part jury instruction if there was evidence to support a conclusion that a witness consciously testified falsely. Based on the Supreme Court's statutory construction of the phrase “all proper occasions” in ORS 10.095, the Court concluded the trial court should have given the instruction. The Court concluded it was not a harmless error by the trial court. The Supreme Court therefore reversed the Court of Appeal and remanded to the circuit court for further proceedings.

Buel/Markley v. Rosenblum

Docket: S067555

Opinion Date: July 2, 2020

Judge: Thomas A. Balmer

Areas of Law: Constitutional Law, Election Law, Government & Administrative Law

By Legislative Referendum (LR) 401 (2020), the Oregon legislature asked voters to approve or reject a constitutional amendment that would permit the legislature, local governments, and the people through the initiative process to pass laws regulating campaign finance and advertising. As provided in Oregon Laws 2019, chapter 674, section 1, a joint legislative committee drafted the ballot title and explanatory statement for LR 401. In consolidated cases, petitioners sought review of the ballot title and the explanatory statement. Petitioner Markley challenged all parts of the ballot title, contending that the caption, “yes” and “no” result statements, and the summary did not comply with the requirements set out in ORS 250.035(2). Petitioner Buel challenged the ballot title summary and the explanatory statement. After the parties completed briefing on petitioners’ challenges, this court decided Multnomah County v. Mehrwein, 366 Or 295, 462 P3d 706 (2020), in which the Oregon Supreme Court concluded that a Multnomah County ordinance limiting campaign contributions was not subject to a facial challenge under Article I, section 8, of the Oregon Constitution. That decision overruled, in part, the court’s earlier decision in Vannatta v. Keisling, 931 P2d 770 (1997), which held that certain statutes that provided for, among other things, mandatory limits on contributions to state political campaigns, violated Article I, section 8. Because the ballot title “no” result statement and summary and the explanatory statement all briefly described the state of the law before the court’s issuance of the Mehrwein decision, the Court asked the parties to submit supplemental briefing concerning the effect, if any, that Mehrwein had on this matter. After review of the supplemental briefs of the parties, the Supreme Court concluded the the ballot title’s “no” result statement and summary and the explanatory statement had to be modified. The Court otherwise rejected petitioners’ arguments. The ballot title was referred back to the Attorney General for modification.