Time Limitations under the Oregon Family Abuse Protection Act

Posted on September 25, 2014 | by Linda Kruschke

Oregon Statutory Time Limitations is now available on the BarBooks™ online library. This article is an excerpt from the Family and Juvenile chapter of that book. It is not a comprehensive coverage of the topic of the Family Abuse Protection Act, but is rather limited to a discussion of time limitations provided for under that statute. For more information about time limitations in family and juvenile matters, see the complete chapter on BarBooks™.

Authors of the chapter from which this article is excerpted are Jessica Flint, Nigel Vanderford, Alex Sutton, Mark Johnson Roberts, and Craig Cowley.

Sec. 4.1 FAMILY ABUSE PROTECTION ACT

“Any person who has been the victim of abuse within the preceding 180 days may petition the circuit court for relief under ORS 107.700 to 107.735 [the Family Abuse Prevention Act], if the person is in imminent danger of further abuse from the abuser.” ORS 107.710(1). Time during which the respondent is incarcerated or has a principal residence more than 100 miles from the petitioner’s principal residence is not counted as part of the 180-day period. ORS 107.710(6).

Sec. 4.1A Hearing and Duration

When a person files a Family Abuse Prevention Act petition, the court must hold an ex parte hearing on the day the petition is filed or on the
following judicial day. Upon the request of the petitioner and the requisite showing of abuse, danger, and threat, the court must issue an order restraining the respondent and including various specific provisions. ORS 107.718(1). The order is effective for one year or until withdrawn, amended, or superseded, whichever is sooner. ORS 107.718(3).

Sec. 4.1B Respondent’s Request for a Hearing

Within 30 days after a restraining order is served, the respondent may request a hearing. If the respondent fails to request a hearing within that time, the order is confirmed by operation of law. ORS 107.718(10)(a), (11).

Sec. 4.1C Hearing Date

If the respondent requests a hearing under ORS 107.718(10), the court must hold the hearing within 21 days after the request. However, if the respondent contests an order granting temporary child custody to the petitioner, the court must hold the hearing within five days after the request. ORS 107.716(1).

Sec. 4.1D Child Custody Hearing

If the court determines under ORS 107.718(2) that exceptional circumstances exist that affect custody of a child, the court must hold a hearing within 14 days of issuing the restraining order. ORS 107.716(2)(a). The respondent may request an earlier hearing to be held within five days after the request. ORS 107.716(2)(b). When the court schedules a hearing under ORS 107.716(2), the respondent may not request a hearing under ORS 107.718(10). ORS 107.716(2)(c).

Sec. 4.1E Extension of Time

If service of notice of a hearing under ORS 107.718(2) or (10) is inadequate to provide a party with sufficient notice, the court may extend the date of the hearing up to five days so that the party may seek representation. ORS 107.716(4)(a). If one party is represented by an attorney at such a hearing, the court may extend the date of the hearing up to five days at the other party’s request so the other party may seek representation. ORS 107.716(4)(b).

Sec. 4.1F Renewal of Order

If the court renews an order, the respondent may request a hearing within 30 days after being served. The court must hold a hearing within 21 days after the respondent’s request. ORS 107.725(4).

Electronically Stored Information (ESI) and Litigation

Posted on August 13, 2014 | by Linda Kruschke

This article is an excerpt from Oregon Civil Pleading and Practice, chapter 30, E-Discovery. For more information on this topic, go to the BarBooks™ online library or purchase a hard copy at a discount during our Summer Sale.

By Mark A. Friel

INTRODUCTION

This chapter discusses key aspects of electronically stored information (ESI) in the context of civil discovery in Oregon courts. ESI generally refers to any information created or used in a digital environment, or stored on digital media. The Federal Rules of Civil Procedure were first amended in December 2006 to specifically address the discovery of ESI. The Oregon Council on Court Procedures has promulgated an amendment to ORCP 43, which took effect on January 1, 2012, to include “electronically stored information” within the definition of documents, and to include the following new provision (ORCP 43 E):

E Electronically Stored Information. A request for electronically stored information may specify the form in which the information is to be produced by the responding party but, if no such specification is made, the responding party must produce the information in either the form in which it is ordinarily maintained or in a reasonably useful form.

Reported decisions under Oregon state law are practically nonexistent with respect to ESI, and there is very little guidance for state courts apart from the more developed case law under the Federal Rules of Civil Procedure. For example, see Conference of Chief Justices, Guidelines for State Trial Courts Regarding Discovery of Electronically-Stored Information (2006) (noting the lack of guidance relating to ESI under state law, and making frequent references throughout the publication to the federal rules and federal case law) (available at <http://www.ncsc.org/Topics/Civil/Civil-Procedure/Resource-Guide.aspx>).

Relying mostly on developments under federal law, this chapter explains some of the basics of ESI, why it is different from traditional forms of discovery, how to effectively manage the process of ESI preservation and production, and the sanctions the courts use to deal with the mishandling of ESI. The final section (§30.6) offers further reading in this rapidly evolving area.

BASICS OF ELECTRONICALLY STORED INFORMATION (ESI)

Sources of ESI

In Zubulake v. UBS Warburg LLC, 217 FRD 309 (SDNY 2003), in the first of a series of famous opinions on electronic discovery, the court explained that

[f]ive categories of data, listed in order from most accessible to least accessible, are described in the literature on electronic data storage:

1. Active, online data: “On-line storage is generally provided by magnetic disk. It is used in the very active stages of an electronic records [sic] life—when it is being created or received and processed, as well as when the access frequency is high and the required speed of access is very fast, i.e., milliseconds.” Examples of online data include hard drives.

2. Near-line data: “This typically consists of a robotic storage device (robotic library) that houses removable media, uses robotic arms to access the media, and uses multiple read/write devices to store and retrieve records. Access speeds can range from as low as milliseconds if the media is already in a read device, up to 10–30 seconds for optical disk technology, and between 20–120 seconds for sequentially searched media, such as magnetic tape.” Examples include optical disks.

3. Offline storage/archives: “This is removable optical disk or magnetic tape media, which can be labeled and stored in a shelf or rack. Off-line storage of electronic records is traditionally used for making disaster copies of records and also for records considered ‘archival’ in that their likelihood of retrieval is minimal. Accessibility to off-line media involves manual intervention and is much slower than on-line or near-line storage. Access speed may be minutes, hours, or even days, depending on the access-effectiveness of the storage facility.” The principled difference between nearline data and offline data is that offline data lacks “the coordinated control of an intelligent disk subsystem,” and is, in the lingo, JBOD (“Just a Bunch Of Disks”).

4. Backup tapes: “A device, like a tape recorder, that reads data from and writes it onto a tape. Tape drives have data capacities of anywhere from a few hundred kilobytes to several gigabytes. Their transfer speeds also vary considerably . . . The disadvantage of tape drives is that they are sequential-access devices, which means that to read any particular block of data, you need to read all the preceding blocks.” As a result, “the data on a backup tape are not organized for retrieval of individual documents or files [because] . . . the organization of the data mirrors the computer’s structure, not the human records management structure.” Backup tapes also typically employ some sort of data compression, permitting more data to be stored on each tape, but also making restoration more time-consuming and expensive, especially given the lack of uniform standard governing data compression.

5. Erased, fragmented or damaged data: “When a file is first created and saved, it is laid down on the [storage media] in contiguous clusters . . . As files are erased, their clusters are made available again as free space. Eventually, some newly created files become larger than the remaining contiguous free space. These files are then broken up and randomly placed throughout the disk.” Such broken-up files are said to be “fragmented,” and along with damaged and erased data can only be accessed after significant processing.

Zubulake, 217 FRD at 318–319 (footnotes and internal citations omitted). Of these five categories of electronically stored information (ESI), “the first three categories are typically identified as accessible, and the latter two as inaccessible.” Zubulake, 217 FRD at 319–320. The distinction the court in Zubulake drew between “accessible” and “inaccessible” ESI is, as explained in §30.4-5, relevant to a party’s obligations under the discovery rules.

Even within the various categories of accessible and inaccessible data, ESI includes not only that information that the user created intentionally (such as the text of a word processing file), but also any information created by the device on which the file is created, used, or stored (such as the date the file was created, the file’s author, the identity of anyone who may have edited the file, and a history of edits made to the file). This “metadata” is also a form of ESI and potentially subject to discovery. See, e.g.,
Romero v. Allstate Ins. Co., 271 FRD 96, 103 (ED Pa 2010) (“‘the producing party ordinarily must take into account the need for metadata to make otherwise unintelligible documents understandable'” (quoting Ford Motor Co. v. Edgewood Props., 257 FRD 418, 425 (DNJ 2009))).

Difficulties of Handling ESI

Electronically stored information (ESI) is unlike traditional documents. It does not reside in a drawer, in a filing cabinet, or on a shelf in a warehouse. It cannot be photocopied and simply handed over to another party in response to discovery requests. Perhaps most importantly, it is much easier to lose, alter, or destroy ESI than traditional documents. A simple keystroke could overwrite, alter, or destroy vast quantities of information in a matter of seconds.

It is because of the ease with which ESI can be lost, altered, or destroyed that the 2006 amendments to FRCP 37 added a new section providing:

Failure to Provide Electronically Stored Information. Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.

FRCP 37(e); see also FRCP 37(e), 2006 Advisory Committee notes (“The ‘routine operation’ of computer systems includes the alteration and overwriting of information, often without the operator’s specific direction or awareness, a feature with no direct counterpart in hard-copy documents.”). FRCP 37(e) is not an automatic out for parties who have allowed relevant, accessible ESI to be altered, overwritten, or otherwise lost. In its commentary on the new provision, the Advisory Committee explained:

Rule 37[(e)] applies to information lost due to the routine operation of an information system only if the operation was in good faith. Good faith in the routine operation of an information system may involve a party’s intervention to modify or suspend certain features of that routine operation to prevent the loss of information, if that information is subject to a preservation obligation. A preservation obligation may arise from many sources, including common law, statutes, regulations, or a court order in the case. The good faith requirement of Rule 37[(e)] means that a party is not permitted to exploit the routine operation of an information system to thwart discovery obligations by allowing that operation to continue in order to destroy specific stored information that it is required to preserve. When a party is under a duty to preserve information because of pending or reasonably anticipated litigation, intervention in the routine operation of an information system is one aspect of what is often called a “litigation hold.” Among the factors that bear on a party’s good faith in the routine operation of an information system are the steps the party took to comply with a court order in the case or party agreement requiring preservation of specific electronically stored information.

FRCP 37(e), 2006 Advisory Committee notes (former FRCP 37(f)); see also
Disability Rights Council of Greater Wash. v. Wash. Metro. Transit Auth., 242 FRD 139, 146 (D DC 2007) (“Rule [37(e)] does not exempt a party who fails to stop the operation of a system that is obliterating information that may be discoverable in litigation”).

Free Speech in Oregon

Posted on June 25, 2014 | by Linda Kruschke | 1 Comment

In celebration of Oregon Constitutional Law receiving the ACLEA Award of Outstanding Achievement in Publications, we decided to share an excerpt from that award-winning book. This excerpt is from chapter 3, Article I, Section 8, Free Speech Writ Large, by Robert M. Atkinson. For more on this topic you can purchase a copy of Oregon Constitutional Law from the OSB Online Bookstore or log in to BarBooks™.

§3.1 INTRODUCTION

The Oregon Supreme Court’s free-speech jurisprudence under Article I, section 8, of the Oregon Constitution is unique in its analysis. Consequently, federal law of free expression or the law of other jurisdictions on that subject is unlikely to be useful in attempting to apply the Oregon Constitution’s provision. For example, federal law distinguishes among differing kinds of expression based on their content. Thus, commercial speech gets less federal constitutional protection than political expression. Compare Boos v. Barry, 485 US 312, 321, 108 S Ct 1157, 99 L Ed2d 333 (1988) (political speech), with Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of New York, 447 US 557, 562–63, 100 S Ct 2343, 65 L Ed2d 341 (1980) (commercial speech). Under the Oregon Constitution, by contrast, all expression is equal and equally protected. Bank of Oregon v. Indep. News, Inc., 298 Or 434, 439–40, 693 P2d 35 (1985). In general, Oregon’s free speech jurisprudence is uniquely protective of expression of all kinds. Indeed, it is no exaggeration to state that—with very few and limited exceptions, which are discussed in §§ 3.4-1 to 3.4-3—all speech and expressive conduct are constitutionally protected.

The basic outline of the analysis is readily described, even if not always easily applied. But difficult questions—such as what conduct is sufficiently expressive to warrant protection—remain unresolved. This chapter is intended as a doorway into this important area. To avoid excessive length and paralyzing detail, it sticks, for the most part, to the well-traveled roads, leaving some interesting byways unexplored.

§3.2 TEXT

Article I, section 8, of the Oregon Constitution states: “No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for the abuse of this right.”

§ 3.3 BASIC ANALYSIS

The genesis of the modern construction of this provision is found in State v. Robertson, 293 Or 402, 649 P2d 569 (1982). Any lawyer seeking to understand and apply Article I, section 8, must be familiar with that case. The Robertson analysis categorizes laws as falling within one of three levels or categories. Vannatta v. Oregon Gov’t Ethics Comm’n, 347 Or 449, 455–56, 222 P3d 1077 (2009) (Vannatta II); City of Eugene v. Miller, 318 Or 480, 488, 871 P2d 454 (1994); State v. Plowman, 314 Or 157, 164, 838 P2d 558 (1992). Those categories focus on the terms in which the law in question is written and whether those terms refer directly to expression.

§3.3-1 Laws Focusing on the Content of Expression

At the first level of the analysis set forth in State v. Robertson, 293 Or 402, 649 P2d 569 (1982), are laws that focus on the content of speech or writing and are written in terms directed to the substance of any opinion or any subject of communication. City of Eugene v. Miller, 318 Or 480, 488, 871 P2d 454 (1994); State v. Plowman, 314 Or 157, 164, 838 P2d 558 (1992). Laws written in those terms violate Article I, section 8, “on their face” unless the scope of the restraint is confined within one of the few exceptions discussed in §§ 3.4-1 to 3.4-3. Miller, 318 Or at 495.

To illustrate, imagine that the legislature sought to protect the Oregon Supreme Court from having to decide whether a claim of error on appeal was preserved in the trial court. The most direct way to write such a law would be to state: “Do not discuss preservation of error in the Supreme Court.” That hypothetical law is quite obviously directed by its terms at the content of expression—discussions of preservation—because the statute’s text specifies what speech is forbidden. That law would, therefore, be unconstitutional on its face unless it came within one of the exceptions. The same fate would await laws specifying certain disfavored words, rather than—as in the example above—general content, and making it a crime to utter them.

§.3-2 Laws Focusing on Harms or Effects, but Directed by Their Terms at Expression

The second level of analysis set forth in State v. Robertson, 293 Or 402, 649 P2d 569 (1982), consists of laws that focus on forbidden harms or effects but, by their terms, expressly prohibit expression used to achieve those effects. To return to the example in § 3.3-1, a second approach to preventing discussion of preservation might state: “Do not annoy the Oregon Supreme Court by discussing preservation of error.” That hypothetical law is addressed by its terms to a harm or effect—annoying the court. But those terms also specify expression—discussion of preservation—as a means of bringing about that forbidden effect.

Laws in this category are analyzed for overbreadth. In very general terms, a law is overbroad when and to the extent that it purports to prohibit or regulate constitutionally protected expression. For example, a statute that prohibited alarming a person by threatening adverse consequences if the person performs some act focuses on harm—causing alarm—and specifies speech as a means of achieving that harm. That statute is overbroad to the extent that it would prohibit, for example, a physician telling a patient that she will increase her chances of having a heart attack if she does not quit smoking. See State v. Robertson, 293 Or 402, 410, 649 P2d 569 (1982);State v. Garcias, 296 Or 688, 698–99, 699 n 10, 679 P2d 1354 (1984). The decisive question would be whether the speech specified in the statute—returning to the prior example, discussion of preservation—is constitutionally protected. If it is, then the statute is overbroad because, and to the extent that, it seeks to restrain constitutionally protected speech; speech that may not be restrained.

Although the question of whether a law is directed at a harm or effect is generally determined by the law’s text, that is not inevitably the case. Rather, the court will consider the statute’s context to determine whether “the actual focus of the enactment is on an effect or harm that may be proscribed, rather than on the substance of the communication itself.” State v. Stoneman, 323 Or 536, 543, 920 P2d 535 (1996) (emphasis by the court).

§3.3-3 Laws That, Although They Are Not Directed at Expression by Their Terms, May Be Applied to Expression

The third level of the analysis set forth in State v. Robertson, 293 Or 402, 649 P2d 569 (1982), consists of laws that focus on forbidden effects without referring to expression at all. These “speech-neutral” laws cannot be challenged facially. State v. Illig-Renn, 341 Or 228, 234, 142 P3d 62 (2006). Rather, they are analyzed to determine whether the law was applied in the particular circumstances before the court so that it burdened protected expression. Because these challenges are generally based on the application of the law rather than its text, they tend to be addressed to actions of the executive rather than the legislative branch. Thus, the speaker challenging the law would be asserting that, although the law itself may be constitutional as written, the government exceeded the law’s proper scope by applying it to his or her speech. That may occur, for example, if the regulator simply misconstrues the scope of the law or applies it in a manner that is not speech-neutral. See City of Eugene v. Lincoln, 183 Or App 36, 43, 50 P3d 1253 (2002).

Here, our exemplary law (see §§ 3.3-1 to 3.3-2) would simply state: “Do not annoy the Oregon Supreme Court.” A person prosecuted criminally or subjected to civil sanctions for violating this law by addressing preservation of error would have to argue that the statute was unconstitutional as applied to his or her speech because, the person would claim, speech about preservation of error is constitutionally protected in the context of an appeal. If the person is right, the law is unconstitutional as applied to that particular expression. City of Eugene v. Miller, 318 Or 480, 488–90, 871 P2d 454 (1994), illustrates the application and analysis.

Appellate Oral Argument – the Judges’ Perspective

Posted on May 1, 2014 | by Linda Kruschke

Excerpted from Appeal and Review: Beyond the Basics (OSB Legal Pubs 2014), chapter 4 Effective Oral Advocacy.

By William F. Gary, Hon. Joel S. DeVore, Hon. Erica L. Hadlock, and Hon. Jack L. Landau

To learn more about advanced appellate advocacy tips and practices, go to BarBooks™ to view this completed book, or preorder your print copy of this handy reference from our online bookstore.

The Judges’ Goals for Oral Argument

On any court, judges hold a wide variety of views about the utility of oral argument. Some judges say it rarely influences how they vote to decide a case; others report that it affects their decisions in a significant minority of cases argued. Still other judges believe that argument rarely shifts their vote on the ultimate outcome, but acknowledge that how the parties frame the issues during oral argument often influences the way in which the judges write opinions. What happens during a court of appeals argument certainly can affect the court’s decision whether to affirm a lower court’s or agency’s decision without published opinion (AWOP) or to write an opinion in the case.

Some common themes do emerge in conversations with judges about what they hope to accomplish during oral argument. Judges view argument as their sole opportunity to question the advocates—to engage in a dialogue with the lawyers instead of merely being on the receiving end of the lawyers’ monologues. Because of that, and because 15 minutes go by so quickly, judges may not allow lawyers much time to deliver prepared arguments—which too frequently are only variations on the monologues already delivered in the briefs—before the judges start asking questions.

A primary goal that judges have in questioning lawyers is to clarify what the parties are arguing, in the most basic sense. Before the judges start evaluating the merits of the parties’ arguments, they need to understand what those arguments are. For example, the judges want to know exactly which trial-court rulings the appellant is challenging, and on precisely what grounds. If the appellant’s brief is vague, ambiguous, or internally inconsistent in that respect, judges are likely to ask clarifying questions before they address the substance of the appellant’s arguments.

Court of appeals judges also may not immediately dive into the merits of a case if the briefs have not made clear what issues are properly before the court, and by what standards the appellate judges will review the lower court’s rulings on those issues. If the briefs leave the court with questions about whether arguments were preserved for appeal, or what standards of review apply, judges are likely to use argument time to clarify those points.

In addition, court of appeals judges may ask questions related to their general desire to resolve cases in the most straightforward way possible, without addressing more issues than is necessary (a desire that is grounded both in jurisprudential principles and in workload concerns). Judges sometimes refer to this as looking for the “first principled door out” of a case. Accordingly, judges may ask questions aimed at clarifying how the various arguments presented in a party’s brief relate to each other. Essentially, the judges are trying to picture the flowchart that shows the relationships between all of those arguments, with the hope of discerning the simplest path from one end of the chart (the assignments of error) to the other (disposition of the appeal). If those analytic pathways are not clearly described in the brief, the judges probably will ask questions on that point.

Beyond clarifying the contours of the parties’ arguments and how they interrelate, judges view oral argument as a time to explore the strengths and weaknesses of those arguments. By asking probing questions, the judges intend to give each lawyer an opportunity to make the best case possible for his or her client. Judges may want to know how a party’s arguments can be reconciled with (or distinguished from) existing case law, or if the party can prevail only if some precedent is overruled. In a case that centers on statutory interpretation, judges might ask how a lawyer’s proposed construction of a particular provision makes sense in the context of the statutory scheme as a whole. Or a judge might ask a hypothetical question designed to reveal whether a lawyer’s argument remains sound when pushed to its logical conclusion. In all of those circumstances, the judge’s goal is to make sure that the lawyers have been confronted with any potential weaknesses in their arguments and have had a fair chance to respond.

Practice Tip: Because the judges will have read the briefs before argument, experienced oral advocates generally spend little time repeating the points they’ve already made in their briefs. Instead, they focus on responding to their opponent’s arguments. Indeed, some of the most compelling oral arguments are those in which the lawyers start by acknowledging their opponents’ strongest points and then making their best arguments in response.

Judges also use oral argument as an opportunity to explore the implications of the positions that the parties advocate. In resolving a case, judges must decide whether to publish an opinion (instead of AWOP a case in which the lower court’s judgment will be affirmed) and, if they do issue a written opinion, must consider how that published discussion of the law will affect future cases. Those concerns often prompt judges to ask big-picture questions of the lawyers that go beyond the details of the particular case at issue. Thus, if a lawyer’s argument is focused mostly on the pertinent facts and the outcome the lawyer advocates, a judge might ask the lawyer what legal principle would lead to that desired result. Indeed, some judges will ask lawyers to articulate the rules of law they think the court should announce in its opinions.

In addition to helping judges better understand the parties’ arguments and their implications, oral argument also gives appellate judges an opportunity to get the benefit of their colleagues’ thoughts. Because the court of appeals sits in three-judge panels, each judge is able to listen to exchanges that might not have occurred if that judge were the only one asking questions. Many judges go into argument with the goal of breaking out of any “tunnel vision” or “bubbled thinking” they may have developed around the issues in a case.

The Posting Begins for Oregon Real Estate Deskbook

Posted on March 17, 2014 | by Linda Kruschke

Excerpted from Oregon Real Estate Deskbook (OSB Legal Pubs 2014, in progress), chapter 6 Recording and Priorities.

By Chas Cleveland Abbe,
state underwriting counsel, Fidelity National Title Group, Portland.

To learn more about recording and priorities, go to BarBooks™, where you can also see what other chapters of this new book have been posted.

§6.5 OREGON’S RECORDING LAW

Oregon’s basic race-notice recording law is stated in ORS 93.640. Stripped of document types other than “conveyance,” ORS 93.640(1) states:

Every conveyance . . . affecting the title of real property within this state which is not recorded as provided by law is void as against any subsequent purchaser in good faith and for a valuable consideration of the same real property, or any portion thereof, whose conveyance . . . is first filed for record, and as against the heirs and assigns of such subsequent purchaser.

This phrasing protects (1) a subsequent purchaser (2) in good faith (3) for valuable consideration (4) who records first. The Oregon Supreme Court has grafted lack of notice onto the good-faith requirement. Thus, a subsequent purchaser or encumbrancer must take its interest “in good faith for value and without notice of the outstanding interests.” High v. Davis, 283 Or 315, 332–33, 584 P2d 725 (1978) (emphasis added). This was not always true. See § 6.10-1 (purchaser status, good faith, and valuable consideration).

The word conveyance in ORS 93.640(1) is construed broadly to include any document in the form of a conveyance, such as a mortgage, and is not limited to documents that transfer legal title. Watson v. Dundee Mortgage & Trust Inv. Co., 12 Or 474, 8 P 548 (1885). Nevertheless, ORS 93.640(1) expressly refers to the following: “conveyance, deed, land sale contract, assignment of all or any portion of a seller’s or purchaser’s interest in a land sale contract or other agreement or memorandum thereof affecting the title.” This phraseology “includes mortgages, trust deeds, and assignments for security purposes or assignments solely of proceeds, given by purchasers or sellers under land sale contract.” ORS 93.640(1). “Memorandum” is defined in ORS 93.640(1) and ORS 93.710(3).

The same race-notice language applies to an assignment of a sheriff’s certificate of sale of real property on execution or mortgage foreclosure if the assignment is not recorded within five days after its execution. ORS 93.640(2), ORS 93.530.

Other statutes omit the good-faith and valuable consideration language of ORS 93.640. In large measure, these statutes simply expand or clarify the roster of documents eligible for recording. For example, ORS 93.710(1) sets forth several additional recordable documents and notes that recordation of these documents constitutes notice to third persons of the rights of the parties irrespective of whether the party granted such interest is in possession of the real property. That said, the bona fide purchaser doctrine developed under ORS 93.640 is favored in the case law.

Under ORS 93.806, recordation of “[a]ny instrument creating a lien on unpaid rents and profits of real property . . . constitutes notice to third persons, and shall otherwise have the same effect as recordation pursuant to ORS 93.710.” This statute goes on to state that an instrument recorded under ORS 93.710 (as well as one recorded under ORS 93.806) “shall not be voidable by and shall not be subordinate to the rights of . . . [a] subsequent bona fide purchaser of real property.”

Recordation of a judgment affecting land “is notice to all persons” of the judgment and proceedings through which the judgment was recorded. ORS 93.730. A notice of pendency of an action creates notice at recording: “From the time of recording the notice, and from that time only, the pendency of the suit is notice, to purchasers and encumbrancers, of the rights and equities in the premises of the party filing the notice.” ORS 93.740. The recorded notice will cut off those persons whose interests are unrecorded and unknown, as well as those persons whose interests arise after recording of the notice. To support a notice of pendency, the action must be filed in court, and the subject of the action “must be an actual interest in real property, not merely a speculative future one.” Doughty v. Birkholtz, 156 Or App 89, 95, 964 P2d 1108 (1998) (recorded notice was wrongful when only pending proceeding was an administrative claim before the Construction Contractors Board); see Vukanovich v. Kine, 251 Or App 807, 285 P3d 733 (2012), rev den, 353 Or 203 (2013) (recorded notice was wrongful when a breach of contract claim for membership interest in a limited liability company that owned property did not “involve, affect, or bring into question any interest in the [real] property” identified in the notice); see generally § 6.8-1.

For judgment liens, ORS 18.165 establishes special rules that supersede previous statutes and case law. ORS 18.165 states:

(1) If a judgment with lien effect under ORS 18.150, 18.152 or 18.158 is entered or recorded in a county before a conveyance, or a memorandum of a conveyance, of real property of the debtor is recorded in that county, the conveyance of the judgment debtor’s interest is void as against the lien of the judgment unless:

(a) The grantee under the conveyance is a purchaser in good faith for a valuable consideration, the conveyance is delivered and accepted before the judgment is entered or recorded in the county where the property is located and the conveyance or memorandum of the conveyance is recorded within 20 days after delivery and acceptance of the conveyance, excluding Saturdays and legal holidays under ORS 187.010 and 187.020;

(b) The judgment creditor has actual notice, record notice or inquiry notice of a conveyance of the debtor’s interest to a grantee when the judgment is entered or recorded in the county;

(d) The conveyance is a mortgage, trust deed or other security instrument given by the debtor to secure financing for the purchase by the debtor of the real property described in the conveyance.

(2) For the purpose of subsection (1)(a) of this section, a memorandum of conveyance must contain the date of the instrument being memorialized, the names of the parties, a legal description of the real property involved and a description of the nature of the interest created. The memorandum must be signed by the person from whom the interest is intended to pass, and be acknowledged or proved in the manner provided for the acknowledgment or proof of deeds.

(3) As used in this section:

(a) “Conveyance” means a deed, a land sale contract, an assignment of all or any portion of a seller’s or purchaser’s interest in a land sale contract or any other agreement affecting the title of real property within this state, including a trust deed, a mortgage, an assignment for security purposes or an assignment solely of proceeds, given by a purchaser or seller under a land sale contract or given by a person with title to the real property.

(b) “Grantee” means:

(A) The person deemed to be the mortgagee under a trust deed pursuant to ORS 86.715; and

(B) Any other person to whom the interest that is the subject of a conveyance is intended to pass.

Various instruments not covered by the above provisions of ORS chapter 93 gain benefits or effect from recording. The following is a partial list of such instruments and the corresponding statutes. Additional instruments can be found in ORS 205.246 and the listing of involuntary liens can be found in § 6.9-3. Note that the law may accord special priorities to the liens associated with some of these instruments.

	Instrument	Citation
1	Writ of execution on real property	ORS 18.870
2	Fixture filing and certain other UCC filings	ORS 79.0501, ORS 205.246(1)(a)
3	Mortgage discharge	ORS 86.120
4	Trust deed notice of default and other non-judicial foreclosure documents	ORS 86.705 to 86.815
5	Correction of error for withdrawing a trust deed reconveyance or a trust deed trustee’s deed	ORS 86.722, ORS 205.246(1)(z)
6	Subdivision or partition plat	ORS 92.140, ORS 205.246(1)(u)
7	Order of vacation	ORS 92.234, ORS 271.150, ORS 368.356
8	Request for notice to real property manager	ORS 93.265
9	Department of Human Services or Oregon Health Authority request for notice of transfer or encumbrance	ORS 93.268, ORS 411.694, ORS 416.350, ORS 205.246(1)(w)
10	Power of attorney	ORS 93.670, ORS 696.030
11	Patents, judgments, official grants of land	ORS 93.680
12	Documents, orders, decrees of the United States District Court	ORS 93.760
13	Bankruptcy petitions, orders, and decrees	ORS 93.770, ORS 205.246(1)(x)
14	Transfer on death deed; instrument revoking transfer on death deed	ORS 93.948–93.979
15	Death certificate	ORS 205.130(2)(c), ORS 432.124
16	Rerecording to correct a previously recorded instrument	ORS 205.244
17	Written warranty agreement for new commercial or residential structure	ORS 701.605, ORS 205.246(1)(y)
18	Affordable housing covenant	ORS 456.280
19	Notice or order by the State Forester requiring reforestation of specific lands	ORS 527.710, ORS 527.680, ORS 93.710(2)
20	Notice of designation of substantial damage to residential structure by flooding; notice of remedy of substantial damage	ORS 105.780, ORS 205.246(1)(bb)–(cc)

Recordation has no effect unless the recordation is specifically required or authorized by statute. ORS 87.920 states that “except where filing of the document is specifically required or authorized by statute, no document filed for recording . . . shall create a lien or encumbrance upon or affect the title to the real or personal property of any person or constitute actual or constructive notice to any person of the information contained therein.” ORS 87.920 is not limited to ORS chapter 87 liens. The statute was enacted into law by the legislative assembly but was not added to or made a part of ORS chapter 87 or any series therein by legislative action. See ORS Preface, viii (2001).

Because the recording statutes are applied liberally, the impact of ORS 87.920 is unclear. The statute probably has a bearing on types of documents well outside the bounds of the recording statutes, for example, a notice of pendency of action recorded when no action is filed or a claim of lien for a lien not recognized under Oregon law. See § 6.7-1 (types of documents that may be recorded); § 6.8-1 (effect of recording).

Practice Tip: The differences between ORS 93.640 and ORS 93.710 and similar sections demonstrate the importance of prompt recording. The use of an escrow agent and the purchase of title insurance are two important means by which grantees and lenders may protect themselves against subsequent adverse claimants who win the race to the recorder. With an escrow, release of the consideration may be conditioned on title insurance coverage to the date of recording. With title insurance, a party may obtain indemnification against matters missed in a check of the recorder’s records.

A covenant for a private transfer fee is barred from recording, and a requirement for such a fee is void. Certain exemptions apply. ORS 93.269.

Certain discriminatory restrictions are barred from a conveyance or a contract to convey and are “void and unenforceable.” An affected owner may petition the circuit court to remove the provision from the title. ORS 93.270, ORS 93.272.

New Law for Commitment of Person with Mental Illness

Posted on February 18, 2014 | by Linda Kruschke

Excerpted from Criminal Law (OSB Legal Pubs 2013), chapter 15 Mental Illness and Incapacity.

By Harris Matarazzo, sole practitioner.

To learn more about this new legislation, go to BarBooks™.

§ 15.13-3(g) Extremely Dangerous Person with Mental Illness

§ 15.13-3(g)(1) In General

The 2013 Legislature enacted Senate Bill 421, which created a new classification of individual subject to a civil-commitment proceeding: “extremely dangerous person with mental illness.” ORS 426.701–426.702. See Or Laws 2013, ch 715. Although the new law appears in ORS chapter 426 along with other provisions relating to civil commitments, the underlying basis for this proceeding is previously adjudicated criminal conduct, or pending allegations of such activity. This could include a situation in which a person was found to lack the capacity to go to trial. Persons committed by the court pursuant to this law are subject to the jurisdiction of the Psychiatric Security Review Board (PSRB), the same agency responsible for overseeing persons found “guilty except for insanity” under ORS 161.295. See ORS 426.701(3).

Comment: As such, this legislation combines elements of both criminal law and civil law and, although sharing some procedural features, should not be confused with other civil commitments.

The discussion in § 15.13-3(g)(2) to § 15.13-3(g)(10) highlights the differences between Oregon’s longstanding bases for civil commitment and a commitment initiated on the basis of “extreme danger.” Otherwise, the procedures remain the same.

§ 15.13-3(g)(2) Who May Be Committed as an Extremely Dangerous Person with Mental Illness

A person is subject to commitment as an extremely dangerous person with mental illness if:

(1) The person is “extremely dangerous,” ORS 426.701(3)(a)(A);

(2) The person is at least 18 years old, ORS 426.701(1)(a)(A);

(3) The person has a “mental disorder that is resistant to treatment,” ORS 426.701(3)(a)(B);

(4) Because of that mental disorder, the person committed one of the following acts described in ORS 426.701(3)(a)(C):

(a) “Caused the death of another person,” ORS 426.701(3)(a)(C)(i);

(b) “Caused serious physical injury to another person by means of a dangerous weapon,” ORS 426.701(3)(a)(C)(ii);

(c) “Caused physical injury to another person by means of a firearm as defined in ORS 166.210 or an explosive as defined in ORS 164.055,” ORS 426.701(3)(a)(C)(iii);

(d) “Engaged in oral-genital contact with a child under 14 years of age,” ORS 426.701(3)(a)(C)(iv);

(e) “Forcibly compelled sexual intercourse, oral-genital contact or the penetration of another person’s anus or vagina,” ORS 426.701(3)(a)(C)(v); or

(f) “Caused a fire or explosion that damaged the protected property of another, as those terms are defined in ORS 164.305, or placed another person in danger of physical injury, and the fire or explosion was not the incidental result of normal and usual daily activities,” ORS 426.701(3)(a)(C)(vi);

(5) The person is “exhibiting symptoms or behaviors of a mental disorder substantially similar to those that preceded the [specific criminal] act,” ORS 426.701(1)(a)(B); and

(6) Because of the mental disorder, the person (a) “[p]resents a serious danger to the safety of others by reason of an extreme risk that the person will inflict grave or potential lethal physical injury on other persons,” and (b) “[u]nless committed, will continue to represent an extreme risk to the safety of other persons in the foreseeable future,” ORS 426.701(1)(a)(C).

The statute does not define the term mental disorder, but the statute provides that the mental disorder must be “resistant to treatment.” ORS 426.701(3)(a)(B). Furthermore, the statute provides that a mental disorder does not include a disorder “manifested solely by repeated criminal or otherwise antisocial conduct” or a disorder “constituting solely a personality disorder.” ORS 426.701(1)(b).

Qualifying conditions are deemed to be “resistant to treatment” if the person “continues to be significantly impaired in the person’s ability to make competent decisions and to be aware of and control extremely dangerous behavior” after (1) “receiving care from a licensed psychiatrist and exhausting all reasonable psychiatric treatment” or (2) “refusing psychiatric treatment.” ORS 426.701(1)(c).