Marijuana-Related Jury Instructions under Construction

Posted on | by Linda Kruschke

By Dean Land, Attorney Editor

At first glance, Oregon’s new marijuana laws seem simple—recreational marijuana is now legal. But a more in-depth look reveals some very complex legislation. Together, Ballot Measure 91 (2014) and House Bill 3400 (2015) take up 99 pages in Oregon Laws.

The legislation’s effect on the jury instructions is something that the Uniform Criminal Jury Instructions Committee is still working to untangle. For example, ORS 475.864 (2013), which criminalized the possession of a certain amount of marijuana, was not simply repealed. Instead, the new version of the statute criminalizes possession of marijuana under certain circumstances, based on criteria including the age of the possessor, the location of the possession, and the amount and form of the marijuana. Furthermore, the statute does not apply to licensed growers, processors, and sellers “acting in accordance with” Measure 91. ORS 475.864(6) (2015). This raises questions. Does a district attorney who charges unlawful possession of marijuana have to prove beyond a reasonable doubt that the defendant did not act in accordance with Measure 91? Or is acting in accordance with Measure 91 an affirmative defense? And perhaps most perplexing of all, how should that element of the crime be phrased for the jury?

These are among the many questions confronting the committee as it works to update the instructions for marijuana crimes. Although the committee was unable to revise these instructions in time for the 2015 UCrJI Supplement, it alerted practitioners to the issue by adding notes to the potentially affected instructions. The committee expects to have revised marijuana-crime instructions ready for the 2016 Supplement. In the meantime, judges, defense attorneys, and prosecutors are encouraged to contact committee members with any suggestions.

Style Matters and Grammar Questions

Posted on | by Linda Kruschke

All publishers have standards and style guides that they adhere to. OSB Legal Publications is no different. Often our volunteer authors want to know why we made a particular edit when they thought the way they wrote it was just fine. The answer is usually that the Attorney Editor was adhering to one of the style guides that we rely on.

For in-house editing, we rely on the following style guides on issues of citation format, grammar, and style, with a few minor exceptions:

The first style guide on this list takes top billing so that if a Bar member wants to quote from one of our books into a brief, they can copy and paste the quote from BarBooks™ and have the citations conform to the same style guide they need to follow to keep the court happy.

But some citation style issues aren’t specifically spelled out in the Oregon Appellate Courts Style Manual and so The Bluebook is the appropriate back-up.

The other three style guides are in our repertoire to provide consistency from one chapter to another and from one book to another. We don’t want to just be making stuff up, after all, because we’d all make it up a little differently.

So if you wonder why we do things the way we do in our publications, you can either check out these style guides to see if we are following them, or you can just ask us. Drop us a line at [email protected] if you have questions.

Introducing Our Newest Team Member

Posted on | by Linda Kruschke

The OSB Legal Publications team is made up of four Attorney Editors, one Administrative Assistant, one Production Coordinator, and the Director. In August, one of our Attorney Editors left the Bar for a new adventure. Last week, our newest Attorney Editor started on his adventure here.

Yasha Renner earned his BS in Graphic Design from PSU and worked for a number of years at Rogue Ales Brewery as a graphic designer. He left Rogue and Oregon to attend Liberty University School of Law in Lynchburg, VA. He was on law review while at Liberty, a position he enjoyed immensely. In 2013, he graduated 4th in his class and was admitted to OSB.

Upon returning to Oregon after law school, Yasha was rehired by Rogue Ales Brewery as a database administrator and Chief IT Officer. While working at Rogue Ales, Yasha opened his own general practice with a focus on personal injury and estate planning.

Then he saw the posting for a Legal Publications Attorney Editor and decided it would be a good fit for his skill set, personality, and career goals. During the interview process, we decided we agreed. When we asked him if he could have one superpower, what would it be, he replied, “The power to read super fast.” That would definitely come in handy in this job.

We are very excited to have Yasha join the team! If you are a volunteer author, you may have the pleasure of having Yasha edit your submissions with his thorough yet reserved style.

Oregon Real Estate Deskbook – Available Now!

Posted on | by Candace McLean

The Oregon Real Estate Deskbook is a complete reorganization of the five current real estate series books, combining chapters that covered the same topics from different angles.  In addition, it includes updated chapters from Foreclosing Security Interests and eleven brand new chapters.

This new five-volume book can be purchased as a complete set or as individual volumes.  The comprehensive tables and index, included with the complete set, can be purchased separately with the purchase of any one individual volume.

Order your copy today by visiting our online bookstore or by calling our CLE Service Desk at (503)431-6413, or toll-free in Oregon, 1-800-452-8260, x 413.

Volume 1:  Includes 18 chapters covering Preliminary Considerations; Estates, Title, and Survey; Easements and Covenants, Conditions, and Restrictions; and Acquisitions and Dispositions.  Also included are chapters on Deeds and Conveyances; Escrows and Closing; and Earnest Money Agreements.

Volume 2: Includes 12 chapters on Financing Transactions, including three brand new chapters.  Also included are chapters on Commercial Real Estate Finance; Mortgage Foreclosure; Contract of Sale; and Real Estate Appraisal.

Volume 3: Includes nine chapters covering Residential, Commercial, and Ground Leasing as well as Condominiums, Planned Communities, and Timeshares.  Also includes chapters on Leasing Assignments and Subleases; Commercial Lease Disputes and Remedies; and Governances of Community Associations.

Volume 4: Includes 13 chapters covering Non-Possessory Rights, Unique Property Types, and Other Legal Considerations.  Six chapters are brand new including Mineral Rights, Forestland, Timber, and Forest Products; Receivership; and Property and Liability Insurance.

Volume 5: Includes 12 chapters on Taxes and Assessments, and Real Estate Disputes along with 2 brand new chapters.  Other content includes Like-Kind Exchanges; Tax Credits and Abatements; Vacation and Abandonment; and Judgments, Execution, and Exemptions.

Grammatical Mistake Leads to Animal Neglect

Posted on | by Linda Kruschke

By Dean Land, Legal Publications Attorney Editor

By my own unscientific methods, I’ve determined that “comprise” is the most misused verb in the English language. That kind of pervasive grammatical error has serious ramifications for an editor like me. When I read the sentence, “The Oregon Supreme Court is comprised of seven justices,” I get hung up. That sentence takes over my conscious thought. Priorities go out the window, and I forget to pick up dog food on the way home.

So what’s the problem? Many writers confuse the verb “comprise” with the verb “compose.” As stated in The Chicago Manual of Style, “To comprise is ‘to be made up of, to include’ {the whole comprises the parts}. To compose is ‘to make up, to form the substance of something’ {the parts compose the whole}.” Usage hawk Bryan Garner provides the correct passive-voice phrasing: “the whole is composed of the parts; the parts are comprised in the whole.” He points out that the phrase “comprised of” is “always wrong.”

Following that logic, we have a number of different ways to express the same thought:

  • The Oregon Supreme Court comprises seven justices.
  • Seven justices are comprised in the Oregon Supreme Court.
  • Seven justices compose the Oregon Supreme Court.
  • The Oregon Supreme Court is composed of seven justices.

Some are more awkward than others, but all are correct. Most importantly, none of them will cause my dogs to go hungry.

Because misery loves company, I’m happy to report that software engineer Bryan Henderson has compulsively removed every single instance of “comprised of,” numbering in the tens of thousands, on Wikipedia. I just hope that guy doesn’t have pets.

Appeal and Review Wins Award

Posted on | by Linda Kruschke

 OSB Legal Publications has once again been recognized for our commitment to publishing quality legal resources. We received an award for a book we released in 2014.

The Association for Continuing Legal Education (ACLEA) has selected Appeal and Review: Beyond the Basics as the winner of its ACLEA’s Best Award of Outstanding Achievement in Publications. The physical award will be presented at ACLEA’s Annual Meeting in Chicago, Illinois in August and put on display in the lobby of the OSB Center.

Of course, Legal Pubs couldn’t have created this highly informative and innovative book without the help of our many volunteer editorial board members (in bold) and authors: Hon. Erika L. Hadlock; Edward J. Harri; Hon. Virginia L. Linder; James N. Westwood; Jerome Lidz; R. Daniel Lindahl; George W. Kelly; Erin Galli; Thomas W. Brown; Roy Pulvers; Hon. Erin C. Lagesen; Rolf Moan; Janet M. Schroer; Marjorie A. Speirs; Hon. Meagan A. Flynn; William F. Gary; Hon. Joel S. DeVore; Hon. Jack L. Landau; James W. Nass. Thanks to all of you for your hard work and dedication to this volunteer effort.

Appeal and Review: Beyond the Basics explores several areas of appellate practice and jurisprudence in greater depth than its companion volume, Appeal and Review: The Basics (OSB Legal Pubs 2010). The first introductory chapter provides thoughts on the convergence of theory and practice. In chapter 2, the authors discuss the principles that serve as the basis for familiar rules of appellate practice, including rules related to preservation, standards of review, and harmless error. The authors then explain how those principles should influence a lawyer’s analysis of whether to appeal or seek judicial review, balancing client considerations like the expense of appeal, the likelihood of prevailing, delay, and the possibility of having to pay the respondent’s attorney fees. The chapter 3 authors discuss the art of drafting appellate briefs, covering everything from appropriate structure to techniques for making briefs helpful and persuasive to appellate judges. Chapter 4 addresses oral argument from both sides of the bench, focusing on goals that all participants often do—and should—have for oral arguments. Both chapters 3 and 4 touch on the differences between practicing in the Oregon Court of Appeals and practicing in the Oregon Supreme Court. Finally, chapter 5 provides a comprehensive explanation of motion practice in both courts. All chapters reflect contemporary practices built on longstanding Oregon tradition.

Appeal and Review: Beyond the Basics is available on BarBooks™ to all Oregon Bar members or for purchase in print at the Bar’s online bookstore.

Sales of Manufactured-Dwelling Parks in Oregon

Posted on | by Linda Kruschke

This article is excerpted from Oregon Real Estate Deskbook, chapter 48 Manufactured and Mobile Homes, by Phillip C. Querin and William “Bill” D. Miner.

The complete chapter will soon be available on the BarBooks™ online library. Look for the preorder offer for the entire Oregon Real Estate Deskbook coming soon.

§ 48.3-3               Sales of Manufactured-Dwelling Parks

House Bill 4038 (2014) substantially modified the provisions that establish the process for tenants of manufactured-housing parks to purchase the parks. Park owners must now give written notice of their interest in selling the community (a) before commencing marketing to the general public, or (b) when the owner receives an offer that it intends to consider, whichever occurs first. Or Laws 2014, ch 89, § 1(1).

The written notice must be given to: (1) all tenants of the manufactured-dwelling park; or (2) the tenant committee, if one exists and (a) was formed for purposes that include the purchase of the park , and (b) with which the owner met within the 12-month period before delivery of the notice. Additionally, the written notice must be given to the “Office of Manufactured-Dwelling Park Community Relations of the Housing and Community Services Department.” Or Laws 2014, ch 89, § 1(2)–(3).

The notice must inform the residents that:

               (a)          The owner is considering selling the park.

               (b)          The tenants, through a tenants committee, have an opportunity to compete to purchase the park.

               (c)           In order to compete to purchase the park, within 10 days after delivery of the notice, the tenants must form or identify a single tenants committee for the purpose of purchasing the park and notify the owner in writing of:

               (A)          The tenants’ interest in competing to purchase the park; and

               (B)          The name and contact information of the representative of the tenants committee with whom the owner may communicate about the purchase.

               (d)          The representative of the tenants committee may request financial information described in section 2 (2) of this 2014 Act from the owner within the 10-day period.

               (e)          Information about purchasing a manufactured-dwelling park is available from the Office of Manufactured Dwelling Park Community Relations of the Housing and Community Services Department.

Or Laws 2014, ch 89, § 1(4).

Within 10 days after delivery of the notice, if residents are interested in purchasing, they must notify the park owner in writing of (1) their interest in purchasing the park, (2) the identification of the tenants committee, and (3) the name and contact information of a tenant representative from the tenants committee with whom the park owner may communicate about the purchase. Or Laws 2014, ch 89, § 2(1).

During the 10-day period after delivery of the notice, the tenant representative may make a written request for “the kind of financial information that a seller of a park would customarily provide to a prospective purchaser.” Or Laws 2014, ch 89, § 2(2). The park owner is required to provide the following information within seven days after the tenant’s request for information: (1) the “asking price, if any, for the park”; (2) the “total income collected from the park and related profit centers” during the “12-month period immediately before delivery of the notice required by [Or Laws 2014, ch 89, § 2(1)]”; (3) the cost of all park utilities during the same 12-month period; (4) the annual cost of park insurance policies per the most recent premium period; (5) the number of park-owned homes; and (6) the number of vacant spaces and homes in the park. Or Laws 2014, ch 89, § 2(3).

NOTE: The park owner may place certain restrictions on the required information, such as making all or part of the information confidential. See Or Laws 2014, ch 89, § 2(4).

If the tenants choose to continue, within 15 days of delivery of the owner’s financial information, they must (1) form a corporate entity legally capable of consummating the purchase, or associate with a nonprofit capable of doing so; (2) submit a written offer of purchase; and (3) provide a copy of the articles of incorporation or other evidence of legal capacity to purchase the park. Or Laws 2014, ch 89, § 2(5).

The park owner is not obligated to continue negotiating with residents if they fail to perform within any of the required time periods, or if they violate any confidentiality agreement. Or Laws 2014, ch 89, § 2(6)(c).

Finally, the following general principles apply to the purchasing process:

(1)          All parties must act in a “commercially reasonable manner,” (Or Laws 2014, ch 89, § 3(1));

(2)          Minor errors in providing notice to the tenants or in providing financial information will not prevent the owner from selling to a third party and will not make the owner liable to the tenants, (Or Laws 2014, ch 89, § 3(3));

(3)          The park owner may seek out and negotiate with other potential purchasers while also negotiation with the tenants, (Or Laws 2014, ch 89, § 3(4));

(4)          If the park owner fails to comply with the rules “in a substantial way that prevents the tenants from competing to purchase the park,” the tenants may obtain injunctive relief to prevent a sale to a third-party purchaser (only if the owner has not already filed an affidavit of compliance under ORS 90.830), or recover the greater of actual damages or twice the monthly rent from the owner for each tenant, (Or Laws 2014, ch 89, § 3(5)); and

(5)          If a tenant violates the confidentiality agreement in a substantial way, the park owner may recover actual damages from the tenant, (Or Laws 2014, ch 89, § 3(6)).

Park owners are, however, excluded from complying with the above requirements in the case of certain transfers described in Or Laws 2014, ch 89, § 4.

Shall I Compare Thee to a Summer’s Day? Probably not.

Posted on | by Linda Kruschke

by Ian Pisarcik, Legal Publications Attorney Editor

The writer David Foster Wallace was so fond of words that he used to lie awake for hours reading the dictionary and circling the ones he liked best: Maugre, Tarantism, Ruck, Sciolism, Primipara. He is a man who once wrote “I do things like get in a taxi and say, ‘The library, and step on it.’” His desire to use uncommon words was matched by his desire to know the meaning of those uncommon words. Many lawyers, it seems at times, share only the first desire. Nowhere is this more evident than in the enduring use of the word shall.

Lawyers rely heavily on the word shall, and while the most common interpretation of the word is that it denotes a mandatory action (i.e., must), lawyers do not consistently use it this way. As lawyer and lexicographer Bryan Garner points out, “that’s why courts in virtually every English-speaking jurisdiction have held—by necessity—that shall means may in some contexts, and vice-versa.” Let’s look at some examples, shall we?

  1. “No person shall operate a motorboat at a speed greater than is reasonable.” If shall means must, then this sentence is telling us that no person must operate a motorboat at a speed greater than reasonable. In other words, you’re not required to operate a motorboat at a speed greater than is reasonable, but if you want to, knock yourself out. This is clearly not the intended meaning. What the author is trying to say is: “No person may operate a motorboat at a speed greater than is reasonable.” In other words, you are not allowed to do this.
  2. “The sender shall have fully complied with the requirement to send notice, when the sender obtains electronic confirmation that the transmission has been received.” Is shall denoting a mandatory action here? Of course not. The sentence is simply defining when the sender has fully complied: “The sender has complied . . . when the sender obtains electronic confirmation. . .”
  3. “The agreement shall be terminated.” A duty must be imposed on a capable actor. An agreement is not a capable actor. What this sentence is intended to mean is that the agreement is terminated (presumably by someone or some action, but that’s a post for another day).

The word shall is rarely used consistently throughout a legal document. And the result is that, as Garner puts it, “the word breeds litigation.” According to Garner, the multivolume Words and Phrases, published by Thomson Reuters, contains 107 pages of small-type cases interpreting the word shall. Garner hoped to cut down on some of this litigation when he revised the civil, appellate, and criminal federal rules, and dropped the word shall completely. The editors at the Oregon State Bar have chosen to do the same. We shall banish the word from our vocabulary, and don’t get us started on witnesseth . . .

The Remaking of the Oregon Real Estate Deskbook

Posted on | by Candace McLean

The editorial board for the upcoming Oregon Real Estate Deskbook has reorganized the five current real estate series books, combining chapters that covered the same topics and planning the addition of new chapters to touch on topics not addressed before.  The editorial board also determined that four chapters from Foreclosing Security Interests more logically fit within a comprehensive real estate deskbook.  The new five-volume book will be available soon, available to purchase as a complete set or as individual volumes.  Watch for information on preordering a copy of this publication to take advantage of an early discount.  The Oregon Real Estate Deskbook is a work in progress, with chapters being posted online as they become ready.

Punctuation Pet Peeves

Posted on | by Linda Kruschke | 4 Comments on Punctuation Pet Peeves

Some people are bothered by the over use of the exclamation point. F. Scott Fitzgerald once said, “Cut out all these exclamation points. An exclamation point is like laughing at your own joke.” He may be right, but a properly placed exclamation point has never peeved me.

Other people are bothered by the use of the Oxford comma and still others by leaving it out. But that’s an argument (and a post) for another day.

My biggest punctuation pet peeve is the misuse of hyphens, en dashes, and em dashes. Writers frequently use these three distinct forms of punctuation interchangeably. Just because they are all little lines doesn’t mean they are the same. They are different lengths for a reason and they have different purposes in the composition of a sentence.

The Internet makes this particularly troublesome because often html editors don’t provide options for the em dash. Yet I think the problem stems from many people simply not understanding what these three punctuation marks do.

The Hyphen (-)

The hypen is a tiny little line that is used to connect two or more words as in a multi-word adjective or compound phrase. For example, “multi-word” in the previous sentence uses a hyphen. Other examples are: a three-day notice; long-term care options; open-ended contingency; or he was down-and-out.

Hyphens are also used to separate the syllables of a single word at the end of a typed line.

Finally, hyphens are sometimes part of a section, paragraph, or page number in a book. For example, an OSB legal publication might include the section number “§3.4-3” appearing on page “3-27.”

A hyphen is created using the hyphen key next to the 0 key on your computer keyboard.

The en dash (–)

The en dash, so called because it is roughly the width of the letter n, is used to indicate a range of numbers. For example, in a case citation where the pinpoint cite is a range of pages, the range would be “235–37.” If you were citing to an OSB legal publication, the passage you cite to might be on “3-27–3-32.” This last example illustrates the importance of using hyphens and en dashes correctly.

An en dash is created either by using the “Insert Symbol” menu on in your word processing program or by using the combination of “Ctrl+the minus key.”

The em dash (—)

The em dash, so called because it is roughly the width of the letter m, is sort of a comma or parenthesis on steroids. If you have a phrase in the middle of a sentence—it’s important though not essential to the complete sentence but you want it to really stand out—set it off with em dashes. You could have just put commas or parentheses where the em dashes are in that last sentence; it all depends on how much you want that phrase to be emphasized. But if you use em dashes you do not put spaces before or after them.

An em dash is created either by using the “Insert Symbol” menu on in your word processing program or by using the combination of “Ctrl+Alt+the minus key.”

So the next time you start to think that size isn’t important, remember the hyphen, the en dash, and the em dash. They are all important punctuation marks, but they each serve a different purpose depending on their size.