author: ARMSTRONG, P. J.

text:
    Roberto CONTRERAS, Petitioner, v. BOARD OF PAROLE AND POST-PRISON SUPERVISION, Respondent.
    A162979
    Court of Appeals of Oregon.
    Argued and submitted October 27, 2017. May 15, 2019
    Zachary Lovett Mazer, Deputy Public Defender, argued the cause for petitioner. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.
    Keith L. Kutler, Assistant Attorney General, argued the cause for respondent. Also on the brief was Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
    Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.
   ARMSTRONG, P. J.

Petitioner seeks judicial review of an order of the Board of Parole and Post-Prison Supervision that deferred petitioner's parole release date for eight years. He argues that the board's order lacks substantial reason to support the board's decision to set the deferral period at eight years. We conclude that the substantial reason requirement applies to the board's decision to set a "specified deferral period," OAR 255-062-0016, that is longer than two years and, because the board's order did not provide sufficient explanation why the board chose a deferral period of eight years in this case, that order lacks substantial reason. Accordingly, we reverse and remand for the board to further explain its reasoning.

To provide context, we first review the board's authority to defer petitioner's parole release date. Under ORS 144.125(3)(a), the board may defer a prisoner's parole release date for not less than two years, but not more than 10 years, if it finds that the prisoner has a "present severe emotional disturbance such as to constitute a danger to the health or safety of the community." That provision also provides that "[t]he board shall determine the scheduled release date, and the prisoner may petition for interim review, in accordance with ORS 144.280." Under ORS 144.280, "[t]he board may not grant the prisoner a hearing that is more than two years from the date parole is denied unless the board finds that it is not reasonable to expect that the prisoner would be granted parole before the date of the subsequent hearing." ORS 144.280(1)(b). That statute also directs that "[t]he board shall determine the date of the subsequent hearing pursuant to rules adopted by the board." ORS 144.280(1)(c). The board has promulgated rules for determining "the date of the subsequent hearing." Under OAR 255-062-0006(3), if the board finds that it is "not reasonable to expect that the inmate would be granted a firm release date, following two years, the Board will deliberate and select a deferral date of between two and 10 years from the date of the decision, or from the date of the inmate's current projected parole release date or current parole consideration date." The board is further directed by OAR 255-062-0016 to base its decision on one or more of the 14 nonexclusive factors set out in that rule.

With that background in mind, we turn to the facts in this case. Petitioner was convicted in 1987 for a murder that he committed in 1986 and was sentenced to life imprisonment with a minimum term of 25 years in prison. The board set an initial projected parole release date for petitioner, which was modified through parole reviews granting good-time credit to May 29, 2008. In 2007, 2009, and 2011, following psychological examinations of petitioner, the board conducted exit interviews with petitioner. After each interview, the board concluded that petitioner suffered from a present severe emotional disturbance (PSED) that constitutes a danger to the health or safety of the community and deferred petitioner's projected parole release date. The 2011 board order deferred petitioner's projected parole release date to May 29, 2016.

In 2016, following a psychological examination and exit interview with petitioner, the board issued the order now under review (BAF #10). In BAF #10, the board again found that petitioner suffers from a PSED that constitutes a danger to the health or safety of the community. The board also found that "it is not reasonable to expect that the inmate will be granted a firm release date before 8 years from the current projected release date." The board stated that that finding was based on factors (4), (9), and (10) in OAR 255-062-0016 and that each of those factors was "an adequate and independent basis for our decision." The board then deferred petitioner's release date eight years and set a new projected parole release date of May 29, 2024.

With regard to the OAR 255-062-0016 factors, the board found as follows:

"(4) Inmate's failure to demonstrate understanding of the factors that led to his/her criminal offense(s); [Petitioner] was unable or unwilling to discuss any personality characteristics that may have contributed to his participation in the torture and murder of [the victim]. Instead, he offered the Board an explanation that the victim was, in fact, a hired assassin who was going to kill him and acted in self-defense. When asked why the victim might be hired to kill him, he offered that he owed other drug dealers money, implying that the drug dealers wanted him dead because of his unpaid debts. Later, he told the Board that he participated in the murder because he was 'young and made mistakes'. In his 2015 psychological evaluation, Dr. McGuffin noted, 'With limited insight about important dynamics in his personality, he is still prone to exhibit poor judgment'. The Board concurs with Dr. McGuffin's assessment and adds that [petitioner's] lack of insight is reflective of his unwillingness to examine the lifestyle and personality traits that resulted in his incarceration. Throughout the course of the hearing, [petitioner] was openly hostile toward the Board and the District Attorney for not recognizing what he believed to be his efforts at reformation. Rather than focus on understanding the Board's concerns, [petitioner] repeatedly accused the current Board and previous Boards of being negative and uninterested in what he believed to be his efforts at reformation.
"(9) Inmate's inability to experience or demonstrate remorse or empathy; By his allegations that [the victim] was a hired killer and minimizing his own involvement in the murder as acting in self-defense, [petitioner] diminished the life of [the victim] and placed himself in the role of a young and inexperienced youth who feared for his life. He told the Board that he was sorry for killing the victim, but this was presented without a hint of remorse and seemed disingenuous and practiced. At one point during the hearing when it was pointed out the victim had died from the injuries sustained, he stated that everyone had to die sometime. [Petitioner] appeared to be focused on the fact that he had served 30 years for the murder and the Board should parole him because the Board had paroled inmates who had murdered multiple victims. It appears that [petitioner] had quantified the value of life and focused on time served rather than efforts at reformation or understanding the effects of his behavior on the surviving victims and society in general.
"(10) Demonstrated poor planning and foresight; [petitioner's] plan for parole primarily involves his deportation to Mexico where he plans to work as an interpreter for visiting Americans or as an auto mechanic with bilingual skills. He dismissed the idea that he might have to return to his county of jurisdiction, and refused to accept that his return to Mexico and his anticipated success might not be as easy as he anticipates. [Petitioner] has no plan for parole within the United States, and repeatedly interrupted the Board when being questioned about the feasibility of his plan to live in Mexico."

Petitioner then sought administrative review of the board's order. As relevant here, petitioner challenged the board's decision to defer his release date by eight years as lacking substantial reason because the board did not explain why it chose eight years, instead of some other number of years between two and 10. The board issued a response (ARR #5) rejecting that challenge because the order "stated, in detail, on what grounds [the board] deferred [petitioner's] parole consideration date, and has further explained it in this administrative review." In response to a different challenge by petitioner, the board's response had reiterated that "the Board found three independent reasons to defer your projected parole release date; your failure to demonstrate understanding of the factors that led to your criminal offenses; and your inability to experience or demonstrate remorse or empathy; and demonstrated poor planning and foresight."

On review, petitioner again challenges the board's decision to defer his parole eight years on substantial reason grounds. We review the board's order for substantial evidence and reason. Jenkins v. Board of Parole , 356 Or. 186, 200-01, 335 P.3d 828 (2014) ; ORS 144.335(3) (providing that appellate review of board orders is "on the same basis as provided in ORS 183.482(8)"). Substantial reason, which is a requirement that "inheres in the substantial evidence standard of review," Jenkins , 356 Or. at 189, 335 P.3d 828, requires the board to provide " 'some kind of an explanation connecting the facts of the case (which would include the facts found, if any) and the result reached.' " Id. at 188, 335 P.3d 828 (quoting Martin v. Board of Parole , 327 Or. 147, 157, 957 P.2d 1210 (1998) ); see also Washington v. Board of Parole , 294 Or. App. 497, 499, 432 P.3d 372 (2018) ("The 'substantial reason' standard requires the board to provide an explanation connecting the adequately supported facts to the inference [the board] draws from them."). "If the board's reasoning is not obvious, its order-which includes both the BAF and the ARR-must at least set forth the bases for its inferences." Mendacino v. Board of Parole , 287 Or. App. 822, 837, 404 P.3d 1048 (2017), rev. den. , 362 Or. 508, 424 P.3d 724 (2018).

Here, petitioner argues that nothing in either BAF #10 or ARR #5 "provides any explanation of how the facts that the board found led it to the specific decision that it reached-to defer petitioner's parole for eight years." Petitioner argues that the board is not entitled to arbitrarily pick a number between two and 10; it must meet the substantial reason requirement articulated in Jenkins for that decision. The problem, petitioner argues, is that here the board did not provide an explanation that connected the OAR 255-062-0016 factors the board found to the selected deferral period of eight years.

The board responds that its order met the substantial reason requirement because it identified the OAR 255-062-0016 factors, and the supporting evidence for those factors, on which it relied to defer petitioner's parole for more than two years. After making those findings, the board argues that it appropriately exercised its discretion to set the exact length of the deferral period at eight years. The board argues that the substantial reason requirement has to be considered in relation to the statutory standard at issue. Here, the board asserts, the statutory standard for the length of the deferral is entirely discretionary and, thus, the board should not be required to further explain its discretionary decision to choose eight years. The board also asserts that requiring such an explanation for the deferral period would serve no useful purpose.

Petitioner responds, however, that the statutory standard is not unbounded discretion, as asserted by the board. Rather, ORS 144.280(1)(b) imposes a reasonableness standard, which, petitioner argues, requires some explanation. Moreover, petitioner points out that the board was required to include findings and conclusions in its order under ORS 144.280(3), which indicates that the legislature intended the board's decision on the length of the deferral to be reviewable. To be reviewable, petitioner argues, the board's decision requires an explanation that comports with the substantial reason requirement.

To evaluate the merits of the parties' arguments, we must first discern what the statutes require of the board with respect to setting a deferral period. As set out above, under ORS 144.125(3)(a), the board may defer a prisoner's scheduled release date for not less than two years, but not more than 10 years, if it finds the prisoner has a PSED "such as to constitute a danger to the health or safety of the community." That statute further instructs that the board is to determine the scheduled release date "in accordance with ORS 144.280." Thus, the date on which the new release date is to be set is a separate consideration from the dangerousness finding set out in ORS 144.125(3)(a).

Under ORS 144.280(1)(a), if the board denies parole for a prisoner who committed his or her crime before November 1, 1989, such as petitioner here, the board is not permitted to grant "a subsequent hearing that is less than two years, or more than 10 years, from the date parole is denied, unless the two-year period would exceed the maximum sentence imposed by the court." Subsection (1)(b) provides that "[t]he board may not grant the prisoner a hearing that is more than two years from the date parole is denied unless the board finds that it is not reasonable to expect that the prisoner would be granted parole before the date of the subsequent hearing." Subsection (1)(c) then requires that "[t]he board shall determine the date of the subsequent hearing pursuant to rules adopted by the board." Thus, the board's discretion to determine the deferral period is not entirely unbounded. Rather, ORS 144.280(1)(b) provides the statutory standard for a deferral period of more than two years, and ORS 144.280(1)(c) provides that the particular deferral date chosen by the board must be determined pursuant to rules adopted by the board.

In addition, generally, the board is not required to issue written findings and conclusions. See Jenkins , 356 Or. at 196, 335 P.3d 828 (citing ORS 183.315(1), which exempts the board from the written findings and conclusions requirement in ORS 183.470(2) ). However, as pointed out by petitioner, here ORS 144.280(3) requires the board to issue a final order that contains findings of fact and conclusions of law when it decides to defer more than two years. That subsection specifically requires that

"[t]he findings of fact shall consist of a concise statement of the underlying facts supporting the findings as to each contested issue of fact and as to each ultimate fact required to support the board's order. Unless the prisoner bears the burden of persuasion, the order shall include findings necessary to deny the prisoner parole for any period of time when the prisoner would be presumed to be eligible for parole ."

(Emphasis added.) Thus, "[u]nless the prisoner bears the burden of persuasion," subsection (3) specifically contemplates that the board will make findings necessary to support the board's decision to defer the prisoner's parole for the specific period of time determined by the board. That requirement necessarily contemplates inclusion of a substantial reason component, because substantial reason is a component of the substantial evidence standard of review that the legislature has determine we are required to apply to the board's findings of fact. See Jenkins , 356 Or. at 189, 335 P.3d 828 ; ORS 144.335(3).

Based on the foregoing, we conclude that our substantial reason standard of review applies to the board's deferral period decision under ORS 144.280. Whether the board has sufficiently explained such a decision, so as to satisfy substantial reason, is necessarily guided by the board's rules adopted in accordance with ORS 144.280(1)(c), which directs the board to "determine the date of the subsequent hearing pursuant to rules adopted by the board."

Again, as set out above, the board has adopted such rules. Under OAR 255-062-0006(3), if the board finds that it is "not reasonable to expect that the inmate would be granted a firm release date, following two years, the Board will deliberate and select a deferral date of between two and 10 years." And, in particular, OAR 255-062-0016 provides the guidance for the board in selecting that deferral date. That rule provides:

"Following an interview and consideration of all the information presented at the hearing, the Board may find by majority vote of the members participating in the hearing, that *** it is not reasonable to expect that the inmate would be granted a firm release date before the end of a specified deferral period , not to exceed ten years, based on one or more of the following [14] non-exclusive factors[.]"

(Emphasis added.) Thus, the rule directs the board to determine its selection of "a specified deferral period" based on the factors set forth in that rule. See Mendacino , 287 Or. App. at 831, 404 P.3d 1048 ("The factors listed under [ OAR 255-062-0016 ] guide the board's decision as to when to set the next exit interview; they do not change the substantive standard for whether to release the inmate or to defer parole." (Emphases in original.)).

Here, the board provided in its order that it was deferring petitioner's parole release date based on three factors set out in OAR 255-062-0016, viz. , "(4) Inmate's failure to demonstrate understanding of the factors that led to his/ her criminal offense(s)," "(9)

Inmate's inability to experience or demonstrate remorse or empathy," and "(10) Demonstrated poor planning and foresight." The board detailed in BAF #10 the facts it found and relied on to determine that each of those factors applied to petitioner, which is set forth above, 297 Or. App. at 473-74. The difficulty with BAF #10 and ARR #5 is that nowhere does the board explain or suggest the rationale that it applied to connect those facts, and those three factors, to the board's decision to set the "specified deferral period" at eight years. We recognize that the substantial reason requirement is not meant to be onerous-the board is not required to provide a detailed or complex explanation. However, the board has failed to provide an explanation from which we could infer why the board selected eight years. Accordingly, we must reverse and remand for the board to provide that explanation.

We also decline the board's invitation to not remand this case because further explanation for the deferral period would not serve a useful purpose. The substantial reason component of our standard of review does serve a purpose-it "exists 'both for purposes of meaningful judicial review and to ensure that the agency gives responsible attention to its application of the statute.' " Jenkins , 356 Or. at 195, 335 P.3d 828 (quoting Ross v. Springfield School Dist. No 19 , 294 Or. 357, 370, 657 P.2d 188 (1982) ); see also Gordon v. Board of Parole , 343 Or. 618, 633, 175 P.3d 461 (2007) ("The standards of review set out in ORS 183.482(8) reflect a legislative policy, embodied in the [Administrative Procedures Act], that decisions by administrative agencies be rational, principled, and fair, rather than ad hoc and arbitrary."). Those purposes are just as applicable here. Under ORS 144.280(1)(b), the board cannot defer parole for more than two years "unless the board finds that it is not reasonable to expect that the prisoner would be granted parole before the date of the subsequent hearing." In conformance with that direction, OAR 255-062-0016, requires the board to base its selection of "a specified deferral period" on when it would be reasonable that the prisoner would be granted a firm release date. Without anything from which to infer how the OAR 255-062-0016 factors found by the board led it to select "a specified deferral period," we cannot meaningfully review the board's decision, and there is no assurance that the board has paid "responsible attention" to the standards that it must apply to that decision.

Reversed and remanded.

      In a second assignment of error, petitioner also challenges the board's order on ex post facto grounds. We reject that assignment of error as foreclosed by our case law. See Mendacino v. Board of Parole , 287 Or. App. 822, 831-32, 404 P.3d 1048 (2017), rev. den. , 362 Or. 508, 424 P.3d 724 (2018) (rejecting ex post facto challenge to application of ORS 144.280 and OAR 255-062-0016 to petitioner, who had committed his crime in 1977).

      ORS 144.125(3)(a) provides:
      "If the board finds the prisoner has a present severe emotional disturbance such as to constitute a danger to the health or safety of the community, the board may order the postponement of the scheduled parole release until a specified future date. The board may not postpone a prisoner's scheduled release date to a date that is less than two years, or more than 10 years, from the date of the hearing, unless the prisoner would be held beyond the maximum sentence. The board shall determine the scheduled release date, and the prisoner may petition for interim review, in accordance with ORS 144.280."
      The legislature amended ORS 144.125(3)(a) in 2009, Or. Laws 2009, ch. 660, section 3, and provided that the amendment applies to prisoners "[w]hose release date is postponed under ORS 144.125 on or after January 1, 2010." Or. Laws 2009, ch. 660, § 49(3).

      ORS 144.280 provides:
      "(1)(a) If the State Board of Parole and Post-Prison Supervision denies parole to a prisoner sentenced for a crime committed prior to November 1, 1989, the board may not grant the prisoner a subsequent hearing that is less than two years, or more than 10 years, from the date parole is denied, unless the two-year period would exceed the maximum sentence imposed by the court.
      "(b) The board may not grant the prisoner a hearing that is more than two years from the date parole is denied unless the board finds that it is not reasonable to expect that the prisoner would be granted parole before the date of the subsequent hearing.
      "(c) The board shall determine the date of the subsequent hearing pursuant to rules adopted by the board. Rules adopted under this paragraph must be based on the foundation principles of criminal law described in section 15, Article I of the Oregon Constitution.
      "(2) If the board grants a prisoner a hearing that is more than two years from the date parole is denied, the prisoner may submit a request for an interim hearing not earlier than the date that is two years from the date parole is denied and at intervals of not less than two years thereafter. If the board finds, based upon a request for an interim hearing, that there is reasonable cause to believe that the prisoner may be granted parole, the board shall conduct a hearing as soon as is reasonably convenient.
      "(3) When the board grants a prisoner a hearing that is more than two years from the date parole is denied and when the board denies a petition for an interim hearing, the board shall issue a final order. The order shall be accompanied by findings of fact and conclusions of law. The findings of fact shall consist of a concise statement of the underlying facts supporting the findings as to each contested issue of fact and as to each ultimate fact required to support the board's order. Unless the prisoner bears the burden of persuasion, the order shall include findings necessary to deny the prisoner parole for any period of time when the prisoner would be presumed to be eligible for parole."

      OAR 255-062-0016 provides:
      "Following an interview and consideration of all the information presented at the hearing, the Board may find by majority vote of the members participating in the hearing, that it is not reasonable to expect that the inmate would be granted a change in the terms of confinement, or it is not reasonable to expect that the inmate would be granted a firm release date before the end of a specified deferral period, not to exceed ten years, based on one or more of the following non-exclusive factors:
      "(1) A determination by the Board, based on the psychological evaluation and all the information available at the hearing, that the inmate has a mental or emotional disturbance, deficiency, condition, or disorder predisposing him/her to the commission of any crime to a degree rendering the inmate a danger to the health or safety of others;
      "(2) Infractions of institutional rules and discipline;
      "(3) Commission of crimes subsequent to the crime of conviction;
      "(4) Inmate's failure to demonstrate understanding of the factors that led to his/her criminal offense(s);
      "(5) Inmate's demonstrated lack of effort to address criminal risk factors of psychological or emotional problems;
      "(6) Inmate's demonstrated lack of effort to address criminal risk factors of substance abuse problems;
      "(7) Failure to seek and maintain appropriate work or training;
      "(8) Inmate's failure to seek out and benefit from programming including but not limited to sex offender treatment, batterers intervention programs, anger management, cognitive therapy, and victim impact panels where available;
      "(9) Inmate's inability to experience or demonstrate remorse or empathy;
      "(10) Demonstrated poor planning and foresight;
      "(11) Demonstrated impulsivity; or
      "(12) Demonstrated lack of concern for others, including but not limited to any registered victims.
      "(13) Refusal to participate in Board-ordered psychological evaluation(s) and/or refusal to participate in Board hearing.
      "(14) The inmate is serving a concurrent sentence over which the Board does not have release authority, and which has a release date ten or more years from the projected parole release date on the Board sentence."

      The 2007 and 2009 board orders each deferred petitioner's release date two years. In 2011, the board additionally found that "it is not reasonable to expect that you will be granted a firm release date before 4 years from your current projected release date" based on finding the presence of factors (4), (6), and (9), listed in OAR 255-062-0016. That order deferred petitioner's release date for four years.


source: Caselaw Access Project

author: DEHOOG, P. J.

license: Public Domain

text:
    James B. DE YOUNG, a resident of Damascus, Plaintiff-Appellant, v. Kate BROWN, in her official capacity as Governor of Oregon; State of Oregon; and Clackamas County, a political subdivision of the State of Oregon, Defendants-Respondents, and Damascus, a municipal corporation, Defendant.
    A162584
    Court of Appeals of Oregon.
    Submitted November 7, 2017. May 1, 2019
    Tyler Smith and Tyler Smith & Associates, P.C., filed the briefs for appellant.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jona J. Maukonen, Assistant Attorney General, filed the brief for respondents Kate Brown and State of Oregon. Stephen L. Madkour for respondent Clackamas County joined the brief.
    Before DeHoog, Presiding Judge, and Egan, Chief Judge, and Aoyagi, Judge.
   DEHOOG, P. J.

Plaintiff is a former resident and city councilor of Damascus, a city previously incorporated in Clackamas County. Both the City of Damascus and plaintiff's position as a councilor ceased to exist following a special election held in May 2016, when a majority of the city's residents voting on the issue elected to disincorporate Damascus. As a result of House Bill (HB) 3085 (2015), which legislatively referred the matter to the voters of Damascus, that decision-whether to disincorporate-had appeared on the ballots of all city residents as Measure 93. Before the election, plaintiff sought declaratory and injunctive relief, contending that HB 3085 violated various constitutional and statutory provisions and conflicted with the city charter. The trial court denied plaintiff's request to enjoin the election. The city's residents subsequently voted to disincorporate, and, in accordance with procedures dictated by HB 3085 and House Bill (HB) 3086 (2015), the City of Damascus proceeded to disincorporate. That is, among other things, the city paid off all of its debts, transferred its assets to Clackamas County, "surrender[ed] its charter," and "cease[d] to exist." In the course of winding down, the city also terminated or transferred all of its employees and closed its municipal offices. Following the election, plaintiff sought a declaration that Measure 93 violated the city charter, the Oregon Constitution, and various statutes governing municipal disincorporation and that, as a result, the purported disincorporation of Damascus was a nullity. Instead, the trial court granted summary judgment to defendants, thereby declaring Measure 93 valid. Plaintiff appeals.

In three assignments of error, plaintiff challenges the trial court's summary judgment ruling and reprises his arguments that Measure 93 violates various provisions of organic and statutory law. Specifically, plaintiff contends that Measure 93 violates (1) Article IV, section 1, and Article XI, section 2, of the Oregon Constitution ; (2) the City of Damascus Charter; and (3) ORS 221.610 and ORS 221.621. Adhering to our practice of resolving cases when possible on statutory grounds before considering constitutional arguments-and recognizing that plaintiff's charter-based argument is, itself, largely based on constitutional grounds-we begin by addressing plaintiff's statutory argument. See State v. Barrett , 350 Or. 390, 397-98, 255 P.3d 472 (2011) (noting court's reluctance to reach constitutional issues before determining what ordinary laws authorize, require, or prohibit). For the reasons that follow, we agree with plaintiff's statutory argument and do not reach the remainder of his contentions. Consequently, we reverse the trial court's summary judgment ruling and remand for further proceedings.

The underlying facts are procedural and undisputed. The City of Damascus was incorporated in 2004. On June 22, 2015, following an earlier but ultimately unsuccessful attempt by the city's voters to disincorporate, the Legislative Assembly passed HB 3085, a referendum directed to the voters of Damascus. The Secretary of State placed HB 3085-designated as Measure 93-on the ballots of all registered voters in Damascus, to be voted on in a special election scheduled for May 17, 2016. One month before the election, plaintiff-a resident of Damascus who at the time was also a member of the city council-filed this action contending that Measure 93 was unlawful and seeking declaratory and injunctive relief. Two weeks later, but still before the special election, plaintiff moved for a temporary restraining order enjoining a vote on Measure 93, but the trial court denied relief. Following the election, Measure 93 was deemed to have passed in accordance with its own terms, meaning that a majority of those who had voted on the measure voted to disincorporate. This litigation resumed after Measure 93 passed, with both sides filing motions for summary judgment. After hearing the parties' arguments, the court granted defendants' motion for summary judgment, denied plaintiff's cross-motion, and entered a judgment declaring the validity of HB 3085, Measure 93, and the results of the May election. Now compiled at Oregon Laws 2015, chapter 603, the text of Measure 93 as approved by the voters of Damascus states:

"Be It Enacted by the People of the State of Oregon:
" Section 1. (1) Notwithstanding ORS 221.650, during the period that begins on the 30th day following the date of the election held pursuant to section 2 of this 2015 Act and ends on the 60th day following the date of the election, the City of Damascus shall:
"(a) Expend moneys in the funds of the city to satisfy all debts, obligations, liabilities and expenses of the city, and transfer moneys to Clackamas County, in the manner required under section 1 (2), chapter 637, Oregon Laws 2015 (Enrolled House Bill 3086); and
"(b) Convey, grant, assign and deliver all of the city's real property and tangible and intangible personal property, other than moneys expended or transferred under paragraph (a) of this subsection, by proper conveyance, to Clackamas County for the benefit and use of the county.
"(2) Notwithstanding ORS 221.610 and 221.621, on the 61st day following the date of the election held pursuant to section 2 of this 2015 Act:
"(a) The City of Damascus shall surrender its charter, disincorporate and cease to exist.
"(b)(A) The city shall cease to exist in its corporate capacity without any further or other formal action;
"(B) The city's property rights and interests shall vest in Clackamas County; and
"(C) The auditor, clerk or other keeper of records in the city shall deposit the records of the city in the office of the county clerk.
"Section 2. This 2015 Act shall be submitted to the people of the City of Damascus for their approval or rejection, by a majority of the voters voting on this 2015 Act, at a special election held on the same date as the next primary election."

As noted, the vote on Measure 93 was not the first effort by the residents of Damascus to disincorporate. It appears undisputed that the legislature passed HB 3085 in response to an earlier, unsuccessful effort to disincorporate that took place in November 2013, when the Damascus City Council referred to the city's voters a citizen-initiated disincorporation measure. After that measure failed to receive enough votes to pass, the city declared that the measure had failed. A Damascus resident filed suit challenging that result, arguing that, because a majority of the residents who had voted on the measure voted in favor of disincorporation, the measure had passed. The trial court hearing that challenge disagreed. The court noted that, under ORS 221.610, disincorporation requires the vote of a "majority of the electors of the city." The court reasoned that ORS 254.005(4) governs who are "electors" for purposes of ORS 221.610, and, in that court's view, ORS 254.005 defines "electors" as those qualified to vote in an election, rather than those who, in fact, voted. Accordingly, that court determined that the measure required at least 3,441 votes (a majority of the city's residents registered to vote at that time) to pass, and the 2,947 votes cast in favor of disincorporation were therefore too few.

Returning to the present challenge, we begin by addressing a preliminary matter: Defendants argue that, because the challenged election has long since been held and the City of Damascus is now disincorporated, plaintiff's appeal has become moot. As a prudential matter, we typically will not consider cases that are moot. State v. K. J. B. , 362 Or. 777, 785, 416 P.3d 291 (2018) (clarifying that mootness is a prudential consideration rather than a constitutional limit on court's authority to decide cases (citing Couey v. Atkins , 357 Or. 460, 515-20, 355 P.3d 866 (2015) )). Examining mootness is " 'one part of the broader question of whether a justiciable controversy exists.' " Couey , 357 Or. at 470, 355 P.3d 866 (quoting Brumnett v. PSRB , 315 Or. 402, 405, 848 P.2d 1194 (1993) ). Generally speaking, a justiciable controversy exists under Oregon law when " 'the interests of the parties to the action are adverse' and 'the court's decision in the matter will have some practical effect on the rights of the parties to the controversy.' " Barcik v. Kubiaczyk , 321 Or. 174, 182, 895 P.2d 765 (1995) (quoting Brumnett , 315 Or. at 405-06, 848 P.2d 1194 ). Thus, an otherwise justiciable case "becomes moot when a court's decision will no longer have a practical effect on the rights of the parties." K. J. B. , 362 Or. at 785, 416 P.3d 291 (internal quotation marks omitted).

The party moving for dismissal-here, defendants-bears the burden of establishing that a case is moot. Id . Specifically, as the court explained in K. J. B. ,

"[t]he burden rests with the party moving for dismissal to establish that a case is moot. * * *
"The moving party's burden includes the burden of establishing that any collateral consequences either do not exist or are legally insufficient. That does not mean that the moving party is required to imagine all possible collateral consequences and then disprove each of them. Rather, when the moving party takes the position that a case has become moot, the responding party must identify any collateral consequences that he or she contends [have] the effect of producing the required practical effects of a judicial decision. At that point, the moving party must demonstrate that any of those identified collateral consequences either does not exist or is legally insufficient."

362 Or. at 785-86, 416 P.3d 291 (citation omitted).

In support of their contention that plaintiff's appeal is moot, defendants argue that a declaration that Measure 93 is unlawful "would have no practical effect on the parties because the City no longer exists and there is no apparent mechanism to unwind the disincorporation." In defendants' view, plaintiff is "essentially seeking a judicial order requiring that the area of Damascus be incorporated," which, defendants argue, is not a "statutorily recognized avenue to incorporation" under ORS chapter 221, the only chapter addressing municipal incorporation. Defendants further observe that, as part of the disincorporation process, the city terminated or transferred all of its employees and transferred all of its assets. Thus, defendants appear to suggest that, even if there is authority to order Damascus to reincorporate, there is no practical means for the city to resume operations. Plaintiff responds that his appeal is "neither factually nor legally moot." Contending that the act of "surrendering" a charter is, essentially, a "legal fiction," plaintiff argues that we could reverse that act "by the stroke of this court's pen." That is, if we were to invalidate the results of the special election, Damascus and its residents would be restored to the status quo ante: The city would reacquire its corporate existence (and related obligations to its tax-payers), plaintiff would regain his position as a city councilor, and the residents of Damascus could "resume their home rule constitutional right to self-governance." Plaintiff further contends that he "and any of the other city councilors could meet and resume the operations of the city."

We recognize that at least some kinds of election cases are quintessentially prone to mootness. See K. J. B. , 362 Or. at 785, 416 P.3d 291 (discussing, as an example, a challenge to an order certifying an initiative measure to the ballot for the next election; noting that, once the election has taken place, a judicial decision regarding the lawfulness of the certification order can have no practical effect). We further acknowledge that, notwithstanding plaintiff's apparent willingness to resume a leadership role for the city, we are somewhat skeptical that a "city" that-for the time being, at least-has no facilities, no personnel, and no resources to acquire them can somehow "reincorporate" itself and resume functioning as a municipality. Nonetheless, we observe that, even though defendants had the opportunity to address plaintiff's arguments in their response brief, they have made little or no effort to demonstrate that the practical consequences that plaintiff identifies do not exist or are legally insufficient. See K. J. B. , 362 Or. at 786, 416 P.3d 291. To be sure, defendants do argue that, "[e]ven if the city could be reincorporated, there have presumably been land use, law enforcement, and numerous other types of decisions made by Clackamas County since July 2016 that would be called into question." While perhaps true, the concerns that defendants raise are that the passage of Measure 93 has already had practical consequences that may present substantial logistical challenges to undo. However, the fact that the challenged election has already had practical consequences does not render plaintiff's appeal moot; the question is whether a future decision by us will itself have practical consequences. Given defendants' burden of proof and their failure to dispute the potential consequences identified by plaintiff, we are not persuaded that defendants have established that this case is moot.

Proceeding to the merits, we first consider the statutory argument underlying plaintiff's third assignment of error. Plaintiff argues that the decision by resident voters whether to disincorporate the City of Damascus was governed by ORS 221.610 and ORS 221.621, and that, for various reasons, the special election that led to the passage of Measure 93 failed to comply with those statutes. Thus, plaintiff argues, the trial court erred by granting summary judgment for defendants and upholding the result of that election. Because plaintiff assigns error to the court's rulings on cross-motions for summary judgment and there are no disputed issues of material fact, we review for whether either party was entitled to prevail as a matter of law. Pamplin Media Group v. City of Salem , 293 Or. App. 755, 758, 429 P.3d 1019 (2018), rev. den. , 364 Or. 294, 434 P.3d 963 (2019).

At issue is whether the special election was required to comply with ORS 221.610 and ORS 221.621, and, if so, whether it did comply with those statutes. ORS 221.610, which authorizes a city to surrender its charter and disincorporate, provides:

"Any city not liable for any debt or other obligation, may surrender its charter, disincorporate and cease to exist if a majority of the electors of the city authorize the surrender and disincorporation as provided in ORS 221.621 and 221.650 . The surrender and disincorporation shall become effective 60 days after the city has authorized surrender and disincorporation."

(Emphasis added.) In turn, ORS 221.621 establishes the procedure for making the decision that ORS 221.610 authorizes, and, in relevant part, it provides:

"(1) This section establishes the procedure for determining whether a city shall disincorporate . The question shall be decided by election. The governing body of the city shall call an election when a petition is filed as provided in this section.
"* * * * *
"(4) The question of disincorporation shall be submitted to the electors of the city at an election held on the first Tuesday after the first Monday in November in any year, but shall not be submitted more than once in two consecutive calendar years."

(Emphases added.)

According to plaintiff, the Measure 93 election violated ORS 221.610 and ORS 221.621 in several ways. Plaintiff acknowledges that, by its terms, HB 3085-the text of which was voted into passage as Measure 93-purports to exempt the voters of Damascus from the requirements of those statutes. See Or. Laws 2015, ch. 603, § 1(2) (contemplating an election in accordance with section 2 of the act, "[n]otwithstanding ORS 221.610 and 221.621").

He contends, however, that the voters of Damascus cannot have exempted themselves from complying with ORS 221.610 and ORS 221.621 in an election that-at least until after the election and the resulting passage of Measure 93-was subject to those provisions. And, because those statutes apply, he argues, the election was invalid for several reasons. First, ORS 221.621(1) authorizes (and, in fact, requires) the governing body of a city to call an election to consider disincorporation when a petition is filed . Here, no petition was filed and it was the state legislature, rather than the city council, that caused the matter to be placed on the ballot. Second, ORS 221.610 requires a majority vote of the electors of a city for a disincorporation measure to pass, whereas Measure 93 required only a majority vote of those electors who actually voted in the special election. Third, ORS 221.621(4) requires that a disincorporation vote be submitted to the electors at a general election -"on the first Tuesday after the first Monday in November in any year." Measure 93, on the other hand, in accordance with its own terms, was submitted to the electors in a special election held in May.

For their part, defendants do not dispute plaintiff's contention that the Measure 93 election failed to comply with ORS 221.610 and ORS 221.621 ; they argue, however, that, for two reasons, compliance with those statutes was not required. Their first argument is that the statutes govern citizen initiative petitions, whereas Measure 93 appeared on the ballot as a legislative referendum. In defendants' view, municipal disincorporation may occur through either of two avenues: through a citizen initiative petition, as contemplated by ORS 221.610 and ORS 221.621, or through a legislative referral, as occurred here. Defendants observe that, by its terms, ORS 221.621 provides the procedure applicable to the first path-via initiative petition-and for support notes the references to "a petition" in subsections (1), (2), and (3) of that statute. And, defendants argue, because ORS 221.610 applies to "disincorporation as provided in ORS 221.621," it too applies only to disincorporation votes resulting from initiative petitions. Defendants argue, therefore, that Measure 93 was not subject to the requirements of either statute.

Second, defendants argue that, even if ORS 221.610 and ORS 221.621 would otherwise have applied to the legislative referral at issue here, the legislature effectively exempted this election from their requirements by (1) contemplating, in HB 3085, an election in accordance with its terms "[n]otwithstanding ORS 221.610 and 221.621"; and (2) simultaneously passing HB 3086. HB 3086 set forth the specific steps that the City of Damascus would be required to take in the course of winding down following the anticipated passage of HB 3085. Unlike HB 3085, HB 3086 was not referred to the electors of Damascus but, instead, passed through both chambers of the legislature before being signed into law by the Governor. Upon signing HB 3086, the state suggests, the Governor exempted the Damascus disincorporation election from the requirements of ORS 221.610 and ORS 221.621.

Neither argument can withstand scrutiny. First, we disagree that, because ORS 221.610 and ORS 221.621 govern disincorporation petitions , those statutes have no bearing here, where disincorporation followed a legislative referral. The premise of defendants' argument is that, although a city elector can pursue disincorporation by petitioning in accordance with ORS 221.621, that statute does not preclude the legislature from establishing, through a referral, an alternative path to disincorporation not subject to the requirements of ORS 221.610 and ORS 221.621. Stated differently, defendants contend that, by providing, through ORS 221.610 and ORS 221.621, one way for a city to disincorporate, the legislature did not limit the means by which a city could disincorporate to that one way. Because HB 3085 purports to exempt the Measure 93 election from the provisions of those statutes, we explore defendants' premise below. Ultimately, however, we need not conclusively decide the validity of that premise, i.e. , whether the legislature could , notwithstanding ORS 221.610 and ORS 221.621, allow for disincorporation by different means. Whether or not the legislature has the power to create a new process simply by making a referral, we conclude that it did not do so here.

Defendants' argument that ORS 221.610 and ORS 221.621 do not provide an exclusive path to disincorporation presents a question of statutory interpretation, which we review for legal error. Pamplin Media Group , 293 Or. App. at 763, 429 P.3d 1019. When construing a statute, our paramount goal is to determine what the legislature intended in enacting the statute in question. State v. Gaines , 346 Or. 160, 171-72, 206 P.3d 1042 (2009). Applying the analytical framework set out in Gaines , we begin by considering the statutory text in context, as the words chosen provide the best indication of the legislature's intended meaning. To the extent that it may help our analysis, we also will consider available legislative history. Id. at 172, 206 P.3d 1042. Finally, if, following that analysis, the statute's intended meaning remains unclear, we may resort to general maxims of statutory construction as a further aid in determining legislative intent. Id.

The most obvious context for ORS 221.610 and ORS 221.621 includes their respective texts, as well as ORS chapter 221 as a whole. See State v. Meek , 266 Or. App. 550, 556, 338 P.3d 767 (2014) (the text of a statute must be considered in the totality of the statutory framework); Morsman v. City of Madras , 203 Or. App. 546, 561, 126 P.3d 6, rev. den. , 340 Or. 483, 135 P.3d 318 (2006) (the chapter in which a provision is codified is relevant context). Chapter 221 addresses such subjects as city government, municipal courts, city ordinances, and the incorporation and disincorporation of cities. Notably, ORS 221.610, ORS 221.621, and ORS 221.650 are the only statutes that address disincorporation at all; nowhere else in ORS chapter 221 or any other statute has the legislature sought to address the disincorporation of a city.

Given that context, it is difficult to conceive that the legislature intended ORS 221.610 and ORS 221.621 to allow for any number of potential paths to disincorporation. After all, ORS 221.610 allows for disincorporation "as provided in ORS 221.621," and ORS 221.621(1) plainly states that "[t]his section establishes the procedure for determining whether a city shall disincorporate." (Emphasis added.) The legislature's decision to place "the" before "procedure" suggests that the legislature intended a single, specific procedure to be available for purposes of disincorporation: the single procedure specified in ORS 221.621 as "the procedure for determining whether a city shall disincorporate." In conjunction with the relevant context of the statute-which ultimately appears limited to ORS 221.610 's provision that a city's electors may authorize disincorporation "as provided in ORS 221.621"-the plain text of ORS 221.621 appears to signal the legislature's intention that the procedure set forth in that statute be the only procedure by which a city can disincorporate. See Wyers v. American Medical Response Northwest, Inc. , 360 Or. 211, 224-25, 377 P.3d 570 (2016) (although the use of the definite article "the," as opposed to an indefinite article, "a" or "an," is not always "definitive," the use of "the" can signify a narrowing intent); State v. Rodriguez , 217 Or. App. 24, 30-31, 175 P.3d 471 (2007) (the use of the definite article is often understood to signify an intention to refer to a specific object, and the use of an indefinite article, as opposed to the definite article, has legal significance).

As noted, however, we need not conclusively determine whether the legislature that enacted ORS 221.610 and ORS 221.621 intended to leave open other paths to disincorporation-such as pursuant to legislative referral-because the legislature did not pursue a different path with HB 3085. That is, although the text of HB 3085 purports to provide a means by which the voters of Damascus could themselves establish an alternative procedure, the legislature did not create that alternative through the referral act itself. The only provision, legislative or otherwise, for a special election at which a simple majority would prevail is that found in the substantive text of HB 3085, text that defendants acknowledge cannot have been given effect until after the election it purported to authorize. To our knowledge, the legislature did not, at the time it passed HB 3085, also issue an order dictating the manner in which its provisions would be submitted to a vote. Cf . Or. Const, Art IV, § 1 (3)(c) (authorizing legislature to order a referendum "by law" not subject to veto by the Governor); HJR 16 (1967) (referring proposed constitutional amendment; ordering the proposed amendment to "be submitted to the people for their approval or rejection at a special election held on the same day as the next regular primary election held throughout the state"). Thus, even assuming that the legislature could have authorized a different procedure in the course of ordering a referendum on HB 3085, it does not appear to have done so here. As a result, ORS 221.610 and ORS 221.621 provided the only path to disincorporation and, unless for some other reason the election in this case was exempt from their terms, plaintiff is entitled to prevail.

That takes us to defendants' final argument, which is that the Measure 93 election was exempt from the requirements of ORS 221.610 and ORS 221.621 by virtue of HB 3086, which had both been passed by the legislature and signed by the Governor. As noted, defendants contend that the combination of the "[n]otwithstanding ORS 221.610 and 221.621" clause in HB 3085 and the simultaneous passage of HB 3086 somehow effectively exempted the special election from those statutes. According to defendants, "[b]ecause the [G]overnor signed HB 3086, she approved exempting the disincorporation vote from the requirements in ORS 221.610 and [ORS] 221.621." We disagree. HB 3086 does not reference ORS 221.610 or ORS 221.621, nor does that bill purport to regulate the election contemplated by HB 3085 in any way. Indeed, by the express terms of HB 3086, that bill's operative provisions did not even go into effect until after the voters approved HB 3085. Defendants have wisely chosen not to argue that the Damascus voters could somehow have exempted the Measure 93 election from the requirements of ORS 221.610 and ORS 221.621 in the course of the election itself. We see no greater merit, however, to their argument that HB 3086 had that effect, especially when its substantive provisions did not become operative until after the election had passed.

In summary, we conclude that, at the time of the Measure 93 election, ORS 221.610 and ORS 221.621 provided the only means by which a city could disincorporate and that the legislature did not effectively exempt the election from complying with their terms. Moreover, defendants do not dispute that, if the Measure 93 election was required to comply with those terms, it failed to do so; that is, there is no factual-or legal-dispute that the special election did not comply with ORS 221.610 and ORS 221.621. Thus, the trial court erred in awarding summary judgment to defendants and in denying summary judgment to plaintiff, who, for the reasons stated above, is entitled to prevail as a matter of law.

Reversed and remanded.

      The text of HB 3085/Measure 93 is set forth below, 297 Or. App. at 359.

      HB 3086 was signed by the Governor and enacted into law as Oregon Laws 2015, chapter 637. Section 1 of HB 3086, which sets forth detailed procedures that the city must follow in winding down, became effective no earlier than the passage of HB 3085 by the Damascus voters. Or. Laws 2015, ch. 637, § 2. The remaining sections of HB 3086, which became effective immediately upon passage, further condition the operative date of section 1 on the outcome of the HB 3085 election and other events.

      In other contexts, elections that require, in order to pass, that a proposal receive the vote of the majority of those eligible to vote, rather than simply a majority of those actually voting, have been referred to as requiring an "absolute majority." See, e.g. , Chamberlain v. Myers (S055744) , 344 Or. 605, 609, 189 P.3d 6 (2008).

      Before this case was submitted, defendants filed a notice of probable mootness, which plaintiff opposed. The appellate commissioner entered an order preliminarily declaring the case not moot but noted that the decision was not binding on the merits panel. Defendants reprised their mootness arguments in the response brief, and plaintiff responded in his reply.

      Defendants do not argue that the trial court somehow lost its authority to declare Measure 93 invalid once the election had taken place, nor that it had lacked the authority to declare the result of that election void. Accordingly, plaintiff's appeal does not appear to present issues that we have determined in other cases were moot. See, e.g. , Sizemore v. Keisling , 164 Or. App. 80, 83, 990 P.2d 351 (1999), rev. den. , 330 Or. 138, 6 P.3d 1098 (2000) (distinguishing the plaintiff's claims seeking to enjoin submission of ballot measure for vote and reverse Secretary of State's decision to submit, both of which were rendered moot by election, from claim seeking declaration that the measure was enacted in violation of the constitution and was therefore void, which remained a live controversy and therefore was not moot).

      Given our conclusion that defendants have not sustained their burden of establishing that plaintiff's appeal is moot, it is not necessary to consider the parties' arguments as to whether this dispute remains justiciable under the provisions of ORS 14.175 (granting courts discretion to decide certain matters that have become moot where, among other circumstances, an act of a public body is at issue and the act is "capable of repetition" but "likely to evade judicial review in the future").

      As noted, we typically seek to resolve statutory issues first, tackling constitutional arguments only if that remains necessary following our statutory analysis. See Barrett , 350 Or. at 397-98, 255 P.3d 472. Like his other assignments, however, plaintiff's third assignment of error intertwines constitutional and subconstitutional analyses. As a result, plaintiff's third assignment is not strictly limited to statutory arguments. Nonetheless, as explained below, we understand his argument to be that the decision to disincorporate must be held invalid because it failed to comply with the applicable statutes, regardless of whether it therefore also violated the state constitution. We proceed with that understanding.

      To be clear, plaintiff does not concede that the residents of Damascus could have exempted themselves from the provisions of ORS 221.610 and ORS 221.621 even if they had done so some time before the special election. However, because we ultimately decide this case on the ground that the city voters did not at any time exempt themselves from those provisions, it is not necessary to consider whether they could have done so at some earlier time. Relatedly, we address below defendants' argument that the legislature exempted the residents of Damascus from those provisions through a separate legislative act.

      ORS 221.621(2) and (3) provide:
      "(2) The requirements for preparing, circulating and filing a petition and calling an election under this section shall be as provided for an initiative measure under ORS 250.265 to 250.346, except that notwithstanding ORS 250.325, the governing body of the city shall not consider adoption or rejection of the measure before submitting it to the electors.
      "(3) Notwithstanding subsection (2) of this section, if ORS 250.255 makes ORS 250.265 to 250.346 inapplicable to a city, the requirements for preparing, circulating and filing a petition under this section shall be as provided for an initiative petition under the city charter or an ordinance adopted under the city charter."

      Defendants do not argue that the "notwithstanding" language in HB 3085 alone-that is, without the simultaneous passage of HB 3086-was sufficient to exempt the disincorporation election from the requirements of ORS 221.610 and ORS 221.621, nor do they contend that section 2 of HB 3085 could have had that effect by placing the measure on the May ballot for a simple majority vote.

      See Or. Laws 2015, ch. 637, § 1 (requiring, among other things, that the city post public notices of its requirement to satisfy its current and pending debts and obligations, that the city pay those amounts, and that the city transfer the balances of its accounts to various Clackamas County accounts and certain property-tax payers).

      ORS 221.650 provides that, within 30 days after authorization of the surrender of a city charter, the city shall convey all of its property and property rights to the county in which the city is located. ORS 221.650 is not at issue in this appeal.

      We emphasize that, in contemplating whether the legislature intended for compliance with ORS 221.610 and ORS 221.621 to be the sole means by which a city could disincorporate, we are not suggesting that the legislature that enacted those statutes sought to somehow bind future legislatures. See, e.g. , Moro v. State of Oregon , 357 Or. 167, 195, 351 P.3d 1 (2015) ("When the legislature pursues a particular policy by passing legislation, it does not usually intend to prevent future legislatures from changing course."). Nothing, so far as we can tell, would have prohibited the legislature that referred HB 3085 from passing, through ordinary channels, a statute authorizing a city to disincorporate by other means, whether pursuant to a legislative referendum or otherwise.

      That concession would appear to be well taken. As the Supreme Court has stated in regard to measures referred to people after having been enacted through the legislative process, "the measure * * * is not a law. It will never become a law unless a majority of voters voting upon the referred bill vote in favor of the bill." Davis v. Van Winkle , 130 Or. 304, 307, 278 P. 91, reh'g den. , 130 Or. 304, 280 P. 495 (1929). We see no reason that the provisions of HB 3085 would have any greater effect when it never completed the legislative process in the first place.

      See Or. Laws 2015, ch. 637, § 2 (stating that section 1 does not become operative until Measure 93 is approved by a majority of the voters).


author: LAGESEN, J.

text:
    PELICAN BAY FOREST PRODUCTS, INC., an Oregon corporation, Plaintiff-Appellant, v. WESTERN TIMBER PRODUCTS, INC., an Idaho corporation; Andrew Hotmer; and Dan Seid, Defendants-Respondents, and Doug Kelley, Defendant.
    A164228
    Court of Appeals of Oregon.
    Argued and submitted May 15, 2018. May 8, 2019
    Martin E. Hansen, Bend, argued the cause for appellant. Also on the briefs were Christopher J. Manfredi and Francis Hansen & Martin LLP.
    Danielle Lordi, Bend, argued the cause for respondents. Also on the brief was Peterkin and Associates.
    Before Ortega, Presiding Judge, and Lagesen, Judge, and Powers, Judge.

      Lagesen, J., vice Garrett, J. pro tempore.

   LAGESEN, J.

As Doug Kelley neared the end of his 14-year career as a lumber sales trader for Pelican Bay Forest Products, Inc. (Pelican Bay or plaintiff)-the plaintiff in this case-he gave his son-in-law, Andrew Hotmer, a portion of his Pelican Bay customer list, along with other information about those customers and their business with Pelican Bay. Hotmer, with Kelley's assistance, parlayed that information into a timber sales job with one of Pelican Bay's competitors, Western Timber Products, Inc. (Western Timber). In that job, he used Kelley's customer information to make sales on behalf of Western Timber-something that, according to Pelican Bay, diminished its own sales and profits. That led to this lawsuit. Pelican Bay claims that, as a result of that course of events, Western Timber, its president, Seid, and Hotmer (collectively, defendants) have (1) misappropriated trade secrets belonging to Pelican Bay, in violation of ORS 646.461(2) ; and (2) intentionally interfered with Pelican Bay's economic relations. Defendants moved for summary judgment, and the trial court granted the motion, concluding that there was insufficient evidence to permit a reasonable factfinder to find in Pelican Bay's favor on certain elements of its claims. It then awarded attorney fees to defendants on the trade secrets claim, as allowed by ORS 646.467(1), concluding that Pelican Bay's claim of misappropriation was made in bad faith. We conclude that there are genuine issues of material fact on those claims and, accordingly, reverse and remand.

FACTS

This case was hard fought in the trial court, and the summary judgment record contains conflicting evidence on a number of points. However, our standard of review, discussed below, requires us to view the facts in the light most favorable to Pelican Bay, the nonmoving party. We therefore state the facts accordingly.

Pelican Bay serves as a distributor between lumber mills and purchasers of their products. Kelley started working as a lumber sales trader for Pelican Bay in or around 2000. Kelley acted as an intermediary between lumber mills selling products and customers who desired to purchase those products. Kelley built rapport with customers, determined their product needs, and then located and sold them that product. He had done similar work before working for Pelican Bay but did not bring a customer base with him. Rather, Pelican Bay provided him with customer information and accounts serviced by former Pelican Bay traders. That customer information consisted of customer names, contact persons, product preferences, mill information, pricing, customer payment information, shipping preferences, and costs. Over the 14-year course of his employment with Pelican Bay, Kelley's customer base grew to include roughly 40 nationwide customers.

In 2007, Kelley signed an "Employee Acknowledgment" in which he agreed to abide by the policies contained in Pelican Bay's employee handbook. The handbook contained a "Confidentiality Policy" stating that plaintiff's confidential proprietary information, including plaintiff's customer list and "all information obtained by company employees during the course of their work," belonged to plaintiff and was not to be shared with third parties, "except as your job requires."

Notwithstanding that policy, and his written acknowledgment of it, Kelley attempted to sell his customer list to other Pelican Bay traders in 2013. Around the same time, Kelley also contacted a timber company in Idaho to inquire whether it was interested in hiring his daughter to take over his customer list.

Pelican Bay's president, Hanson, discovered Kelley's behavior, and reminded him that the customer list and related information was Pelican Bay's property and not Kelley's. Kelley acknowledged that reminder in writing, signing the following statement:

"I, Doug Kelley, have been reminded today by Ron Hanson, President, of Pelican Bay's Confidentiality Policy which I acknowledged and signed on January 29, 2007. He also reprinted a copy of the policy section we discussed.
"I understand that if I violate this policy, I will be subject to disciplinary action and possible legal recourse.
"The basis of our conversation today is that intangible property such as information and data belongs to Pelican Bay. Examples listed include customer lists, production information, and computer records. I may not disclose or discuss proprietary or confidential information with anyone outside the company. It is understood that once I leave the employ of Pelican Bay, all company information that I gathered while working for Pelican Bay stays here. I may only leave with my personal belongings that I brought to the office."

As he approached his retirement from Pelican Bay, Kelley provided confidential customer information obtained during his employment with Pelican Bay to Hotmer, so that Hotmer could use that information to get hired by Western Timber. Additionally, Kelley agreed to train Hotmer on how to use the customer information to efficiently sell to plaintiff's customers. When Hotmer met with Western Timber for the first time about employment, Western Timber's president, Dan Seid, was interested in adding the customer list that Hotmer had acquired to its book of business. Hotmer later had a second meeting with Seid. Kelley attended that meeting by telephone and provided Seid with further details regarding his customer information from Pelican Bay. Subsequently, Western Timber hired Hotmer because of Hotmer's access to the customer information supplied by Kelley. Western Timber would not have hired Hotmer without possession of the customer information that Kelley supplied him.

Hotmer began working at Western Timber on May 20, 2014. His customer base consisted of the 20 customers obtained through the information provided by Kelley. That same day, while Kelley was still employed by Pelican Bay, Kelley began training Hotmer on how to use the customer list at Western Timber. Kelley provided Hotmer with customer and lumber mill information from plaintiff's customer list, "customer profiles," customer purchasing preferences, shipping preferences, payment habits, information regarding Pelican Bay's outstanding orders, and Pelican Bay's pricing. Kelley assisted Hotmer on sales calls and introduced Hotmer to customers on plaintiff's customer list.

Ten days after Hotmer started with Western Timber, Kelley retired from Pelican Bay. That same day, Kelley met with Hanson and two of Pelican Bay's employees to determine which of Pelican Bay's traders would take over the accounts that had been serviced by Kelley. Kelley did not disclose at that time that he had provided part of his customer list and other information to Hotmer for use at Western Timber.

Within a few days of Kelley's retirement, Pelican Bay learned that Hotmer and Kelley had been using information that Kelley obtained while working for Pelican Bay to lure customers to Western Timber. On June 5, 2014, plaintiff sent cease-and-desist letters to Western Timber, Hotmer, and Kelley, informing them that they had misappropriated Pelican Bay's confidential information, and that they should stop using it immediately. In response to the letter, Western Timber declined to discontinue its use of the information obtained through Kelley. It continued to employ Hotmer and use the customer list because Western Timber did not believe Kelley's confidentiality agreement "would hold up."

Pelican Bay sued, alleging three claims for relief against defendants: misappropriation of trade secrets, intentional interference with economic relations, and conversion. Defendants moved for summary judgment against each of the plaintiff's three claims under ORCP 47, arguing that, viewed in a manner most favorable to plaintiff, no objectively reasonable juror could return a verdict for plaintiff on any of its claims. Defendants' primary argument was that the information at issue was not a trade secret and that Seid, Hotmer, and Western Timber were not Pelican Bay employees and, therefore, were not bound by Pelican Bay's employment policies. They argued, essentially, that, because no trade secrets were at issue, there could be no unlawful misappropriation in violation of ORS 646.461 : "Because plaintiff has no evidence anything is a trade secret, the Western Timber defendants are entitled to summary judgment."

On the conversion claim, defendants argued that, "because plaintiff does not own the information in Kelley's head, there can be no conversion of something plaintiff does not own." Defendants also argued that the conversion claim must fail because defendants have not seriously impaired or prevented plaintiff from using its confidential information to transact business because plaintiff still sells to the customers listed. With respect to the intentional interference with economic relations claim, defendants argued only that, under an Oregon District Court decision, IKON Office Solutions v. American Office , 178 F. Supp. 2d 1154 (D. Or. 2001), aff'd , 61 F. Appx. 378 (9th Cir. 2003), the failure of the alleged trade secret claim necessarily meant that there was no liability for intentional interference with economic relations:

"In IKON the court found (and plaintiff conceded) that if plaintiff did not prevail on the trade secrets claim there was no 'improper means' to support the interference claim. 178 F. Supp. [2d] at 1170. That is the same result here for the same reasons."

In response, Pelican Bay argued that there was evidence that the customer list and related information taken by Kelley and used by defendants qualified as trade secrets, as that term is defined in ORS 646.461(4). In addition, Pelican Bay argued that there was evidence that would support a finding that defendants had misappropriated Pelican Bay's trade secrets under the form of "misappropriation" described in ORS 646.461(2)(d). Pointing out that defendants' motion for summary judgment omitted subsection (d) from its block quotation of ORS 646.461(2), Pelican Bay asserted that, at a minimum, defendants' admission that they continued to use Pelican Bay's customer information after receiving Pelican Bay's cease-and-desist letters would support a finding of misappropriation as defined under ORS 646.461(2)(d)(C), which states that misappropriation occurs when there is "[d]isclosure or use of a trade secret of another without express or implied consent by a person, who at the time of disclosure or use , knew or had reason to know that the knowledge of the trade secret was * * * [d]erived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use." ORS 646.461(2)(d)(C) (emphasis added). Pelican Bay argued:

"Similarly, the undisputed evidence shows that Western Timber, Hotmer and Seid have also 'misappropriated'
Plaintiff's trade secrets in violation of ORS 646.461(2). Specifically, Defendants admit that Kelley provided Defendants with Plaintiff's confidential customer information. Western Timber admits that it would not have hired Hotmer, who had no previous experience in the industry, without Plaintiff's confidential customer information provided by Kelley to Hotmer. Only days after Kelley's retirement from Plaintiff, on June 5, 2014, Plaintiff's counsel sent letters to each of the Defendants, demanding that Defendants cease and desist from further misappropriation and/or misuse of Plaintiff's confidential customer information. Western Timber admits that it continued to employ Hotmer after Western Timber learned of the confidentiality agreement between Kelley and Plaintiff because Western Timber did not believe the confidentiality agreement between Plaintiff and Kelley 'would hold up.' Hotmer and Western Timber also admit that they have used Plaintiff['s] confidential proprietary information to generate nearly $ 4 million in sales from Plaintiff's customers. Based on the foregoing, Plaintiff has submitted undisputed evidence that Western Timber, Hotmer and Seid 'misappropriated' Plaintiff's trade secrets in violation of ORS 646.461(2)(d). At a minimum, there are genuine issues of material fact that preclude summary judgment in favor of Western Timber, Hotmer, and Seid."

The trial court granted defendants' motion. In explaining its ruling, the court stated that the evidence demonstrated that there was a jury question "as to whether there is or isn't a trade secret," but that Pelican Bay had not produced evidence that would allow a finding that defendants "did anything for improper means." For that reason, the court concluded, all three claims against defendants failed as a matter of law. The court did not address explicitly Pelican Bay's theory that defendants' conduct violated ORS 646.461(2)(d)(C) because it had "used" Pelican's trade secrets when it "knew or had reason to know" that the information supplied by Kelley was "[d]erived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use." ORS 646.461(2)(d)(C).

Thereafter, defendants petitioned for attorney fees with respect to the trade secrets claim under ORS 646.467(1), asserting that they were entitled to fees under that provision on the ground that the claim had been asserted in "bad faith." Agreeing with defendants on that point, the trial court awarded defendants $ 37,425 in attorney fees. The court then entered a general judgment in favor of all defendants; the judgment included the fee award.

Pelican Bay appeals, seeking reversal of the general judgment and money award. It assigns error to the trial court's grant of defendants' motion for summary judgment on its claims for misappropriation of trade secrets and intentional interference with economic relations. Pelican Bay also assigns error to the court's grant of attorney fees to defendants under ORS 646.467, and the court's failure to consider the factors specified in ORS 20.075 when it granted, in part, defendants' motion for attorney fees. Pelican Bay argues that all that it needed to show in order to defeat summary judgement was evidence that (1) defendants used plaintiff's trade secrets and that (2) defendants knew or had reason to know that their knowledge of plaintiff's trade secrets was derived from or through a person who owed a duty to plaintiff to maintain its secrecy or limit its use, under ORS 646.461 (2)(d)(C). It contends that the trial court overlooked the fact that a person who uses a trade secret can "misappropriate" it within the meaning of ORS 646.461(2) even if the person did not directly "take" the trade secret but, instead, simply used it with the requisite knowledge that it derived from someone who had a duty to keep the secret confidential. Pelican Bay argues further that if we agree with plaintiff that the record gives rise to a dispute of fact as to whether defendants misappropriated Pelican Bay's trade secrets, then we must also reverse the trial court's grant of summary judgment on the intentional interference with economic relations claim and the attorney fee award, because the court's ruling on each of those claims turned on its conclusion that there was no evidence to support a finding of misappropriation.

In response, defendants, in the main, urge us to affirm on an alternative ground: that Pelican Bay's evidence is insufficient to give rise to a factual dispute as to whether the information that Kelley took from Pelican Bay and provided to the defendants qualifies as a "trade secret" within the meaning of ORS 646.461(4). Their primary argument in that regard is that, in their view, this case is "nearly identical" to IKON Office Solutions , 178 F. Supp. 2d 1154, a case in which the district court concluded that the evidence presented was insufficient to create a dispute of fact as to whether the customer lists and information at issue in that case constituted trade secrets for purposes of ORS 646.461(4). Addressing Pelican Bay's argument regarding misappropriation under ORS 646.461(2)(d)(C), defendants argue that there is no evidence to support a finding that they knew or should have known that Kelley had an obligation to keep the information confidential until after they received the cease-and-desist letters. As to their continued use of the information after that time, defendants appear to argue that the cease-and-desist letters are insufficient to support an inference that they knew or should have known that Kelley owed a duty to keep the information confidential because the letters did not use the phrase "trade secret," and "identifie[d] the customer information only as 'confidential' and 'proprietary.' " As to the other claims of error, defendants acknowledge that the trial court's grant of summary judgment on the intentional interference with economic relations claim and the award of attorney fees turned on its conclusion that summary judgment on the trade secrets claim was required, and they do not advance any argument as to why those rulings should be affirmed if the grant of summary judgment on the trade secrets claim is reversed.

STANDARD OF REVIEW

We review the trial court's grant of summary judgment to determine whether there is no genuine issue of material fact and whether the moving party is entitled to judgment as a matter of law. ORCP 47 C. That standard is met when, "viewing the evidence in the record and all reasonable inferences that may be drawn from it in favor of the nonmoving party, no reasonable factfinder could return a verdict for the nonmoving party." Chapman v. Mayfield , 358 Or. 196, 204, 361 P.3d 566 (2015). The nonmoving party bears the burden "to produce evidence on any issue raised in the motion as to which the nonmoving party would have the burden of persuasion at trial." Id.

ANALYSIS

Given that the other rulings challenged in this appeal were predicated on the trial court's grant of summary judgment to defendants on Pelican Bay's trade secrets claim, the issue before us is whether the court erred in granting summary judgment on the trade secrets claim. As framed by the parties' arguments on appeal, resolution of that issue turns on whether Pelican Bay's evidence in opposition to summary judgment is sufficient to permit a reasonable factfinder to find (1) that the customer information that Kelley took from Pelican Bay constitutes a "trade secret" under ORS 646.461(4) and (2) that defendants engaged in conduct constituting "misappropriation" under ORS 646.461 (2)(d)(C). We conclude that the evidence in the summary judgment record is sufficient to withstand summary judgment in both respects and that the trial court erred when it determined that Pelican Bay presented insufficient evidence that defendants had misappropriated the information at issue for purposes of ORS 646.461.

We start with the question of whether Pelican Bay's evidence was sufficient to create a factual dispute as to whether the customer information taken and disseminated by Kelley constituted a trade secret. ORS 646.461(4) defines a "trade secret" as follows:

" 'Trade secret' means information, including a drawing, cost data, customer list, formula, pattern, compilation, program, device, method, technique or process that:
"(a) Derives independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use; and
"(b) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy."

ORS 646.461(4). In Kaib's Roving R.PH. Agency, Inc. v. Smith , 237 Or. App. 96, 103, 239 P.3d 247 (2010), we elaborated on the meaning of "trade secret" and on the sort of evidence required to give rise to a factual dispute as to whether something is or is not a trade secret:

"To constitute a trade secret under ORS 646.461(4), information (including compilations) must both (1) gain value because it is not generally known and (2) be the subject of reasonable efforts to maintain that secrecy. Each of those determinations is made, not by reference to legal principles, but on the basis of the historical facts and circumstances presented: Is the information at issue generally known within the relevant community? Is it more valuable by virtue of not being generally known? What efforts were made to keep it secret? Were those efforts reasonable? Et cetera. The definition set forth in the statute itself therefore necessarily implies that whether information is or is not a trade secret is a question of fact. If facts and circumstances are presented to establish that the information derives economic value from not being generally known and is subject to reasonable efforts to maintain its secrecy, then the information is a trade secret within the meaning of the statute."

Id . Thus, under Kaib's Roving R.PH. Agency, Inc. , the issue is whether the evidence presented by Pelican Bay, viewed in Pelican Bay's favor, establishes facts and circumstances that would permit a reasonable factfinder to find "that the information derives economic value from not being generally known and is subject to reasonable efforts to maintain its secrecy." Id.

Here, the evidence presented by Pelican Bay meets that standard. First, the evidence would permit a finding that Pelican Bay made reasonable efforts to keep the information confidential. In 2007, Kelley signed an "Employee Acknowledgment" agreeing to abide by the policies contained in plaintiff's handbook, which contained a confidentiality agreement stating that plaintiff's confidential proprietary information, including its customer list, belonged to plaintiff and was not to be shared with third parties. Again, in 2013, after plaintiff learned that Kelley had been attempting to sell the customer information to other traders, plaintiff's president met with Kelley, reminded him of his confidentiality obligations and that the customer information was plaintiff's property, and presented him with a written agreement memorializing their conversation.

The evidence would also permit finding that the information is of the nature that derives economic value from being kept secret. Defendants admitted that the lumber sales business is competitive and that it takes many years to build up a quality book of business. Because of that fact, when Hotmer started working for Western Timber, it had Hotmer sign an agreement that said that the business he was bringing over from Pelican Bay, as well as any new business he acquired, was the property of Western Timber, and that Hotmer did not have authority to sell or transfer the customer information. The fact that Western Timber would not have hired Hotmer but for his access to Kelley's customer information from Pelican Bay also allows for the inference that that information is something that derives economic value from the fact that it is not generally available information.

Resisting that conclusion, defendants point our attention to evidence in the record that would allow a factfinder to reach a different determination regarding the nature of the information that Kelley took from Pelican Bay. As we have acknowledged, this case has been hard fought and the record evidences many factual disputes. But our task is to assess whether there is some evidence in the record that would permit a reasonable factfinder to find that the information taken by Kelley was a trade secret. Because there is, it is for a jury to decide whether or not that information constitutes a trade secret under ORS 646.461(4). See generally Kaib's Roving R.PH. Agency, Inc. , 237 Or. App. at 103, 239 P.3d 247. In a similar vein, defendants also rely heavily on the decision in IKON Office Solutions to argue that summary judgment is as appropriate here as the district court in that case concluded it was there. But the propriety of summary judgment in a given case necessarily turns on the record developed in each case, and, while the record in that case may not have been adequate to demonstrate a factual dispute as to whether the information at issue constituted a trade secret, here, the evidence identified above gives rise to a factual dispute that precludes summary judgment.

Finally, defendants also argue that the information taken by Kelley cannot constitute a trade secret under ORS 646.461(4) because the undisputed facts show that Kelley took that information from Pelican Bay in his head, rather than in a tangible form. In their view, information taken by memory cannot, as a matter of law, constitute a trade secret.

The problem with that argument is that there is no textual support for it in ORS 646.461(4) or elsewhere in the Uniform Trade Secrets Act, ORS 646.461 to 646.475. See ORS 646.475(2) (" ORS 646.461 to 646.475 may be cited as the Uniform Trade Secrets Act."). Simply put, as the Washington Supreme Court and others have recognized in interpreting the Uniform Trade Secrets Act, nothing in the terms of the Uniform Trade Secrets Act suggests that information otherwise constituting a trade secret would lose that status simply because a person is able to take that information in an intangible form. See Ed Nowogroski Ins., Inc. v. Rucker , 137 Wash. 2d 427, 449, 971 P.2d 936, 946-49 (1999) (collecting cases under the Uniform Trade Secrets Act and explaining that "[t]he form of information, whether written or memorized, is immaterial under the trade secrets statute; the Uniform Trade Secrets Act makes no distinction about the form of trade secrets"). Rather, the terms of the act are written broadly so as to safeguard trade secrets, no matter the form in which they may be misappropriated. See generally id. For us to conclude otherwise would, in effect, require us to add a limitation to the Act that the legislature itself has not included. But "[w]e may not insert what the legislature has omitted or omit what the legislature has inserted." State v. Rogers , 330 Or. 282, 290, 4 P.3d 1261 (2000) (citing ORS 174.010 ). We thus agree with the analysis of the Washington Supreme Court and, for that reason, reject the argument that the information taken by Kelley is not a trade secret for purposes of the Uniform Trade Secrets Act simply because he used his memory to take it.

We next address whether the evidence was sufficient to permit a reasonable factfinder to find that defendants misappropriated Pelican Bay's trade secrets under ORS 646.461(2)(d)(C) by continuing to use the information after they received the cease-and-desist letters. Defendants appear to argue only that the evidence is insufficient to permit that finding because the letters did not use the words trade secrets. We reject that argument and otherwise conclude that Pelican Bay's evidence is sufficient to permit a reasonable factfinder to find that defendants "misappropriated" Pelican Bay's confidential customer information within the meaning of ORS 646.461(2)(d)(C).

ORS 646.461(2)(d)(C) defines "misappropriation" as follows:

"(d) Disclosure or use of a trade secret of another without express or implied consent by a person, who at the time of disclosure or use, knew or had reason to know that the knowledge of the trade secret was:
"* * * * *
"(C) Derived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use[.]"

Pelican Bay's evidence would permit a reasonable factfinder to find that defendants misappropriated its information in that manner.

That evidence would permit a finding that defendants obtained Pelican Bay's customer list and information from Kelley, who had agreed in writing that he was obligated to Pelican Bay to maintain the list's secrecy and limit its use. When defendants were notified by the cease-and-desist letters that the information supplied by Kelley was confidential and had been misappropriated, defendants continued to use the information to generate sales, even though they had been told expressly that they obtained the information from an individual who had an obligation to plaintiff to maintain the information's secrecy.

Defendants assert that "Plaintiff presented no evidence that Defendants knew or had any reason to know, at the time that they acquired and used the customer information, that Plaintiff considered the customer information a trade secret, that the information had been wrongfully acquired, or that Kelley was violating his contractual obligations to Plaintiff in sharing it." (Emphasis in original.) That may be true. But the fact that defendants may not have been on notice at the time they initially used plaintiff's confidential information simply means that their initial use of the information would not constitute misappropriation. By its terms, however, ORS 646.461(2)(d)(C) provides that misappropriation occurs at any time a person uses a trade secret without the necessary consent when the person knows or should have known that the information was obtained from someone who had an obligation to keep it confidential; that is, whenever there is "[d]isclosure or use of a trade secret of another without express or implied consent by a person, who at the time of disclosure or use , knew or had reason to know that the knowledge of the trade secret was * * * [d]erived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use." ORS 646.461(2)(d)(C) (emphasis added). That means that once defendants were notified that Kelley had a duty of confidentiality to Pelican Bay, their subsequent use of Pelican Bay's confidential customer lists with that knowledge could have constituted misappropriation as defined by ORS 646.461(2)(d)(C) -or so a reasonable factfinder could find on this record. IMED Corp. v. Systems Engineering Associates Corp. , 602 So. 2d 344, 346-47 (Ala. 1992) (concluding, under Alabama Trade Secrets Act § 8-27-3, that "[i]t would require a tortured reading of the statute for us to conclude * * * that a person cannot be held liable unless he knew or should have known at the time he learned the trade secret that it had been misappropriated by the third person" and that "[t]he purpose underlying the Act would surely be thwarted if a person, although innocently acquiring a trade secret from a third person, could nonetheless disclose or use that trade secret with impunity after being placed on notice that the trade secret had been misappropriated," and observing that its interpretation of its state Act was consistent with section one of the Uniform Trade Secrets Act).

For those reasons, the trial court erred in granting summary judgment to defendants on Pelican Bay's trade secrets claim, and we must reverse as to that claim. As we have explained, the court's grant of summary judgment on the intentional interference with economic relations claim was predicated on the grant of summary judgment on the trade secrets claim; defendants have not argued that summary judgment on that claim would be warranted even if summary judgment on the trade secrets claim is not. Accordingly, having reversed the grant of summary judgment on the trade secrets claim, we also reverse the grant of summary judgment on the intentional interference claim. Finally, we must also reverse the award of attorney fees on the trade secret claim. Because we have reversed the trial court's grant of summary judgment on the trade secrets claim, defendants are no longer prevailing parties for purposes of ORS 646.467.

Reversed and remanded.

      Pelican Bay also asserted claims against Kelley. After the trial court denied Kelley's motion for summary judgment, Pelican Bay and Kelley settled. As a result, the claims against Kelley are not at issue on this appeal.

      Pelican Bay does not assign error to the grant of summary judgment on its conversion claim.

      Although Pelican Bay has not raised the issue, it is not clear to us that defendants' motion for summary judgment put at issue whether Pelican Bay would be able to establish that defendants' conduct constituted "misappropriation" within the meaning of ORS 646.461(2) sufficiently to require Pelican Bay to respond to that point with evidence. Although the motion asserted generally that Pelican Bay would not be able to establish misappropriation, defendants' sole argument on the point was that Pelican Bay would not be able to establish that information taken by Kelley was a trade secret and, thus, without a showing that trade secrets had been taken, Pelican Bay would not be able to show misappropriation of trade secrets. Defendants did not make any developed arguments that, if trade secrets had been taken, those trade secrets nonetheless had not been misappropriated through any of the means described in ORS 646.461(2). As a result, the issue of the sufficiency of the evidence of misappropriation may not have been properly before the court. See Dahlke v. Jubie , 292 Or. App. 804, 809-10, 426 P.3d 138 (2018) (trial court erred by granting summary judgment to party on issue that had not been raised in the party's motion). Regardless, as we explain, the trial court's grant of summary judgment on the issue of misappropriation was erroneous because Pelican Bay supplied evidence that would permit a finding that defendants misappropriated Pelican Bay's trade secrets by continuing to use Pelican Bay's confidential information after receiving the cease-and-desist letter.

      We also observe that, at the time it decided IKON Office Solutions , the district court did not have the benefit of our opinion in Kaib's Roving R.PH. Agency, Inc .

      The Uniform Trade Secrets Act is a uniform act and the legislature has directed that it "shall be applied and construed to effectuate [the] general purpose to make uniform the law with respect to the subject of ORS 646.461 to 646.475 among states enacting them." ORS 646.475(1).