author: JAMES, J.

text:
    FRIENDS OF YAMHILL COUNTY, an Oregon non-profit corporation; Carr Biggerstaff, individually; and Jeanne Biggerstaff, individually, Petitioners-Respondents, and State of Oregon, by and through the Department of Land Conservation and Development, Intervenor-Appellant, v. BOARD OF COUNTY COMMISSIONERS OF YAMHILL COUNTY, an Oregon municipal corporation, Respondent-Respondent, and Ralph Johnson, individually and Norma Johnson, individually, Intervenors-Respondents.
    Friends of Yamhill County, an Oregon non-profit corporation; Carr Biggerstaff, individually; and Jeanne Biggerstaff, individually, Petitioners-Appellants, and State of Oregon, by and through the Department of Land Conservation and Development, Intervenor-Appellant, v. Board of County Commissioners of Yamhill County, an Oregon municipal corporation, Respondent-Respondent, and Ralph E. Johnson, individually and Norma J. Johnson, individually, Intervenors-Respondents.
    A162581 (Control) A162613
    Court of Appeals of Oregon.
    Argued and submitted November 21, 2017. June 19, 2019
    Ralph O. Bloemers argued the cause and filed the briefs for appellants Friends of Yamhill County, Carr Biggerstaff, and Jeanne Biggerstaff.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and
    Judy C. Lucas, Assistant Attorney General, filed the brief for intervenor-appellant.
    Gregory S. Hathaway, Portland, argued the cause for respondent and intervenors-respondents. Also on the briefs were Hathaway Koback Connors LLP and Timothy S. Sadlo.
    Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.
   JAMES, J.

Carr and Jeanne Biggerstaff, Friends of Yamhill County (FOYC), and the State of Oregon (jointly, appellants) appeal a judgment entered in a writ-of-review proceeding that affirmed Yamhill County's determination that Ralph and Norma Johnson (claimants) have a vested right under section 5(3) of Ballot Measure 49 (2007) to complete a 41-lot subdivision on their property. Appellants contend, among other things, that the writ-of-review court erred in affirming the county's determination that claimants had a vested right to complete the subdivision. For the reasons explained below, we agree. Accordingly, we reverse and remand.

I. BACKGROUND

We state the facts consistently with the uncontested explicit and implicit factual findings in the county's vesting determination, Friends of Yamhill County v. Board of County Commissioners , 237 Or. App. 149, 153, 238 P.3d 1016 (2010), aff'd , 351 Or. 219, 264 P.3d 1265 (2011) ( Friends I ), and with the undisputed facts set out in our previous opinion in this case. Claimants own property in Yamhill County that is currently zoned for farm use. In 2005, pursuant to Ballot Measure 37 (2004), claimants sought, and received, waivers of land use regulations from Yamhill County and from the state. In the waivers, the county and the state agreed not to apply regulations preventing claimants from subdividing and building dwellings on their property.

Pursuant to the waivers, in 2006, claimants obtained preliminary approval from the county to subdivide their property into 41 residential lots. Claimants spent "over $ 1 million to develop the property and recorded the final subdivision plat for the development before Measure 49 became effective on December 6, 2007." Biggerstaff v. Board of County Commissioners , 240 Or. App. 46, 49, 245 P.3d 688 (2010). Claimants' expenditures included, along with costs of preparing the land for development, the cost of constructing "several extremely small 'dwellings' " of approximately 10 by 12 feet in size, just before Measure 49 took effect. Id. However, as claimants' counsel acknowledged at oral argument in this case, claimants never planned to construct, or hire anyone else to construct, houses for buyers to actually live in; they intended only to sell lots, on which third parties would construct houses. In the fall of 2007, claimants sold four of the lots.

When Measure 49 took effect, extinguishing claimants' Measure 37 waivers, claimants applied to the county for a determination that, under section 5(3) of Measure 49, they had a vested right to complete and continue the subdivision. See Friends of Yamhill County v. Board of Commissioners , 351 Or. 219, 228, 264 P.3d 1265 (2011) ( Friends II ) (explaining that Measure 49 extinguished Measure 37 waivers and required claimants to "choose among three pathways: the express pathway, the conditional pathway, and the vested rights pathway"). The county determined that claimants had a vested right to complete the subdivision, and the circuit court affirmed that determination on a writ of review.

The Biggerstaffs, who are neighbors of claimants, appealed. We concluded that the county had misconstrued the law and, accordingly, we reversed the writ-of-review judgment and remanded for reconsideration. Biggerstaff , 240 Or. App. at 56, 245 P.3d 688. On remand, claimants applied to the county for a vested rights determination for a second time, and, in 2011, the county again determined that they had a vested right to complete and continue the subdivision. While that decision was before the circuit court on a writ of review, the Supreme Court decided Friends II , in which it provided guidance about how to apply the factors that the court had previously established in Clackamas County v. Holmes , 265 Or. 193, 508 P.2d 190 (1973), as the guideposts for vested rights analysis.

One of those factors is the expenditure ratio, which is the ratio between the costs that the landowner incurred toward construction of the planned development before the change in the law and the estimated cost of constructing the whole planned development. Friends II , 351 Or. at 246, 264 P.3d 1265 ; see also id. at 235-43, 264 P.3d 1265 (explaining vested rights analysis). To determine the ratio, the county must find "two historical facts: (1) the costs that [the claimant] incurred to construct the planned development and (2) the estimated cost of the planned development." Id. at 246, 264 P.3d 1265. Dividing the claimant's costs incurred by the total estimated cost of the planned development yields a percentage, which "provides an objective measure of how far the landowner has proceeded towards completion of construction and thus serves as an initial gauge of whether the landowner has proceeded far enough that he or she has a vested right to complete construction." Id. at 245, 264 P.3d 1265.

After the Supreme Court decided Friends II , claimants requested another remand to allow the county to conduct the vesting analysis consistently with that opinion. On remand, claimants again sought a vested rights determination from the county. In support of their contention that their expenditures represented a sufficient percentage of the total project cost to support a vested right, they relied on a purchase agreement submitted by a builder, which estimated that the cost to build the type of home that was likely to be built on the lots in the subdivision, as of December 2007, would have been $ 344,018.69. The county accepted that testimony and, multiplying that amount by 40 and adding other development costs, determined that the total project cost, the denominator of the expenditure ratio, was $ 15,017,937.50. Applying a numerator of $ 1,257,190.74, which represented claimants', the county determined that claimants had spent 8.32 percent of the total project cost. After considering the other Holmes factors, the county determined that claimants had a vested right to complete and continue the subdivision.

The Biggerstaffs and FOYC sought writs of review in the circuit court, the proceedings were consolidated, and the state and claimants intervened. As relevant to this opinion, appellants raised two arguments. First, they contended that ORS 215.130, which requires nonconforming uses to be continuous, and a county ordinance implementing that statute applied to, and extinguished, claimants' claim under section 5(3) of Measure 49. Second, they argued that the county had misconstrued the law when it relied on the builder's testimony about the likely cost of building the homes in the subdivision. In their view, that evidence showed the amounts that buyers of lots would have spent building homes and not the cost of houses that claimants themselves planned to build. They asserted that the fact that claimants never planned to build houses themselves was fatal to their claim under section 5(3) of Measure 49, and the builder's testimony could not assist them.

The circuit court rejected those arguments. As to the first argument, it reasoned that ORS 215.130 did not apply in this vested rights proceeding. As to the second argument, it held that that claimants had shown the denominator of the expenditure ratio through the builder's testimony about the likely cost of building homes in the subdivision, regardless of "whether [claimants] personally constructed the buildings, did so in conjunction with third parties[,] or third parties undertook the construction on their own after purchase of a lot with a vested interest to complete construction that ran with the land." Based on that reasoning, the court concluded that the county had not erred in determining that claimants had a vested right to complete and continue the development.

The Biggerstaffs and FOYC, on one hand, and the state, on the other, appealed, and we consolidated the appeals. Appellants renew their arguments from below, and claimants and the county defend the circuit court's reasoning. II. ANALYSIS

In an appeal from a writ of review where the parties' arguments raise only questions of law, as they do here, we review for errors of law. ORS 195.318 (allowing challenges to county vested rights decisions under Measure 49 by way of writ of review); ORS 34.040(1)(d) (in a writ-of-review proceeding, the circuit court must determine whether the county "[i]mproperly construed the applicable law"). As explained below, we conclude that ORS 215.130 does not affect claimants' claim. However, we conclude that claimants did not show a "vested right to complete and continue the use described in the waiver ," Measure 49 § 5(3) (emphasis added), because claimants' planned development, subdividing the property and selling buildable lots, was not something that claimants could do pursuant to their Measure 37 waivers.

A. Discontinuation

At the outset, we reject appellants' argument that ORS 215.130 operates to extinguish any vested right that claimants may have had. We recently addressed and rejected the same argument in Oregon Shores v. Board of County Commissioners , 297 Or. App. 269, 441 P.3d 647 (2019). We held that "[t]he text of section 5(3) requires a showing that a claimant's vested right existed on December 6, 2007, and no other date." Id. at 279-80, 441 P.3d 647. Here, as in Oregon Shores , any discontinuance that may have occurred took place after December 6, 2007, the only date on which a vested right had to exist. Thus, the statute and implementing ordinance are immaterial to claimants' Measure 49 claim in this case, and the writ-of-review court did not err in affirming the county's determination that the statute and ordinance did not apply.

B. Vested Right to Complete and Continue the Use Described in the Waiver

We turn to appellants' second argument. As noted above, the circuit court held that claimants had showed the necessary vested right to complete and continue the use described in their Measure 37 waivers even though they planned for buyers of the lots to build houses, rather than planning to build houses themselves. Appellants contend that claimants' plan to subdivide their property and sell lots, and their expenditures in pursuit of that plan, was not a "use of the property [that] complies with the waiver," Measure 49 § 5(3), and could not yield a vested right to complete "the use described in the waiver," id. , because subdividing property and selling buildable lots was not something that a landowner could do pursuant to a Measure 37 waiver.

We begin our consideration of that argument with section 5(3) of Measure 49, the provision under which claimants seek relief. That subsection provides as follows:

"A claimant that filed a claim under [Measure 37] on or before [June 28, 2007,] is entitled to just compensation as provided in * * * [a] waiver issued before [December 6, 2007,] to the extent that the claimant's use of the property complies with the waiver and the claimant has a common law vested right on [December 6, 2007,] to complete and continue the use described in the waiver."

Thus, to succeed in a claim under section 5(3), a claimant must show (1) that "the claimant's use of the property complies with the [Measure 37] waiver" and (2) that the claimant has a common law vested right "to complete and continue the use described in the waiver." Here, as described above, in claimants' waivers, the county and the state agreed not to apply regulations preventing claimants from subdividing their property and building dwellings on the subdivided lots. However, although claimants' waivers allowed claimants to subdivide and build houses, claimants did not intend to build houses. Rather, they intended to subdivide their property and sell lots on which others would build houses.

As we understand the circuit court's reasoning and claimants' and the county's argument on appeal, their view is that claimants' expenditures in pursuit of the development that they planned-subdivision of the land and sale of lots to others, who would build houses-created a vested right under section 5(3) of Measure 49 to complete not only the subdivision itself, but also the houses. In their view, that vested right runs with the land, so that, when claimants sell a subdivided lot to a buyer, the buyer receives the lot and the right to build a house on it.

Claimants and the county assert that the Supreme Court did not reject that possibility in Friends II , in which it held that the development that a claimant can have a vested right to complete is the one that the claimant intended, on or before December 6, 2007, to construct. 351 Or. at 246 & n. 20, 264 P.3d 1265 (noting that, to find the cost of "the planned development," the county had to find the cost of building the "type of homes [the claimant] planned to build" before Measure 49 took effect). Rather, as they understand Friends II , the court required only that, if a claimant intended to subdivide and sell lots rather than actually constructing houses, the claimant must provide evidence from which the governing body can find, as a matter of historical fact, how much buyers of the lots would have spent in December 2007 to build houses in the subdivision. Once the governing body has found the amount that the claimant would spend to prepare the subdivision and the amount that subsequent buyers would spend to build the houses, it adds those amounts together and plugs the resulting number in as the denominator of the expenditure ratio.

Appellants respond that, regardless of whether the Supreme Court's opinion in Friends II leaves open that possibility, claimants nevertheless cannot make the necessary showing under section 5(3) of Measure 49 because Measure 37 did not allow claimants to sell lots on which others could build houses. They contend that relief under section 5(3) of Measure 49 is limited to the same relief that was allowed under a claimant's Measure 37 waiver, and subdividing and selling buildable lots was not something that claimants could do under their Measure 37 waivers.

We agree with claimants that the court's opinion in Friends II does not conclusively preclude their view of the correct calculation of the expenditure ratio. However, as explained below, we agree with appellants' alternative argument. Claimants cannot satisfy the requirements of section 5(3) of Measure 49 because their planned development was to sell lots on which others would build houses, but that arrangement was not allowed under their Measure 37 waivers. Said another way, section 5(3) of Measure 49 provides a way for claimants to finish projects that they began under Measure 37 waivers, but one of the limitations is that the claimants' plan had to be one that was allowed under Measure 37. Because (1) relief under section 5(3) of Measure 49 is limited to the same relief that was allowed under a claimant's Measure 37 waiver and (2) claimants' Measure 37 waivers did not allow them to sell buildable lots, they cannot obtain relief under section 5(3) of Measure 49.

1. Relief under section 5(3) of Measure 49 is limited to the same relief that was allowed under a claimant's Measure 37 waiver.

To evaluate appellants' first proposition, we return to the text of section 5(3) of Measure 49. "In interpreting statutes, our goal is to discern the intention of the legislature or, in the case of ballot measures, the voters, by examining the text, context, and any pertinent legislative history of the statute." Oregon Shores , 297 Or. App. at 275, 441 P.3d 647 ; see also Friends I , 237 Or. App. at 166-67, 238 P.3d 1016 (citing State v. Gaines , 346 Or. 160, 171-72, 206 P.3d 1042 (2009) ).

We readily conclude that the relief that a claimant can obtain under section 5(3) of Measure 49 is limited to the relief that would have been allowed under a claimant's Measure 37 waivers. The text of section 5(3) states that limitation twice: First, one of the elements of the claim is that "the claimant's use of the property complies with the [claimant's Measure 37] waiver." Measure 49, § 5(3). Second, the claimant must show that "the claimant has a common law vested right on [December 6, 2007,] to complete and continue the use described in the waiver ." Id. (Emphasis added.) Plainly, in enacting section 5(3) of Measure 49, the voters intended to provide relief no broader than what was allowed under a claimant's Measure 37 waivers. See also Oregon Shores , 297 Or. App. at 277, 441 P.3d 647 (noting that section 5(3) provides a statutory right to relief "and the terms of that relief mirror the terms of the waiver").

2. Measure 37 waivers did not allow claimants to sell buildable lots .

We turn to whether claimants' Measure 37 waivers allowed them to sell buildable lots. The circuit court, claimants, and the county have advanced three ways in which, in their view, claimants' Measure 37 waivers and claimants' acts of subdividing the property and preparing it for houses create a right for a buyer to build on a lot that claimants subdivided and prepared for a house. Below, we consider, and reject, each of the three theories: first, that claimants' Measure 37 waivers, in themselves, allowed buyers to build houses on lots purchased from claimants; second, that claimants' subdivision of their property was a "use," as that term is used in Measure 37, that became nonconforming when claimants sold lots and thus allowed the buyers to build houses; and, third, that claimants' acts of subdividing the property and preparing it for houses created a vested right under Measure 37 that allowed others to build houses on the lots. Because we disagree with all of the theories that the circuit court, claimants, and the county have identified, and because we perceive no other way in which Measure 37 waivers could have allowed claimants to sell buildable lots, we conclude that Measure 37 did not allow claimants to sell buildable lots.

a. Claimants' Measure 37 waivers, in themselves, did not allow buyers to build on lots purchased from claimants.

Measure 37 "provided landowners with 'just compensation' for land use regulations, enacted after they had acquired their property, that restricted the use of the property and, as a result, diminished its value." Friends II , 351 Or. at 224, 264 P.3d 1265. When a landowner made a claim for "just compensation" under Measure 37, "a government could choose: (1) to pay the landowner compensation for the diminished value of the property and enforce the regulation or (2) to waive the regulation and permit the owner 'to use the property for a use permitted at the time the owner acquired the property.' " Id. (quoting former ORS 197.352 (2005), renumbered as ORS 195.305 (2007) ). A Measure 37 "waiver" was an embodiment of the government's choice not to apply certain zoning regulations to allow the owner to use the property for a use allowed when the owner acquired the property instead of enforcing the zoning regulations and paying the owner compensation for the diminution in value. E.g. , Friends of Polk County v. Oliver , 245 Or. App. 680, 683-84, 264 P.3d 165 (2011), rev. den. , 351 Or. 586, 274 P.3d 857 (2012).

Subsection 8 of Measure 37 provided:

"Notwithstanding any other state statute or the availability of funds under subsection (10) of this section, in lieu of payment of just compensation under this section, the governing body responsible for enacting the land use regulation may modify, remove, or not to apply [sic ] the land use regulation or land use regulations to allow the owner to use the property for a use permitted at the time the owner acquired the property."

Former ORS 197.352(8) (2005). Measure 37 defined "owner" as "the present owner of the property, or any interest therein." Former ORS 197.352(11)(C) (2005). Nothing in the text of Measure 37 implicitly or explicitly addressed the result of an owner's sale of the property.

The first question is whether claimants' Measure 37 waivers allowed subsequent buyers to build on lots that they bought from claimants. As explained below, we conclude that, under Measure 37, a governing body's choice to allow an owner to use the property for an otherwise unlawful use applies only to the owner. If the owner sells the property, the buyer receives the property subject to the zoning regulations in effect at the time of the sale.

The text of subsection 8 indicates that the present owner of the property is the only person whom a governing body may allow "to use the property for a use permitted at the time the owner acquired the property." The text authorizes a governing body "not to apply" certain land use regulations that otherwise bind the governing body's decisions, but only with respect to the present owner, that is, "to allow the owner to use the property" in an otherwise unlawful way. Former ORS 197.352(8) (2005) (emphasis added). If the governing body were to allow someone other than the owner to use the property as described in the owner's waiver, it would be in violation of current zoning laws. See, e.g. , ORS 215.203 (providing that land within exclusive farm use zones "shall be used exclusively for farm use except as otherwise provided in ORS 215.213, 215.283 or 215.284").

The structure of Measure 37 confirms the textual indication that the present owner of the property is the exclusive recipient of Measure 37 relief. Measure 37 did not limit those entitled to relief to people who owned property when Measure 37 passed; its application was prospective as well. See former ORS 197.352(1) (providing for "just compensation" for the owner of property whenever "a public entity enacts or enforces a new land use regulation" as well as when it enforces a regulation enacted before December 2, 2004). Thus, Measure 37 applied to every property owner, even one who acquired land from a previous Measure 37 claimant. And Measure 37 operated the same way for all property owners: It set the clock back to the state of the land use regulations that existed when the owner acquired the property, by providing a remedy for any decrease in value that had occurred during the period of ownership.

That suggests that a buyer who takes property from a Measure 37 claimant does not receive the seller's entitlement to relief under Measure 37 along with the property, because the buyer is entitled to his or her own remedy under Measure 37-albeit one that will compensate only for diminution in value that occurs after the date of purchase. Thus, the text and structure of Measure 37 unambiguously indicate that the relief granted by a Measure 37 waiver-the ability to "use the property for a use permitted when the owner acquired the property"-applies solely to the present owner. In this case, then, buyers of lots could not build houses pursuant to claimants' Measure 37 waivers.

b. Claimants' subdivision of their property was not a "use," as that term is used in Measure 37, that became nonconforming when claimants sold lots.

Next we consider whether, by subdividing and preparing their property for houses, claimants established a "use" pursuant to their Measure 37 waivers. As set out above, a Measure 37 waiver allowed the present owner to "use the property for a use permitted at the time when the owner acquired the property." Former ORS 197.352(8) (2005). In Friends I , we interpreted "the use of the property" as that phrase is used in section 5(3) of Measure 49. We concluded that a residential "use" in that context meant "the actual employment of land for a residential purpose." 237 Or. App. at 167, 238 P.3d 1016. We explained as follows:

"Among its numerous definitions, 'use' is generally defined to mean 'to put into action or service: have recourse to or enjoyment of: EMPLOY.' Webster's Third New Int'l Dictionary 2523 (unabridged ed. 2002). Analogously, 'farm use' is defined by ORS 215.203(2)(a), for purposes of statutes regulating zoning of agricultural lands, as 'the current employment of land for the primary purpose of obtaining a profit in money by [various agricultural activities].'
Zoning laws typically define allowed land 'uses' by referencing particular activities on land or structural improvements to land. See, e.g. , ORS 215.213 and ORS 215.283 (listing of 'uses' allowed in exclusive farm use zones as including certain types of structures (e.g., 'public or private schools,' 'churches,' and 'dwellings') and 'operations' or activities on land (e.g. , 'operations for the exploration for minerals' and 'creation, restoration or enhancement of wetlands')); ORS 215.441 and ORS 227.500 (regulating 'use of * * * real property for activities customarily associated with' places of worship). Thus, the plain meaning of the text confirms, as the reviewing court concluded, that 'use of the property' means the actual employment of land for a residential purpose."

Id. (Brackets in Friends I .)

We conclude that a "use," as that term appears in the phrase "a use permitted at the time the owner acquired the property" in subsection 8 of Measure 37 likewise means actual employment of the land for a particular purpose-here, residential. As set out above, in Friends I , we explained that "use" has an established meaning in the context of land use law, and that the voters intended to give the word that meaning in section 5(3) of Measure 49. 237 Or. App. at 167, 238 P.3d 1016. For similar reasons, we reach the same conclusion with respect to the meaning of "use" in "a use permitted at the time the owner acquired the property" in subsection 8 of Measure 37: The measure is drafted as a land-use statute, and, by employing "use" as a noun, it demonstrates voters' intent to adopt a standard land-use meaning: actual employment of the land for a particular purpose. Friends I , 237 Or. App. at 167, 238 P.3d 1016 ; see also Black's Law Dictionary 1775 (10th ed. 2014) (defining "use" as "[t]he application or employment of something"). Thus, a residential "use" is a house, not just a subdivision of land. Campbell v. Clackamas County , 247 Or. App. 467, 476, 270 P.3d 299 (2011), rev. den. , 352 Or. 341, 288 P.3d 275 (2012) (explaining that the reasoning in Friends I leads to that conclusion); accord. Columbia Hills v. LCDC , 50 Or. App. 483, 490-91, 624 P.2d 157, rev. den. , 291 Or. 9, 631 P.2d 340 (1981) ("[P]latted but undeveloped land is not normally regarded as a 'use' in zoning law for purposes of establishing a prior non-conforming use.").

Accordingly, pursuant to a Measure 37 waiver, the present owner could "use the property for a use permitted at the time the owner acquired the property" by subdividing the land and building a house on the new lot. However, a subdivision of land, without houses, is not a "use permitted at the time the owner acquired the property because it is not a 'use.' "

Thus, if the previous owner has obtained a Measure 37 waiver, subdivided the property, and built a house-that is, if the previous owner has established a "use" of the property-we assume, without deciding, that, when the sale takes place, the use, lawful for the previous owner but unlawful for the buyer, becomes a nonconforming use that can be continued. See generally ORS 215.130(5) (providing that lawfully established uses may be continued, even if they do not conform to current zoning regulations). The situation where the buyer buys a lot differs from the situation where the buyer buys a house because, as explained above, a subdivided but vacant lot is not a "use" that can become nonconforming when it is transferred from the Measure 37 claimant (with respect to whom it is lawful) to the buyer (with respect to whom it is unlawful). In this case, then, the subdivided lots, without houses, were not established uses that could become allowed nonconforming uses when claimants transferred them to buyers.

c. Claimants' acts of subdividing the property and preparing it for houses did not yield a vested right that allowed others to build houses on the lots.

Finally, we consider whether claimants' expenditures in preparation for their plan of selling lots pursuant to their Measure 37 waivers gave them a vested right to build houses on the lots. As we understand it, the circuit court reasoned that, when the owner subdivides and prepares a lot for a house that the owner is allowed to build pursuant to a Measure 37 waiver, the owner obtains a vested right to build a house on the lot, even though the owner does not plan to build a house. In its view, that vested right is an absolute property right that subsequently runs with the land and, thus, is transferred to the buyer along with the lot.

We disagree because we conclude that, in the unique circumstances created by the operation of a Measure 37 waiver-circumstances in which an owner's ability to lawfully complete a use depends entirely on his or her own actions-the vested rights doctrine does not apply.

Measure 37 is unique among land use statutes because it prohibits application of land use regulations to an owner based on an attribute of the owner, longevity of ownership. Former ORS 197.352(8) (2005) (allowing the governing body to modify, remove, or not apply land use regulations "to allow the owner to use the property for a use permitted at the time the owner acquired the property").

As explained above, the result is that, unlike most applications of land use laws, Measure 37 relief belongs exclusively to a particular owner rather than applying directly to the land. 298 Or. App. at 251-53, 446 P.3d at 555-56; see, e.g. , Arden H. Rathkopf, 3 Rathkopf's The Law of Zoning and Planning § 58:23 (5th ed. 2019) ("Simply, a variance conveys rights which inure to the benefit of the property involved.").

In Holmes , the Supreme Court explained that "[t]he allowance of nonconforming uses applies not only to those actually in existence but also to uses which are in various stages of development when the zoning ordinance is enacted ." 265 Or. at 197, 508 P.2d 190 (emphasis added). Considering the potential for a vested right under Measure 37 alone, as we are doing here, however, no zoning ordinance "is enacted" that prohibits residential use of the land. Id. Instead, as described above, when the owner sells the property, the owner's permission to use the land for a use allowed when the owner acquired the property ends, and current zoning regulations apply.

In our view, that difference matters because it means that, in the Measure 37 context, the owner, and the owner alone, controls whether, and when, a change in the law takes place. That is, as long as a claimant owns the property, the use described in the claimant's Measure 37 waiver is lawful. When the claimant sells the property, current zoning regulations apply and prohibit all but farm use.

In the context of a use that is begun, but not completed, when the law changes, a vested right is a circumstance-specific application of the principles of equity. See Friends I , 237 Or. App. at 160, 238 P.3d 1016 ("The policy underlying the notion of vested rights is basically one of fairness." (Internal quotation marks and brackets omitted.)); see also Holmes , 265 Or. at 197, 508 P.2d 190 (citing "[t]he courts and the text writers" as the source of vested rights doctrine); BBC Land & Development, Inc. v. Butts County , 281 Ga. 472, 473-74, 640 S.E. 2d 33 (2007) (explaining that a vested right to complete development begun under previous zoning is a personal interest of the present owner that comes into existence as a result of equitable considerations); Patricia E. Salkin, 4 American Law of Zoning § 32:3, 32-17 (5th ed. 2008) ("In states[, including Oregon,] that follow the balancing interest test * * *, vested rights depend on equitable fairness, both to the property owner and to the general public." (Internal quotation marks omitted.)). All of the Holmes factors address equitable considerations, and the two "good faith" factors are particularly focused on the landowner's belief that the existing law will continue in effect. 265 Or. at 198, 508 P.2d 190 (two factors to be considered in the vested rights analysis are "the good faith of the landowner" and "whether or not [the landowner] had notice of any proposed zoning or amendatory zoning before starting his improvements"); see also Friends II , 351 Or. at 241, 264 P.3d 1265 ("[O]ne of the sources that this court relied on in Holmes explained that the law would not help one who waits until after an ordinance has been enacted forbidding the proposed use and * * * hastens to thwart the legislative act by making expenditures a few hours prior to the effective date of the ordinance." (Internal quotation marks omitted.)).

Whether we consider the question as a matter of the equities generally or the good faith factors in particular, an owner who develops property with the goal of creating a transferable right to build a house based on a nontransferable Measure 37 waiver cannot obtain a vested right to complete the use. As we have explained, a Measure 37 claimant can subdivide the property and build a house. And the claimant has exclusive control of whether the completion of that use is allowed, because the only obstacle to completing the use is one created by claimant him- or herself, when he or she sells the property to someone who lacks the right to complete the use. In the unique context of Measure 37, we conclude that, if the landowner never intended to complete the use him- or herself, the equities do not weigh in favor of creating a vested right to complete the use.

III. CONCLUSION

Here, claimants intended to subdivide the land and sell lots to buyers who would build houses. However, claimants' Measure 37 waivers did not allow them to sell buildable lots. That conclusion is dispositive of claimants' vested rights claim under Measure 49 because the relief allowed under section 5(3) of Measure 49 is no broader than the relief to which a claimant was entitled under the claimant's Measure 37 waivers. Here, claimants' project-selling buildable lots-was not permitted by their Measure 37 waivers; consequently, they could not satisfy the requirements of section 5(3) of Measure 49. The county and the circuit court erred in concluding otherwise.

Reversed and remanded.

      For a detailed explanation of the complex legal context in which this dispute arose, see Friends of Yamhill County v. Board of County Commissioners , 351 Or. 219, 222-25, 264 P.3d 1265 (2011) (Friends II ).
      Section 5(3) of Measure 49 provides,
      "A claimant that filed a claim under [Measure 37] on or before [June 28, 2007,] is entitled to just compensation as provided in * * * [a] waiver issued before [December 6, 2007,] to the extent that the claimant's use of the property complies with the waiver and the claimant has a common law vested right on [December 6, 2007,] to complete and continue the use described in the waiver."

      Measure 37 was codified as former ORS 197.352 (2005) and was subsequently amended twice and renumbered as ORS 195.305, all in 2007. Or. Laws 2007, ch. 354, § 28; Or. Laws 2007, ch. 424, § 4.

      At the same time, in a separate action, FOYC and the Biggerstaffs sought declaratory and injunctive relief against the Board of Commissioners of Yamhill County and claimants based on the county's failure to apply ORS 215.130 and a county ordinance implementing that statute to claimants' claim under section 5(3) of Measure 49. The trial court concluded that a writ of review was the exclusive remedy and, consequently, dismissed the complaint. On appeal, we affirmed. Friends of Yamhill County v. Board of Commissioners , 278 Or. App. 472, 485, 377 P.3d 670 (2016).

      Below, in addition to addressing the merits of appellants' contention that claimants' Measure 37 waivers did not allow them to sell buildable lots, the circuit court stated that the issue "was already decided previously and upheld on review and appeal (or lack thereof) and need not be re-litigated or re-considered by the County, or this court on review." Claimants and the county do not defend that reasoning on appeal.
      The circuit court's conclusion was based on the understanding that the court's judgment in the first writ-of-review proceeding regarding this claim had been affirmed in part on appeal. However, in the first appeal, we reversed the entirety of the circuit court's judgment. Biggerstaff , 240 Or. App. at 56, 245 P.3d 688 ("Reversed and remanded."). Thus, no part of the circuit court's previous judgment remains in effect, and the doctrine of issue preclusion, which we understand to have been the basis for the court's ruling, does not apply. Nelson v. Emerald People's Utility Dist. , 318 Or. 99, 103, 862 P.2d 1293 (1993) ("Issue preclusion arises in a subsequent proceeding when an issue of ultimate fact has been determined by a valid and final determination in a prior proceeding.").

      As explained above, at this point in our analysis, we are evaluating only whether, under Measure 37, a landowner could subdivide property and sell buildable lots. We understand the circuit court, claimants, and the county to rely on the vested rights doctrine to explain why the lots that claimants created were buildable despite the fact that Measure 37 provides rights only to the present owner. Thus, in this discussion, we are addressing the idea that the vested rights doctrine, as applied under Measure 37 standing alone , allows a buyer to build on a lot purchased from a Measure 37 claimant.

      We are addressing only situations in which the claimant intends from the outset to sell lots. The analysis may be different with respect to claimants who sell or transfer the property due to unexpected circumstances.


source: Caselaw Access Project

author: ORTEGA, P. J.

license: Public Domain

text:
    STATE of Oregon, Plaintiff-Respondent, v. Amanda Deeanne COOPER, Defendant-Appellant.
    A164121 (Control) A164122
    Court of Appeals of Oregon.
    Argued and submitted September 13, 2018. July 10, 2019
    Erica Herb, Deputy Public Defender, argued the cause for appellant. Also on the briefs 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 were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
    Before Ortega, Presiding Judge, and Egan, Chief Judge, and Powers, Judge.

      Egan, C. J., vice Garrett, J. pro tempore.

   ORTEGA, P. J.

In her consolidated appeal, defendant seeks reversal of judgments revoking her probation, which were based on the trial court's determinations that she violated conditions of her probation and that the purposes of probation were not being met. On appeal, defendant asserts that the trial court abused its discretion in revoking her probation. We agree and, consequently, we reverse and remand.

The relevant facts are largely procedural and undisputed. After defendant entered guilty pleas to four felonies in two cases, she was sentenced to five years' probation. Defendant agreed to conditions of probation that required her to engage in drug and alcohol treatment as directed by her probation officer, live in clean and sober housing, and not change her address without permission from her probation officer. After defendant violated the rules of the clean and sober housing facility where she was living, her recovery mentor asked her to find other clean and sober housing facility. However, defendant was not evicted, and she continued to live in the same facility.

The state alleged that defendant violated probation by changing her address without her probation officer's permission and the special condition that requires her to reside in clean and sober housing. After a hearing, the court found that defendant had violated the conditions of her probation and that the purposes of probation were no longer being met. The court revoked defendant's probation and imposed 44 months' incarceration.

At the hearing, there was extended discussion and testimony regarding defendant's conduct in her housing placement, the substance of which we summarize here. The rules at the clean and sober housing facility required that defendant obtain permission to have a visitor stay overnight during the week. After defendant had her daughter over night without first obtaining permission, defendant's recovery mentor reiterated the house rules to her. Defendant became upset that her housemates had "snitched," which led to a "heated" discussion between defendant and her housemates. Defendant made no specific threats against anyone, but her recovery mentor put her on a behavioral plan, giving her 30 days to change her conduct. The plan required defendant to speak "nicely" to her housemates, refrain from intimidating anyone, and follow the house rules. Defendant later apologized to her housemates during a house meeting and followed her behavioral plan.

At some point, defendant's probation officer was notified about the incident that led defendant to be placed on the behavioral plan and, after a conversation with defendant, he concluded that defendant was not taking "accountability for her behavior" and that she did not see how her outburst affected her housemates. However, he was not aware that defendant had apologized to her housemates because he did not speak to her recovery mentor or anyone from the house.

Because defendant continued to have her daughter in the house without permission in violation of the house rules, defendant's recovery mentor asked defendant to find another clean and sober housing facility that would provide her with more structure. She was not given an eviction date or a deadline to find another facility. When defendant contacted another facility, the manager denied her application because he felt that defendant was "not accountable" for her actions. Shortly thereafter, defendant was arrested for violating the conditions of her probation-more specifically, the state alleged that defendant violated probation by changing her address without her probation officer's permission and the special conditions that require her to reside in clean and sober housing. However, at the time of her arrest, defendant was still living in the home and had not been evicted. In revoking probation and imposing 44 months' incarceration, the court concluded that defendant was not exhibiting accountability because she does not "follow direction" and still wants "to do what [she] want[s] to do."

On appeal, defendant contends that the record does not support the court's determination that she violated the probation condition that required her to live in clean and sober housing and that the court's determination that the purposes of probation were no longer being met was based on the court's conclusion that there had been a violation.

As to the court's first determination, the state concedes, and we agree, that the record does not show that defendant violated the condition that she remain in clean and sober housing. As to the second, we agree with defendant that the court's determination that the purposes of probation were not being met was based on its erroneous conclusion that defendant had violated the condition. Beyond that, the record reads as though the court is evaluating defendant's general character and worthiness. Consequently, the court abused its discretion in revoking defendant's probation.

We note that the record does not provide a basis on which the trial court could revoke defendant's probation. See State v. Kelemen , 296 Or. App. 184, 190-92, 437 P.3d 1225 (2019) (a trial court may revoke a defendant's felony probation based only on a determination that the defendant has violated a condition of probation or that the defendant has committed a new crime); see also OAR 213-010-0001 ("The decision to revoke probation is discretionary and may be exercised upon a finding that the offender has violated one or more of the conditions of probation, or that the offender has participated in new criminal activity."). Defendant's general character and worthiness does not provide such a basis. However, as described in Kelemen , the trial court has the authority to modify the conditions of probation ( ORS 137.540(9) ) or continue or extend probation, subject to statutory limitations and the rules of the Criminal Justice Commission ( ORS 137.545(1) ). 296 Or. App. at 192-93, 437 P.3d 1225. We therefore reverse and remand for further proceedings consistent with this opinion.

Reversed and remanded.


text:
    STATE of Oregon, Plaintiff-Respondent, v. Jeremiah Scott PARTAIN, Defendant-Appellant.
    A166131 (Control) A166132 A166133 A166134 A166135
    Court of Appeals of Oregon.
    Submitted March 6, 2019. July 10, 2019
    Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Kyle Krohn, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Timothy A. Sylwester, Assistant Attorney General, filed the brief for respondent.
    Before Ortega, Presiding Judge, and Powers, Judge, and Kistler, Senior Judge.
   ORTEGA, P. J.

Defendant appeals from violation of probation judgments that revoked his probation in five separate cases-case numbers 16CR82640, 17CR02471, 17CR07681, 17CR13280, and 17CR13282-and imposed sentencing terms. Defendant challenges only the trial court's imposition of $138 in restitution on one of the counts in case number 17CR07681 and does not challenge the judgments in the other cases. We conclude that the trial court erred in imposing restitution in that case, and, accordingly, we reverse the imposition of restitution in case number 17CR07681 and otherwise affirm.

While on probation, defendant was arrested for possession of methamphetamine, of which he was later convicted. In the five cases listed above, after defendant's arrest, the state filed motions to show cause why defendant's probation should not be revoked. The trial court granted those motions and consolidated the cases for a hearing. Separately, defendant was also charged with second-degree theft from a Walmart, case number 17CR34703, which was set for trial on the same day as the probation violation hearing. In a bench trial, the trial court convicted defendant of second-degree theft, which defendant did not admit to, having testified that he paid for $138 of merchandise. The trial court then turned to the probation violation hearing. At the conclusion of that hearing, the trial court found that defendant had violated his probation.

Before sentencing, the state made sentencing recommendations for the five probation violation cases, as well as for the second-degree theft case. With regard to the theft case, the state requested imposition of restitution payable to Walmart "to be attached to one of his cases where he'll be put on post-prison supervision." Defendant objected to the imposition of any restitution. The trial court then sentenced defendant in each of the probation violation cases. In each case, the court revoked probation and sentenced defendant to terms of incarceration and post-prison supervision. After completing sentencing in those five cases, the trial court turned to sentencing in the theft case. With regard to restitution in the theft case, the trial court stated that "I'm going to set restitution in the amount of $138. That's the amount that defendant admitted to." The trial court did not state that it would impose that restitution in a case other than the theft case itself. However, in case number 17CR07681, one of the probation violation cases, the trial court imposed $138 in restitution payable to Walmart. The judgment in case number 17CR07681 provides that, "[r]estitution is ordered from case # 17CR34703."

On appeal, defendant argues that the trial court erred in imposing restitution because the restitution was not based on the crime for which defendant was convicted in case number 17CR07681, nor was it based on conduct to which defendant had admitted. Defendant acknowledges that he did not preserve the precise challenge raised on appeal; however, he argues that he was not required to do so, because the trial court did not announce that it was imposing the restitution in case number 17CR07681, and, thus, the error appeared for the first time in the judgment. In the alternative, defendant requests that we exercise our discretion to correct the error as plain error.

In response, the state admits that "defendant is correct that a sentencing court, as a general rule, cannot impose restitution on a conviction in one case based on a loss that was incurred by a different victim as a result of a different crime committed by the defendant that is the basis for a conviction entered in a separate case." However, the state contends that defendant was required, but failed, to preserve his challenge. Additionally, the state argues that we should not exercise our discretion to correct the error under a plain error review.

We first conclude that defendant was not required to preserve the challenge that he raises on appeal because the error appeared for the first time in the judgment. State v. Lewis , 236 Or. App. 49, 52, 234 P.3d 152, rev. den. , 349 Or. 172, 243 P.3d 70 (2010). We disagree with the state's position that defendant was required to object to the state's request that the restitution be attached to one of the other cases under the circumstances presented here. First, the state did not call attention to that request or renew it after the trial court had completed sentencing in the probation violation cases before separately turning to sentencing in the theft case. Indeed, the trial court had a colloquy with defendant regarding the probation violation sentences before turning to sentencing in the theft case. Second, the trial court made no indication that it was considering, let alone intending to grant, the state's request when it expressly imposed restitution as part of the sentence for the theft case. See State v. Hillman , 293 Or. App. 231, 233, 426 P.3d 249 (2018) (concluding that defendant was not required to object to a fee that appeared in the judgment but was not announced by the court, even though the prosecutor had recommended imposition of the fee). Because the error appeared for the first time in the judgment in case number 17CR07681, defendant was not required to preserve the error for purposes of this appeal.

Turning to the merits, we agree with the parties that the trial court erred. It is error for a trial court to impose restitution in a case that is based on conduct that is not part of the crime of conviction and that the defendant did not admit to committing. State v. Howett , 184 Or. App. 352, 356, 56 P.3d 459 (2002) ("The plain import of ORS 137.106 is that, when a person is convicted of a crime, the trial court may impose restitution for damages recoverable in a civil action arising out of the facts or events constituting that crime or any other criminal conduct admitted by the defendant."); see also State v. Dorsey , 259 Or. App. 441, 445-46, 314 P.3d 331 (2013) (reversing as plain error imposition of restitution that was, based in part, on conduct that occurred outside the date range of conduct to which the defendant had admitted). Here, defendant did not admit to the conduct that formed the basis of his second-degree theft conviction in case number 17CR34703; and that conduct was not part of "the facts or events constituting" the crimes of which he was convicted in case number 17CR07681. The trial court erred when it imposed restitution as part of the judgment in case number 17CR07681.

In case number 17CR07681, restitution award reversed; remanded for resentencing; otherwise affirmed. In case numbers 16CR82640, 17CR02471, 17CR13280, and 17CR13282, affirmed.


author: LAGESEN, P. J.

text:
    Galina BURLEY, Plaintiff-Respondent, v. CLACKAMAS COUNTY, Defendant-Appellant.
    A164381
    Court of Appeals of Oregon.
    Argued and submitted May 6, 2019. July 10, 2019
    Shawn A. Lillegren argued the cause for appellant. Also on the briefs was Stephen Madkour.
    Travis Eiva, Portland, argued the cause for respondent. Also on the brief was Thomas Boothe.
    Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.
   LAGESEN, P. J.

A jury found in plaintiff's favor on her statutory whistleblower retaliation claims against her former employer, defendant Clackamas County. The main question on appeal is whether ORS 659A.199, which makes it unlawful for an "employer" to retaliate against an employee "for the reason that the employee has in good faith reported information that the employee believes is evidence of a violation of a state or federal law, rule or regulation," applies to all employers, as the trial court concluded, or only to private employers, as the county contends. In the county's view, the statute applies solely to private employers. The trial court, argues the county, was therefore wrong not to direct a verdict in its favor on plaintiff's claim under ORS 659A.199. The legislature, however, has defined the term "employer" to include public bodies for purposes of ORS chapter 659A, making the county's construction of the term untenable. The trial court, therefore, was correct. Because the county's other arguments on appeal present no basis for reversal, we affirm.

The pertinent facts are mainly procedural and not disputed. Plaintiff used to work for the county as a human services manager. She sued the county for unlawful employment practices under ORS 659A.199 and ORS 659A.203, alleging that the county unlawfully retaliated against her in violation of those statutes after she had made reports regarding the improper use of federal grant funds associated with county programs. Plaintiff also asserted a national origin-based hostile work environment claim under ORS 659A.030. At the close of plaintiff's case, the county moved for a directed verdict on the ORS 659A.199 claim on the ground that the statute applies only to private businesses and not to public employers. The trial court denied the motion. The jury ultimately found that the county engaged in retaliatory conduct that violated both ORS 659A.199 and ORS 659A.203 and awarded $386,916 in damages to plaintiff. The jury, however, found in the county's favor on the hostile work environment claim.

The county appeals. It contends that the trial court erred by submitting the ORS 659A.199 claim to the jury. Additionally, the county contends that the trial court committed multiple errors in instructing the jury on the ORS 659A.203 claim. Finally, it contends that the court abused its discretion by not striking the entire jury panel after the court made a comment to prospective jurors about the summary judgment process that, in defendant's view, impermissibly suggested that plaintiff's claims had merit.

At oral argument, the parties agreed that, were we to determine that the county was not entitled to reversal on its claim regarding the trial court's failure to strike the jury panel, then the county would have to demonstrate error with respect to both the ORS 659A.199 claim and the ORS 659A.203 claim to obtain reversal. That is because the record reflects that those claims were presented to the jury as independent, alternative theories of liability based upon the same conduct by the county. Under those circumstances, if either one went to the jury in an error-free way, then any error that may have occurred in submitting the other theory to the jury would be harmless.

Clearing the decks, we reject the county's contention that the trial court abused its discretion by not striking the jury panel. The county asserts that the court's remarks about the role of summary judgment in civil cases effectively rendered the panel actually biased against the county. We have reviewed the trial court's remarks, in context, and we see no likelihood of that. The court was within its discretion to conclude that there was no need to strike the jury panel.

Next up: Whether ORS 659A.199 applies to both private and public employers, making it correct for the trial court to deny the county's motion for a directed verdict on that claim. We review the denial of a motion for a directed verdict for legal error. Miller v. Columbia County , 282 Or. App. 348, 349, 385 P.3d 1214 (2016), rev. den. , 361 Or. 238, 391 P.3d 797 (2017). More specifically, in this particular case, whether the county was entitled to a directed verdict centers on a question of statutory construction: Does the word "employer" in ORS 659A.199 include public employers? "Statutory construction presents a question of law, which we review for legal error." State v. Hunt , 270 Or. App. 206, 210, 346 P.3d 1285 (2015) (internal citation omitted). ORS 659A.199 provides:

"(1) It is an unlawful employment practice for an employer to discharge, demote, suspend or in any manner discriminate or retaliate against an employee with regard to promotion, compensation or other terms, conditions or privileges of employment for the reason that the employee has in good faith reported information that the employee believes is evidence of a violation of a state or federal law, rule or regulation.
"(2) The remedies provided by this chapter are in addition to any common law remedy or other remedy that may be available to an employee for the conduct constituting a violation of this section."

The county's argument on appeal requires us to decide whether the word "employer," as used in the statute, means strictly private employers. In construing a statute, "[o]ur goal is to discern the intent of the legislature by examining the statutory text in context." State v. Couch , 341 Or. 610, 617, 147 P.3d 322 (2006). Where the legislature has supplied a definition for a disputed statutory term, that definition is the starting point for the analysis, as it "represents the best evidence of the legislature's intent" with respect to the scope of a particular term. Id . Although we may consult legislative history in construing a statute, "[w]hen the text of a statute is truly capable of having only one meaning, no weight can be given to legislative history that suggests-or even confirms-that legislators intended something different." State v. Gaines , 346 Or. 160, 173, 206 P.3d 1042 (2009).

Here, the legislature has made our interpretive task straightforward. It has defined the term "employer" as it is used in chapter 659A. ORS 659A.001(4)(a) provides that, for purposes of chapter 659A, " '[e]mployer' means any person who in this state, directly or through an agent, engages or uses the personal service of one or more employees, reserving the right to control the means by which such service is or will be performed." (Emphasis added.) Then, ORS 659A.001(9)(b) clarifies that " '[p]erson' includes *** [a] public body as defined in ORS 30.260." By definition, then, the word "employer," as used in ORS 659A.199, includes public bodies that employ people. Cf.

Preble v. Centennial School Dist. , 298 Or. App. 357, --- P.3d ---- (2019) (concluding that similar definition of the term "employer" for purposes of ORS chapter 656 meant that public employers were among the employers to which ORS 656.019(2)(a) applies).

That express definition, standing alone, precludes the conclusion that the legislature intended the word "employer" in ORS 659A.199 to exclude public employers. Couch , 341 Or. at 622, 147 P.3d 322 ("[t]he Court of Appeals erred in fashioning a definition for [a statutorily defined] term that deviated from the text of" the statutory definition). But even if there were more to the inquiry than simply accepting the legislature's explicit definition of the term "employer," the context of ORS 659A.199 would require the same conclusion. That context demonstrates that, when the legislature intends for a provision of ORS chapter 659A to apply to a particular subset of employers, it says so expressly. Throughout ORS chapter 659A, the legislature routinely has announced when it intends for a particular provision, or set of provisions, to apply to a limited category of those persons and entities that fall within the broad definition of employer in ORS 659A.001. The legislature did not do the same with respect to ORS 659A.199, and it is not our role to displace that legislative choice by crafting a different, specialized definition of "employer" for purposes of that provision: "In the construction of a statute, the office of the judge is simply to ascertain and declare what is, in terms or in substance, contained therein, not to insert what has been omitted, or to omit what has been inserted[.]" ORS 174.010 ; Couch , 341 Or. at 622, 147 P.3d 322.

Notwithstanding those obstacles to its proposed interpretation of ORS 659A.199, the county urges us to conclude the contrary. In support of that argument, the county points to a slew of published and unpublished decisions from the United States District Court for the District of Oregon holding or suggesting that ORS 659A.199 applies only to private employers, including Lindsey v. Clatskanie People's Utility District , 140 F. Supp. 3d 1077, 1095 (D. Or. 2015) (concluding that ORS 659A.199 does not apply to public employers because "[t]he legislative history establishes that ORS 659A.199 does not apply to public employers"); Reynolds v. City of Eugene , 937 F. Supp. 2d 1284, 1296 (D. Or. 2013) (indicating that the court was "inclined to agree" that ORS 659A.199 did not apply to public employers but that "the interpretation of a state statute is best left to a state court").

We are not bound by the decisions of the United States District Court for the District of Oregon. For that matter, we are not bound by any federal court's interpretation of an Oregon statute. Beyond that, the decisions on which the county relies do not appear to adhere to the statutory construction methodology adopted by the Oregon Supreme Court, although, under Ninth Circuit precedent, they should have. Brunozzi v. Cable Communications, Inc. , 851 F.3d 990, 998-99 (9th Cir. 2017) ("Our role when interpreting a state statute as a matter of first impression is to determine what meaning the state's highest court would give to the law. Thus, we must follow the state's rules of statutory interpretation." (Internal quotation marks and citations omitted.)). In particular, those decisions appear to turn on an analysis of legislative history, rather than statutory text and context, reflecting an underappreciation of the principle that, "[w]hen the text of a statute is truly capable of having only one meaning, no weight can be given to legislative history that suggests-or even confirms-that legislators intended something different." Gaines , 346 Or. at 173, 206 P.3d 1042.

Moreover, a review of the relevant legislative history calls into question the district court's analysis. Although the district court was correct to observe that the primary purpose of the statute was to provide protections against whistleblower retaliation to employees of private employers comparable to the protections already afforded to employees of public employers under ORS 659A.203, we have found nothing in the legislative history of ORS 659A.199 indicating that the legislature intended that ORS 659A.199 would not also apply to employees of public employers.

The county also argues that it is inferable that the legislature did not originally intend ORS 659A.199 to apply to public employers because, at the time it was enacted, ORS 659A.203(1)(b) already protected public employees against retaliation for reporting certain illegal activity. But ORS 659A.199 affords protection against retaliation for a broader range of reporting conduct than does ORS 659A.203(1)(b), the provision that applies strictly to public employers. ORS 659A.199 guards against retaliation "for the reason that the employee has in good faith reported information that the employee believes is evidence of a violation of a state or federal law, rule or regulation." By its terms, then, the provision protects good faith reports of any illegal activity and does not require that the reported activity be attributable to the employer. Thus, for example, the statute protects an employee who reports illegal conduct by a fellow employee, even if that conduct could not be deemed to be conduct of the employer itself. By contrast, ORS 659A.203(1)(b) safeguards against retaliation for reports of illegal and other inappropriate conduct by a "public or nonprofit employer ." (Emphasis added.) Given the text and context of ORS 659A.199, it is reasonable to think that, in enacting it, the legislature intended both to provide protections against retaliation to the employees of private employers and to supply additional protections to employees of public employers.

In sum, the trial court correctly concluded that ORS 659A.199 applies to public employers and, thus, did not err in denying the county's motion for a directed verdict on that claim. As explained above, because the case properly went to the jury on plaintiff's theory of liability under ORS 659A.199, we need not address whether the court erred in any respect in instructing the jury on plaintiff's claim under ORS 659A.203. Having already rejected the county's remaining assignment of error, we affirm.

Affirmed.

      ORS 659A.090(2) (specially defining "employer" for purposes of ORS 659A.090 to 659A.099 ); ORS 659A.106 (explaining that "[t]he requirements of ORS 659A.112 to 659A.139 apply only to employers who employ six or more persons" and do not apply to the Oregon National Guard); ORS 659A.150(1) and ORS 659A.153 (identifying "covered employer[s]" for purposes of ORS 659A.150 to 659A.186 ); ORS 659A.190(1) (identifying "covered employer[s]" for purposes of ORS 659A.190 to 659A.198 ); ORS 659A.200(6) (defining "public employer" for purposes of ORS 659A.200 to 659A.224 ); ORS 659A.270(1) (identifying "covered employer[s]" for purposes of ORS 659A.270 to 659A.285 ).

      We note that, subsequent to the events that gave rise to this case, the legislature amended ORS 659A.203 (2010) to specifically refer to the fact that public employees are covered by ORS 659A.199, in addition to ORS 659A.203. ORS 659A.203(3) (2017) provides that "[t]he remedies provided by this section are in addition to any remedy provided to an employee under ORS 659A.199 or other remedy that may be available to an employee for the conduct alleged as a violation of this section." Or. Laws 2016, ch. 73, § 4(3).


author: TOOKEY, J.

text:
    STATE of Oregon, Plaintiff-Appellant, v. Lucas Craig BROWN, Defendant-Respondent.
    A167046
    Court of Appeals of Oregon.
    Argued and submitted May 31, 2019. August 7, 2019
    Patrick M. Ebbett, Assistant Attorney General, argued the cause for appellant. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
    Rond Chananudech, Deputy Public Defender, argued the cause for respondent. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.
    Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.
   TOOKEY, J.

The state appeals from a trial court order suppressing evidence acquired by a sheriff's deputy after the deputy stopped defendant. On appeal, the state contends that the trial court erred when it concluded that the deputy lacked reasonable suspicion that defendant had committed a crime. For the reasons that follow, we reverse and remand.

I. STANDARD OF REVIEW

"We review a trial court's [ruling on] a motion to suppress for legal error." State v. Fuller , 296 Or. App. 425, 426, 438 P.3d 431 (2019) (citing State v. Maciel-Figueroa , 361 Or. 163, 165, 389 P.3d 1121 (2017) ). "We are bound by the court's factual findings if there is constitutionally sufficient evidence in the record to support them." Id. "If the court did not enter express findings and there is 'evidence from which the trial court could have found a fact in more than one way, we will presume that the trial court decided the facts consistently' with its ultimate legal conclusion." Id. (quoting Maciel-Figueroa , 361 Or. at 166, 389 P.3d 1121 ).

II. HISTORICAL AND PROCEDURAL FACTS

At 12:48 a.m., Deputy Waterbury responded to a report from dispatch. A named caller had reported a car prowl near a house on Southwest Alexander Street in Aloha, Oregon. Waterbury learned from the dispatcher that a caller had seen a man in her vehicle "going through things." The caller described the suspect as a "white male in [his] 30s with long brown hair, and a beard." The caller also reported that the suspect was wearing a red hat and shorts. Dispatch advised Waterbury that the caller had seen the suspect walk away from her car and toward a vehicle, and that the vehicle then "took off."

Three minutes later, at 12:51 a.m., as Waterbury drove toward the location of the car prowl, he saw defendant just around the corner from the caller's address. Defendant was approximately a block away from the location of the car prowl and was the only person Waterbury saw on the street at that time. Waterbury pulled over, turned off his headlights, and walked over to defendant, who was smoking a cigarette next to a parked car. Waterbury testified that he believed that defendant matched the caller's description of the car prowler: "He was white, approximately 30s, beard, and long brown hair." Waterbury did not recall whether defendant was wearing a hat at the time of the stop and did not testify regarding whether defendant was wearing shorts.

After approaching defendant, Waterbury identified himself and asked defendant "what he was doing there." Defendant responded that he was "just relaxing, having a smoke." After further conversation, Waterbury asked defendant for his identification. After defendant gave the identification to Waterbury, defendant asked Waterbury what "this was all about," and Waterbury told defendant that he matched the description of a suspect who had broken into a car.

After some additional conversation between defendant and Waterbury, defendant said "he wanted to be honest," and told Waterbury that he "went into someone's car" that night. Subsequently, defendant was arrested and charged with, among other offenses, one count of unlawful entry into a motor vehicle, ORS 164.272.

Before trial, defendant moved to suppress evidence, relying on Article I, section 9, of the Oregon Constitution, arguing that he had been unlawfully seized by Waterbury. Defendant sought suppression of all evidence that resulted from the purported unlawful seizure. The trial court first determined that defendant was "stopped" by Waterbury when Waterbury (1) asked defendant for defendant's identification, (2) stated that defendant matched the description of a person who had committed a crime, and (3) stated that he was investigating that crime. It next found that Waterbury, at the time that he stopped defendant, had a subjective belief that defendant had committed the reported crime, but concluded that Waterbury's suspicion was not objectively reasonable. Because it concluded that Waterbury's suspicion was not objectively reasonable, it granted defendant's motion.

III. ANALYSIS

Under Article I, section 9, a "stop" is "the kind of seizure of a person that is a temporary detention for investigatory purposes." Maciel-Figueroa , 361 Or. at 169-70, 389 P.3d 1121. In Maciel-Figueroa , the Supreme Court explained:

"For police officers to make a stop, they must reasonably suspect-based on specific and articulable facts-that the person committed a specific crime or type of crime or was about to commit a specific crime or type of crime. For a court to determine that an investigative stop was lawful under Article I, section 9, the court (1) must find that the officers actually suspected that the stopped person had committed a specific crime or type of crime, or was about to commit a specific crime or type of crime, and (2) must conclude, based on the record, that the officers' subjective belief-their suspicion-was objectively reasonable under the totality of the circumstances existing at the time of the stop."

Id. at 182, 389 P.3d 1121.

On appeal, neither party disputes the trial court's determination that a stop occurred when Waterbury asked defendant for his identification, stated that defendant matched the description of a person who had committed a crime, and stated that he was investigating that crime. Nor does either party dispute the trial court's finding that, at the time of the stop in this case, Waterbury had a subjective belief that defendant had committed a specific crime-viz. , unlawful entry into a motor vehicle. The sole issue on which the parties disagree relates to the trial court's conclusion that Waterbury's suspicion that defendant had committed unlawful entry into a motor vehicle was not objectively reasonable under the totality of the circumstances existing at the time of the stop.

" '[T]he established standard for reasonable suspicion supporting an investigatory stop of a defendant is met when an officer can point to specific and articulable facts that give rise to a reasonable inference that the defendant committed or was about to commit a specific crime or type of crime.' " Fuller , 296 Or. App. at 428-29, 438 P.3d 431 (quoting Maciel-Figueroa , 361 Or. at 165, 389 P.3d 1121 ). "The articulated facts need not support certainty that a suspect is engaged in criminal activity; rather, based on those specific facts, 'a reviewing court must [be able to] conclude that the officer's subjective belief could be true, as a matter of logic.' " Id. at 429, 438 P.3d 431 (quoting Maciel-Figueroa , 361 Or. at 184, 389 P.3d 1121 ; brackets and first emphasis in Fuller ; second emphasis in Maciel-Figueroa ). Reasonable suspicion, as we have previously observed, "is a relatively low barrier," State v. Braukman , 246 Or. App. 123, 127, 265 P.3d 28 (2011), rev. den. , 351 Or. 675, 276 P.3d 1123 (2012), and is "a less demanding standard than probable cause," State v. Hames , 223 Or. App. 624, 628, 196 P.3d 88 (2008). Further, "[t]he possibility that there may be a non-criminal explanation for the facts observed or that the officer's suspicion will turn out to be wrong does not defeat the reasonableness of the suspicion." Braukman , 246 Or. App. at 127, 265 P.3d 28 (internal quotation marks and citation omitted).

In analyzing this issue, two cases cited by the parties are particularly instructive: State v. Blackstone , 289 Or. App. 421, 410 P.3d 354 (2017), and State v. Nguyen , 176 Or. App. 258, 31 P.3d 489 (2001).

In Blackstone , at around 1:40 a.m., an officer saw two men on Coburg Road in Eugene, Oregon, carrying pillowcases that appeared to be full of objects. 289 Or. App. at 423-24, 410 P.3d 354. Upon seeing the officer, they sprinted away. Id. at 424, 410 P.3d 354. Though no crimes had been reported, the officer suspected a "possible burglary" and radioed other officers to assist in setting up a perimeter. Id. As pertinent to our analysis here, the officer described one of the suspects as a white male in his "late teens or early 20s" and wearing a "darker jacket or hoody." Id.

Thirty minutes later, at 2:14 a.m., different officers saw the defendant riding a bicycle down Elysium Street toward Coburg Road "directly toward their patrol car," which was parked about a block away from where the suspects were seen. Id. One of the officers thought that the defendant "vaguely matched the description" of the suspect described above because he was "a white male, [who] looked at a distance at night like he was in his 20s, and was wearing dark clothing." Id. (internal quotation marks omitted). After stopping the defendant, the officer discovered contraband. Id. at 425, 410 P.3d 354.

The defendant subsequently moved to suppress the evidence, arguing, among other points, that the officer did not have reasonable suspicion to stop him for burglary. Id. The trial court denied defendant's motion. Id. at 426, 410 P.3d 354.

On appeal, we noted that "[p]utting on evidence that defendant is a white male, who may or may not have matched the age range of the suspect, and who may or may not have been wearing a dark jacket or hoodie, is insufficient to establish objective reasonable suspicion that defendant had committed burglary." Id. at 433, 410 P.3d 354. We then concluded that the state had failed to prove that the officer's "suspicion that defendant had committed burglary was objectively reasonable." Id. We so concluded for four principal reasons:

"First, * * * [the officer] had heard only a minimal physical description of the * * *
young male over the radio, and defendant matched even that description only 'vaguely' and 'from a distance.' Second, it was apparent to [the officer] that defendant did not match the * * * young male's overall description in several regards. He was not carrying a pillowcase or anything suspicious. He was alone, not with another young white male. He was on a bicycle, not on foot. Third, [the officer] did not know whether anyone had committed a crime. No one had witnessed or reported a burglary. While [the original officer] may have viewed the two young males' conduct as suspicious, the police's uncertainty whether any crime had actually been committed is part of the totality of circumstances as far as the likelihood that anyone, let alone defendant, had committed a burglary. Fourth, defendant rode his bicycle directly toward a police car with two officers sitting inside it. That is the exact opposite of the behavior of the two young males-sprinting away at the sight of a police car-and facially inconsistent with a desire to evade contact with the police."

Id. at 433-34, 410 P.3d 354 (emphasis in original).

Additionally, we explained that the fact "that police encountered defendant only a block from where [the original officer] had seen the two young males certainly has some relevance, given the existence of the perimeter," but that "mere proximity to a public sidewalk where someone suspicious was seen running a half hour earlier is not enough to detain citizens at large," and observed that "Coburg Road is a sizable road with businesses up and down it." Id. at 433, 410 P.3d 354. We further explained that "generally speaking, subject to specific circumstances, encountering someone a few blocks from a crime scene a few minutes after a crime occurred is the type of proximity fact that is inherently significant, whereas seeing someone in a public place that a suspicious person ran through a half hour earlier has less inherent significance." Id. We also noted that the late hour the defendant was stopped was a "relevant circumstance," but that "the hour alone [was] not enough to tip the scales [in favor of the state] in this case." Id.

Conversely, in Nguyen , around 2:51 a.m., a caller telephoned police to report a "car prowl" in progress at an apartment complex on 180th Avenue in Aloha, Oregon, describing the suspects as "two 20- to 25-year-old males with dark hair, and wearing dark clothing." 176 Or. App. at 260, 31 P.3d 489. A nearby officer responded and was informed by dispatch that the suspects were traveling on foot from the location of the crime toward 180th Avenue. Id. The officer arrived at the scene two minutes later, with his headlights off, and saw a car pull away from the shoulder of 180th Avenue across from the apartments. Id. The officer turned his headlights on and began following the car, which "apparently startled defendant and his companion," causing them to "stiffen[ ] up." Id. The defendant then made an "exceptionally slow turn onto another road," which the officer described as "not anything remotely close to being normal." Id. (internal quotation marks omitted). There were no other pedestrians or vehicles on the road at that time. Id. The officer subsequently stopped the defendant, and the defendant was charged with a crime. Id. at 261, 31 P.3d 489.

At trial, the defendant moved to suppress the evidence that was obtained as a result of the stop, arguing that the officer "did not have reasonable suspicion for the stop." Id. The trial court granted the defendant's motion, "finding that [the officer] had a subjective belief that defendant had committed the reported crime," but concluding that "his belief was not objectively reasonable." Id. To support that finding and conclusion, the trial court found the following facts:

"[T]here were numerous apartments and homes in the neighborhood. The Court finds it was dark on the evening in question. The Court finds [the officer] did not get a good look at the vehicle's occupants. The Court finds [the officer] based his stop on the description of two young males, 20-25, with dark hair and dark clothes. However, the Court finds [the officer] could not have been able to tell whether the occupants were wearing dark clothing or whether they were male or female. The Court finds that the startled appearance of the suspects was not unusual under the circumstances. The Court finds the suspects were the only individuals on the road at that time."

Id. at 262, 31 P.3d 489 (first brackets in original; internal quotation marks omitted).

The state appealed, and we reversed and remanded, concluding "the standard for reasonable suspicion was satisfied." Id. at 260, 264, 267, 31 P.3d 489. We so concluded because,

"[the officer] knew that criminal activity was occurring when he was notified that a named citizen informant had reported a car prowl. He knew that the witness had given a description of the suspects and indicated that they were heading across the apartment parking lot toward SW 180th Avenue. [The officer] arrived two minutes later at the location of the reported car break-in and saw two persons in a car on 180th Avenue across from the parking lot. This was a residential neighborhood, and it was around 3:00 a.m. [The officer] stated that there were no other persons or vehicles on the road. As he arrived at the location, the headlights of a car had just been turned on, and the car was leaving the scene. When [the officer] began following defendant's vehicle and illuminated his patrol car's headlights, the occupants of the suspect vehicle appeared startled, and the driver of the vehicle, defendant, made an unusually slow turn."

Id. at 263, 31 P.3d 489.

Turning to the instant case, considering the totality of the circumstances existing at the time of the stop, we conclude that Waterbury's suspicion that defendant had committed unlawful entry into a motor vehicle was objectively reasonable. Four considerations lead us to that conclusion.

First, with regard to physical appearance, much of defendant's appearance matched the reported physical characteristics of the suspect: defendant was a white male, approximately in his 30s, with a beard and long brown hair. Defendant contends that this case is similar to Blackstone , but in this case, because the caller identified the suspect's hair color and hair style, the description of the suspect was less "generic" than the description of the suspect in Blackstone. 289 Or. App. at 432, 410 P.3d 354 (noting the description of the suspect was "fairly generic" where, among other things, it did "not include the suspect's * * * hair color, or hairstyle"). Additionally, unlike in Blackstone , where the defendant "may or may not have matched the age range of the suspect," id. at 433, 410 P.3d 354, in this case, the defendant did match the age range of the suspect. And, in regard to clothing, although Waterbury could not recall whether defendant was wearing a hat, that is not dispositive given the other facts in this case. Compare State v. Richards , 57 Or. App. 140, 144, 643 P.2d 1348 (1982) (explaining that facts that the defendant had a beard and was missing a stocking cap, which differed from the description of the suspect, were not "significant" in assessing reasonable suspicion, given the defendant's closeness to the suspect's description in "all other respects and his proximity in time and place to the crime"), with Blackstone , 289 Or. App. at 423-24, 433, 410 P.3d 354 (officer's suspicion not objectively reasonable where numerous differences existed between the overall description of the suspect and the defendant, including that the suspect was described as walking with another individual and holding a pillow case, but the defendant was on a bike, alone, and without a pillow case).

Second, unlike in Blackstone , where police had "uncertainty whether any crime had actually been committed," 289 Or. App. at 434, 410 P.3d 354, in this case, like the officer in Nguyen , Waterbury "knew that criminal activity was occurring when he was notified that * * * [an] informant had reported a car prowl," 176 Or. App. at 263, 31 P.3d 489. A "report of criminal activity is a relevant factor to the determination of whether reasonable suspicion exists." State v. Ricks , 166 Or. App. 436, 440, 998 P.2d 234, adh'd to as modified on recons. , 168 Or. App. 552, 7 P.3d 675, rev. den. , 331 Or. 429, 26 P.3d 148 (2000).

Third, Waterbury spotted defendant three minutes after Waterbury was dispatched, around the corner from where the car prowl had occurred, approximately one block away. As noted in Blackstone , "encountering someone a few blocks from a crime scene a few minutes after a crime occurred is the type of proximity fact that is inherently significant." 289 Or. App. at 433, 410 P.3d 354. Defendant contends that, "given the caller's description that the suspect drove away," "defendant's proximity to the crime scene was not reasonably suspicious." We disagree. It is reasonable to infer that the car prowler might not have fled the area, given that there was no indication that the car prowler was aware that law enforcement had been contacted.

Fourth, when defendant was stopped it was 12:51 a.m.-which, as noted above, was just three minutes after Waterbury was dispatched-and defendant was the only person Waterbury saw in the area of the reported crime. While it is "not unlawful to be out late at night," those facts are relevant to our analysis, and support the conclusion that Waterbury's suspicion was objectively reasonable. See id. at 433, 410 P.3d 354 (noting "the late hour" is "definitely a relevant circumstance"); Nguyen , 176 Or. App. at 263, 31 P.3d 489 (in assessing whether an officer's suspicion was objectively reasonable, noting that "there were no other persons or vehicles on the road" and that the officer arrived at the location "two minutes" after a car break-in was reported).

In light of all of those considerations, we conclude that Waterbury's suspicion that defendant had committed unlawful entry into a motor vehicle was objectively reasonable under the totality of the circumstances existing at the time of the stop. Consequently, we reverse and remand.

Reversed and remanded.

      Article I, section 9, provides, in part:
      "No law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure * * *."

      Although Richards analyzed reasonable suspicion under the statutes authorizing criminal investigative stops, ORS 131.615 and ORS 131.605, 57 Or. App. at 143, 643 P.2d 1348, our analysis in Richards is relevant in analyzing the reasonable-suspicion standard that applies in cases challenging the constitutionality of a stop under Article I, section 9. See Maciel-Figueroa , 361 Or. at 171-72, 389 P.3d 1121 ("[A]s appropriate, this court will borrow from its decisions applying the reasonable-suspicion standard contained in the statutes authorizing criminal investigative stops, ORS 131.615 and ORS 131.605(6), when analyzing the reasonable-suspicion standard that applies in cases challenging the constitutionality of a stop under Article I, section 9." (Footnote omitted.)).

      Defendant also contends that Waterbury's suspicion was not objectively reasonable because "defendant's demeanor was at odds with the behavior expected of a suspect who just committed a crime": He "did not run away or attempt to evade Waterbury." Although we agree that a defendant's "suspicious behavior * * * [is an] appropriate factor[ ] to consider along with other evidence" in evaluating whether an officer's suspicion is objectively reasonable, State v. Worthington , 265 Or. App. 368, 372, 335 P.3d 348 (2014), rev. den. , 356 Or. 837, 346 P.3d 496, rev. den. , 357 Or. 300, 353 P.3d 595 (2015), even accepting that defendant's demeanor was at odds with the behavior expected of a suspect who just committed a crime, given the other facts present in this case, that fact is not dispositive.


text:
    EVERETT, Ronald Alan v. AMSBERRY
    A165441
    Court of Appeals of Oregon.
    June 5, 2019
    Affirmed without opinion.


text:
    FUENTES-RAMOS, Rogelio v. BOWSER
    A166014
    Court of Appeals of Oregon.
    June 5, 2019
    Affirmed without opinion.


text:
    In the MATTER OF A. C, a Child.
    Department of Human Services v. C. S. C. et al.
    A169631
    Court of Appeals of Oregon.
    June 5, 2019
    Affirmed without opinion.


text:
    In the MATTER OF A. D. S., a Child.
    Department of Human Services v. H. S.
    A169535
    Court of Appeals of Oregon.
    June 5, 2019
    Affirmed without opinion.


text:
    In the MATTER OF E. C., a Person Alleged to have Mental Illness.
    State v. E. C.
    A168136
    Court of Appeals of Oregon.
    June 5, 2019
    Affirmed without opinion.


text:
    In the MATTER OF K. J. L., a Youth.
    State v. K. J. L.
    A166638
    Court of Appeals of Oregon.
    June 5, 2019
    Affirmed without opinion.


text:
    In the MATTER OF K. L. D. W., a Child.
    Department of Human Services v. S. K. W.
    A169388
    Court of Appeals of Oregon.
    June 5, 2019
    Affirmed without opinion.


text:
    In the MATTER OF R. L. D., a Person Alleged to have Mental Illness.
    State v. R. L. D.
    A168860
    Court of Appeals of Oregon.
    June 5, 2019
    Affirmed without opinion.


text:
    In the MATTER OF the MARRIAGE OF HARRISON and Harrison
    A164280
    Court of Appeals of Oregon.
    June 5, 2019
    Affirmed without opinion.


text:
    MILK CREEK FOREST PRODUCTS LLC v. MID-WILLAMETTE PRE-CUT INC.
    A166984
    Court of Appeals of Oregon.
    June 5, 2019
    Affirmed without opinion.


text:
    STATE v. KENT, Lawaun Terrell James, aka Kent, Lawaun Terrell
    A165179
    Court of Appeals of Oregon.
    June 5, 2019
    Affirmed without opinion.


text:
    STATE v. LINK, Justin Alan
    A166886
    Court of Appeals of Oregon.
    June 5, 2019
    Affirmed without opinion.


text:
    STATE v. MAY, Wade Lee
    A166651
    Court of Appeals of Oregon.
    June 5, 2019
    Affirmed without opinion.


text:
    STATE v. MCLEOD, Stephanie
    A165493
    Court of Appeals of Oregon.
    June 5, 2019
    Affirmed without opinion.


text:
    STATE v. RIFE, Taggart M.
    A166087
    Court of Appeals of Oregon.
    June 5, 2019
    Affirmed without opinion.


text:
    STEELE v. AVILA, aka Garcia, aka Ramirez/Avila, aka Gutierrez, aka Ramirez
    A168276
    Court of Appeals of Oregon.
    June 5, 2019
    Affirmed without opinion.


text:
    VENECIA, Jose v. BOWSER
    A165975
    Court of Appeals of Oregon.
    June 5, 2019
    Affirmed without opinion.


author: PER CURIAM

text:
    In the MATTER OF W. M., a Person Alleged to have Intellectual Disabilities.
    State of Oregon, Respondent, v. W. M., Appellant.
    A169781
    Court of Appeals of Oregon.
    Submitted July 5, 2019. August 21, 2019
    Alexander C. Cambier and Multnomah Defenders, Inc., filed the brief for appellant.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Peenesh Shah, Assistant Attorney General, filed the brief for respondent.
    Before Hadlock, Presiding Judge, and DeHoog, Judge, and Mooney, Judge.
   PER CURIAM

Appellant seeks reversal of a judgment committing him to the Department of [Multnomah] County Human Services for a period not to exceed one year. He contends that the trial court erred in finding that, due to an intellectual disability, appellant was a danger to others. See ORS 427.215 ; ORS 427.005(10). The state concedes that the record does not include clear and convincing evidence that appellant's intellectual disability caused him to be a danger to others at the time of the commitment hearing. We agree, accept the state's concession, and reverse the judgment of commitment.

Reversed.


text:
    In the MATTER OF M. E. S., a Child.
    Department of Human Services, Petitioner-Respondent, v. J. C. S., SR., Appellant.
    In the Matter of H. A. S., a Child.
    Department of Human Services, Petitioner-Respondent, v. J. C. S., SR., Appellant.
    In the Matter of J. M. S., a Child.
    Department of Human Services, Petitioner-Respondent, v. J. C. S., SR., Appellant.
    In the Matter of A. L. S., a Child.
    Department of Human Services, Petitioner-Respondent, v. J. C. S., SR., Appellant.
    A169798 (Control) A169799 A169800 A169807
    Court of Appeals of Oregon.
    Argued and submitted July 17, 2019. August 21, 2019
    Kenneth A. Kreuscher argued the cause and filed the brief for appellant.
    Colm Moore argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
    Before DeHoog, Presiding Judge, and Egan, Chief Judge, and Lagesen, Judge.
   PER CURIAM

Father appeals judgments terminating his parental rights to his four children, M, H, A, and J, on the basis of extreme conduct, ORS 419B.502, and for reasons of unfitness, ORS 419B.504. He raises three assignments of error. In his first two assignments, father contends that the termination proceedings violated his federal due process rights in two respects. We are not persuaded. "Due process is flexible and calls for such procedural protections as the particular situation demands." Mathews v. Eldridge , 424 U.S. 319, 334, 96 S. Ct. 893, 47 L.Ed. 2d 18 (1976) (internal quotation marks and brackets omitted). In the termination of parental rights, due process requires that parents be provided with "fundamentally fair" procedures. State ex rel Juv. Dept. v. Geist , 310 Or. 176, 187, 796 P.2d 1193 (1990) (internal quotation marks omitted); see also id. at 189-90, 796 P.2d 1193 (noting that "[t]he essence of fundamental fairness is the opportunity to be heard at a meaningful time and in a meaningful manner"). Here, father has not demonstrated that-in his particular circumstances-he was deprived of due process either, as he contends, because he did not have adequate notice of the allegations that formed the basis for the termination of his parental rights or because he was denied a meaningful opportunity to respond to them. Accordingly, we reject those assignments of error.

In his third assignment of error, father challenges the juvenile court's decision on the merits; specifically, he contends that the juvenile court erred in ruling that there was clear and convincing evidence to terminate his parental rights under either ORS 419B.502 or ORS 419B.504. A detailed discussion of the evidence in the record in this case would not benefit the bench, bar, or public. Suffice it to say that, on de novo review, ORS 19.415(3)(a), we conclude that the record contains clear and convincing evidence that father has not ameliorated the conditions that gave rise to the previous involuntary terminations of his parental rights to other children and, therefore, that termination of father's parental rights is warranted under ORS 419B.502(6). We further conclude that the record contains clear and convincing evidence that (1) father has engaged in conduct or is characterized by a condition that is seriously detrimental to the children; (2) integration of the children into father's care is improbable within a reasonable time because father's conduct and conditions are unlikely to change; and (3) termination is in the best interests of the children. ORS 419B.500 ; ORS 419B.504 ; State ex rel. SOSCF v Stillman , 333 Or. 135, 145-46, 36 P.3d 490 (2001). Accordingly, the juvenile court also did not err in terminating father's parental rights for reasons of unfitness under ORS 419B.504.

Affirmed.