source: Caselaw Access Project

author: SHORR, J.

license: Public Domain

text:
    Laura Cooper FENIMORE, an individual, Plaintiff-Appellant, v. BLACHLY-LANE COUNTY C.E.A., an Oregon cooperative, and Cliff Kelley, an individual, Defendants-Respondents.
    A165225
    Court of Appeals of Oregon.
    Argued and submitted September 10, 2018. April 10, 2019
    Laura Cooper Fenimore argued the cause and filed the briefs pro se.
    Matthew J. Kalmanson, Portland, argued the cause for respondents. Also on the brief was Hart Wagner LLP.
    Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.
   SHORR, J.

Plaintiff, an individual who has a disability and is wheelchair dependent, sued defendants, a private electrical cooperative (the cooperative) and its president and chairman of the board of directors, under ORS 659A.142(4). That statute prohibits places of public accommodation from discriminating against customers or patrons who are individuals with disabilities. Plaintiff sought damages and injunctive relief after she was unable to attend a board meeting of the cooperative that was scheduled to be held in a conference room that was not wheelchair accessible. The trial court granted summary judgment in defendants' favor. For the reasons explained below, we conclude that plaintiff cannot sustain a claim for damages under ORS 659A.142(4) against defendants. We also conclude that plaintiff's claim for injunctive relief is now moot. Accordingly, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

The relevant factual background is undisputed. Defendant Blachly-Lane County C.E.A. is a private electric cooperative that provides electric power exclusively to its members within a defined service area. To become a member of the cooperative, a person must live or operate a business within the service area, pay a membership fee, agree to purchase electric energy for their home or place of business exclusively from the cooperative, grant certain easements or rights-of-way to the cooperative, and abide by other requirements in the cooperative's bylaws. Potential members must apply for membership, at which point the board of directors will review the application and accept or reject the applicant. The cooperative holds a monthly meeting of the board of directors. Members may attend and participate in those meetings during the "member comment" period. Nonmembers are not permitted to attend the meetings except as the guest of a member and may not participate in the meetings except as an observer.

Plaintiff does not reside or work in the cooperative's service area, and, therefore, is not eligible for membership in the cooperative, cannot purchase electric energy or receive related services from the cooperative, and is not permitted to attend board meetings except as a nonparticipating guest. In 2015, plaintiff was invited to attend an upcoming board meeting by the Lemlers, friends of plaintiff and members of the cooperative. Wayne Lemler was considering running for a seat on the cooperative's board of directors, but he had concerns regarding the cooperative's financial practices. The Lemlers hoped that plaintiff, who is an attorney and has a background in forensic accounting, could provide them with advice based on her observations of the board meeting.

When plaintiff and the Lemlers arrived at the cooperative's headquarters for the meeting, they learned that the meeting would be held in a second-floor conference room, which was not wheelchair accessible. Plaintiff, who depends on a wheelchair for mobility, requested that the meeting be moved to a location on the ground floor so that she could attend in person. Various representatives of the cooperative refused to relocate the meeting and instead offered telephonic access on the ground floor. Plaintiff insisted that she was allowed to attend the meeting in person and that, by excluding her, the cooperative was violating laws that protect individuals with disabilities. Ultimately, rather than proceed or relocate, the cooperative cancelled the meeting.

Shortly thereafter, plaintiff filed a formal complaint against defendants with the Bureau of Labor and Industries (BOLI), alleging that defendants had violated ORS 659A.142(4). Under that statute,

"[i]t is an unlawful practice for any place of public accommodation, resort or amusement as defined in ORS 659A.400, or any person acting on behalf of such place, to make any distinction, discrimination or restriction because a customer or patron is an individual with a disability."

BOLI investigated and issued a Notice of Substantial Evidence. Specifically, BOLI found that there was "substantial evidence" that defendants had "violated ORS 659A.142 in making a restriction based on Complainant's disability" based on the fact that defendants had offered plaintiff only "physically segregated" access to the meetings and defendants' failure to provide BOLI with a "compelling reason to believe that relocating the meeting *** would have resulted in a significant difficulty or expense." Although BOLI concluded that the cooperative is a place of public accommodation and plaintiff is an individual with a disability, it does not appear that BOLI considered whether plaintiff was, in fact, an aggrieved party under ORS 659A.142(4), that is, whether she was a "customer or patron" of the cooperative. Subsequent efforts at conciliation between plaintiff and defendants failed. At that point, BOLI chose not to bring formal charges against defendants and closed the case.

After the close of her BOLI case, plaintiff brought her civil action against defendants, in which she alleged that she was "denied public accommodation due to her disability" in violation of ORS 659A.142(4). Plaintiff sought damages for emotional distress and requested injunctive relief in the form of a "decree" requiring that the cooperative hold future board meetings in an "accessible location."

Defendants moved for summary judgment, arguing that plaintiff lacked standing to pursue her claims against defendants. The trial court granted defendants' motion, and plaintiff appealed. We review a trial court's grant of summary judgment for legal error, and we will affirm if there are no genuine issues as to any material fact and the moving party is entitled to judgment as a matter of law. Balzer v. Moore , 293 Or. App. 157, 159, 427 P.3d 193 (2018). In determining whether the court erred in granting summary judgment, "we view the facts and all reasonable inferences that may be drawn from them in the light most favorable to the nonmoving party-in this case, plaintiff." Eads v. Borman , 234 Or. App. 324, 326, 227 P.3d 826 (2010).

II. PLAINTIFF'S CLAIM FOR DAMAGES

As described, plaintiff brought an action for money damages against defendants under ORS 659A.142(4), in which she alleged that defendants had unlawfully discriminated against her on the basis of her disability. Under ORS 659A.142(4),

"[i]t is an unlawful practice for any place of public accommodation, resort or amusement as defined in ORS 659A.400, or any person acting on behalf of such place, to make any distinction, discrimination or restriction because a customer or patron is an individual with a disability."

"Public accommodation," means, in relevant part, "any place or service offering to the public accommodations, advantages, facilities or privileges whether in the nature of goods, services, lodgings, amusements, transportation or otherwise." ORS 659A.400(1)(a).

Defendants argued at summary judgment that plaintiff lacked standing to bring her claim under ORS 659A.142(4) because the cooperative is not a place of public accommodation and because plaintiff did not suffer any actionable harm. The summary judgment hearing consisted only of those same arguments. The trial court did not rule at the hearing, and its subsequent order granting defendants' motion did not explain the basis for its ruling. But, to the extent that the trial court granted defendants' motion because it concluded that plaintiff lacked standing to bring her claim-and we have no basis to conclude that the court ruled as it did for some other reason-the court erred.

In Eckles v. State of Oregon, 306 Or. 380, 760 P.2d 846 (1988), the Supreme Court provided the following explanation of standing:

"[T]wo distinct concepts of standing must be distinguished. Ordinarily, 'standing' means the right to obtain an adjudication. It is thus logically considered prior to consideration of the merits of a claim. To say that a plaintiff has 'no standing' is to say that the plaintiff has no right to have a tribunal decide a claim under the law defining the requested relief, regardless whether another plaintiff has any such right. When this court has used the term 'standing,' the term has for the most part been used in this sense. ***
"In contrast, 'standing' is also sometimes used to refer to the existence of a substantive personal right. Used in this sense, 'standing' is concerned with the merits of a claim. To say that a plaintiff has 'no standing' is to say that no right of the plaintiff was violated, regardless whether the conduct of a defendant was in general unlawful or unlawful as to some other person. This use of 'standing' should be avoided because it easily confuses the right to obtain an adjudication of a claim for relief with the right to obtain the relief itself."

Id. at 383-84, 760 P.2d 846 ; see also MAN Aktiengesellschaft v. DaimlerChrysler AG , 218 Or. App. 117, 121, 179 P.3d 675 (2008) ("The decisive issue for standing * * * is not whether a party's claims are correct but whether the party may obtain a judicial determination of their correctness.").

Plaintiff in this case had standing to seek a judicial determination of her claims. Under ORS 659A.885(1), "any person claiming to be aggrieved by an unlawful practice" under a number of statutes, including ORS 659A.142(4), may file a civil suit seeking injunctive relief and compensatory damages. (Emphasis added.) Here, plaintiff claimed that the cooperative unlawfully discriminated against her on the basis of her disability when it excluded her from in-person attendance at its board meeting. That is all that is required for plaintiff to have standing under ORS 659A.885. Whether the cooperative is a place of public accommodation and whether plaintiff was actually aggrieved by the violation of a substantive right that the legislature had conferred upon her are issues that relate, here, to the merits of plaintiff's claim. Whatever the merits of plaintiff's claim, the legislature has conferred broad standing to "any person" who "claim[s] to be aggrieved" by an unlawful discriminatory practice defined in ORS 659A.142(4), among other statutes. ORS 659A.885(1).

Although the trial court erred by granting defendants' motion for summary judgment based on an erroneous conception of standing, defendants present a slightly different basis for affirmance on appeal. Defendants argue that plaintiff lacks standing because ORS 659A.142(4) prohibits discrimination only against individuals with disabilities who are "customers" or "patrons" of a place of public accommodation, and plaintiff was neither a customer nor a patron of the cooperative. As described, plaintiff has standing to pursue her claims. However, if the record confirms that plaintiff was, in fact, not at any relevant time an actual or even potential "customer or patron" of the cooperative based on a correct interpretation of those statutory terms, her claim for damages would still fail as a matter of law, and summary judgment would still be appropriate. Although the standing argument cannot succeed, framed slightly differently, defendant's argument may lead to the conclusion that plaintiff cannot prove a necessary element of her claim-that she is an actual or potential "customer or patron" of defendants' under ORS 659A.142(4).

We begin with an analysis of ORS 659A.142(4) to determine the legislature's intention when it established that places of public accommodation may not discriminate against "a customer or patron who is an individual with a disability" on the basis of that disability. In light of our interpretation, we then conclude that it is appropriate to affirm the trial court's order granting summary judgment to defendants on the alternative basis described above. See Outdoor Media Dimensions, Inc. v. State of Oregon , 331 Or. 634, 659-60, 20 P.3d 180 (2001) (describing alternative basis review).

A. Interpretation of ORS 659A.142(4)

When interpreting a statute, we examine the text and statutory context, as well as the legislative history to the extent that it is helpful, to discern the legislature's intention in enacting the statute. State v. Gaines , 346 Or. 160, 171-72, 206 P.3d 1042 (2009).

1. Text of ORS 659A.142(4)

We begin with the text. As described, ORS 659A.142(4) prohibits places of public accommodation from discriminating against a "customer or patron" because he or she is an individual with a disability. The statute does not define the words "customer" or "patron." However, there is no indication that the legislature intended those words to mean something different from their "plain, natural, and ordinary meaning," and so we look to dictionaries in use at the time the statute was enacted to determine their "ordinary meaning." See Comcast Corp. v. Dept. of Rev. , 356 Or. 282, 295-96, 337 P.3d 768 (2014).

In 1973, the legislature first enacted the prohibition on discrimination by a place of public accommodation against a "customer or patron" on the basis of a disability. See Or. Laws 1973, ch. 660, § 7. Contemporaneous definitions of "customer" include "one that purchases some commodity or service," and "one that patronizes or uses the services (as of a library, restaurant, or theater) : CLIENT ." Webster's Third New Int'l Dictionary 559 (unabridged ed. 2002). Other common definitions included a "buyer, purchaser, or patron." Black's Law Dictionary 462 (4th ed. 1968). Contemporaneous definitions of "patron" are not dissimilar and include "a steady or regular client, as an habitual customer or merchant," Webster's at 1656, and "a regular customer," Black's at 1283.

2. Context of ORS 659A.142(4)

In addition to the statutory text, we also look to the immediate and broader statutory context to discern the intention of the legislature. Gaines , 346 Or. at 171, 206 P.3d 1042.

a. Immediate context

Beginning with the immediate context of ORS 659A.142(4), we note that, while the legislature did not prohibit places of public accommodation from discriminating against any "person" or "individual" with a disability, the legislature did use the more inclusive term "individual" in other subsections of the same statute. For example, ORS 659A.142(2) prohibits employment agencies from refusing to refer for employment "any individual because that individual has a disability," and ORS 659A.142(5) prohibits the state government from excluding "an individual" from "services, programs or activities" of state government on the basis of disability. The contrast between those broadly inclusive references to "individuals" and the narrower and more specific reference to "customer or patron" in ORS 659A.142(4) suggests that the legislature acted purposefully when it enacted the latter's comparatively limited language and did not intend to encompass a wider range of all individuals.

b. Broader context

The broader statutory context similarly does not support the idea that the legislature intended ORS 659A.142(4) to reach individuals who are not even potential "customers" or "patrons." Although the broader context is largely silent on that issue, three particular elements are worth noting.

(1) Federal lockstep statute, ORS 659A.139

Under ORS 659A.139, Oregon courts must construe ORS 659A.103 to 659A.145"to the extent possible in a manner that is consistent with any similar provisions of the federal Americans with Disabilities Act [ADA] of 1990, as amended by the federal ADA Amendments of 2008 and as otherwise amended." We have previously explained that ORS 659A.139 is a "lockstep" statute that "requires that certain Oregon statutes that prohibit discrimination against people with disabilities be construed consistently with similar ADA provisions to the extent possible." Johnson v. BOLI , 290 Or. App. 335, 340, 415 P.3d 1071, rev. den. , 363 Or. 599, 427 P.3d 186 (2018).

For example, in Johnson , we considered an appeal of a final order in which BOLI had determined that a store owner had violated ORS 659A.142(4) when she refused to allow an individual with a disability to enter the store with her service dogs. Because the version of Oregon's statutes in effect at the time "did not include provisions related to allowing service dogs in places of public accommodation," we cited the "lockstep" statute and approved BOLI's reliance on ADA provisions related to service animals. 290 Or. App. at 340-41, 415 P.3d 1071. Thus, it was both possible and appropriate to construe the protections afforded by ORS 659A.142(4) consistently with similar protections provided by the ADA. See also Honstein v. Metro West Ambulance Service, Inc. , 193 Or. App. 457, 465-66, 90 P.3d 1030, rev. den. , 337 Or. 327, 99 P.3d 290 (2004) (concluding that the trial court did not err when giving a challenged jury instruction as to what constituted a "reasonable accommodation" under Oregon law where the instruction was consistent with the United States Supreme Court's interpretation of a similar provision of the federal ADA (citing ORS 659A.139 )).

However, ORS 659A.139 does not require absolute symmetry between our statutory protections for individuals with disabilities and those afforded by the ADA. See Evans v. Multnomah County Sheriff's Office , 184 Or. App. 733, 743, 57 P.3d 211 (2002), rev. den. , 335 Or. 180, 63 P.3d 27 (2003) (" ORS 659A.139 requires consistency with federal law only 'to the extent possible.' " (Emphasis added.)). To the extent that a particular provision of our statutory scheme cannot be construed consistently with similar provisions in the ADA, we do not look to the ADA and case law interpreting it to determine the meaning or scope of our laws.

The statutory language at issue in this case-the prohibition in ORS 659A.142(4) on discrimination by places of public accommodation against "a customer or patron who is an individual with a disability"-cannot be read consistently with its ADA counterpart. Under Title III of the ADA, "no individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation." 42 USC § 12182(a) (emphasis added). Federal courts have taken an expansive view of that language. For example, the United States Court of Appeals for the Ninth Circuit has concluded that the ADA's "general prohibition against discriminating [by a place of public accommodation] on the basis of disability" protects "disabled individuals" generally, not just "clients or customers" thereof. Molski v. M.J. Cable, Inc. , 481 F.3d 724, 733 (9th Cir. 2007) (citing PGA Tour v. Martin , 532 U.S. 661, 678-79, 121 S.Ct. 1879, 149 L.Ed.2d 904 (2001) ); see also Menkowitz v. Pottstown Memorial Medical Center , 154 F.3d 113, 121 (3d Cir. 1998) ("The operative rule announced in Title III speaks not in terms of 'guests,' 'patrons,' 'clients,' 'customers,' or 'members of the public,' but instead broadly uses the word 'individuals.' "). As a result, an individual with a disability might have a successful claim against a place of public accommodation under Title III of the ADA regardless of whether he or she was an actual or potential customer or patron because the broadly inclusive language of that statute plainly provides for that possibility.

On its face, ORS 659A.142(4) protects a more specific and limited subset of individuals than Title III. In direct contrast to the Title III protections for "individuals," Oregon's public accommodations law speaks solely in terms of "customers" and "patrons." Although we must read ORS 659A.142(4) consistently with Title III of the ADA "to the extent possible ," the comparatively narrow language of our statute is not coextensive with the more inclusive language used in Title III. It is not possible to read the two consistently without disregarding the specific, narrow text of our statute.

(2) Statutory Policy, ORS 659A.103

Statements of statutory policy are considered useful context for interpreting a statute. Sundermier v. PERS , 269 Or. App. 586, 595, 344 P.3d 1142 (2015). Under ORS 659A.103,

"(1) It is declared to be the public policy of Oregon to guarantee individuals the fullest possible participation in the social and economic life of the state, to engage in remunerative employment, to use and enjoy places of public accommodation, resort or amusement, to participate in and receive the benefits of the services, programs and activities of state government and to secure housing accommodations of their choice, without discrimination on the basis of disability.
"(2) The guarantees expressed in subsection (1) of this section are hereby declared to be the policy of the State of Oregon to protect, and ORS 659A.103 to 659A.145 shall be construed to effectuate such policy."

That statement of policy compels us to interpret statutes under ORS chapter 659A as broadly as the specific language of those statutes allow. We recognize, as did the legislature, the importance of ensuring that individuals with disabilities are not prevented from fully participating "in the social and economic life of the state" by virtue of their disability. But, when interpreting a statute, we cannot ignore the specific language enacted by the legislature in favor of general policy pronouncements.

With that in mind, we cannot read the specific reference in ORS 659A.142(4) to individuals with disabilities who are "customers" or "patrons" of places of public accommodation to implicitly include all other individuals with disabilities who are not even potential customers or patrons. We readily accept that a more expansively worded statute would better effectuate the policy preference evinced by the legislature in ORS 659A.103. But we also presume that the legislature chose the language that it did in ORS 659A.142(4) purposefully and that the text of a statute is the best indicator of the legislature's intent. Oregon Trucking Assns. v. Dept. of Transportation , 364 Or. 210, 220, 432 P.3d 1080 (2019). As a result, the legislature's statement of statutory policy in ORS 659A.103 does not permit us to expand the protections afforded by ORS 659A.142(4) to individuals who are not "customers" or "patrons" of a place of public accommodation.

(3) Statutory policy, ORS 659A.403

A final piece of statutory context that suggests that we must read the legislature's reference to "customers" and "patrons" in ORS 659A.142(4) narrowly is ORS 659A.403. Under that statute,

"all persons within the jurisdiction of this state are entitled to the full and equal accommodations, advantages, facilities and privileges of any place of public accommodation without any distinction, discrimination or restriction on account of race, color, religion, sex, sexual orientation, national origin, marital status or age."

ORS 659A.403(1).

The legislature first enacted those rights and protections in 1953, at which time the statute applied to individuals based on their "race, religion, color [and] national origin." Or. Laws 1953, ch. 495, § 1. In 1973, the legislature amended the statute to include sex and marital status. Or. Laws 1973, ch. 714, § 1. Subsequent amendments in 2003 and 2007 added references to age, Or. Laws 2003, ch. 521, § 1, and sexual orientation, Or. Laws 2007, ch. 100, § 5, respectively. To this day, a reference to "disability" is notably absent from that otherwise broadly inclusive list.

It is not apparent why the legislature has not yet taken the opportunity to extend the rights described in ORS 659A.403 to all persons without any distinction or discrimination on account of disability. In the absence of any such statutory language, however, we are left with the legislature's reference to only those individuals with disabilities who are "customers" and "patrons" of a place of public accommodation in ORS 659A.142(4). Accordingly, although there may be strong policy arguments in favor of amending ORS 659A.403(1) to include individuals with disabilities, we cannot read into that statute a term that the legislature has thus far not added in its several amendments. Likewise, we cannot read ORS 659A.142(4) and its reference to "customers" and "patrons" any more broadly than those terms allow despite the obvious policy preference evinced by the legislature in ORS 659A.403(1) to generally require places of public accommodation to be broadly accessible to "all persons."

B. Alternative Basis to Affirm

We now turn to whether, in light of the foregoing statutory analysis, we should affirm the trial court's order granting summary judgment to defendants on the alternative basis that plaintiff was not, at any relevant time, a "customer or patron" of the cooperative or even a potential "customer or patron." We may exercise our discretion to affirm on an alternative basis only if, (1) the facts of the record are sufficient to support the alternative basis for affirmance; (2) the trial court's ruling is consistent with the view of the evidence under the alternative basis for affirmance; and (3) the record is materially the same as the one that would have been developed had the prevailing party raised the alternative basis for affirmance below. Outdoor Media Dimensions, Inc. , 331 Or. at 659-60, 20 P.3d 180. Here, each of those requirements is met.

First, the facts in the record are sufficient to establish that plaintiff was not, at any relevant time, an actual or even potential "customer or patron" of the cooperative. The undisputed evidence at summary judgment established that plaintiff is not a member of the cooperative, nor has she ever been eligible to become a member. As noted, plaintiff did not reside or work in the cooperative's service area and, therefore, could not be a member of the cooperative. As a result, at the time of the board meeting, plaintiff was not capable of patronizing or purchasing services from the cooperative, which sells electric power and provides related services exclusively to its members. Plaintiff averred to the trial court that she wished to attend the board meeting solely to observe and provide advice to the Lemlers based on her observations. Plaintiff did not present any evidence that she had attempted to engage with the cooperative, attend the board meeting, or enter the cooperative's headquarters for any reason even tangentially related to purchasing goods or services offered by the cooperative, or that she had the potential ability to engage with the cooperative for that purpose.

Second, the trial court's summary judgment ruling is consistent with our view of the evidence under that alternative basis. Where there is no factual dispute that a plaintiff in an action brought under ORS 659A.142(4) is not a "customer or patron," the defendant in the action is entitled to judgment in its favor as a matter of law because the "customer or patron" status is an essential element of the claim. Accordingly, where the plaintiff is not a "customer or patron" of the place of public accommodation, summary judgment is warranted on that basis alone.

Finally, we acknowledge that the third criterion-that the record is materially the same as the one that would have been developed had the prevailing party raised the alternative basis for affirmance below-is particularly important in the summary judgment context. Eklof v. Steward , 360 Or. 717, 736, 385 P.3d 1074 (2016). As the Supreme Court explained in Eklof , we cannot affirm an order granting summary judgment on an alternative basis raised for the first time on appeal where "the opposing party had no reason to adduce evidence" on the issue at summary judgment. Id . Accordingly, our ability to engage in alternative basis review in an appeal from a trial court's grant of summary judgment is necessarily limited.

Here, notwithstanding the limitations noted by Eklof , we conclude that the record in this case would not have developed differently had defendants raised the argument below that plaintiff could never succeed in her claim because she was not a potential or actual customer of the cooperative. Had defendants brought that argument to the trial court's attention at summary judgment, plaintiff could not have developed a different record with evidence that she was or could be a customer or patron of the cooperative. In her response to defendant's request for admissions, plaintiff admitted that she does not reside or work in the cooperative's service area and that she is ineligible to receive electrical services from the cooperative. Those admissions confirm that plaintiff was not eligible to be a customer or patron of the cooperative and that defendants would be entitled to summary judgment as a matter of law. See Brockway v. Allstate Property and Casualty Ins. Co. , 284 Or. App. 83, 95, 391 P.3d 871 (2017) (applying Eklof and Outdoor Media Dimensions, Inc. , in the summary judgment context and concluding that the party opposing summary judgment would have created the same factual record had the issue been raised in the trial court).

In sum, the trial court would not have erred had it granted summary judgment to defendants based on an argument that plaintiff was incapable of proving an essential element of her claim for damages-that she was a "customer or patron" of the cooperative. Although there may be strong policy arguments for ensuring access under ORS 659A.142(4) to all persons or visitors to public accommodations, we cannot read the specific statutory reference to "customers" and "patrons" in ORS 659A.142(4) to broadly encompass all individuals with a disability who, like plaintiff, may wish to enter and interact with a place of public accommodation in some capacity other than that of an actual or potential customer or patron. See PGE v. Bureau of Labor and Industries , 317 Or. 606, 611, 859 P.2d 1143 (1993) (stating that, when interpreting the text of a statute, we consider rules of statutory construction that bear directly on how to read the text, including "the statutory enjoinder not to insert what has been omitted"); ORS 174.010 ("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."). As a result, plaintiff cannot prevail on her claim for damages under ORS 659A.142(4). Based on our interpretation of ORS 659A.142(4) and our assessment of the record under Outdoor Media Dimensions, Inc. , we conclude that it is appropriate to exercise our discretion to affirm the trial court's summary judgment ruling on that alternative basis.

III. PLAINTIFF'S CLAIM FOR INJUNCTIVE RELIEF

In addition to her claim for damages, plaintiff sought from the trial court a "decree *** requiring [defendants] to hold all future Board of Directors meetings in an accessible location where Plaintiff or any disabled member or guest can attend in person." On appeal, defendants contend that that claim is now moot because the cooperative has since relocated to a different headquarters and uses a ground-floor conference room that complies with the accessibility requirements of the ADA for its board meetings.

As a general rule, a challenge becomes moot "when a court decision will no longer have a practical effect on the rights of the parties." Brownstone Homes Condo. Assn. v. Brownstone Forest Heights, LLC , 358 Or. 26, 30, 361 P.3d 1 (2015) (internal quotation marks omitted). One exception to our mootness doctrine is that the "mere voluntary cessation of a challenged practice in a context in which the practice may be resumed does not render a claim challenging that practice moot." Safeway, Inc. v. OPEU , 152 Or. App. 349, 357, 954 P.2d 196 (1998) ; see also Tanner v. OHSU , 157 Or. App. 502, 510, 971 P.2d 435 (1998), rev. den. , 329 Or. 528, 994 P.2d 129 (1999) (explaining that voluntary cessation of a challenged practice does not moot a claim where "wrongdoers could cease their wrongdoing as soon as complaints are filed and resume the wrongdoing as soon as the complaints are dismissed for being moot"). That exception "is best understood to apply in cases in which the challenged 'practice' is one that the defendant can readily cease-in an effort to moot the challenge-and then resume again." Progressive Party of Oregonv. Atkins , 276 Or. App. 700, 709, 370 P.3d 506, rev. den. , 360 Or. 697, 388 P.3d 713 (2016). More specifically, it applies "only where the defendants maintain that they have a legal right to resume the challenged conduct and a court determines that a future dispute is likely." Id. (emphasis in original). Thus, a claim for injunctive relief can be mooted by the voluntary cessation of the challenged conduct only if "it is clear that the allegedly illegal behavior could not reasonably be expected to recur." Assoc. Reforestation v. State Workers' Comp. Bd. , 59 Or. App. 348, 350, 650 P.2d 1068, rev. den. , 59 Or. 348 (1982).

Here, the undisputed facts are that the cooperative has permanently relocated its headquarters to a new building and no longer holds meetings in the building that plaintiff was unable to access fully. Defendants have submitted a declaration under oath that the former building has been largely gutted and that the second-floor conference room could not be used for meetings without substantial and costly renovations, which defendants have no plans to undertake. Defendants have also presented evidence that the new building complies with the ADA and that the cooperative's board meetings are now fully accessible to individuals who rely on wheelchairs. Plaintiff does not present any evidence refuting defendants' evidence of the accessibility and permanence of its new headquarters, including the location of its board meetings.

From those facts, we conclude that defendants have voluntarily ceased the challenged conduct-namely, the effective exclusion of individuals with certain disabilities from in-person attendance at board meetings-and that that behavior cannot reasonably be expected to recur. Accordingly, plaintiff's claim for injunctive relief is moot, because a ruling in her favor, even assuming that she could prevail on the merits, would have no practical effect on her rights.

Affirmed.

      We address the substance only of plaintiff's second assignment of error. We reject plaintiff's first and third assignments of error because those assignments do not constitute challenges to a ruling of the trial court. ORAP 5.45(3) ("Each assignment of error must identify precisely the legal, procedural, factual, or other ruling that is being challenged.").

      Plaintiff's right to file a formal complaint with BOLI is provided by ORS 659A.820(2), under which "[a]ny person claiming to be aggrieved by an alleged unlawful practice may file with the Commissioner of [BOLI] a verified written complaint *** [that] set[s] forth the acts or omissions alleged to be an unlawful practice."

      Under ORS 659A.845, the commissioner of BOLI "may prepare formal charges" based on a finding of substantial evidence that a party engaged in an unlawful discriminatory practice. The reasoning for BOLI's decision not to prepare formal charges is not clear from the record.

      Plaintiff's right to file a civil action against defendants is provided by ORS 659A.885(1), under which "[a]ny person claiming to be aggrieved by an unlawful practice specified in subsection (2) of this section[, including a violation of ORS 659A.142(4),] may file a civil action in circuit court."

      The parties have not cited and we have not found any legislative history that is helpful to our resolution of this case.

      The statute first appeared as former ORS 30.670 (1953), renumbered as ORS 659A.403 (2001).


author: ORTEGA, P. J.

text:
    STATE of Oregon, Plaintiff-Respondent, v. Olan Jermaine WILLIAMS, Defendant-Appellant.
    A163895
    Court of Appeals of Oregon.
    Argued and submitted October 18, 2018. April 10, 2019
    Marc D. Brown, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.
    Timothy A. Sylwester, 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.

Defendant appeals a judgment of conviction for one count of first-degree sodomy, ORS 163.405. He raises three assignments of error, and we reject, without written discussion, all but his second assignment of error, in which he asserts that the trial court erred in denying his motion for a new trial. Specifically, defendant contends that the nonunanimous verdict provision in Article I, section 11, of the Oregon Constitution, as applied to his criminal case, is unconstitutional because it violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. However, because defendant's as-applied challenge to the nonunanimous verdict is not reviewable on appeal, we must affirm.

The facts for our purposes are procedural. Defendant is black and was accused of sodomizing a white victim. He was indicted on two counts of sodomy in the first degree and, after a two-and-one-half day trial, the jury unanimously acquitted him of one count, but returned a 10-2 verdict of guilty on the second count. Defendant's attorney neither requested a unanimous jury instruction nor objected to the nonunanimous jury verdict.

At sentencing, one of the jurors informed the court that she was the only black person on the jury-and one of the two jurors who voted to acquit-and that she believed defendant's conviction was unfair. The trial court ultimately imposed the statutorily mandated minimum sentence of 100 months.

Defendant moved for a new trial asserting that, procedurally, he was "not making his motion pursuant to ORS 136.535," which applies ORCP 64 B to criminal trials.

More specifically, defendant acknowledged that his motion for a new trial was not based on ORCP 64 B(4) or "newly discovered evidence." Instead, he argued that the authority for the motion and hearing was based on the Equal Protection Clause of the Fourteenth Amendment. The state responded that, because defendant's motion was not filed pursuant to ORS 136.535, there was no legal basis for the court to conclude that the nonunanimous verdict provision violated his equal protection rights. Alternatively, the state asserted that the remedy sought by defendant would require the court "to create a new criminal procedure in order for such a claim *** to be reviewed."

The court, on its own initiative, exercised its power under ORCP 64 G to determine if it committed an error that was so prejudicial that it prevented defendant from having a fair trial and held an evidentiary hearing on that motion. The parties then stipulated that there was only one black juror, who voted to acquit defendant, and that there were one or two other people of color on the jury.

After the hearing, but before the trial court ruled on defendant's motion for a new trial, defendant informed the court that he had obtained affidavits from two jurors-including from the juror who spoke at his sentencing hearing-to show that there was pressure by other jurors to vote guilty and that racial bias played a role in the deliberations. The trial court excluded those affidavits after concluding that those statements could not be used to impeach the jury's verdict.

In a written opinion and order, the trial court concluded that, although "race and ethnicity was a motivating factor" for adopting the nonunanimous jury provision as part of the Oregon Constitution, defendant failed to show the disparate impact of that provision as required to succeed in his equal protection challenge. Moreover, the court explained that granting a motion for a new trial would be an abuse of discretion because there is not a "full and robust evidentiary record, with a clearly articulated remedy proposed." The court then denied defendant's motion for a new trial.

On appeal, defendant reprises his arguments from below. Specifically, defendant first argues that, in applying ORCP 64 G, the trial court effectively decided the motion under ORCP 64 B(4) because it held an evidentiary hearing to consider new evidence-i.e. , the statements made by the two jurors as well as their affidavits describing the jury deliberations. Furthermore, defendant contends that, because the vote to convict defendant was, in part, racially motivated, the nonunanimous jury provision, as applied to his criminal case, violated the Equal Protection Clause of the Fourteenth Amendment.

The state responds that defendant's claim is not reviewable on appeal. In the state's view, because defendant conceded below that his motion was not based on ORCP 64 B(4), the trial court did not have a basis to grant a new trial, and defendant's claim is therefore not reviewable on appeal. Furthermore, the state contends that, even if defendant's equal protection claim has merit, he was not excused from following state law by "preserving his objection during trial and then raising a proper motion for a new trial under ORCP 64 B." We agree with the state, for reasons explained below, that defendant's challenge to the trial court's denial of a new trial is not reviewable.

Defendant has raised serious concerns about the nonunanimous verdict, which he did not challenge below and for which avenues for challenge have been foreclosed by prior cases, may have functioned in his case. However, we may only review the denial of a motion for a new trial if "the motion is based upon juror misconduct or newly discovered evidence ." State v. Sullens , 314 Or. 436, 440, 839 P.2d 708 (1992) (emphasis in original); see generally State v. Alvarez-Vega , 240 Or. App. 616, 619, 251 P.3d 199, rev. den. , 350 Or. 297, 255 P.3d 489 (2011) (concluding that the defendant's constitutional challenge was beyond the scope of our review because he failed to show how his claim fell within ORCP 64 B(4)). Despite defendant's contention that the trial court decided his motion on newly discovered evidence under ORCP 64 B(4), he conceded both at trial and on appeal that his challenges were not based on that procedural rule, nor did he contend that the evidence he sought to introduce would establish juror misconduct. Therefore, defendant's constitutional challenge to the nonunanimous jury provision as applied to his criminal case is not reviewable on appeal.

Affirmed.

      ORCP 64 B provides, in part:
      "*** A former judgment may be set aside and a new trial granted in an action where there has been a trial by jury on the motion of the party aggrieved for any of the following causes materially affecting the substantial rights of such party:
      "* * * * *
      "B(4) Newly discovered evidence, material for the party making the application, which such party could not with reasonable diligence have discovered and produced at the trial."

      ORCP 64 G provides:
      "If a new trial is granted by the court on its own initiative, the order shall so state and shall be made within 30 days after the entry of the judgment. Such order shall contain a statement setting forth fully the grounds upon which the order was made, which statement shall be a part of the record in the case."

      As noted, we have rejected without written discussion defendant's first assignment of error. In that assignment, defendant contends that the trial court erred in excluding those affidavits.

      Defendant also challenged the court's conclusion that he had to show disparate impact of the nonunanimous jury provision to prevail on his equal protections claim. However, because defendant's claim is not reviewable on appeal, we do not reach the merits of that challenge.

      See, e.g. , State v. Williams , 276 Or. App. 688, 690, 368 P.3d 459, rev. den. , 360 Or. 423, 383 P.3d 866 (2016) ; State v. Sartin , 248 Or. App. 748, 749, 274 P.3d 259 (2012) ; State v. Cobb , 224 Or. App. 594, 597, 198 P.3d 978 (2008), rev. den. , 346 Or. 364, 213 P.3d 578 (2009).


author: TOOKEY, J.

text:
    In the MATTER OF J. R., aka A. E., aka A. L., aka A. R., a Child.
    Department of Human Services, Petitioner-Respondent, v. M. E., aka M. L., aka T. L., aka D. S., Appellant.
    In the Matter of J. R., aka A. E., aka A. L., aka A. R., a Child.
    Department of Human Services, Petitioner-Respondent, v. M. E., aka M. L., aka T. L., aka D. S., Appellant.
    In the Matter of J. P. B., III, aka M. B., aka M. E., aka M. L., a Child.
    Department of Human Services, Petitioner-Respondent, v. M. E., aka M. L., aka T. L., aka D. S., Appellant.
    In the Matter of F. E. S., aka S. E., aka F. L., a Child.
    Department of Human Services, Petitioner-Respondent, v. D. S., aka M. E., Appellant.
    A167996 (Control) A167997 A167998 A167999
    Court of Appeals of Oregon.
    Argued and submitted November 16, 2018. April 24, 2019
    Valerie Colas, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Shannon Storey, Chief Defender, Juvenile Appellate Section, Office of Public Defense Services.
    Inge D. Wells, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
    Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.
   TOOKEY, J.

Mother appeals from judgments terminating her parental rights to her three children, JE, JA, and F. She raises eight assignments of error, which fall into three broad claims: (1) the juvenile court erred when it continued the appointment of mother's guardian ad litem (GAL) from the permanency proceeding in the termination proceeding without holding a hearing; (2) mother's counsel was inadequate for failing to object to the continuation of the GAL's appointment; and (3) as a result, the juvenile court erred when it terminated mother's parental rights to JE, JA, and F. Mother's first claim is unpreserved and we conclude that she was required to preserve that claim of error; furthermore, we conclude that plain-error review is not appropriate in this case. Therefore, we reject her first two assignments of error. Mother's six remaining assignments of error are dependent on her claim that she received inadequate assistance of counsel in her termination trial due to her counsel's failure to object to the continued appointment of the GAL in the termination proceeding. Because this is not the " 'rare' case in which the question whether counsel was inadequate will not require the development of an evidentiary record," Dept. of Human Services v. T. L. , 358 Or. 679, 702, 369 P.3d 1159 (2016), "the appropriate remedy in this case is to remand for an evidentiary hearing under ORS 419B.923 on mother's claim of inadequate assistance of counsel," Dept. of Human Services v. M. U. L. , 281 Or. App. 120, 129, 380 P.3d 1232 (2016) ( M. U. L. II ). Accordingly, we vacate the judgment terminating mother's parental rights, and remand to the juvenile court with instructions to hold an evidentiary hearing on mother's claim of inadequate assistance of counsel. For purposes of this appeal, the relevant facts are mostly procedural and undisputed. Mother's three children, 12-year-old JE, ten-year-old JA, and seven-year-old F, were removed from mother's care in December 2013, and were made wards of the juvenile court in April 2014. Among other things, juvenile court jurisdiction was based on mother's admission that her "unresolved mental health issues" interfered with her ability to "safely parent, supervise and discipline" her children.

In October 2016, the Department of Human Services (DHS) informed the court that DHS would seek to have a GAL appointed for mother in the dependency proceedings. On December 22, 2016, and March 1, 2017, the court held an evidentiary hearing on DHS's motion to appoint a GAL for mother. Further evidence was received by the court on March 29, 2017, before the court made its final written order.

The court's order made the following findings:

"This court has had this case since signing a shelter case order on December 6, 2013. The court has observed Mother's behavior in court on numerous occasions. This behavior was generally appropriate at most hearings.
"However it has become clear that mother's thinking has become erratic, disorganized, delusional[, and] paranoid. She recently, once again, demanded unrealistic actions of DHS, the court, and presumably her last attorney. Due to her escalating heretofore described behaviors, she has had 3 successive attorneys appointed, each of which can no longer represent her be it due to a demand for a new attorney or obstructionist conduct.
"Mother's conduct at the last two hearings was such that it was impossible to communicate with her. I find by a preponderance of the evidence that mother's mental impairment causes her to lack substantial capacity to understand the nature [and] consequences of court proceedings [and] it makes her unable to give direction or assistance to any attorney on decisions that must be made in legal proceedings and it is necessary that a GAL be appointed to protect mother's rights in these cases during this period of impairment."

On April 4, 2017, Emily Cohen was appointed as mother's GAL. On July 6, 2017, the juvenile court held a permanency hearing and changed the children's permanency plan from reunification to adoption. Mother was not present at that hearing, although Cohen did attend. The court noted at that time that mother's "mental health appears to be declining significantly such that she has little understanding of how to parent."

On August 30, 2017, DHS filed petitions to terminate mother's parental rights. The petitions alleged that mother was unfit due to mental illness, subjecting JE and JA to inappropriate discipline, residential, employment, and lifestyle instability, a lack of understanding of her children's basic needs, and a lack of effort to adjust her circumstances to make it possible for the children to return to her care. The petitions also alleged that mother had neglected and abandoned the children.

On October 10, 2017, Cohen filed a declaration in the termination cases. That declaration informed the court that Cohen had been appointed as mother's GAL in the dependency cases, her appointment had been "continuous since that time," and that Cohen had "no information to cause me to believe that [mother] is no longer in need" of a GAL. That same day, based on Cohen's declaration, the juvenile court entered an order in the termination proceeding that continued Cohen's appointment as mother's GAL. On October 13, 2017, the court entered an order continuing mother's dependency trial counsel as her counsel in the termination proceeding.

The first appearance on the termination proceeding was held on November 7, 2017, and mother appeared with her counsel and GAL. The court held another pretrial hearing on December 11, 2017, and mother's counsel and GAL appeared without mother-it is unclear from the record whether the juvenile court expected mother to appear at that hearing. Then on March 7, 2018, the juvenile court held a best interest hearing, but the record does not indicate which parties appeared.

On May 10, 2018, mother's counsel and GAL appeared without mother for the trial on the termination petitions filed on all three children, JA, JE, and F. Before the termination trial began, the parties agreed to go forward on stipulated evidence. Mother's counsel and GAL opposed the termination of Mother's parental rights and, at the conclusion of the stipulated trial, the court entered judgments terminating mother's parental rights to all three children. Mother appeals from those judgments.

We now turn to mother's first claim, which encompasses her first and second assignments of error, in which mother argues that the juvenile court erred when it failed to conduct a hearing under ORS 419B.231 before continuing the appointment of mother's GAL in the termination proceeding. Mother's challenges to the juvenile court's authority to enter a GAL order under ORS 419B.231 present a question of law. Dept. of Human Services v. K. L. W ., 253 Or. App. 219, 221-22, 288 P.3d 1030 (2012). Because mother acknowledges that she did not object to the GAL's continued appointment, we first address whether mother was required to preserve that objection.

ORAP 5.45(1) provides that "[n]o matter claimed as error will be considered on appeal unless the claim of error was preserved in the lower court." Whether an appellate argument is preserved is a legal issue. State v. Fox , 165 Or. App. 289, 292, 995 P.2d 1193 (2000).

Here, however, mother contends that she was not required to preserve her claim that the juvenile court erred in appointing a GAL in the termination proceedings because there was no opportunity for her to object given that the court entered its order sua sponte without informing the parties beforehand. Thus, mother claims that she did not have a practical opportunity to object before the court erred.

DHS argues that mother had multiple opportunities to object after the court entered its GAL order in October 2017, and before the termination trial in May 2018. Thus, DHS asserts, mother should not be relieved from the requirement to preserve her objection. For the reasons explained below, we agree with DHS.

Because the rules of preservation "are pragmatic as well as prudential[, w]hat is required of a party to adequately present a contention to the trial court can vary depending on the nature of the claim or argument[.]" Peeples v. Lampert , 345 Or. 209, 220, 191 P.3d 637 (2008). Ultimately, the touchstone of the preservation requirement is "procedural fairness to the parties and to the trial court." Id. However, preservation may not be required "when a party has no practical ability to raise an issue." Id.

K. L. W . provides a helpful example of when we have relieved a parent of the preservation requirement. In that case, DHS filed a petition to terminate the father's parental rights to his child. K. L. W. , 253 Or. App. at 222, 288 P.3d 1030. Later, DHS filed a motion for an appointment of a GAL for the father in his termination proceeding. Id. at 223, 288 P.3d 1030. After conducting a hearing on the motion for a GAL, the juvenile court appointed a GAL for the father over the father's counsel's objection. Id . at 225, 288 P.3d 1030. Thereafter, despite knowing the father's desire to contest the petition to terminate his rights, the GAL agreed to stipulate to the termination of the father's parental rights. Id. at 226, 288 P.3d 1030. During the settlement hearing, the father's counsel explained that she signed the stipulated judgment of termination "because it was her duty to follow" the GAL's directions. Id . Then, "when father attempted to talk to the judge, the court explained that father did not have 'standing' at the hearing and that only the [GAL] could say something on his behalf. The GAL did not say anything on the father's behalf [during the trial]." Id. Subsequently, the juvenile court entered the stipulated judgment terminating the father's rights to his child. Id.

After the termination judgment was entered, the father appealed the GAL appointment and the subsequent termination of his parental rights based upon various grounds, including that he was deprived of his due process rights to a fundamentally fair trial. Id. at 227, 288 P.3d 1030. On appeal, DHS argued that the father's due process argument was not made to the juvenile court and, therefore, the father's error was unpreserved. We concluded that preservation was not required because the father had no opportunity to raise his due process arguments during the termination proceeding because the juvenile court found that the father had no standing to raise an objection to the GAL, and, despite being aware of the father's objections, the father's GAL declined to say anything during the termination proceeding on the father's behalf. Id. at 231-32, 288 P.3d 1030.

Here, mother argues that preservation is not required because the GAL order was entered before the parties had an opportunity to object to the court's error. Yet, mother does not point to anything in the record before us that demonstrates that she was prevented from objecting to the GAL order to allow the court to correct any purported error before the final termination judgment was entered seven months later. Instead, mother first contends that "once counsel was appointed mother was represented by counsel and she could not personally object." Mother cites ORS 9.320 in support of that contention, which provides that, "[w]here a party appears by attorney, the written proceedings must be in the name of the attorney, who is the sole representative of the client as between the client and the adverse party * * *." This argument is unavailing because here, unlike the father in K. L. W. , mother had an opportunity to object when she appeared, with the GAL and her counsel, almost a month after entry of the GAL order. At that pretrial hearing, mother was fully aware that the GAL was continuing to represent her in the termination proceeding. Yet there is no evidence in the record of mother objecting to the lack of a hearing or the continued appointment of the GAL at that time or during the six months that passed before the entry of the termination judgment.

Second, mother argues that she was not able to object because mother's counsel was not required to relay an objection to the appointment of a GAL as the GAL directs the litigation-not mother. That argument is also unavailing because the statutory scheme provides that mother could have objected through her GAL. See generally ORS 419B.234 (listing the duties of a GAL in juvenile proceedings). As relevant here, the GAL has a duty to consult with the parent, inform the court if the parent no longer needs a guardian, and make decisions consistent with what the GAL believes the parent would decide if the parent did not lack substantial capacity as described in the statute. See ORS 419B.234(3)(a) ; ORS 419B.234(3)(b) ; ORS 419B.234(4).

Thus, despite the fact that mother's counsel was not required to take direction from mother personally, but from the GAL, it was still the GAL's responsibility to discern mother's wishes and articulate mother's wishes to mother's counsel. Also, unlike the father in K. L. W. , there is no evidence in this case that the GAL contravened mother's directives. Rather, before the termination trial on May 10, 2018, mother worked with the GAL to prepare exhibits in lieu of appearing for trial, and the GAL opposed the termination of mother's parental rights at the termination trial. Therefore, we reject mother's argument that she had no practical ability to convey her objection to the court through her GAL.

Finally, mother has not asserted that she ever informed her GAL or her counsel that she wanted to object to the lack of a hearing or the continued appointment of the GAL, nor does mother claim that she attempted to alert the court about her concerns with the GAL's appointment. To the contrary, mother's conduct as set forth in the record indicates her acquiescence to the GAL's continued appointment throughout her dependency and termination proceedings.

As discussed above, the rules of preservation serve a practical and prudential purpose. When a party makes no effort to place opposing parties or the court on notice of the error, or allow an opportunity to correct it sooner, we will not relieve the complaining party of the preservation requirement. Thus, we conclude that mother was not practically impeded from preserving her claimed error, and she was required to preserve an objection to the GAL's continued appointment.

Next, we address mother's argument that we should review her unpreserved assignments of error as plain error. DHS responds that any error is not plain and, even if it is plain, we should decline to review it. We agree with DHS that the claimed error is not plain.

Even if a claim of error is unpreserved, this court may review it if it is "plain error." ORAP 5.45(1). "For an error to be plain error, it must be an error of law, obvious and not reasonably in dispute, and apparent on the record without requiring the court to choose among competing inferences." State v. Vanornum , 354 Or. 614, 629, 317 P.3d 889 (2013).

Here, the parties' dispute centers on the provisions in ORS 419B.231. That statute provides that the court "may appoint a [GAL] for a parent involved" in a juvenile dependency proceeding, "including a proceeding for the termination of parental rights." ORS 419B.231(1). Prior to appointing a GAL, the court is required to conduct a hearing. See ORS 419B.231(2) ("The court shall conduct a hearing to determine whether to appoint a [GAL]"); ORS 419B.231 (3)(a) ("A court may not appoint a [GAL] under this section unless the court conducts a hearing.").

Mother contends that the court plainly erred, because ORS 419B.231(1)"explicitly treats the termination proceeding as a separate, distinct proceeding from the dependency proceeding," and, therefore, the court was required to conduct a hearing before appointing the GAL in the termination proceeding because it was a separate proceeding for purposes of the hearing requirement in ORS 419B.231(2).

DHS responds that any error is not plain because it is not obvious and beyond reasonable dispute that the juvenile court, after appointing a GAL in the underlying dependency case, must conduct another hearing to continue the appointment in a subsequent termination proceeding. DHS argues that ORS 419B.231(1) could be read to mean simply that the statute authorizes the appointment of a GAL in proceedings commenced under both ORS 419B.100 and ORS 419B.500, and does not govern the duration or continuation of a GAL's appointment throughout the various stages of juvenile dependency proceedings.

That interpretation of the statute is supported by ORS 419B.237(1), which provides that the "appointment of a guardian ad litem under ORS 419B.231 continues until" the court "terminates the appointment," the "juvenile court proceeding is dismissed," or the "parent's parental rights are terminated." Additionally, under ORS 419B.237(2) a juvenile court " '[s]hall remove' the GAL * * * only after such a 'request' has been made of the court * * * by mother or her attorney." Dept. of Human Services v. M. U. L. , 270 Or. App. 343, 349, 347 P.3d 364 (2015), vac'd and rem'd on other grounds , 359 Or. 777, 381 P.3d 815 (2016) ( M. U. L. I ) (quoting ORS 419B.237(2) ; brackets in original). Given the contextual interplay between ORS 419B.231 and ORS 419B.237, it is not "obvious" that ORS 419B.231 compels the outcome that mother proposes, viz. , that the juvenile court was required to conduct a hearing under ORS 419B.231 before continuing the GAL's appointment in the termination proceeding. Cf . id . at 348-49, 347 P.3d 364 (concluding that it was not plain error for the juvenile court to continue the appointment of the mother's GAL in a termination proceeding after mother had been determined to be competent in a separate criminal case because ORS 419B.237 does not obligate a juvenile court to determine sua sponte whether the GAL appointment should be terminated). Furthermore, DHS notes that mother fails to point to any case law holding that plain error occurred under the circumstances presented here, and we are unaware of any case resolving this issue of statutory construction. Therefore, the issue presents a question of first impression without an obvious answer. See State v. Serrano , 355 Or. 172, 182, 324 P.3d 1274 (2014) (alleged error not "obvious" as necessary for plain error, because "th[e] court has never had that issue before it for resolution"). Hence, mother's claim of error is not plain because the legal question is not obvious and is reasonably in dispute, and, therefore, we reject mother's first and second assignments of error.

We now turn to mother's second claim and begin by discussing mother's third assignment of error because our disposition on that assignment obviates the need for us to consider her remaining assignments of error. In her third assignment of error, mother contends that her trial counsel provided inadequate assistance because he failed to "object to the unlawful appointment of a GAL" in the termination proceeding. Further, mother contends that trial counsel was inadequate for failing to "independently assess whether [her] interest in preserving her parental rights to her children were protected and safeguarded by the appointment of a GAL."

"When reviewing a claim of inadequate assistance of counsel, we consider whether the underlying proceeding was 'fundamentally fair.' " Dept. of Human Services v. P. W. , 296 Or. App. 548, 550, 439 P.3d 1042 (2019) (quoting State ex rel. Juv. Dept. v. Geist , 310 Or. 176, 187-88, 796 P.2d 1193 (1990) ). A parent raising such a claim bears the burden of proving "not only that trial counsel was inadequate, but also that the inadequacy prejudiced [the parent's] rights to the extent that the merits of the juvenile court's decision are called into serious question." T. L. , 358 Or. at 702, 369 P.3d 1159 (citing Geist , 310 Or. at 191, 796 P.2d 1193 ; (brackets in original)).

Again, mother did not preserve this claim of error. That failure, however, does not necessarily prevent this court from reviewing it on appeal. See M.U.L. II , 281 Or. App. at 128, 380 P.3d 1232 (an unpreserved inadequate-assistance claim in a juvenile dependency case "may be raised for the first time on direct appeal" (citing T. L. , 358 Or. at 702, 369 P.3d 1159 )).

"Although the Supreme Court established in T. L. that claims of inadequate assistance may be raised for the first time on direct appeal" from a termination proceeding, the court cautioned that " 'it is a "rare" case in which the question of whether counsel was inadequate will not require the development of an evidentiary record.' 358 Or. at 702 [369 P.3d 1159]." M.U.L. II , 281 Or. App. at 129, 380 P.3d 1232. We conclude that the case before us is not the rare case that we can resolve in the first instance on appeal. Here, the record is insufficiently developed for us to review mother's claim that counsel provided inadequate assistance by "fail[ing] to request the removal of the GAL at the termination proceeding." See M.U.L. II , 281 Or. App. at 128, 380 P.3d 1232 (declining to reach merits of claim that counsel provided inadequate assistance by failing to request the removal of a GAL when the claim turned on "factual questions that have not been fully developed").

As we did in M.U.L. II , we follow the Supreme Court's guidance in T. L. and "conclude that the appropriate remedy in this case is to remand for an evidentiary hearing under ORS 419B.923 on mother's claim of inadequate assistance of counsel." Id . at 129, 380 P.3d 1232. Accordingly,

"the judgment terminating mother's parental rights is vacated and remanded pending further proceedings in the trial court. On remand, the trial court is instructed to hold an evidentiary hearing pursuant to ORS 419B.923 on mother's claim of inadequate assistance of counsel. If the trial court determines that mother received inadequate assistance of counsel, it shall order a new termination trial; otherwise, the court shall reinstate the judgment terminating mother's parental rights."

Id . ; see also T. L. , 358 Or. at 704, 369 P.3d 1159 (emphasizing that the appropriate remedy is to either "affirm without prejudice to the parent's ability to renew the [inadequate-assistance] claim before the juvenile court under ORS 419B.923 or remand for an evidentiary hearing under ORS 419B.923"); P. W. , 296 Or. App. at 552, 439 P.3d 1042 (vacating and remanding for an evidentiary hearing on the mother's inadequate-assistance claim "under the terms stated in M. U. L. [II ]").

Vacated and remanded.

      Mother's first claim relates to her first and second assignments of error, in which mother argues that the juvenile court erred when it appointed a GAL in the termination proceeding without first holding a hearing as required by ORS 419B.231. Mother's second claim relates to her third through fifth assignments of error, in which she argues that "trial counsel was inadequate due to his failure to request removal of the GAL" and, "[a]s a result, mother was deprived of the right to personally participate and direct counsel at the termination proceeding." Finally, mother's third claim relates to her sixth through eighth assignments of error, in which mother contends that, because of those errors, the juvenile court erred when it terminated mother's parental rights to JE, JA, and F.


author: DeVORE, J.

text:
    Russell L. BALDWIN, Plaintiff-Respondent, v. Suzanne SEIDA, et al., Defendants, and David Bowser and Jordan Ramis P.C., Defendants-Appellants.
    A166511
    Court of Appeals of Oregon.
    Argued and submitted December 3, 2018. April 17, 2019
    Bradley F. Piscadlo argued the cause for appellants. Also on the briefs were Martha J. Hodgkinson and Hodgkinson Street Mepham, LLC, Portland.
    Russell L. Baldwin argued the cause and filed the briefs pro se.
    Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.
   DeVORE, J.

Plaintiff brought claims against defendants in response to defendants' writs of garnishment issued to local banks, plaintiff's clients, and his legal assistant. Defendants appeal from a limited judgment denying defendants' special motions to strike those claims pursuant to ORS 31.150, Oregon's anti-SLAPP statute. Defendants argue that the trial court erred because the writs of garnishment are either statements "submitted in a judicial proceeding" under ORS 31.150(2)(a) or submitted "in connection with an issue under consideration or review by a judicial body" under ORS 31.150(2)(b). We disagree and affirm the limited judgment.

Because its terms are critical, we begin with a description of the anti-SLAPP statute. The purpose of ORS 31.150 is to " 'permit a defendant who is sued over certain actions taken in the public arena to have a questionable case dismissed at an early stage.' " Mullen v. Meredith Corp. , 271 Or. App. 698, 700, 353 P.3d 598 (2015) (quoting Staten v. Steel , 222 Or. App. 17, 27, 191 P.3d 778 (2008), rev. den. , 345 Or. 618, 201 P.3d 909 (2009) ). That statute provides, in material part:

"(1) A defendant may make a special motion to strike against a claim in a civil action described in subsection (2) of this section. The court shall grant the motion unless the plaintiff establishes in the manner provided by subsection (3) of this section that there is a probability that the plaintiff will prevail on the claim. *** If the court denies a special motion to strike, the court shall enter a limited judgment denying the motion.
"(2) A special motion to strike may be made under this section against any claim in a civil action that arises out of:
"(a) Any oral statement made, or written statement or other document submitted, in a legislative, executive or judicial proceeding or other proceeding authorized by law;
"(b) Any oral statement made, or written statement or other document submitted , in connection with an issue under consideration or review by a legislative, executive or judicial body or other proceeding authorized by law;
"(c) Any oral statement made, or written statement or other document presented, in a place open to the public or a public forum in connection with an issue of public interest; or
"(d) Any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.
"(3) A defendant making a special motion to strike under the provisions of this section has the initial burden of making a prima facie showing that the claim against which the motion is made arises out of a statement, document or conduct described in subsection (2) of this section. If the defendant meets this burden, the burden shifts to the plaintiff in the action to establish that there is a probability that the plaintiff will prevail on the claim by presenting substantial evidence to support a prima facie case. If the plaintiff meets this burden, the court shall deny the motion."

ORS 31.150 (emphases added). In keeping with those provisions, a special motion to strike is resolved according to a "two-step burden-shifting process." Young v. Davis , 259 Or. App. 497, 501, 314 P.3d 350 (2013). In Young , we explained:

"First, the court must determine whether the defendant has met its initial burden to show that the claim against which the motion is made 'arises out of' one or more protected activities described in subsection (2). Second, if the defendant meets its burden, 'the burden shifts to the plaintiff in the action to establish that there is a probability that the plaintiff will prevail on the claim by presenting substantial evidence to support a prima facie case.' If the plaintiff succeeds in meeting that burden, the special motion to strike must be denied. ORS 31.150(3)."

In reviewing a motion to strike, we take the facts from the pleadings and from the supporting and opposing affidavits submitted to the trial court and state them in the light most favorable to plaintiff. ORS 31.150(4) ; Neumann v. Liles , 261 Or. App. 567, 570 n. 2, 323 P.3d 521 (2014), rev'd on other grounds , 358 Or. 706, 369 P.3d 1117 (2016).

Plaintiff, an attorney, had sued his former client, Seida Land & Livestock, LLC (Seida LLC), as well as the Seida parents and their grown children (Seida siblings), in Lincoln County. In that case, plaintiff alleged damages on contract claims for unpaid attorney fees and sought foreclosure of an attorney's lien. The Seida siblings argued that they were not proper parties and moved for summary judgment as to plaintiff's claims against them.

The trial court, among other things, granted their motion for summary judgment and entered a limited judgment dismissing them from the case. Later, the court entered a judgment awarding the Seida siblings $ 62,608 in recovery of attorney fees in that proceeding. Plaintiff filed a notice of appeal from the judgment for attorney fees, and proffered an undertaking on appeal. The Seida siblings objected to the sufficiency of the undertaking, and the trial court sustained their objection during the hearing on July 5, 2017. The court did not enter the order until July 26, 2017.

In the meantime, before the order was entered, on July 12, 2017, defendant David Bowser, one of the attorneys for the Seida siblings, issued nine garnishment writs to banks in Lincoln City, where plaintiff maintains his law practice, seeking to collect on the judgment debt for attorney fees. In seemingly routine form, the writs recited that plaintiff owed money to the Seida siblings, that a limited judgment had been entered against plaintiff for that debt, that the debt of $ 63,098.54 was subject to garnishment, and that the garnishee must answer the writ. On July 19, 2017, Columbia Bank sent Bowser a check for $ 3,686.12 in response to the writ it received. Bowser also sent writs of garnishment to two of plaintiff's litigation clients and one to plaintiff's legal assistant.

On July 20, 2017, plaintiff told Bowser that he believed that issuing the garnishments violated a temporary judgment stay created by ORS 19.360. On the same day, Bowser sent releases of garnishment to each garnishee, and he returned $ 3,686.12 to Columbia Bank.

On July 24, 2017, plaintiff filed this action in Washington County seeking damages and declaratory relief for the alleged "violation of the automatic stay afforded [to] plaintiff by ORS 19.335(1) and ORS 19.360(1)."

Plaintiff alleged that defendants "wrongfully executed plaintiff's personal property for the unlawful purpose of frustrating his ability to prepare for trial in foreclosure proceedings against property claimed by their limited liability company Seida Land & Livestock, LLC." Plaintiff alleged four claims based on the writs of garnishment: (1) wrongful execution in violation of automatic stay; (2) "statutory violation"; (3) libel per se ; and (4) a request for declaratory relief.

In response, defendants filed special motions to strike under ORS 31.150(2)(a) and (b). Defendants argued that plaintiff's claims were subject to the anti-SLAPP statute because plaintiff's claims arose out of statements or documents "submitted in a judicial proceeding or in connection with an issue under consideration or review by a judicial body." The trial court denied defendants' motion and entered a limited judgment, concluding that defendants "failed to make a prima facie showing that the claims against which the motion is made arises out of statements or documents as required by ORS 31.150(2)(a), (b)."

On appeal, defendants assign error to the trial court's denial of their motion to strike. Defendants reiterate that their acts of issuing writs of garnishment to third parties are protected by ORS 31.150(2)(a) and (b). Also, defendants argue that plaintiff failed to establish that there is a probability that plaintiff will prevail on the claims by presenting substantial evidence to support a prima facie case under ORS 31.150(3). In opposition, plaintiff makes a number of procedural arguments and, on the merits, contends that the trial court did not err. We address the merits of the question whether the anti-SLAPP statute applies.

As framed, the question is whether statements in the writs of garnishment that defendants delivered to local banks, plaintiff's clients, and his legal assistant are statements that are "submitted in a judicial proceeding" or "submitted in connection with an issue under consideration or review by a judicial body." ORS 31.150(2)(a), (b). That is a question of law that we review for legal error. Deep Photonics Corp. v. LaChapelle , 282 Or. App. 533, 540, 385 P.3d 1126 (2016), rev. den. , 361 Or. 524, 395 P.3d 874 (2017). Defendants have the burden, under ORS 31.150(3), to show that the claims brought against them in plaintiff's complaint arose out of one of the circumstances set out in ORS 31.150(2)(a) to (d). Young , 259 Or. App. at 501, 314 P.3d 350.

Resolution of the issue turns on what the legislature intended when it described those specified circumstances. When construing a statute, we examine the text of the statute in context. State v. Gaines , 346 Or. 160, 171-72, 206 P.3d 1042 (2009). The text is generally "the best evidence of the legislature's intent." PGE v. Bureau of Labor and Industries , 317 Or. 606, 610, 859 P.2d 1143 (1993). We also consider any useful legislative history that the parties have provided or that, in our discretion, we have identified ourselves. Gaines , 346 Or. at 166, 172, 206 P.3d 1042 ; ORS 174.020(3) ("A court may limit its consideration of legislative history to the information that the parties provide to the court.").

We focus primarily on the first of two particular provisions, as do the parties. In ORS 31.150(2)(a), the phrase "submitted[ ] in a *** judicial proceeding" is not defined. Because the legislature has not defined the phrase, we consider dictionary definitions to aid in our understanding of the plain meaning of the term. Central Oregon LandWatch v. Deschutes County , 276 Or. App. 282, 289-90, 367 P.3d 560 (2016). The verb "submitted," as it is used here, is defined as "to send *** for consideration, study, or decision : refer < ~ a question to the court> *** b : to present or make available for use or study : offer, supply < ~ a report> < ~ a manuscript to a publisher[.]" Webster's Third New Int'l Dictionary 2277 (unabridged ed. 2002) (emphasis added). The phrase "judicial proceeding" may be understood to mean "[a]ny court proceeding ; any proceeding initiated to procure an order or decree, whether in law or in equity." Black's Law Dictionary 1398 (10th ed. 2014) (emphasis added). Accordingly, we understand the term "court proceeding" to likewise refer to a proceeding to procure a judgment, a similar determination, or other court action.

Read together, the plain meaning of statements "submitted in a judicial proceeding" means statements that are sent for consideration or presented for use in a court proceeding or a proceeding initiated to procure an order, decree, judgment, or similar action. Our issue becomes whether defendants' statements in the writs of garnishment, which defendants delivered to banks and other third parties, were statements that were sent, committed for consideration, or presented for use in a proceeding initiated to procure an order, decree, judgment, or similar action.

We apply those terms to the particular statements at issue at the time when defendants sent or presented those statements. In Oregon, a comprehensive set of statutes describes the nature, use, and function of writs of garnishment. Generally, garnishment is "the procedure by which a creditor invokes the authority of a circuit court, justice court or municipal court to acquire garnishable property of a debtor that is in the possession, control or custody of a person other than the debtor." ORS 18.602. After the court enters a valid judgment requiring the payment of money, writs of garnishment may be issued by the court administrator or by an attorney who is an active member of the Oregon Bar. ORS 18.602 (describing garnishment); ORS 18.635 (writs may be issued by court administrator or licensed Oregon attorney).

In order to issue a writ of garnishment, an attorney need not apply to the court for authorization to issue the writ or for further confirmation of the debt. See id . (authorizing attorney to issue writ for purpose of enforcing a judgment for payment of money judgment entered of record). Without any intervention of the court, a garnishee, upon receipt of a writ of garnishment, is required to determine whether the garnishee has possession, control, or custody of garnishable property and to make delivery of that property as required by law. ORS 18.665 (duties of garnishee). In its essence, the issuance and receipt of a writ of garnishment does not elicit, require, or call for any action by the court, although it issues pursuant to the authority of the court. The simple purpose of that writ is to effect some payment of a judgment debt that has already been established. A judgment debtor may choose to allow the garnishment to take effect and satisfy that debt. If so, the court is not called to act. Certainly, nothing in the issuance or delivery of a writ itself seeks court consideration or action.

Of course, a debtor may choose to challenge a garnishment to claim an exemption, to challenge the amount of the garnishment, or to assert that the property is not garnishable property. ORS 18.700(1). If the debtor challenges the garnishment, the debtor notifies the court administrator and the garnishor of the challenge to the garnishment. ORS 18.700(2). After receiving notice of the debtor's challenge, the garnishor is required to send any disputed money received to the court. ORS 18.705(1). Thus prompted, the court will hold a hearing to determine the merits of the debtor's challenge. ORS 18.710(1). The debtor's challenge, however, is the request that seeks a judicial consideration. That is not true for the writ itself, which does not seek judicial consideration.

Defendants argue that the writs of garnishment they submitted to local banks, plaintiff's clients, and his legal assistant are statements that are "submitted" in a "judicial proceeding" because, under ORS 18.602, writs of garnishment are generally described as the means by which a creditor "invokes the authority of the court" to acquire garnishable property. We are not persuaded that that generality resolves the question. But even recognizing that the garnishment process, as initiated by a writ, is properly considered a "judicial proceeding" for purposes of ORS 31.150(2)(a) by virtue of the fact that the writ issues pursuant to the authority of the court, the problem for defendants is that the writs were not submitted to the court in the ordinary sense of the word "submit." If anything, the writs, to the extent they invoke the court's authority, are issued from a court or counsel and are more akin to a court's directive than to something sent or otherwise submitted to the court for its consideration. The challenged writs, which defendants directed at the banks, plaintiff's clients, and his legal assistant, were not submitted in a court proceeding or submitted in a proceeding initiated to procure an order or decree. Rather, the writs were submitted to nonparties to elicit their consideration and action-specifically, to compel them to pay funds in satisfaction of the judgment.

The plain language of the phrase "submitted in a judicial proceeding" in ORS 31.150(2)(a) does not comport with defendants' interpretation, and defendants have not offered any legislative history that demonstrates ambiguity in the meaning of ORS 31.150(2)(a). We need not exercise our discretion to seek legislative history, particularly when unnecessary. See Gaines , 346 Or. at 172-73, 206 P.3d 1042 (regarding discretion to consider legislative history). Considering the intersection of the statutes at issue, we conclude that the legislature did not intend that recitals made in writs of garnishment sent by attorneys to third parties to seek their responses would constitute statements "submitted in a judicial proceeding" within the meaning of ORS 31.150(2)(a).

Similarly, the writs of garnishment in this case were not statements "submitted in connection with an issue under consideration or review by a judicial body" within the meaning of ORS 31.150(2)(b). (Emphasis added.) Defendants have not developed an argument or provided any persuasive support for the passing reference to ORS 31.150(2)(b). And, we find nothing in the record to indicate that the writs were submitted in connection with an issue that was "under consideration or review by a judicial body" at the time they were issued and delivered to third parties. In sum, the trial court did not err in entering a limited judgment denying defendants' special motion to strike.

Affirmed.

      "SLAPP" is an abbreviation for "Strategic Litigation Against Public Participation." Clackamas River Water v. Holloway , 261 Or. App. 852, 854 n. 1, 322 P.3d 614 (2014).

      We reject plaintiff's cross-assignment of error without discussion.

      Plaintiff's claims against Seida LLC and the Seida parents remained pending.

      We do not consider whether the writs of garnishment in this case included statements that were submitted in an "other proceeding authorized by law" under ORS 31.150(2)(a), because defendants have not developed that argument. It is "not this court's function to speculate as to what a party's argument might be. Nor is it our proper function to make or develop a party's argument when that party has not endeavored to do so itself." Beall Transport Equipment Co. v. Southern Pacific , 186 Or. App. 696, 700 n. 2, 64 P.3d 1193, adh'd to on recons. , 187 Or. App. 472, 68 P.3d 259 (2003).

      Not all judgment collection efforts are alike. For example, a judgment debtor examination first requires a motion to the court for an order for the examination. See ORS 18.265 ("after a judgment is entered, a judgment creditor may upon motion obtain an order requiring the judgment debtor to appear" for examination (emphasis added)).

      We are not persuaded by defendants' reference to California cases decided after the adoption of Oregon's statute, inasmuch as only those cases that precede Oregon's adoption of its anti-SLAPP statute may provide context for construing our statute. See Handy v. Lane County , 360 Or. 605, 618-19, 623 n. 12, 385 P.3d 1016 (2016). Subsequent cases may be of interest but are less influential. Therefore, we are not persuaded by defendants' broad suggestion that all post-judgment collection efforts are invariably "petitioning activity." Here, ORS 31.150(2)(d), involving other conduct in furtherance of the right of petition, is not at issue. Instead, under ORS 31.150(2)(a) and (b), the issue is whether particular statements were submitted or concerned a matter under consideration in judicial proceedings, at the time those statements were made.