OREGON APPELLATE ALMANAC OREGON APPELLATE OREGON APPELLATE ALMANAC Volume 1 2006 Volume 1 – 2006 Volume A Publication of the Appellate Practice Section of the Oregon State Bar Keith M. Garza and Lora E. Keenan, Editors OREGON APPELLATE ALMANAC Volume I 2006 CONTENTS Welcome (The Editors) ......................................................7 Dedication (The Honorable Wallace P. Carson, Jr.) ........... 11 2005 -- The Year in Review Ninth Circuit (Tom Sondag) ............................17 Oregon Supreme Court (Keith Garza) .............24 Oregon Court of Appeals (Robert Udziela) ..... 51 2005 Criminal Case Roundup (Walter Ledesma) .............................................64 2006 Oregon Appellate Almanac 1 2005 Judicial Profiles (The Supreme Court (reprinted from the Mutlnomah Lawyer)) The Honorable Wallace P. Carson, Jr. .............. 77 The Honorable W. Michael Gillette ................. 81 The Honorable Robert D. Durham .................. 84 The Honorable R. William Riggs ..................... 87 The Honorable Paul J. De Muniz .....................89 The Honorable Thomas A. Balmer................... 91 The Honorable Rives Kistler ............................94 Enactments and Promulgations 2005 Legislation of Interest to Appellate Practitioners (James Nass) ...............99 2006 ORAP Committee (Lora E. Keenan and Keith Garza) ............................................115 Heavy Lifting The Oregon Court of Appeals: 2005 Report (Hon. David Brewer) .................119 A Precis of the State’s Appellate Court Practice (Hon. Hardy Myers) .........................129 The End of the “We Can’t Tell” Rule Makes Life Much More Challenging for Appellants (George Pitcher and David Campbell)........... 135 Expanding Decretal Notation on Petitions for Review: A Proposal (Jana Toran) ..............146 History Matters The Oregon Reports, 1862-1900: A Brief History (Hon. Thomas A. Balmer) .....157 Lord’s Oregon Oak Chest (Keith Garza) ........166 Portland’s Pioneer Courthouse: A Brief Look at its History as it Reopens to the Public (Scott Shorr) .............................168 The Oregon Law Library Rare Book Collection (Joe Stephens) .............................. 173 2 2006 Oregon Appellate Almanac The U.S. Supreme Court’s Review of Oregon State Court Decisions in the First Half-Century of Statehood, 1859-1909 (Jeff Dobbins) .............................. 180 The Write Stuff Footnote Folly (Hon. Jack L. Landau)........... 199 Oregon Appellate Courts Style Manual (Mary Bauman) .............................................. 207 A Little Grammar Goes a Long Way: One Practitioner’s Comments on Three Rules Relevant to Legal Writing (Linda (Alix) Wicks) ......................................210 Four Almanacia The Oregon Supreme Court;s 2006 Public Calendar (Keith Garza) ............. 215 The Oregon Court of Appeals Calendar (Lora E. Keenan) ............................................223 The United States Court of Appeals for the Ninth Circuit - 2006 Sittings.............. 226 OJIN Abbreviations Used in Appellate Cases (Carrie Poust) ..................................... 227 Statistically Speaking The Oregon Supreme Court 2005 ................. 233 The Oregon Court of Appeals 2005 ..............234 Legal Lore Two “Fishy” Cases ........................................ 237 Rules of the Supreme Court of Oregon Territory, December 1852 ..............................247 Miscellany Reflections (Hon. Walter I. Edmonds) .......... 257 Getting To Know Us: Judicial Outreach in Oregon (Hon. Mary J. Deits and Lora E. Keenan) ............................................. 266 2006 Oregon Appellate Almanac 3 Supreme Court Smackdown: Extreme Oral Argument (James Nass) ........... 277 Oregon Court of Appeals 1982 Annual Report (The Honorable. Kurt Rossman) ................... 283 Passages The Honorable Kurt C. Rossman ................... 307 The Honorable Herbert M. Schwab ............... 308 The Almanac Contendere ..................................... 311 Reverse Dedication The Honorable Paul J. De Muniz ................... 317 Happy Trails -- And How To Buy This Book (The Editors) .................................................. 321 All illustrations in the volume by Carrie Poust (unless otherwise indicated) Disclaimer Copyrights belong to the contributors themselves. In some instances, materials have been borrowed with permission from other sources, and any copyright or other ownership interests remain with the initial source. Any views or opinions expressed herein are those of the authors alone and do not necessarily reflect the views or opinions of the Oregon State Bar, the Appellate Practice Section of the Oregon State Bar, the editors, or the section’s executive committee. 4 2006 Oregon Appellate Almanac CASES GET DISTINGUISHED AND DISTINGUISHED TILL THEY PROVOKE THE APHORISM THAT A DISTINGUISHED CASE IS A CASE THAT IS NO LONGER DISTINGUISHED. Thomas Reed Powell, “Some Aspects of American Constitutional Law,” 53 Harvard Law Review 529, 537 (1940). 2006 Oregon Appellate Almanac 5 “[W]E ARE NOT FINAL BECAUSE WE ARE INFALLIBLE, BUT WE ARE INFALLIBLE ONLY BECAUSE WE ARE FINAL.” Brown v. Allen, 344 US 443, 540, 73 S Ct 397, 97 L ED 1801 (1953) (Jackson, J., concurring). 6 2006 Oregon Appellate Almanac WELCOME & SUCH WELCOME On behalf of the Executive Committee of the Appellate Practice Section of the Oregon State Bar, the editors of Volume I of your Oregon Appellate Almanac extend to each of you a hearty WELCOME! We aim to enlighten and entertain without the ponderous trappings of academic publishing. Given that goal, the title— “Almanac”—seemed particularly apt, and we thank Paul Conable for suggesting it. Of course, “almanac” implies “annual.” Make no mistake about it, this is only Volume I. The Executive Committee intends this endeavor to be an annual event and one of the continuing benefits of membership in the Appellate Practice Section. We hope that you will enjoy and make much use out of the outstanding articles and other material contained in the pages that follow. Suffice it to say, we consider ourselves extremely lucky to have obtained insightful and witty submissions from some of Oregon’s most distinguished lawyers and judges. And we are particularly honored by the dedication from the Honorable Wallace P. Carson, Jr., Oregon’s longest serving Chief Justice (and, for those who know him, one of the best eggs ever hatched). So, read on and, again, welcome. AND SUCH As handsome an addition as this cardstock bound edition will make to your most cherished bookshelf, like fine wine, its value will only improve over time and become all the more impressive when sitting—hopefully dog-eared, torn, and coffee-stained—next 2006 Oregon Appellate Almanac 7 to future volumes (which we promise to bind in equally garish colors). For that highest value to be realized, however, we need your help. In the 165 years since Ewing Young died intestate in 1841 in what was then known as the Oregon Country, thereby necessitating the establishment of some form of law and judicial power, Oregon’s legal tradition has been a rich one indeed. And, if today’s headlines are any indication, Oregon’s appellate courts will continue to play a vital role in the development of our state’s law and jurisprudence. It is our intent through the Almanac to capture some of that richness, and we need you to write about those things from Oregon’s legal past, its present, and its future that you find most interesting. Hopefully, at least some of your colleagues will share your taste. Irreverence, provocative submissions, and ephemera (it is an almanac, after all) are encouraged. Footnotes and articles measured by the pound are not. Expect only limited editorial involvement and control (but remember that, ultimately, the Oregon State Bar is publishing these things). Typesetting is our business. Little or no effort, however, will be made by your volunteer editors to check citations, verify facts, or clean up prose. And no effort will be made to provide either defense or indemnity. These are your submissions and, for the most part, you are on your own. If these words or the writings that follow pique your own interest to the point that you are interested in contributing to Volume II, then by all means do so! Next year’s editor will be Walter J. Ledesma, chair elect of the Appellate Practice Section’s Executive Committee. With the exception of compliments, kudos, or other good tidings (please send those to either or both of us directly), please present any questions, concerns, criticisms, or anything that will require actual effort to Walter at (503) 981-0101 or [email protected]. Our work here, a labor of love though it has been, is done. Keith & Lora 8 2006 Oregon Appellate Almanac “GREAT CASES LIKE HARD CASES MAKE BAD LAW. FOR GREAT CASES ARE CALLED GREAT, NOT BY REASON OF THEIR REAL IMPORTANCE IN SHAPING THE LAW OF THE FUTURE, BUT BECAUSE OF SOME ACCIDENT OF IMMEDIATE OVERWHELMING INTEREST WHICH APPEALS TO THE FEELINGS AND DISTORTS THE JUDGMENT.” Northern Securities Co. v. United States, 193 US 197, 400, 24 S Ct 436, 48 L Ed 679 (1904) (Holmes, J., dissenting). 2006 Oregon Appellate Almanac 9 “METAPHORS IN THE LAW ARE TO BE NARROWLY WATCHED, FOR STARTING AS DEVICES TO LIBERATE THOUGHT, THEY END OFTEN BY ENSLAVING IT.” Berkey v. Third Avenue Railway, 244 NY 84, 94, 155 NE 58 (1926). 10 2006 Oregon Appellate Almanac DEDICATION “IN THE SOULS OF ITS CITIZENS WILL BE FOUND THE LIKENESS OF THE STATE WHICH IF THEY BE UNJUST AND TYRANNICAL THEN WILL IT REFLECT THEIR VICES BUT IF THEY BE