Northwest Business Litigation

Multnomah County offers fast track to civil trials

In response to the long-term decline in the number of trials in civil cases, Multnomah County Circuit Court now offers an expedited track for jury trials.  Presiding Judge Jean Kerr Maurer has announced a new initiative for "summary jury trials."  If parties choose to participate, they will conduct limited discovery and will be able to go to trial within four months.  See more details here.

Oregon Court of Appeals tackles defamation claim against a clergy member

Last week, the Oregon Court of Appeals addressed a First Amendment issue that had been untouched by both the United States Supreme Court and the Oregon courts. In Tubra v. The International Church of the Foursquare Gospel, the Oregon Court of Appeals determined that the First Amendment did not divest a lower court of jurisdiction to consider a defamation claim against a church pastor.

Plaintiff was the interim pastor of Vernonia Foursquare Church.  He was appointed by Pastors Cooke and Swor, the district superintendent and supervisor.  After a permanent pastor was hired for Vernonia and plaintiff was released, Cooke and Swor drafted a letter that Swor read aloud to the Vernonia congregation regarding the circumstances surrounding plaintiff's departure. The letter accused plaintiff of misappropriation of church funds and dishonesty during his tenure as interim pastor.  Plaintiff sued Cooke, Swor and the International Church of the Foursquare Gospel for, among other things, defamation based on the letter.

After a trial on the merits, during which the jury found for plaintiff, the defendants moved for a judgment notwithstanding the verdict, arguing that the First Amendment operated to deprive the court of jurisdiction over the defamation claim.  After a hearing, the trial court agreed and overturned the jury's verdict.

The Court of Appeals reversed, concluding that church pastors are not per se exempt from defamation claims.  The court announced that the same test guiding courts in fraud cases against religious institutions should guide courts dealing with defamation claims against church pastors. Jurisdiction hinges on whether the representation at the heart of the fraud or defamation case is "purely religious as a matter of law."  If so, the First Amendment deprives the court of jurisdiction; if not, the court may hear the case. 

Determining whether a representation is purely religious involves three inquires.  First, is the defendant organization of a religious nature?  Second, does the representation itself relate to the religious beliefs and practices of the organization?  If the answers to these first two inquires are "yes," the First Amendment deprives the court of jurisdiction unless the statements were made for a "wholly secular" purpose.  Some ideas, such as "the nature of a supreme being" and "the value of prayer and worship" must always and in every context be purely religious as a matter of law.  Other ideas, however, can be religious only because the one espousing them is doing so for a religious purpose.

Here, the Court of Appeals determined that the alleged defamatory statements --that plaintiff had misappropriated money and demonstrated a willingness to lie -- did not relate to the religious beliefs and practices of the International Church of the Foursquare Gospel, and as such, were not purely religious as a matter of law. 

U.S. Supreme Court blocks Ninth Circuit plan to broadcast trials

The "Proposition 8" gay marriage trial in San Francisco won't be broadcast after all, and neither will any other federal trial within the Ninth Circuit, at least for now. 

The U.S. Supreme Court extended its stay of an order allowing the broadcast on the ground that the Ninth Circuit Judicial Council hadn't followed established procedures in adopting a pilot program to allow cameras in federal courtrooms.  In a 5-4 decision, the majority concluded that the pilot program amounted to a change in the local rules without adequate opportunity for public notice and comment, in contravention of federal law.

See our earlier coverage here and here, and other law blog coverage here and here.

Broadcasting of federal court trials hits a snag

The Ninth Circuit's plan to allow broadcasting of non-jury civil trials was curtailed today when the U.S. Supreme Court temporarily blocked an order to stream video of the California gay marriage trial both live to courthouses across the country, and on a delayed basis on You Tube.  Shortly before the start of trial in San Francisco on the constitutionality of the state's gay marriage ban, the Supreme Court ordered that the broadcast must be limited to rooms within the court house, and barred posting on You Tube.

The Supreme Court's order is in effect until Wednesday and is subject to "further consideration" by the Court.

See further coverage of the order here and here.  See our earlier post on the Ninth Circuit's experimental program to broadcast trials here.

Cameras will be allowed in federal district courts in the Ninth Circuit

Ninth Circuit Chief Judge Alex Kozinski yesterday announced that, for the first time, video recordings will be allowed in the district courts within the circuit.  Criminal cases and jury trials will be excluded from the experimental program.  Chief judges of each district will select cases to be recorded, and will report on their experiences to the Judicial Council of the Ninth Circuit. 

Oregon Supreme Court adopts a new approach to statutory interpretation

The Oregon Supreme Court issued an opinion last week that refines the judiciary's approach to interpreting statutes.  Oregon courts may now consider a statute's legislative history, even where its text and context are unambiguous.

In State v. Gaines, the Court concluded that, in light of the 2001 amendments to ORS 174.020, the appropriate methodology for interpreting a statute continues to place the most significance on a statute's text and context.  However, application of the State v. Gaines methodology will no longer require an ambiguity in the text of a statute as a necessary predicate to consideration of pertinent legislative history.  Instead, a party is free to proffer legislative history to the court, and the court will consult it after examining text and context, even if the court does not perceive an ambiguity in the statute's text.  The extent of the court's consideration of that history, and the evaluative weight that the court gives it, is for the court to determine.  Finally, if the legislature's intent remains unclear after examining text, context, and legislative history, the court may resort to general maxims of statutory construction to aid in resolving the remaining uncertainty.

This opinion moves the courts away from the methodology adopted in 1993 in PGE v. BOLI, which barred consideration of legislative history absent an ambiguity in the statutory text and context.

LA Times on ideological battles in the Ninth Circuit

The Los Angeles Times yesterday published this article about the influence of conservative judges on the Ninth Circuit Court of Appeals, including what observers say is strategic use of dissents from denial of en banc rehearing.  The article notes that a bill pending in Congress could add six more judges to the court, bringing the number of active judges to 35.

Budget problems disrupt operations at the Oregon Court of Appeals

Budget cuts are forcing significant changes at the Oregon Court of Appeals, according to a statement released this week by Chief Judge David Brewer.  Due to staffing reductions, the Court of Appeals will curtail its April oral argument calendar and may hear fewer oral arguments in subsequent months as well.  The court will consider rule changes that may shorten the maximum length of appeal briefs and end the practice of allowing oral arguments in every attorney-represented case.

See Judge Brewer's full statement here.

Funding allows state courts to open Fridays

Oregon state courts are closed today, but will be open Fridays starting next week, following an agreement by legislators and Chief Justice Paul DeMuniz to shift additional funds to court operations.  Last month Justice DeMuniz had announced that budget cuts would require courts to close one day a week. 

See this report from The Oregonian.

Federal law does not pre-empt state law tort claim, U.S. Supreme Court holds

In an opinion long-awaited in product liability circles, the U. S. Supreme Court today affirmed the Vermont Supreme Court and held that federal food and drug law does not pre-empt state law failure-to-warn tort claims. Wyeth v. Levine is a pharmaceutical case brought by a patient who was injured following administration of Wyeth's drug Phenergan.  Wyeth argued that the state law claims were pre-empted because it is impossible for the company to comply with both the state law duties underlying those claims and the company's federal labeling duties.  The Court rejected that argument.  The Court also rejected Wyeth's reliance on the preamble to a 2006 regulation which declared that state law failure-to-warn claims threaten the FDA's statutorily-prescribed role.  Justice Stevens delivered the opinion of the Court.  You can find that opinion and the concurrences and dissent here .