privilege immunity in Oregon

2010Under Article I, section 20, “[ulnlawful individual-based denial (or conferral) of a privilege or immunity occurs when government engages in ‘wholly standardless application of a general law,’ [Clark, 291 Or at 239 ], that is, when government distributes privileges or immunities ‘purely haphazardly or otherwise on terms that have no satisfactory explanation.’ State v. Edmonson, 291 Or 251, 254 , 630 P2d 822 (1981).” State v. Davis, 237 Or App 351, 366-67 , 239 P3d 1002 (2010) (Schuman, J., concurring in part and dissenting in part).

2010Under Article I, section 20, “[ulnlawful individual-based denial (or conferral) of a privilege or immunity occurs when government engages in ‘wholly standardless application of a general law,’ [Clark, 291 Or at 239 ], that is, when government distributes privileges or immunities ‘purely haphazardly or otherwise on terms that have no satisfactory explanation.’ State v. Edmonson, 291 Or 251, 254 , 630 P2d 822 (1981).” State v. Davis, 237 Or App 351, 366-67 , 239 P3d 1002 (2010) (Schuman, J., concurring in part and dissenting in part).

2024DECISION TC-MD 210339N 10 Generally, to state a claim as a class member under Article I, section 20, a taxpayer must show that: “(1) [the taxpayer] is a member of a group that is a ‘true class,’ (2) [the challenged law] grants another group a privilege or immunity that [the taxpayer’s] group has not been granted, (3) the differential treatment is based on characteristics the group has that are apart from the statute, and (4) the differential treatment has no rational basis.” State v. Goacher, 303 Or App 783, 788 , 466 P3d 1047 (2020).

2024DECISION TC-MD 210339N 10 Generally, to state a claim as a class member under Article I, section 20, a taxpayer must show that: “(1) [the taxpayer] is a member of a group that is a ‘true class,’ (2) [the challenged law] grants another group a privilege or immunity that [the taxpayer’s] group has not been granted, (3) the differential treatment is based on characteristics the group has that are apart from the statute, and (4) the differential treatment has no rational basis.” State v. Goacher, 303 Or App 783, 788 , 466 P3d 1047 (2020).

2024A “true class” is one that is “defined in terms of characteristics that are shared apart from the challenged law or action.” Tanner v. Oregon Health Sciences University, 157 Or App 502, 521 , 971 P2d 435 (1998).

2024A “true class” is one that is “defined in terms of characteristics that are shared apart from the challenged law or action.” Tanner v. Oregon Health Sciences University, 157 Or App 502, 521 , 971 P2d 435 (1998).

2020Withers v. State of Oregon, 163 Or App 298, 306 , 987 P2d 1247 (1999), rev den, 331 Or 284 (2000).

2020Withers v. State of Oregon, 163 Or App 298, 306 , 987 P2d 1247 (1999), rev den, 331 Or 284 (2000).

2019As we explained in greater detail in State v. Savastano , 354 Or. 64 , 75, 309 P.3d 1083 (2013), "[i]n the period leading up to the Civil War, the phrase 'privileges and immunities' ordinarily referred to state created rights." (citing Kurt T.

2019As we explained in greater detail in State v. Savastano , 354 Or. 64 , 75, 309 P.3d 1083 (2013), "[i]n the period leading up to the Civil War, the phrase 'privileges and immunities' ordinarily referred to state created rights." (citing Kurt T.

2013That analysis and result is consistent with Freeland, where the defendant was charged by what the court viewed as the permissible but less favorable grand jury indictment, although the prosecutor could have charged the defendant by means of the more favorable preliminary hearing procedure. 295 Or at 372-74 . 5 In undertaking the privilege or immunity analysis, the Court of Appeals reasoned, “ [T]he state’s decision has obvious and serious consequences; depending on how the prosecution chooses to aggregate the theft transactions, defendant could have been burdened, or not, with the need to defe

2013Coast Range Conifers v. Board of Forestry, 339 Or 136, 142 , 117 P3d 990 (2005).

2013Coast Range Conifers v. Board of Forestry, 339 Or 136, 142 , 117 P3d 990 (2005).

2010The former protection is less familiar: An individual claims that he or she is denied (or that another person is granted) a privilege or immunity, not based on the person’s class membership, but based simply on the fact that other individuals who are similarly situated for all relevant purposes are receiving the benefit and the claimant is not (or vice versa) — that, in other words, the privilege or immunity is not made available to all individuals “upon the same terms.” State v. Clark, 291 Or 231, 237 , 630 P2d 810 , cert den, 454 US 1084 (1981).

2010The former protection is less familiar: An individual claims that he or she is denied (or that another person is granted) a privilege or immunity, not based on the person's class membership, but based simply on the fact that other individuals who are similarly situated for all relevant purposes are receiving the benefit and the claimant is not (or vice versa )—that, in other words, the privilege or immunity is not made available to all individuals "upon the same terms." State v. Clark, 291 Or. 231, 237 , 630 P.2d 810 , cert. den., 454 U.S. 1084 , 102 S.Ct. 640 , 70 L.Ed.2d 619 (1981).

2010The former protection is less familiar: An individual claims that he or she is denied (or that another person is granted) a privilege or immunity, not based on the person's class membership, but based simply on the fact that other individuals who are similarly situated for all relevant purposes are receiving the benefit and the claimant is not (or vice versa )—that, in other words, the privilege or immunity is not made available to all individuals "upon the same terms." State v. Clark, 291 Or. 231, 237 , 630 P.2d 810 , cert. den., 454 U.S. 1084 , 102 S.Ct. 640 , 70 L.Ed.2d 619 (1981).

2010The former protection is less familiar: An individual claims that he or she is denied (or that another person is granted) a privilege or immunity, not based on the person's class membership, but based simply on the fact that other individuals who are similarly situated for all relevant purposes are receiving the benefit and the claimant is not (or vice versa )—that, in other words, the privilege or immunity is not made available to all individuals "upon the same terms." State v. Clark, 291 Or. 231, 237 , 630 P.2d 810 , cert. den., 454 U.S. 1084 , 102 S.Ct. 640 , 70 L.Ed.2d 619 (1981).

2010The former protection is less familiar: An individual claims that he or she is denied (or that another person is granted) a privilege or immunity, not based on the person's class membership, but based simply on the fact that other individuals who are similarly situated for all relevant purposes are receiving the benefit and the claimant is not (or vice versa )—that, in other words, the privilege or immunity is not made available to all individuals "upon the same terms." State v. Clark, 291 Or. 231, 237 , 630 P.2d 810 , cert. den., 454 U.S. 1084 , 102 S.Ct. 640 , 70 L.Ed.2d 619 (1981).

2010The former protection is less familiar: An individual claims that he or she is denied (or that another person is granted) a privilege or immunity, not based on the person's class membership, but based simply on the fact that other individuals who are similarly situated for all relevant purposes are receiving the benefit and the claimant is not (or vice versa )—that, in other words, the privilege or immunity is not made available to all individuals "upon the same terms." State v. Clark, 291 Or. 231, 237 , 630 P.2d 810 , cert. den., 454 U.S. 1084 , 102 S.Ct. 640 , 70 L.Ed.2d 619 (1981).

1998We agree with the state that, “[t]o prove a violation of the [Privileges and Immunities] [c]lause, a defendant must first show that he was denied a privilege or immunity.” State v. Scott, 96 Or App 451, 455 , 773 P2d 394 (1989).

1998We agree with the state that, “[t]o prove a violation of the [Privileges and Immunities] [c]lause, a defendant must first show that he was denied a privilege or immunity.” State v. Scott, 96 Or App 451, 455 , 773 P2d 394 (1989).

1995Embracing this view of the privilege's contours, we held that `the privilege is a bar against compelling "communications" or "testimony," but that compulsion which makes a suspect or accused the source of "real or physical evidence" does not violate it.' Ibid." Id. at 590-91, 110 S.Ct. at 2644-45 .

1995The Court then cited instances in which it had applied that analysis to allow the admission of blood samples, Schmerber, 384 U.S. at 765 , 86 S.Ct. at 1832-33 , testimony derived from a compelled "lineup" and a compelled vocalization of a phrase provided by the police, United States v. Wade, 388 U.S. 218 , 87 S.Ct. 1926 , 18 L.Ed.2d 1149 (1967), a compelled handwriting exemplar, Gilbert v. California, 388 U.S. 263 , 87 S.Ct. 1951 , 18 L.Ed.2d 1178 (1967), and a compelled reading of a transcript in order to provide a voice exemplar, States v. Dionisio, 410 U.S. 1, 7 , 93 S.Ct. 764 , *1035 768,

1995The Court then cited instances in which it had applied that analysis to allow the admission of blood samples, Schmerber, 384 U.S. at 765 , 86 S.Ct. at 1832-33 , testimony derived from a compelled "lineup" and a compelled vocalization of a phrase provided by the police, United States v. Wade, 388 U.S. 218 , 87 S.Ct. 1926 , 18 L.Ed.2d 1149 (1967), a compelled handwriting exemplar, Gilbert v. California, 388 U.S. 263 , 87 S.Ct. 1951 , 18 L.Ed.2d 1178 (1967), and a compelled reading of a transcript in order to provide a voice exemplar, States v. Dionisio, 410 U.S. 1, 7 , 93 S.Ct. 764 , *1035 768,

1995The Court then cited instances in which it had applied that analysis to allow the admission of blood samples, Schmerber, 384 U.S. at 765 , 86 S.Ct. at 1832-33 , testimony derived from a compelled "lineup" and a compelled vocalization of a phrase provided by the police, United States v. Wade, 388 U.S. 218 , 87 S.Ct. 1926 , 18 L.Ed.2d 1149 (1967), a compelled handwriting exemplar, Gilbert v. California, 388 U.S. 263 , 87 S.Ct. 1951 , 18 L.Ed.2d 1178 (1967), and a compelled reading of a transcript in order to provide a voice exemplar, States v. Dionisio, 410 U.S. 1, 7 , 93 S.Ct. 764 , *1035 768,

1995The Court then cited instances in which it had applied that analysis to allow the admission of blood samples, Schmerber, 384 U.S. at 765 , 86 S.Ct. at 1832-33 , testimony derived from a compelled "lineup" and a compelled vocalization of a phrase provided by the police, United States v. Wade, 388 U.S. 218 , 87 S.Ct. 1926 , 18 L.Ed.2d 1149 (1967), a compelled handwriting exemplar, Gilbert v. California, 388 U.S. 263 , 87 S.Ct. 1951 , 18 L.Ed.2d 1178 (1967), and a compelled reading of a transcript in order to provide a voice exemplar, States v. Dionisio, 410 U.S. 1, 7 , 93 S.Ct. 764 , *1035 768,

1995The Court then cited instances in which it had applied that analysis to allow the admission of blood samples, Schmerber, 384 U.S. at 765 , 86 S.Ct. at 1832-33 , testimony derived from a compelled "lineup" and a compelled vocalization of a phrase provided by the police, United States v. Wade, 388 U.S. 218 , 87 S.Ct. 1926 , 18 L.Ed.2d 1149 (1967), a compelled handwriting exemplar, Gilbert v. California, 388 U.S. 263 , 87 S.Ct. 1951 , 18 L.Ed.2d 1178 (1967), and a compelled reading of a transcript in order to provide a voice exemplar, States v. Dionisio, 410 U.S. 1, 7 , 93 S.Ct. 764 , *1035 768,

1995The Court then cited instances in which it had applied that analysis to allow the admission of blood samples, Schmerber, 384 U.S. at 765 , 86 S.Ct. at 1832-33 , testimony derived from a compelled "lineup" and a compelled vocalization of a phrase provided by the police, United States v. Wade, 388 U.S. 218 , 87 S.Ct. 1926 , 18 L.Ed.2d 1149 (1967), a compelled handwriting exemplar, Gilbert v. California, 388 U.S. 263 , 87 S.Ct. 1951 , 18 L.Ed.2d 1178 (1967), and a compelled reading of a transcript in order to provide a voice exemplar, States v. Dionisio, 410 U.S. 1, 7 , 93 S.Ct. 764 , *1035 768,

1990Further discussion of the factual difference is found in Schuman, The Right to “Equal Privileges and Immunities’’: A State’s Version of “Equal Protection," 13 Vt L Rev 221 (1988). 13 However, in Walmer v. Gauthier, 64 Or App 157 , 667 P2d 537 (1983), a “clear and convincing evidence” standard was assumed, without discussion, to apply in a contested adoption proceeding.

1990Further discussion of the factual difference is found in Schuman, The Right to “Equal Privileges and Immunities’’: A State’s Version of “Equal Protection," 13 Vt L Rev 221 (1988). 13 However, in Walmer v. Gauthier, 64 Or App 157 , 667 P2d 537 (1983), a “clear and convincing evidence” standard was assumed, without discussion, to apply in a contested adoption proceeding.

1990Dept. v. Geist, 310 Or 176, 185, 187 , 796 P2d 1193 (1990). 10 Article I, section 20, provides: “No law shall be passed granting to any citizen or class of citizens privileges, or immunities, which, upon the same terms, shall not equally belong to all citizens.” 11 Planned Parenthood Assn. v. Dept. of Human Res., 297 Or 562, 564 , 687 P2d 785 (1984); State v. Lowry, 295 Or 337, 343 , 667 P2d 996 (1983). 12 This factual aspect — no conscious governmental choice to deny a privilege or immunity — makes this case different from Hale v. Port of Portland, 308 Or 508 , 783 P2d 506 (1989), and Sealey

1990Dept. v. Geist, 310 Or 176, 185, 187 , 796 P2d 1193 (1990). 10 Article I, section 20, provides: “No law shall be passed granting to any citizen or class of citizens privileges, or immunities, which, upon the same terms, shall not equally belong to all citizens.” 11 Planned Parenthood Assn. v. Dept. of Human Res., 297 Or 562, 564 , 687 P2d 785 (1984); State v. Lowry, 295 Or 337, 343 , 667 P2d 996 (1983). 12 This factual aspect — no conscious governmental choice to deny a privilege or immunity — makes this case different from Hale v. Port of Portland, 308 Or 508 , 783 P2d 506 (1989), and Sealey

1990Dept. v. Geist, 310 Or 176, 185, 187 , 796 P2d 1193 (1990). 10 Article I, section 20, provides: “No law shall be passed granting to any citizen or class of citizens privileges, or immunities, which, upon the same terms, shall not equally belong to all citizens.” 11 Planned Parenthood Assn. v. Dept. of Human Res., 297 Or 562, 564 , 687 P2d 785 (1984); State v. Lowry, 295 Or 337, 343 , 667 P2d 996 (1983). 12 This factual aspect — no conscious governmental choice to deny a privilege or immunity — makes this case different from Hale v. Port of Portland, 308 Or 508 , 783 P2d 506 (1989), and Sealey

1990Dept. v. Geist, 310 Or 176, 185, 187 , 796 P2d 1193 (1990). 10 Article I, section 20, provides: “No law shall be passed granting to any citizen or class of citizens privileges, or immunities, which, upon the same terms, shall not equally belong to all citizens.” 11 Planned Parenthood Assn. v. Dept. of Human Res., 297 Or 562, 564 , 687 P2d 785 (1984); State v. Lowry, 295 Or 337, 343 , 667 P2d 996 (1983). 12 This factual aspect — no conscious governmental choice to deny a privilege or immunity — makes this case different from Hale v. Port of Portland, 308 Or 508 , 783 P2d 506 (1989), and Sealey

1990Dept. v. Geist, 310 Or 176, 185, 187 , 796 P2d 1193 (1990). 10 Article I, section 20, provides: “No law shall be passed granting to any citizen or class of citizens privileges, or immunities, which, upon the same terms, shall not equally belong to all citizens.” 11 Planned Parenthood Assn. v. Dept. of Human Res., 297 Or 562, 564 , 687 P2d 785 (1984); State v. Lowry, 295 Or 337, 343 , 667 P2d 996 (1983). 12 This factual aspect — no conscious governmental choice to deny a privilege or immunity — makes this case different from Hale v. Port of Portland, 308 Or 508 , 783 P2d 506 (1989), and Sealey

1990Dept. v. Geist, 310 Or 176, 185, 187 , 796 P2d 1193 (1990). 10 Article I, section 20, provides: “No law shall be passed granting to any citizen or class of citizens privileges, or immunities, which, upon the same terms, shall not equally belong to all citizens.” 11 Planned Parenthood Assn. v. Dept. of Human Res., 297 Or 562, 564 , 687 P2d 785 (1984); State v. Lowry, 295 Or 337, 343 , 667 P2d 996 (1983). 12 This factual aspect — no conscious governmental choice to deny a privilege or immunity — makes this case different from Hale v. Port of Portland, 308 Or 508 , 783 P2d 506 (1989), and Sealey

1989The statutes do not bestow a privilege or immunity on a “true class.” See Hunter v. State of Oregon, 306 Or 529 , 761 P2d 502 (1988).

1989The statutes do not bestow a privilege or immunity on a “true class.” See Hunter v. State of Oregon, 306 Or 529 , 761 P2d 502 (1988).

1989In Atkinson , this court recharacterized what previously had been "trespass" as "nuisance" and then applied equitable balancing to fashion the injunctive decree: "We hold that whenever the aid of equity is sought to enjoin all or part of the operations of a private airport, including flights over the land of the plaintiff, the suit is for the abatement of a nuisance, and the law of nuisance rather than that of trespass applies." Atkinson, 223 Or. at 633 , 355 P.2d 229 .

1989In Atkinson , this court recharacterized what previously had been "trespass" as "nuisance" and then applied equitable balancing to fashion the injunctive decree: "We hold that whenever the aid of equity is sought to enjoin all or part of the operations of a private airport, including flights over the land of the plaintiff, the suit is for the abatement of a nuisance, and the law of nuisance rather than that of trespass applies." Atkinson, 223 Or. at 633 , 355 P.2d 229 .

1989The trial court applied the "privileged trespass" rule of the Restatement of Torts § 460 (1934), which this court had cited in another context: "Air travel over a plaintiff's land is still recognized as trespass prima facie imposing liability but the rights of airplane travel are established or recognized by the doctrine of privilege." Amphitheaters, *1298 Inc. v. Portland Meadows, 184 Or. 336, 344 , 198 P.2d 847 (1948).

1989The trial court applied the "privileged trespass" rule of the Restatement of Torts § 460 (1934), which this court had cited in another context: "Air travel over a plaintiff's land is still recognized as trespass prima facie imposing liability but the rights of airplane travel are established or recognized by the doctrine of privilege." Amphitheaters, *1298 Inc. v. Portland Meadows, 184 Or. 336, 344 , 198 P.2d 847 (1948).