fourth assignment error in Oregon

2025First, BOLI’s regulations do not require it to reduce 1 ORS 659A.199 states: “(1) It is an unlawful employment practice for an employer to discharge, demote, suspend or in any manner discriminate or retaliate against an employee with regard to promotion, compensation or other terms, conditions or privileges of employment for the reason that the employee has in good faith reported information that the employee believes is evidence of a violation of a state or federal law, rule or regulation.” “Reported” as used in ORS 659A.199 includes reporting wrongdoing via “a communication made directly to

2025First, BOLI’s regulations do not require it to reduce 1 ORS 659A.199 states: “(1) It is an unlawful employment practice for an employer to discharge, demote, suspend or in any manner discriminate or retaliate against an employee with regard to promotion, compensation or other terms, conditions or privileges of employment for the reason that the employee has in good faith reported information that the employee believes is evidence of a violation of a state or federal law, rule or regulation.” “Reported” as used in ORS 659A.199 includes reporting wrongdoing via “a communication made directly to

2024State v. Spencer, 304 Or App 262, 263 , 467 P3d 73 , rev den, 367 Or 115 (2020). 2 The jury acquitted defendant on the first-degree sexual abuse counts related to using forcible compulsion and touching L’s vaginal area, and the court dismissed the public indecency charge on the state’s motion. 3 Defendant raises a fourth assignment of error challenging the imposition of a 10-year term of post-prison supervision (PPS) without deducting the time of incarceration.

2024State v. Spencer, 304 Or App 262, 263 , 467 P3d 73 , rev den, 367 Or 115 (2020). 2 The jury acquitted defendant on the first-degree sexual abuse counts related to using forcible compulsion and touching L’s vaginal area, and the court dismissed the public indecency charge on the state’s motion. 3 Defendant raises a fourth assignment of error challenging the imposition of a 10-year term of post-prison supervision (PPS) without deducting the time of incarceration.

2021Subsequent to the United States Supreme Court ruling in Ramos v. Louisiana, 590 US ___ , 140 S Ct 1390 , 206 L Ed 2d 583 (2020), the Oregon Supreme Court explained that a nonunanimous jury instruction was not a structural error that categorically required reversal.

2021Subsequent to the United States Supreme Court ruling in Ramos v. Louisiana, 590 US ___ , 140 S Ct 1390 , 206 L Ed 2d 583 (2020), the Oregon Supreme Court explained that a nonunanimous jury instruction was not a structural error that categorically required reversal.

2016In reviewing the board’s order for substantial evidence and legal error, ORS 656.298(7), ORS 183.482(8)(a), (c), and for substantial reason, Jenkins v. Board of Parole, 356 Or 186, 195-96 , 335 P3d 828 (2014), we reject employer’s jurisdictional argument and also conclude that the board correctly determined that employer de facto denied claimant’s cervical radiculopathy claim.

2016In reviewing the board’s order for substantial evidence and legal error, ORS 656.298(7), ORS 183.482(8)(a), (c), and for substantial reason, Jenkins v. Board of Parole, 356 Or 186, 195-96 , 335 P3d 828 (2014), we reject employer’s jurisdictional argument and also conclude that the board correctly determined that employer de facto denied claimant’s cervical radiculopathy claim.

2016FountainCourt Homeowners, 264 Or App at 471 .

2011On judicial review, the city raises five assignments of error; we write only to address the city’s fourth assignment of error. 4 The city, relying on Association of Oregon Corrections Employees v. DOC, 209 Or App 761, 770 , 149 P3d 319 (2006), argues that ERB erred by failing to consider already existing CBA provisions, long-standing city policies, and the parties’ course of conduct in determining that the city was required to bargain over the mandatory impacts of the decision to implement a return-to-work pilot program.

2011On judicial review, the city raises five assignments of error; we write only to address the city’s fourth assignment of error. 4 The city, relying on Association of Oregon Corrections Employees v. DOC, 209 Or App 761, 770 , 149 P3d 319 (2006), argues that ERB erred by failing to consider already existing CBA provisions, long-standing city policies, and the parties’ course of conduct in determining that the city was required to bargain over the mandatory impacts of the decision to implement a return-to-work pilot program.

2007We elect to follow that course, rather than the obverse, because of the virtual certainty that, if we did not address the fourth assignment of error on *481 appeal, the court’s ruling underlying that assignment of error would reoccur on remand. 2 For example, Wagner testified that the Tillamook Police Department policy authorized the use of such force only if “the life or safety” of the officer or of a third person is “in jeopardy.” 3 Article I, section 11, provides, in part: “[I]n the circuit court ten members of the jury may render a verdict of guilty or not guilty, save and except a verdict

2007We elect to follow that course, rather than the obverse, because of the virtual certainty that, if we did not address the fourth assignment of error on *481 appeal, the court’s ruling underlying that assignment of error would reoccur on remand. 2 For example, Wagner testified that the Tillamook Police Department policy authorized the use of such force only if “the life or safety” of the officer or of a third person is “in jeopardy.” 3 Article I, section 11, provides, in part: “[I]n the circuit court ten members of the jury may render a verdict of guilty or not guilty, save and except a verdict

2007Based on those circumstances, the superintendent contends that the district’s fourth assignment of error is not properly preserved under ORAP 5.45 and that this court therefore should not address it. 1 See, e.g., State v. Wyatt, 331 Or 335, 343 , 15 P3d 22 (2000) (holding that a party must provide a trial court with an explanation of the party’s position that is clear and specific enough to ensure that the court has the opportunity to identify its alleged error and correct it immediately before an issue is deemed preserved for appellate review).

2007Based on those circumstances, the superintendent contends that the district’s fourth assignment of error is not properly preserved under ORAP 5.45 and that this court therefore should not address it. 1 See, e.g., State v. Wyatt, 331 Or 335, 343 , 15 P3d 22 (2000) (holding that a party must provide a trial court with an explanation of the party’s position that is clear and specific enough to ensure that the court has the opportunity to identify its alleged error and correct it immediately before an issue is deemed preserved for appellate review).

2004In our opinion, we stated, “Defendant makes four assignments of error, three of which we reject without discussion.” Id. at 544 .

2002There is also testimony establishing that, as to some purchases of personal items, including the purchase of gifts for plaintiffs wife using defendant’s money, plaintiff routinely paid defendant back, using company money temporarily and only to keep his expenditure a surprise from the recipient of the gift. 11 In Lindland , the court also said, “Breach of the duty of loyalty is established by proof that the agent had a conflict of interest or was self-dealing.” Id. at 327 . 12 This assignment of error raises issues related to those in the fourth assignment of error, namely, what is required to

1998We concluded that all the claims at issue on appeal were time barred, because the action was not commenced until May 31, 1994, the date on which the administrator stamped the complaint “filed.” 3 Stull, 141 Or App at 153 .

1984The Court of Appeals treated those two assignments of error as presenting essentially the same issue. 61 Or App at 345 , 656 P2d at 957 .

1984The Court of Appeals treated those two assignments of error as presenting essentially the same issue. 61 Or App at 345 , 656 P2d at 957 .

1981On appeal, defendant raises four assignments of error, the first three of which invoke variations of the "fruit of the poisonous tree” rationale of Wong Sun v. United States, 371 US 471 , 83 S Ct 407 , 9 L Ed 2d 441 (1963); the fourth assignment of error contends that both out-of-court identifications of defendant were unduly suggestive.

1981On appeal, defendant raises four assignments of error, the first three of which invoke variations of the "fruit of the poisonous tree” rationale of Wong Sun v. United States, 371 US 471 , 83 S Ct 407 , 9 L Ed 2d 441 (1963); the fourth assignment of error contends that both out-of-court identifications of defendant were unduly suggestive.

1960The fourth assignment of error complains because an instruction upon the element of intent of the kind which was the subject matter of this court’s decision in State v. Braley, 224 Or 1 , 355 P2d 467 , was not given to the jury.

1960The fourth assignment of error complains because an instruction upon the element of intent of the kind which was the subject matter of this court’s decision in State v. Braley, 224 Or 1 , 355 P2d 467 , was not given to the jury.

1956Nothing said herein should be construed as contrary to Fowler v. Courtemanche, 202 Or 413 , 274 P2d 258 , where we held that OES 18.140 authorizes an appeal from an order denying a new trial in instances where the moving party moves alternatively for judgment notwithstanding the verdict and for a new trial. *491 The fourth assignment of error is denied as lacking in merit.

1956Nothing said herein should be construed as contrary to Fowler v. Courtemanche, 202 Or 413 , 274 P2d 258 , where we held that OES 18.140 authorizes an appeal from an order denying a new trial in instances where the moving party moves alternatively for judgment notwithstanding the verdict and for a new trial. *491 The fourth assignment of error is denied as lacking in merit.

1955The stop would have to be made at a point where the driver could observe the traffic on the highway which might be expected by a reasonable man of ordinary prudence to be affected by an entrance upon the highway and that is the rule which you must apply to this defendant in connection with the operation of his automobile under the circumstances here existing.” (Italics ours.) No doubt the foregoing instruction was based upon the interpretation the trial court placed upon the language used by us in Cameron v. Goree, 182 Or 581, 595 , 189 P2d 596 .

1955The stop would have to be made at a point where the driver could observe the traffic on the highway which might be expected by a reasonable man of ordinary prudence to be affected by an entrance upon the highway and that is the rule which you must apply to this defendant in connection with the operation of his automobile under the circumstances here existing.” (Italics ours.) No doubt the foregoing instruction was based upon the interpretation the trial court placed upon the language used by us in Cameron v. Goree, 182 Or 581, 595 , 189 P2d 596 .

1953The following is the fourth assignment of error: “The Court erred in refusing to hold said act unconstitutional as being in violation of Article III, Section 1, and Article IV, Section 1 of the Oregon Constitution, in that said act authorizes an unconstitutional delegation of the legislative power of the state as protected by said sections.” The provisions of our Constitution cited by the plaintiffs are sufficiently portrayed in the following *264 paragraph of Van Winkle v. Fred Meyer, Inc., 151 Or 455 , 49 P2d 1140 : “Under onr constitution, article IV, section 1, the power to make and declar

1953The following is the fourth assignment of error: “The Court erred in refusing to hold said act unconstitutional as being in violation of Article III, Section 1, and Article IV, Section 1 of the Oregon Constitution, in that said act authorizes an unconstitutional delegation of the legislative power of the state as protected by said sections.” The provisions of our Constitution cited by the plaintiffs are sufficiently portrayed in the following *264 paragraph of Van Winkle v. Fred Meyer, Inc., 151 Or 455 , 49 P2d 1140 : “Under onr constitution, article IV, section 1, the power to make and declar

1946The appellant does not contend that the statement which he signed was not freely and voluntarily made, but says: “A trial court must not permit the State to influence the jury in favor of capital punishment through receipt in evidence of other criminal offenses committed by defendant.” He cites: Boyd v. United States, supra; United States v. Dressler, 112 Fed. (2d) 972; People v. Lane, 300 Ill. 422 , 133 N. E. 267 ; People v. Heffernan, 312 Ill. 66 , 143 N. E. 411 ; and People v. Meisner, 311 Ill. 40 , 142 N. E. 482 .

1946The appellant does not contend that the statement which he signed was not freely and voluntarily made, but says: “A trial court must not permit the State to influence the jury in favor of capital punishment through receipt in evidence of other criminal offenses committed by defendant.” He cites: Boyd v. United States, supra; United States v. Dressler, 112 Fed. (2d) 972; People v. Lane, 300 Ill. 422 , 133 N. E. 267 ; People v. Heffernan, 312 Ill. 66 , 143 N. E. 411 ; and People v. Meisner, 311 Ill. 40 , 142 N. E. 482 .

1946The appellant does not contend that the statement which he signed was not freely and voluntarily made, but says: “A trial court must not permit the State to influence the jury in favor of capital punishment through receipt in evidence of other criminal offenses committed by defendant.” He cites: Boyd v. United States, supra; United States v. Dressler, 112 Fed. (2d) 972; People v. Lane, 300 Ill. 422 , 133 N. E. 267 ; People v. Heffernan, 312 Ill. 66 , 143 N. E. 411 ; and People v. Meisner, 311 Ill. 40 , 142 N. E. 482 .

1946The appellant does not contend that the statement which he signed was not freely and voluntarily made, but says: “A trial court must not permit the State to influence the jury in favor of capital punishment through receipt in evidence of other criminal offenses committed by defendant.” He cites: Boyd v. United States, supra; United States v. Dressler, 112 Fed. (2d) 972; People v. Lane, 300 Ill. 422 , 133 N. E. 267 ; People v. Heffernan, 312 Ill. 66 , 143 N. E. 411 ; and People v. Meisner, 311 Ill. 40 , 142 N. E. 482 .

1946The appellant does not contend that the statement which he signed was not freely and voluntarily made, but says: “A trial court must not permit the State to influence the jury in favor of capital punishment through receipt in evidence of other criminal offenses committed by defendant.” He cites: Boyd v. United States, supra; United States v. Dressler, 112 Fed. (2d) 972; People v. Lane, 300 Ill. 422 , 133 N. E. 267 ; People v. Heffernan, 312 Ill. 66 , 143 N. E. 411 ; and People v. Meisner, 311 Ill. 40 , 142 N. E. 482 .

1946The appellant does not contend that the statement which he signed was not freely and voluntarily made, but says: “A trial court must not permit the State to influence the jury in favor of capital punishment through receipt in evidence of other criminal offenses committed by defendant.” He cites: Boyd v. United States, supra; United States v. Dressler, 112 Fed. (2d) 972; People v. Lane, 300 Ill. 422 , 133 N. E. 267 ; People v. Heffernan, 312 Ill. 66 , 143 N. E. 411 ; and People v. Meisner, 311 Ill. 40 , 142 N. E. 482 .

1933The federal Supreme Court, in Harrigan v. Bergdoll, 270 U. S. 560 ( 70 L.

1933The federal Supreme Court, in Harrigan v. Bergdoll, 270 U. S. 560 ( 70 L.