sense standard in Oregon

2016See generally Klutschkowski v. PeaceHealth, 354 Or 150, 178-96 , 311 P3d 461 (2013) (Landau, J., concurring); Brewer v. Dept. of Fish and Wildlife, 167 Or App 173, 191-98 , 2 P3d 418 (2000) (Landau, J., concurring).

2016See generally Klutschkowski v. PeaceHealth, 354 Or 150, 178-96 , 311 P3d 461 (2013) (Landau, J., concurring); Brewer v. Dept. of Fish and Wildlife, 167 Or App 173, 191-98 , 2 P3d 418 (2000) (Landau, J., concurring).

2002In McBride v. Magnuson, 282 Or 433, 437 , 578 P2d 1259 (1978), the court stated that conduct is “discretionary” in the sense that immunity attaches to its negligent performance if the decision is the result of a choice among competing policy considerations, made at the appropriate level of government: “[I]nsofar as an official action involves both the determination of facts and simple cause-and-effect relationships and also the assessment of costs and benefits, the evaluation of relative effectiveness and risks, and a choice among competing goals and priorities, an official has ‘discretion’ to

2002In McBride v. Magnuson, 282 Or 433, 437 , 578 P2d 1259 (1978), the court stated that conduct is “discretionary” in the sense that immunity attaches to its negligent performance if the decision is the result of a choice among competing policy considerations, made at the appropriate level of government: “[I]nsofar as an official action involves both the determination of facts and simple cause-and-effect relationships and also the assessment of costs and benefits, the evaluation of relative effectiveness and risks, and a choice among competing goals and priorities, an official has ‘discretion’ to

2005ORS 30.265(3)(c), the statutory basis for discretionary immunity, provides that “[e]very public body and its officers, employees and agents acting within the scope of their employment or duties * * *” are immune from liability for “[a]ny claim based upon the performance of or the failure to exercise or perform a discretionary function or duty, whether or not the discretion is abused.” Under the statute, “conduct is ‘discretionary’ in the sense that immunity attaches to its negligent performance if the decision is the result of a choice among competing policy considerations, made at the appropr

2005ORS 30.265(3)(c), the statutory basis for discretionary immunity, provides that “[e]very public body and its officers, employees and agents acting within the scope of their employment or duties * * *” are immune from liability for “[a]ny claim based upon the performance of or the failure to exercise or perform a discretionary function or duty, whether or not the discretion is abused.” Under the statute, “conduct is ‘discretionary’ in the sense that immunity attaches to its negligent performance if the decision is the result of a choice among competing policy considerations, made at the appropr

2007Such a provision simply has no core.’ Smith v. Goguen, 415 US 566, 578 , 94 S Ct 1242 , 39 L Ed 2d 605 (1974).” (Emphasis and brackets in original.) See also State v. Chakerian, 325 Or 370, 380-81 , 938 P2d 756 (1997) (applying same standard).

2007Such a provision simply has no core.’ Smith v. Goguen, 415 US 566, 578 , 94 S Ct 1242 , 39 L Ed 2d 605 (1974).” (Emphasis and brackets in original.) See also State v. Chakerian, 325 Or 370, 380-81 , 938 P2d 756 (1997) (applying same standard).

2007Such a provision simply has no core.’ Smith v. Goguen, 415 US 566, 578 , 94 S Ct 1242 , 39 L Ed 2d 605 (1974).” (Emphasis and brackets in original.) See also State v. Chakerian, 325 Or 370, 380-81 , 938 P2d 756 (1997) (applying same standard).

2007Such a provision simply has no core.’ Smith v. Goguen, 415 US 566, 578 , 94 S Ct 1242 , 39 L Ed 2d 605 (1974).” (Emphasis and brackets in original.) See also State v. Chakerian, 325 Or 370, 380-81 , 938 P2d 756 (1997) (applying same standard).

2004In State v. Rathbun, 287 Or. 421, 430 , 600 P.2d 392 (1979), the Supreme Court outlined the considerations involved in deciding what circumstances will allow reprosecution after jeopardy has attached: "No one disputes that a purpose to be served by a constitutional or statutory double jeopardy clause is to prevent repeated attempts to convict a person for the same offense thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity. * * * Nor should there be any dispute as to the defendant's valued right to have his tria

2004In State v. Rathbun, 287 Or. 421, 430 , 600 P.2d 392 (1979), the Supreme Court outlined the considerations involved in deciding what circumstances will allow reprosecution after jeopardy has attached: "No one disputes that a purpose to be served by a constitutional or statutory double jeopardy clause is to prevent repeated attempts to convict a person for the same offense thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity. * * * Nor should there be any dispute as to the defendant's valued right to have his tria

2003A plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others.' (footnote omitted). *312 "The court noted that `the complainant must prove that the enactment is vague "not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all."' "The analysis based on fair notice to defendants, of course, does not necessarily apply equally to the other `vagueness' objections based on legislativ

2003A plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others.' (footnote omitted). *312 "The court noted that `the complainant must prove that the enactment is vague "not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all."' "The analysis based on fair notice to defendants, of course, does not necessarily apply equally to the other `vagueness' objections based on legislativ

2002As relevant here, ORS 30.265 provides: “(3) Every public body and its officers, employees and agents acting within the scope of their employment or duties * * * are immune from liability for: “* * * * * *268 “(c) Any claim based upon the performance of or the failure to exercise or perform a discretionary function or duty, whether or not the discretion is abused.” In Garrison v. Deschutes County, 334 Or 264, 273 , 48 P3d 807 (2002), the Supreme Court described the type of conduct that is entitled to immunity under ORS 30.265(3)(c): “[C]onduct is ‘discretionary in the sense that immunity attach

2002As relevant here, ORS 30.265 provides: “(3) Every public body and its officers, employees and agents acting within the scope of their employment or duties * * * are immune from liability for: “* * * * * *268 “(c) Any claim based upon the performance of or the failure to exercise or perform a discretionary function or duty, whether or not the discretion is abused.” In Garrison v. Deschutes County, 334 Or 264, 273 , 48 P3d 807 (2002), the Supreme Court described the type of conduct that is entitled to immunity under ORS 30.265(3)(c): “[C]onduct is ‘discretionary in the sense that immunity attach

2002In McBride v. Magnuson, 282 Or 433, 437 , 578 P2d 1259 (1978), the court stated that conduct is “discretionary” in the sense that immunity attaches to its negligent performance if the decision is the result of a choice among competing policy considerations, made at the appropriate level of government: “[I]nsofar as an official action involves both the determination of facts and simple cause-and-effect relationships and also the assessment of costs and benefits, the evaluation of relative effectiveness and risks, and a choice among competing goals and priorities, an official has ‘discretion’ to

2002In McBride v. Magnuson, 282 Or 433, 437 , 578 P2d 1259 (1978), the court stated that conduct is “discretionary” in the sense that immunity attaches to its negligent performance if the decision is the result of a choice among competing policy considerations, made at the appropriate level of government: “[I]nsofar as an official action involves both the determination of facts and simple cause-and-effect relationships and also the assessment of costs and benefits, the evaluation of relative effectiveness and risks, and a choice among competing goals and priorities, an official has ‘discretion’ to

1994(Citations omitted; emphasis supplied.) The Ninth Circuit applied that formulation in Schwartzmiller v. Gardner, 752 F.2d 1341, 1347 (9th Cir.1984): "[A] party has standing to challenge a statute facially, despite the ordinary rule against facial statutory review, if `no standard of conduct is specified at all,' Parker v. Levy, 417 U.S. [733, 755, 94 S.Ct. 2547, 2561 , 41 L.Ed.2d 439 (1974)], quoting Coates [v. City of Cincinatti, 402 U.S. 611, 614 , 91 S.Ct. 1686, 1689 , 29 L.Ed.2d 214 (1971) ]; that is, if the statute `is impermissibly vague in all of its applications.' Flipside, 455 U.S. at

1994(Citations omitted; emphasis supplied.) The Ninth Circuit applied that formulation in Schwartzmiller v. Gardner, 752 F.2d 1341, 1347 (9th Cir.1984): "[A] party has standing to challenge a statute facially, despite the ordinary rule against facial statutory review, if `no standard of conduct is specified at all,' Parker v. Levy, 417 U.S. [733, 755, 94 S.Ct. 2547, 2561 , 41 L.Ed.2d 439 (1974)], quoting Coates [v. City of Cincinatti, 402 U.S. 611, 614 , 91 S.Ct. 1686, 1689 , 29 L.Ed.2d 214 (1971) ]; that is, if the statute `is impermissibly vague in all of its applications.' Flipside, 455 U.S. at

1994(Citations omitted; emphasis supplied.) The Ninth Circuit applied that formulation in Schwartzmiller v. Gardner, 752 F.2d 1341, 1347 (9th Cir.1984): "[A] party has standing to challenge a statute facially, despite the ordinary rule against facial statutory review, if `no standard of conduct is specified at all,' Parker v. Levy, 417 U.S. [733, 755, 94 S.Ct. 2547, 2561 , 41 L.Ed.2d 439 (1974)], quoting Coates [v. City of Cincinatti, 402 U.S. 611, 614 , 91 S.Ct. 1686, 1689 , 29 L.Ed.2d 214 (1971) ]; that is, if the statute `is impermissibly vague in all of its applications.' Flipside, 455 U.S. at

1994(Citations omitted; emphasis supplied.) The Ninth Circuit applied that formulation in Schwartzmiller v. Gardner, 752 F.2d 1341, 1347 (9th Cir.1984): "[A] party has standing to challenge a statute facially, despite the ordinary rule against facial statutory review, if `no standard of conduct is specified at all,' Parker v. Levy, 417 U.S. [733, 755, 94 S.Ct. 2547, 2561 , 41 L.Ed.2d 439 (1974)], quoting Coates [v. City of Cincinatti, 402 U.S. 611, 614 , 91 S.Ct. 1686, 1689 , 29 L.Ed.2d 214 (1971) ]; that is, if the statute `is impermissibly vague in all of its applications.' Flipside, 455 U.S. at

1984There is an easily identified holding, in the sense of a stated rule of law, in Part II of the opinion in Berkemer v. McCarty, 468 US_, 104 S Ct 3138 , 82 L Ed 2d 317 (1984), as follows: “We hold therefore that a person subjected to custodial interrogation is entitled to the benefit of the procedural safeguards enunciated in Miranda , regardless of the nature or severity of the offense of which he is suspected or for which he is arrested.” (Footnote omitted.) 468 US at_, 104 S Ct at 3148 , 82 L Ed 2d at 331 .

1984There is an easily identified holding, in the sense of a stated rule of law, in Part II of the opinion in Berkemer v. McCarty, 468 US_, 104 S Ct 3138 , 82 L Ed 2d 317 (1984), as follows: “We hold therefore that a person subjected to custodial interrogation is entitled to the benefit of the procedural safeguards enunciated in Miranda , regardless of the nature or severity of the offense of which he is suspected or for which he is arrested.” (Footnote omitted.) 468 US at_, 104 S Ct at 3148 , 82 L Ed 2d at 331 .

1984The process of interviewing is an aid to the officer in gathering that kind of evidence, but it is also utilized to gather evidence by way of admissions and to rule out claims of injury or illness as a cause of the driver’s condition.” 293 Or at 86-87 , 644 P2d at 1120-1121 .

1984The process of interviewing is an aid to the officer in gathering that kind of evidence, but it is also utilized to gather evidence by way of admissions and to rule out claims of injury or illness as a cause of the driver’s condition.” 293 Or at 86-87 , 644 P2d at 1120-1121 .

1984Cf. my original opinion in this case, 293 Or. at 94, 644 P.2d 1125 , and State v. Schroeder, 296 Or. 648 , 678 P.2d 1227 (1984) (Linde, J., dissenting). [1] There is an easily identified holding, in the sense of a stated rule of law, in Part II of the opinion in Berkemer v. McCarty, 468 U.S. ___ , 104 S.Ct. 3138 , 82 L.Ed.2d 317 (1984), as follows: "We hold therefore that a person subjected to custodial interrogation is entitled to the benefit of the procedural safeguards enunciated in Miranda , regardless of the nature or severity of the offense of which he is suspected or for which he is arr

1984Cf. my original opinion in this case, 293 Or. at 94, 644 P.2d 1125 , and State v. Schroeder, 296 Or. 648 , 678 P.2d 1227 (1984) (Linde, J., dissenting). [1] There is an easily identified holding, in the sense of a stated rule of law, in Part II of the opinion in Berkemer v. McCarty, 468 U.S. ___ , 104 S.Ct. 3138 , 82 L.Ed.2d 317 (1984), as follows: "We hold therefore that a person subjected to custodial interrogation is entitled to the benefit of the procedural safeguards enunciated in Miranda , regardless of the nature or severity of the offense of which he is suspected or for which he is arr

1983They had already been made and received by the police through the sense of hearing. 10 The court had earlier stated that the unlawful entry was properly characterized as a search. 11 Compare, n. 5, supra. 12 As observed by the United States Supreme Court in Payton v. New York, 445 US 573, 585 , 100 S Ct 1371 , 63 L Ed2d 639 (1980), physical entry of a home is the chief evil against which the very text of the Fourth Amendment to the United States Constitution is directed. 13 A like statement was made by the court in United States v. Allard, 634 F2d 1182 (1980), which we have discussed in the te

1983They had already been made and received by the police through the sense of hearing. 10 The court had earlier stated that the unlawful entry was properly characterized as a search. 11 Compare, n. 5, supra. 12 As observed by the United States Supreme Court in Payton v. New York, 445 US 573, 585 , 100 S Ct 1371 , 63 L Ed2d 639 (1980), physical entry of a home is the chief evil against which the very text of the Fourth Amendment to the United States Constitution is directed. 13 A like statement was made by the court in United States v. Allard, 634 F2d 1182 (1980), which we have discussed in the te

1982The analysis based on fair notice to defendants, of course, does not necessarily apply equally to the other "vagueness" objections based on legislative failure to make crucial policy choices in defining crimes and excessive transfer of those choices to prosecutors, courts, and jurors, to which we have referred above. [9] Cf. Wheeler v. Green, 286 Or. 99 , 593 P.2d 777 (1979). [10] In that case the court was unable to confine a definition of "disorderly conduct" by language or gestures, ORS 166.025(1)(c), within constitutional bounds consistent with the legislative purpose.

1982The analysis based on fair notice to defendants, of course, does not necessarily apply equally to the other "vagueness" objections based on legislative failure to make crucial policy choices in defining crimes and excessive transfer of those choices to prosecutors, courts, and jurors, to which we have referred above. [9] Cf. Wheeler v. Green, 286 Or. 99 , 593 P.2d 777 (1979). [10] In that case the court was unable to confine a definition of "disorderly conduct" by language or gestures, ORS 166.025(1)(c), within constitutional bounds consistent with the legislative purpose.

1979These considerations must bow, however, to the sense of the rule formulated in the early case of United States v. Perez, 9 Wheat. 579 , 6 LEd 165 (1824), providing that the attachment of jeopardy is anulled if the prior prosecution is terminated because "there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated.” See also, Arizona v. Washington, 434 US 497 , 98 S Ct 824 , 54 LEd2d 717 (1978), and State v. Cole, 286 Or 411 , 595 P2d 466 (1979).

1979These considerations must bow, however, to the sense of the rule formulated in the early case of United States v. Perez, 9 Wheat. 579 , 6 LEd 165 (1824), providing that the attachment of jeopardy is anulled if the prior prosecution is terminated because "there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated.” See also, Arizona v. Washington, 434 US 497 , 98 S Ct 824 , 54 LEd2d 717 (1978), and State v. Cole, 286 Or 411 , 595 P2d 466 (1979).

1979These considerations must bow, however, to the sense of the rule formulated in the early case of United States v. Perez, 9 Wheat. 579 , 6 LEd 165 (1824), providing that the attachment of jeopardy is anulled if the prior prosecution is terminated because "there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated.” See also, Arizona v. Washington, 434 US 497 , 98 S Ct 824 , 54 LEd2d 717 (1978), and State v. Cole, 286 Or 411 , 595 P2d 466 (1979).

1979These considerations must bow, however, to the sense of the rule formulated in the early case of United States v. Perez, 9 Wheat. 579 , 6 LEd 165 (1824), providing that the attachment of jeopardy is anulled if the prior prosecution is terminated because "there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated.” See also, Arizona v. Washington, 434 US 497 , 98 S Ct 824 , 54 LEd2d 717 (1978), and State v. Cole, 286 Or 411 , 595 P2d 466 (1979).

1979The premises arising from Jorn and Wade were reaffirmed in United States v. Dinitz, 424 US 600, 611 , 96 S Ct 1075 , 47 L Ed 2d 267 (1976), where the court noted the special treatment of the situation involving judicial or prosecutorial misconduct: "The Double Jeopardy Clause does protect a defendant against governmental actions intended to provoke mistrial requests and thereby to subject defendants to the substantial burdens imposed by multiple prosecutions.

1979The premises arising from Jorn and Wade were reaffirmed in United States v. Dinitz, 424 US 600, 611 , 96 S Ct 1075 , 47 L Ed 2d 267 (1976), where the court noted the special treatment of the situation involving judicial or prosecutorial misconduct: "The Double Jeopardy Clause does protect a defendant against governmental actions intended to provoke mistrial requests and thereby to subject defendants to the substantial burdens imposed by multiple prosecutions.

1979These considerations must bow, however, to the sense of the rule formulated in the early case of United States v. Perez, 9 Wheat. 579 , 6 LEd 165 (1824), providing that the attachment of jeopardy is anulled if the prior prosecution is terminated because "there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated.” See also, Arizona v. Washington, 434 US 497 , 98 S Ct 824 , 54 LEd2d 717 (1978), and State v. Cole, 286 Or 411 , 595 P2d 466 (1979).

1979These considerations must bow, however, to the sense of the rule formulated in the early case of United States v. Perez, 9 Wheat. 579 , 6 LEd 165 (1824), providing that the attachment of jeopardy is anulled if the prior prosecution is terminated because "there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated.” See also, Arizona v. Washington, 434 US 497 , 98 S Ct 824 , 54 LEd2d 717 (1978), and State v. Cole, 286 Or 411 , 595 P2d 466 (1979).

1966The decision in the wiretapping case of Olmstead v. United States, 277 US 438 , 48 S Ct 564 , 72 L ed 944, 66 ALR 376 (1928), rejecting the claim of an unlawful search and seizure, was based on the grounds that there was no "actual physical invasion" of the premises occupied by the defendants ( 277 US at 466 ) and *126 no search or seizure of material things, but only the securing of evidence "by the use of the sense of hearing." Id. at 464 .

1966The decision in the wiretapping case of Olmstead v. United States, 277 US 438 , 48 S Ct 564 , 72 L ed 944, 66 ALR 376 (1928), rejecting the claim of an unlawful search and seizure, was based on the grounds that there was no "actual physical invasion" of the premises occupied by the defendants ( 277 US at 466 ) and *126 no search or seizure of material things, but only the securing of evidence "by the use of the sense of hearing." Id. at 464 .

1962In sustaining the denial of his plea this court said: “While that conviction [the one in Lane county] was a material element of the crime for which he was tried in Baker County, it did not comprise former conviction in the sense of the defense of former conviction in the instant case.” (at 653) The defendant’s plea of double jeopardy made in People v. Wilson, 293 NYS 178 , 161 Misc 421 (1936), under circumstances of conviction present here was disposed of by the court as follows: “Belator’s contention is (1) that it was not the intent of the Legislature to make the punishment for a fourth felo

1962In sustaining the denial of his plea this court said: “While that conviction [the one in Lane county] was a material element of the crime for which he was tried in Baker County, it did not comprise former conviction in the sense of the defense of former conviction in the instant case.” (at 653) The defendant’s plea of double jeopardy made in People v. Wilson, 293 NYS 178 , 161 Misc 421 (1936), under circumstances of conviction present here was disposed of by the court as follows: “Belator’s contention is (1) that it was not the intent of the Legislature to make the punishment for a fourth felo

1946In such case, the carrying out of the legislative intention, which is the prime and sole object of all rules of construction, can only be accomplished by departure from the literal interpretation of the language employed.” The ancient Bolognian law provided “that whoever drew blood in the streets should be punished with the utmost severity”, but Puffendorf — the legal philosopher — in commenting on this law well said “it did not extend to the surgeon who opened the vein of a person that fell down in the street in a fit.” The same common sense rule of construction was applied by the supreme cou

1946In such case, the carrying out of the legislative intention, which is the prime and sole object of all rules of construction, can only be accomplished by departure from the literal interpretation of the language employed.” The ancient Bolognian law provided “that whoever drew blood in the streets should be punished with the utmost severity”, but Puffendorf — the legal philosopher — in commenting on this law well said “it did not extend to the surgeon who opened the vein of a person that fell down in the street in a fit.” The same common sense rule of construction was applied by the supreme cou