intermediate standard in Oregon

2020Imposition of the penalty under ORS 314.400(6)(b) would neither deprive Plaintiff of liberty nor violate an interest approaching the kinds of fundamental interests that the United States Supreme Court has held must be protected through an intermediate standard of proof.22 Cf. Cruzan v. Director, Missouri Department of Health, 497 US 261 , 110 S Ct 2841 , 111 L Ed 2d 224 (1990) (clear and convincing standard required to terminate an incompetent person’s life-sustaining treatment); Santosky v. Kramer, 455 US 745, 768 , 102 S Ct 1388 , 71 L Ed 2d 599 (1982) (requiring clear and convincing standar

2020Imposition of the penalty under ORS 314.400(6)(b) would neither deprive Plaintiff of liberty nor violate an interest approaching the kinds of fundamental interests that the United States Supreme Court has held must be protected through an intermediate standard of proof.22 Cf. Cruzan v. Director, Missouri Department of Health, 497 US 261 , 110 S Ct 2841 , 111 L Ed 2d 224 (1990) (clear and convincing standard required to terminate an incompetent person’s life-sustaining treatment); Santosky v. Kramer, 455 US 745, 768 , 102 S Ct 1388 , 71 L Ed 2d 599 (1982) (requiring clear and convincing standar

1983See also In re Lathen, 294 Or 157, 159 , 654 P2d 1110 (1982) (lawyer discipline requires clear and convincing evidence). *406 This same principle permeates a line of United States Supreme Court decisions holding that clear and convincing evidence is required in various quasi-criminal proceedings. 6 The Supreme Court of the United States recently summarized the principle of its decisions: “This Court has mandated an intermediate standard of proof — ‘clear and convincing evidence’ — when the individual interests at stake in a state proceeding are both ‘particularly important’ and ‘more substanti

1983See also In re Lathen, 294 Or 157, 159 , 654 P2d 1110 (1982) (lawyer discipline requires clear and convincing evidence). *406 This same principle permeates a line of United States Supreme Court decisions holding that clear and convincing evidence is required in various quasi-criminal proceedings. 6 The Supreme Court of the United States recently summarized the principle of its decisions: “This Court has mandated an intermediate standard of proof — ‘clear and convincing evidence’ — when the individual interests at stake in a state proceeding are both ‘particularly important’ and ‘more substanti

1986The court also noted that the traditional justification for a higher standard of proof in fraud cases, “that ‘[t]he stigma of fraud is not lightly laid upon a defendant,’ ” 295 Or at 406 (quoting Fahrenwald v. Hemphill, 239 Or 421, 426 , 398 P2d 174 (1965)), was inapplicable in the case before it: “Here the consequence of fraud or false swearing is solely the forfeiture of a contractual benefit.

1986The court also noted that the traditional justification for a higher standard of proof in fraud cases, “that ‘[t]he stigma of fraud is not lightly laid upon a defendant,’ ” 295 Or at 406 (quoting Fahrenwald v. Hemphill, 239 Or 421, 426 , 398 P2d 174 (1965)), was inapplicable in the case before it: “Here the consequence of fraud or false swearing is solely the forfeiture of a contractual benefit.

2020Imposition of the penalty under ORS 314.400(6)(b) would neither deprive Plaintiff of liberty nor violate an interest approaching the kinds of fundamental interests that the United States Supreme Court has held must be protected through an intermediate standard of proof.22 Cf. Cruzan v. Director, Missouri Department of Health, 497 US 261 , 110 S Ct 2841 , 111 L Ed 2d 224 (1990) (clear and convincing standard required to terminate an incompetent person’s life-sustaining treatment); Santosky v. Kramer, 455 US 745, 768 , 102 S Ct 1388 , 71 L Ed 2d 599 (1982) (requiring clear and convincing standar

2020Imposition of the penalty under ORS 314.400(6)(b) would neither deprive Plaintiff of liberty nor violate an interest approaching the kinds of fundamental interests that the United States Supreme Court has held must be protected through an intermediate standard of proof.22 Cf. Cruzan v. Director, Missouri Department of Health, 497 US 261 , 110 S Ct 2841 , 111 L Ed 2d 224 (1990) (clear and convincing standard required to terminate an incompetent person’s life-sustaining treatment); Santosky v. Kramer, 455 US 745, 768 , 102 S Ct 1388 , 71 L Ed 2d 599 (1982) (requiring clear and convincing standar

2020See, e.g., Mutual of Enumclaw, 295 Or at 407 ; cf. Speiser v. Randall, 357 US 513 , 78 S Ct 1332 , 2 L Ed 2d 1460 (1958) (state procedural rule requiring that taxpayer bear the burden of proof to show that he did not advocate the violent overthrow of government violated due process because the rule indirectly permitted the state to penalize taxpayer’s fundamental right to free speech). e. Conclusion: penalty under ORS 314.400(6)(b) applies in this case The court now applies these conclusions to the facts in this case.

2020See, e.g., Mutual of Enumclaw, 295 Or at 407 ; cf. Speiser v. Randall, 357 US 513 , 78 S Ct 1332 , 2 L Ed 2d 1460 (1958) (state procedural rule requiring that taxpayer bear the burden of proof to show that he did not advocate the violent overthrow of government violated due process because the rule indirectly permitted the state to penalize taxpayer’s fundamental right to free speech). e. Conclusion: penalty under ORS 314.400(6)(b) applies in this case The court now applies these conclusions to the facts in this case.

2016Furthermore, for purposes of ORS 183.400(4)(b), a rule is deemed to exceed its statutory authority not only if it exceeds the express or implied authority of the statutes that the rule purports to implement, but also if the rule “contravene [s] some other applicable statute.” Planned Parenthood Assn. v. Dept. of Human Res., 297 Or 562, 565 , 687 P2d 785 (1984); see State ex rel Engweiler v. Felton, 350 Or 592, 627 , 260 P3d 448 (2011) (finding that rules pertaining to parole consideration for juveniles convicted of aggravated murder, which required such juveniles to undergo an intermediate hea

2016Furthermore, for purposes of ORS 183.400(4)(b), a rule is deemed to exceed its statutory authority not only if it exceeds the express or implied authority of the statutes that the rule purports to implement, but also if the rule “contravene [s] some other applicable statute.” Planned Parenthood Assn. v. Dept. of Human Res., 297 Or 562, 565 , 687 P2d 785 (1984); see State ex rel Engweiler v. Felton, 350 Or 592, 627 , 260 P3d 448 (2011) (finding that rules pertaining to parole consideration for juveniles convicted of aggravated murder, which required such juveniles to undergo an intermediate hea

2002Id. at 421 .

1986The court noted that the origin of the clear and convincing standard in common law fraud cases was a dictum in a civil assault and battery case, Cook v. Michael, 214 Or 513 , 330 P2d 1026 (1958), and that “skepticism [was] often voiced regarding * * * an intermediate standard of proof,” but it declined to “reevaluate whether a higher level of proof should be required to prove common law fraud.” 295 Or at 402, 403 .