Chapter 014

      14.030

NOTES OF DECISIONS

      Under this section, in action for specific recovery of personal property, court, where it has personal jurisdiction, has subject matter jurisdiction over personal property located outside state. Osburn v. Pace, 55 Or App 492, 638 P2d 497 (1982)

      14.060

NOTES OF DECISIONS

      “Suit” refers to any form of civil action. Nibler v. Oregon Dept. of Transportation, 338 Or 19, 105 P3d 360 (2005)

      Civil action described in this section may be brought only in venue described in this section. Nibler v. Oregon Dept. of Transportation, 338 Or 19, 105 P3d 360 (2005)

      14.080

NOTES OF DECISIONS

      This section does not provide alternative venue for civil action described in ORS 14.060. Nibler v. Oregon Dept. of Transportation, 338 Or 19, 105 P3d 360 (2005)

      For purposes of wrongful death action, county where “cause of action arose” is county in which injurious conduct that caused death occurred. Howell v. Willamette Urology, P.C., 344 Or 124, 178 P3d 220 (2008)

      Defendant medical clinic’s contacts with Multnomah County, including treating some Multnomah County residents and soliciting and advertising activities, are not normal and ordinary in light of nature of defendant’s enterprise so are not regular or sustained business activities sufficient to establish residence in Multnomah County for purposes of venue. Kohring v. Ballard, 355 Or 297, 325 P3d 717 (2014)

      14.110

NOTES OF DECISIONS

      Contract provision limiting venue is enforceable if there is no evidence that provision is unfair or enforcement would be unreasonable. Furtick v. Abraham, 54 Or App 652, 635 P2d 1063 (1981), Sup Ct review denied

      Nothing in this section suggests that motion to change venue tolls other statutory deadlines and, accordingly, 60-day deadline to file anti-SLAPP motion to strike under ORS 31.152 was not tolled while motion to change venue was pending; thus, defendants’ special motion to strike under ORS 31.150 was untimely when motion was filed more than 60 days after date of service C.I.C.S. Employment Services v. Newport Newspapers, 291 Or App 316, 420 P3d 684 (2018)

      14.120

NOTES OF DECISIONS

      Nothing in this section suggests that motion to change venue tolls other statutory deadlines and, accordingly, 60-day deadline to file anti-SLAPP motion to strike under ORS 31.152 was not tolled while motion to change venue was pending; thus, defendants’ special motion to strike under ORS 31.150 was untimely when motion was filed more than 60 days after date of service C.I.C.S. Employment Services v. Newport Newspapers, 291 Or App 316, 420 P3d 684 (2018)

      14.175

NOTES OF DECISIONS

      As provided under this statute, exception to rule against deciding moot cases applies to cases which are otherwise moot and capable of repetition yet evading review. Couey v. Atkins, 357 Or 460, 355 P3d 866 (2015)

      Where case may be capable of repetition yet evading review, plaintiff is not required to exhaust every possible avenue of expedition as predicate to invoking statutory exception to rule against deciding otherwise moot cases. Couey v. Atkins, 357 Or 460, 355 P3d 866 (2015)

      Challenge to constitutionality of state election law amounts to challenge of action, policy or practice subject to review under this statute. Couey v. Atkins, 357 Or 460, 355 P3d 866 (2015)

      Statute leaves to court discretion determination of whether to adjudicate otherwise moot case. Couey v. Atkins, 357 Or 460, 355 P3d 866 (2015)

      Provision requiring that act be capable of repetition is satisfied if act of public body that no longer is affecting plaintiff or complaining party is reasonably susceptible to repetition as to someone else. Penn v. Bd. of Parole and Post-Prison Supervision, 365 Or 607, 451 P3d 589 (2019)

      Imposition of condition of post-prison supervision requiring supervised person to obtain permission before entering into intimate relationship is act capable of repetition. Penn v. Bd. of Parole and Post-Prison Supervision, 365 Or 607, 451 P3d 589 (2019)

      Imposition of special condition of post-prison supervision is likely to evade review, as provided by statute, if ordinary rule directing dismissal of moot cases applies. Penn v. Bd. of Parole and Post-Prison Supervision, 365 Or 607, 451 P3d 589 (2019)

      Prudential justifications court considers when determining whether to exercise its discretion to adjudicate otherwise moot case may include, but need not be limited to, adversarial nature of parties’ interests, effect of decision on parties and others, judicial economy and extent of public importance of issues presented. Eastern Oregon Mining Assoc. v. DEQ, 285 Or App 821, 398 P3d 449 (2017), aff’d 365 Or 313, 445 P3d 251 (2019), cert. denied, 141 S Ct 111 (2020)

      14.210

NOTES OF DECISIONS

      Prohibition against judge trying case in which judge is party is directed at judicial officers individually and has no effect on jurisdiction of court. Meyer v. Joseph, 59 Or App 661, 652 P2d 1 (1982)

      14.250 to 14.270

NOTES OF DECISIONS

      These sections deal with matters different from those governed by Article VII (Amended), section 8 of the state constitution, and were not repealed by adoption of that provision. State ex rel Oliver v. Crookham, 302 Or 533, 731 P2d 1018 (1987)

      An affidavit supporting motion to recuse judge under these sections must allege circumstances which would permit party or attorney reasonably to believe that party or attorney will not receive fair trial. State ex rel Oliver v. Crookham, 302 Or 533, 731 P2d 1018 (1987)

      “Prejudice” as used in these sections cannot be read so broadly as to subsume any views as to judge’s judicial competency. State ex rel Bowman v. Crookham, 302 Or 544, 731 P2d 1025 (1987)

      Where affidavit in support of relator’s motion for change of judge recited that judge is oriented towards prosecution and that criminal defendants cannot get fair trial in his court, allegations were sufficient to require hearing to determine if relator had good faith belief that she could not obtain fair trial. State ex rel Bowman v. Crookham, 302 Or 544, 731 P2d 1025 (1987)

      Where judge took affirmative action to publicize dispute between judge and attorney, cumulative effect of dispute and judge’s reaction weighed in favor of recusal in unrelated case. In re Schenck, 318 Or 402, 870 P2d 185 (1994)

      14.250

NOTES OF DECISIONS

      Upon filing of motion for change, supported by proper affidavit, judge must either withdraw or request a “good faith hearing.” State ex rel Strain v. Foster, 272 Or 464, 537 P2d 547 (1975)

      Motion for change of judge, if in good faith, cannot be denied because of previous abuse. State ex rel Strain v. Foster, 272 Or 464, 537 P2d 547 (1975)

      Affidavit need not state specific facts. State ex rel Strain v. Foster, 272 Or 464, 537 P2d 547 (1975)

      Judge-disqualification provisions in this section and ORS 14.260 (1) do not impermissibly interfere with judiciary. State ex rel Ray Wells, Inc., v. Hargreaves, 306 Or 610, 761 P2d 1306 (1988)

      Trial judge did not have authority to rule on substantive validity of motion to disqualify. Phelps and Nelson, 122 Or App 410, 857 P2d 900 (1993), Sup Ct review denied

      Denial of motion is finding of fact by trial court and is reviewed by appellate court under “any evidence” standard. Benson and Youngblutt, 141 Or App 458, 919 P2d 496 (1996), Sup Ct review denied

      Participation in proceeding by disqualified judge is procedural error that renders proceeding voidable if timely objected to by defendant. State v. McDonnell, 343 Or 557, 176 P3d 1236 (2007)

      Penalty phase on remand is part of same proceeding as initial trial. State v. McDonnell, 343 Or 557, 176 P3d 1236 (2007)

LAW REVIEW CITATIONS: 68 OLR 217 (1989); 73 OLR 785 (1994)

      14.260

NOTES OF DECISIONS

      Plaintiff’s affidavit was insufficient for failure to state that the motion was made in good faith, even though the motion itself contained such a statement. State ex rel Yraguen v. Dorroh, 270 Or 834, 530 P2d 29 (1974)

      Upon filing of motion for change, supported by proper affidavit, judge must either withdraw or request a “good faith hearing.” State ex rel Strain v. Foster, 272 Or 464, 537 P2d 547 (1975)

      Motion for change of judge, if in good faith, cannot be denied because of previous abuse. State ex rel Strain v. Foster, 272 Or 464, 537 P2d 547 (1975)

      Affidavit need not state specific facts. State ex rel Strain v. Foster, 272 Or 464, 537 P2d 547 (1975)

      Affidavit by attorney is sufficient without affidavit by client. State ex rel Strain v. Foster, 272 Or 464, 537 P2d 547 (1975)

      Defendant’s oral motion, seeking disqualification of judge because defendant had recently filed federal suit against judge, was insufficient where no affidavit of prejudice was filed. State v. Meyer, 31 Or App 775, 571 P2d 550 (1977)

      Judge who is actually or apparently biased must disqualify himself from post-trial contempt proceedings. State v. Meyer, 31 Or App 775, 571 P2d 550 (1977)

      Motion for peremptory disqualification of judge was not timely under this section where judge had heard trial on petition for dissolution and rendered decree. Deffenbaugh and Deffenbaugh, 35 Or App 683, 582 P2d 470 (1978), as modified by 286 Or 759, 596 P2d 966 (1979)

      Under this section, case is “pending” before judge from date citation to appear is filed; where defendant’s motion to disqualify judge was filed more than five days after citation was issued, motion was untimely even though identity of specific judge was not known to defendant. State v. Hilborn, 299 Or 608, 705 P2d 192 (1985)

      Judge-disqualification provisions in ORS 14.250 and this section do not impermissibly interfere with judiciary. State ex rel Ray Wells, Inc., v. Hargreaves, 306 Or 610, 761 P2d 1306 (1988)

      Where affidavits supporting motions to disqualify judge failed to assert that they were not for purpose of delay, they did not meet statutory requirement and were insufficient. State ex rel Exe v. Hargreaves, 306 Or 626, 761 P2d 1314 (1988)

      Whether case is “contested” or “uncontested” and whether case is “at issue” depends upon posture of particular case, not on type of proceeding. State ex rel Hopkins v. Schenck, 313 Or 529, 836 P2d 721 (1992)

      In hearing on motion to disqualify judge, proper inquiry is belief of moving party in fairness and impartiality of judge, not actual fairness or impartiality. State ex rel Kafoury v. Jones, 315 Or 201, 843 P2d 932 (1992)

      Challenged judge must prove that moving party made motion in bad faith or for purposes of delay. State ex rel Kafoury v. Jones, 315 Or 201, 843 P2d 932 (1992)

      Statutory scheme to disqualify judge includes requirement of rationality. State ex rel Kafoury v. Jones, 315 Or 201, 843 P2d 932 (1992)

      Party is considered “appearing” for purposes of judicial disqualification under this section and ORS 14.250 when party submits matter to trial court for decision. Voth v. Snake River Correctional Institution, 171 Or App 392, 15 P3d 629 (2000)

LAW REVIEW CITATIONS: 68 OLR 217 (1989)

      14.270

NOTES OF DECISIONS

      Where trial judge had previously entered order enjoining defendant during pendency of lawsuit, defendant’s motion to disqualify judge was untimely. Oregon State Bar v. Wright, 280 Or 693, 573 P2d 283 (1977)

      For purposes of motion for change of judge, time of assignment of case to judge commences when party learns of assignment. Allee v. Morrow, 175 Or App 308, 28 P3d 651 (2001), Sup Ct review denied

      Knowledge of party’s attorney regarding assignment of judge is imputable to party. Allee v. Morrow, 175 Or App 308, 28 P3d 651 (2001), Sup Ct review denied

      Whether defendant was represented by counsel at time defendant learned of judge assignment does not affect time limit for filing affidavit and motion to change judge. State v. Pena, 345 Or 198, 191 P3d 659 (2008); State v. Langley, 363 Or 482, 424 P3d 688 (2018), 365 Or 418, 446 P3d 542 (2019) (former opinion adhered to as modified), cert. denied, 141 S Ct 138 (2020)