8th Circuit Denies Victim Standing to Force Prosecution

A step in the wrong direction with regard to crime victim rights:

Parkhurst v. Tabor, No. 08-2610, 2009 WL 1794691 (8th Cir. June 25, 2009).

[Summary provided by NCVLI]

The Parkhursts, adoptive father and biological mother of H.P., a minor child, brought a § 1983 action on behalf of their daughter against two Arkansas state prosecutors and Sebastian County, Arkansas. The Parkhursts alleged that H.P.’s right to equal protection under the Fourteenth Amendment had been violated by an office policy of avoiding the prosecution of incestual sexual assault cases, and, in particular, that the prosecutors’ decision to forgo prosecution of H.P.’s biological father for the felony sexual assault of his daughter amounted to discrimination against H.P. as a member of a disfavored class, defined by the Parkhursts as victims of incestuous sexual abuse. The Parkhursts sought damages, an injunction requiring the reinstatement of the charges, and a declaratory judgment that the challenged prosecutorial policy violated the equal protection clause by failing to provide to victims of incest the same protection offered to other victims of sexual assault. The prosecutors and county filed a motion to dismiss for failure to state a claim, which the trial court granted. The court explained that prosecutorial conduct may only be subjected to such review by those with a constitutional right to the nondiscriminatory prosecution of crime, and that such a right rests with defendants subjected to discriminatory prosecution but does not accrue to the victims of crime. The Parkhursts appealed, arguing that the Fourteenth Amendment guarantees to crime victims the nondiscriminatory prosecution of crime. The Eighth Circuit of the United States Court of Appeals affirmed. In reaching its decision, the court noted that the United States Supreme Court has held that “a citizen lacks standing to contest the policies of the prosecuting authority when he himself is neither prosecuted nor threatened with prosecution.” The court held that because the Parkhursts were “neither prosecuted nor threatened with prosecution,” they had not suffered injury in fact, as defined by the Supreme Court, and thus lacked standing to bring their claim against the prosecutors and the county.

Oregon Court of Appeals Requires Father to Pay Child Support for Child Born Via Artificial Insemination

When the parties in this case were divorced, Husband agreed to pay child support for three minor children as part of a settlement agreement. Two of the children were Wife’s from a prior relationship whom Husband had adopted, and one child was conceived during the marriage via artificial insemination. Husband agreed to the settlement terms, which were read on the record, but he did not raise the issue of his status as the legal parent of M, the child conceived during the marriage. Husband later asked the Court to establish his status as a step-parent of M, which would allow his support obligation to cease upon entry of a divorce judgment. Husband argued that because the insemination was not done under the supervision of a physician as required by Oregon law (but rather via a private donor and a home-insemination kit), he was not legally obligated to pay support for the child. The Court of Appeals reviewed the record and found that Husband consented to and participated in the artificial insemination of Wife. Husband’s argument was based on ORS Chapter 677, rather than ORS 109.243, which addresses a parent’s relationship with a child born by these means. Ultimately the Court found that Husband’s legal obligations with respect to M, including the obligation to pay child support, are the same as if she were his biological child.

Read In the Marriage of A.C.H. and D.R.H.: http://www.publications.ojd.state.or.us/A134248.htm

Fun video on courthouse dogs

This video is an interesting example of "out of the box" thinking in the justice system. Use of courthouse dogs in Seattle. These dogs help soothe participants in the court system for everything from criminal trials to civil litigation.

State v. Lane, Nos. 20070878, 20061126, 2009 WL 1635363 (Utah June 12, 2009)

This update is provided by NCVLI:

Defendant killed two brothers, Dan and John Hays, when the car he was driving collided head on into their vehicle. The state charged defendant with two counts of misdemeanor negligent homicide, among others. Peggy and Patricia Hays, the brothers’ wives, and victims under Utah’s Constitution and the Rights of Crime Victims Act, informed the prosecutor they wished to exercise their rights to be present, to address the court at the plea and sentencing hearing, and to request restitution. Despite the victims’ assertion of their rights, a plea hearing was held without notification to the victims. The court accepted defendant’s guilty plea and sentenced him to a plea in abeyance for a period of twelve months, awarding no restitution to the victims. When the victims learned of the plea agreement, they filed a motion in the trial court to set aside the plea. The court denied the motion but held the plea in abeyance while the victims appealed its decision. During this time, defendant moved to dismiss the plea in abeyance with prejudice based on Utah Code prohibiting a misdemeanor plea to be held in abeyance longer than 18 months. The court granted the motion and dismissed the case with prejudice. The victims filed a second appeal challenging the dismissal. The appellate court consolidated the appeals and certified the case to the Utah Supreme Court.

The Utah Supreme Court, answering the threshold question of whether a victim can independently appeal from a dismissal of defendant’ plea in abeyance, held that the victims lacked standing and dismissed the appeal. The Court reasoned that since neither the defendant or the state appealed the dismissal, the trial court’s order was final and the case was moot. The Court explained that a case is deemed moot when the requested relief cannot affect the rights of the litigants. The Court went on to note that even if the case was not moot, the Utah Rights of Crime Victims Act and the Victims’ Rights Amendment to the Utah Constitution expressly prohibit a victim from appealing any criminal judgment, which includes the dismissal of defendant’s plea in abeyance. In dismissing the appeal, the Court stated, “We hope and expect that the trial courts will continue to be vigilant in their efforts to recognize crime victims’ constitutional rights and ensure those rights are protected and upheld in fashion during the trial process.”

A PDF of this decision can also be found at www.ncvli.org, under “Case Updates."

New Uniform Trial Court Rule to Segregate Personal Information

Effective August 1, 2009, parties initiating new divorce, custody, parenting time, and child support cases will need to fill out a Confidential Information Form and file it with their local court. This form requires court staff to keep certain personal information (social security numbers, birth dates, bank accounts, etc.) segregated from the public court file. As a general rule, only parties to the case or child support enforcement departments will have access to that information. Upon request and in cases where safety between the parties is a concern, the court may keep this information private even from other parties in the case. The new rule and a sample form will be posted on the Oregon Judicial Department website.

See 2008-2009 Uniform Trial Court Rules

Oregon Senate Bill 233 provides a legal framework for crime victims to go to court and enforce their constitutional rights

Attorney General John Kroger has signed Oregon's Senate Bill 233, which protects the constitutional rights of crime victims.

"Crime victims have the right to be heard, the right to be consulted, the right to participate in the criminal justice system," Attorney General Kroger said. "SB233 gives them the right to go to court and make those promised rights a reality."

See the full story put out by the Oregon Department of Justice: http://www.doj.state.or.us/releases/2009/rel052909.shtml

The Cost and Length of Oregon Divorce

A YouTube video presented by a Portland, Oregon attorney discussing the cost and length of a divorce in Oregon.

http://www.youtube.com/watch?v=BGyrZvcveps

The Need For A Will

YouTube video on the need for writing a will, estate planning, and planning for your family's future.

http://www.youtube.com/watch?v=mochRn3Jvio

Oregon Legislature Wrangles With Products Liability Cases

The Oregon Senate has made progress towards lengthening the statute of ultimate repose with regard to products liability cases. The "statute of ultimate repose" is the maximum time allowed by law within which to bring a lawsuit or litigate a claim against an alleged defective product manufacturer.

Setting such limits are tricky. A defective or dangerous product can sit dormant years and years without causing injury. Think of a dangerous weed-whacker that never gets used sitting in the back of the shed. However, years later the product can cause injury because of a defective design. Although the flaw was always present and presented a danger, the statute of ultimate repose can effectively deny an injured party the right to recover.

On the other hand, you have product manufacturers that would like to see some limitation placed upon their liability. Product lines change, improve, or are discontinued. They do not want to be potentially liable for a product that has not been produced for decades.

The Oregon Senate has passed a bill extending this limitation to 10 years from the date of purchase for a product, extending it from the current 8 years. The bill now goes to the House.

Read Full Article: http://www.legalnewsline.com/news/221185-oregon-senate-votes-to-extend-statute-of-ultimate-repose

Oregon House Works on New Crime Victim Protections

The Oregon House is working on a package of bills aimed at providing crime victims rights in the workplace.  The first bill is designed to keep employers from terminating or disciplining crime victims.  Additionally, employers will have to reasonably accommodate victims of crime.  Presumably this would mean allowing employees to attend necessary court hearings and participate in any legal actions.

Another new bill is designed to provide private help to victims of human trafficking.  See the full story here:  http://www.salem-news.com/articles/june032009/vulnerable_victims_6-3-09.php

In the News: Michigan Victim Advocacy Unit Celebrates 20 Years of Helping Victims

The Victim-Witness Unit of the Muskegon County Prosecutor’s Office in Michigan is celebrating its 20th anniversary of assisting crime victims and their families through the court process and beyond. The purpose of the Unit is to make sure that victims’ rights provided for in the Michigan Crime Victims Rights Act are protected, including notice of a defendant’s incarceration status, the right to confer with the prosecutor before trial, and the right to make an impact statement to the sentencing judge. The Unit also provides information, service referrals, and emotional support.

Read more: http://www.southbendtribune.com/apps/pbcs.dll/article?AID=/20090602/News01/906020386/1011/News

In the News: Relatives Fight Over Columbo Star

The wife and daughter of Peter Falk are engaged in a court battle over control of Falk, the TV actor from the popular show “Columbo”. Both women are seeking to be appointed the conservator for the 81-year-old actor who suffers from dementia. As conservator, the prevailing party may have control over Falk’s finances.

Read more: http://www.latimes.com/entertainment/news/la-me-falk28-2009may28,0,3158489.story

Oregon Attorney General’s Responds to the Recession With Changes to the Child Support Program

The following email was sent to Oregon family law lawyers on May 5, 2009:

“Greetings,

As you know, the Attorney General has initiated a special project to respond to current economic crisis.  The goal of this project is to speed the entry of fair and enforceable orders.  We are also hoping to use the project as an opportunity to try out some other changes in the guidelines and procedures.

There are two important changes that will become effective May 7, 2009.  First, at the request of the Division of Child Support, the legislature has enacted and the Governor signed emergency legislation and rules authorizing the temporary modification of existing orders based upon employment related loss of income to either parent.  HB 2275A.  These temporary modifications are only available through the child support program, either through the Division of Child Support (DCS) or through District Attorneys offices.  Private attorneys and the court cannot independently issue temporary modifications.  DCS has established a specialized unit in Salem called the “Recession Response Team” (RRT) to handle these modifications, using streamlined procedures designed to encourage consent and expedite modifications.  Parents can access this team through the DCS interactive telephone system, by dialing 1-800-850-0228 and listening to the instructions.

The second change is to the child support guidelines themselves.  The most significant changes include a cap on child care costs, adjustments relating to medical support orders and the establishment of a presumption $100 minimum order.”

The proposed rules are currently posted on the DOJ/DCS website in draft form: http://www.dcs.state.or.us/oregon_admin_rules/child_support_rules/draft.htm

Oregon Court of Appeals Considers Whether Money from Wrongful Death Suit is Considered Part of a Deceased’s Estate for Purposes of Probate

May 20, 2009


The Personal Representative of the estate sought compensation for services rendered in closing the estate.  Under Oregon law, a personal representative’s fees are based on the whole value of the estate.  Here, the Personal Representative sought to include the wrongful death payout as part of the whole value of the estate, thereby increasing the statutory fees due to her.  After examining the language of the applicable statutes, the Court of determined that the proceeds of the wrongful death suit should be included as part of the decedent’s “whole estate”, as the proceeds from the lawsuit are subject to division by the probate court (ORS 30.040).  Thus, it was appropriate for the Personal Representative to base her statutory fee on the value of the whole estate.
Read the Brown v. Hackney case: http://www.publications.ojd.state.or.us/A136409.htm

Oregon Court of Appeals Reviews Mother’s Request to Relocate with Child Against Father’s Wishes

April 29, 2009

Mother in this case appealed a trial court’s judgment denying her motion to modify a parenting plan and permit her to move with the child from Oregon to Australia. The trial court determined that it was not in the child’s best interests to permit the relocation. Mother’s basis for appeal was the trial court’s exclusion of testimony of Mother’s expert witness. The Court of Appeals agreed that the trial court erred by excluding the testimony, and reviewed the case de novo, taking into consideration the expert testimony. Ultimately, the Court of Appeals upheld the trial court’s decision and determined that Mother did not meet her burden of showing that the relocation was in the best interests of the child.

In making its determination, the Court of Appeals considered the factors listed in ORS 107.137 that pertain to determining the best interests of a child. Those factors include the emotional ties between the child and the parents, the interest of the parties in and attitude toward the child, the desirability of continuing existing relationships, the preference for the primary caregiver, and the willingness and ability of each parent to facilitate a close and continuing relationship between the other parent and the child. In addition, the court acknowledged that it must "recognize the value of close contact with both parents and encourage, when practicable, joint responsibility for the welfare of [the] children and extensive contact between the minor children of the divided marriage and the parties." ORS 107.105(1)(b).  

The court pointed out that Mother’s main argument for the move revolved around benefits for herself, and not the child, namely that she would “be happier” and that a “happier parent is a better parent”, that she would have a variety of social services available to her in Australia, and that preventing her from moving was “not fair”. These arguments did not persuade the Court that it was in the child’s best interests to move. However, the Court did agree that it was appropriate that Mother be granted an additional week of parenting time in the summer, giving her one four-week period of parenting time in which to travel to Australia to visit.

Read the Fedorov and Fedorov case: http://www.publications.ojd.state.or.us/A135107.htm

Contact an Oregon divorce lawyer with questions relating to Oregon family law

Oregon Court of Appeals Upholds Trial Court’s Order that Husband Pay Spousal Support in a Lump Sum

April 15, 2009


In this case, Husband appealed the trial court’s ruling that he be ordered to pay spousal support to Wife of $1,000 per month for 60 months, or as a lump sum amount.  The trial court ruled that if Wife was able to refinance or sell a piece of marital property, she would be awarded from the proceeds her one-half share of the equity, plus $60,000 representing Husband’s spousal support obligation (reduced to $54,000 to represent the current value of the support).  Husband argued that the trial court erred by ordering the lump sum payment.  The Court of Appeals pointed out that ORS 107.105(1)(d) authorizes a court to award spousal support “in gross or in installments or both”.  Thus, the ordered support satisfies the statutory requirement and the trial court’s ruling was affirmed.
Read the McLauchlan and McLauchlan case: http://www.publications.ojd.state.or.us/A134002.htm 

Oregon Court of Appeals Reviews Grandparent Custody Case

February 25, 2009


In this Oregon case, the trial court awarded temporary custody of Child to Grandparents while the divorce case was pending, determining that neither parent could adequately care for the child.  The trial court later awarded permanent custody of Child to Grandparents, based on testimony that Mother had a criminal history, had associated with criminals, and had used drugs.  The trial court also heard testimony that demonstrated Father’s inability to care for the child, based on his abuse of Mother.  Mother appealed this decision to the Court of Appeals. 
In reviewing the case, the Court of Appeals ruled that Grandparents had not overcome the statutory presumption that a parent acts in the best interest of her child.  In determining whether the presumption was overcome, the Court looked to the factors of ORS 109.119, and specifically whether “the legal parent is unwilling or unable to care adequately for the child.”  The evidence at trial did not address Mother’s current situation, but rather focused on her past situation, and thus did not meet the level of a current unwillingness or inability to care for Child.  Mother acknowledged and the Court agreed that a period of transition would be appropriate, given that the Child had been living with Grandparents since 2006.  The Court of Appeals instructed the trial court to establish an appropriate transition plan.
Read the Nguyen and Nguyen case: http://www.publications.ojd.state.or.us/A138531.htm

Oregon Court of Appeals Considers Property Division for Domestic Partners

February 11, 2009


The parties in this case never married, but lived together as a couple from 1996 until 2004.  When they moved to Oregon in 1996, Branam used $170,000 from her deceased husband’s estate to purchase a home.  The home was titled in both parties’ names and they lived there together, with Branam paying most of the expenses and Beaver contributing by performing work on the home.  When the parties separated, Branam filed a petition for dissolution of domestic partnership.  The trial court divided the equity in the home, but gave Branam credit for the payments she made to maintain the property after the parties' separation as well as the $170,000 purchase price.  Beaver appealed.
The Court of Appeals reviewed the case and found that the trial court correctly determined that the parties intended to share the property equally.  This was evidenced by their separate contributions to the property, Beaver’s testimony that he woud not move to Oregon unless his name was on the property title, and the fact that Branam put his name on the title when she purchased the home.  The Court then considered whether it was appropriate that Branam receive credit for the purchase price of the home.  The Court determined that Branam should receive credit for the $170,000, because the evidence at trial reflected Branam did not intend to make a gift of the purchase price to Beaver.  Rather, there was mutual intent that the real estate would provide shelter and support for Beaver while the parties co-habitated, but not a portion of Branam’s estate.
Read the Branam and Beaver case: http://www.publications.ojd.state.or.us/A133414.htm