Oregon Court of Appeals Expands Parental Rights for Same-Sex Couples

In this case, the parties were in a same-sex relationship for 10 years, during which they decided to have a family together. They engaged in artificial insemination that resulted in the birth of two children. After their separation, Respondent blocked her former partner’s parenting time with the children, and Petitioner sought relief from the court. Oregon law grants legal parentage by operation of law to the husband of a woman who gives birth to a child conceived by artificial insemination, so long as the husband consented to the procedure (ORS 109.243). Petitioner argued that the statute was unconstitutional as it did not extend the same privilege to the same-sex domestic partner of a woman who gives birth via artificial insemination. The Court of Appeals agreed, and ruled that the statute must be extended to same-sex couples where both parties consent to the artificial insemination.

Read Schineovich and Kemp: http://www.publications.ojd.state.or.us/A138013.htm

Oregon Legislature to Increase Court Fees to Cover Budget Shortfall

The Oregon legislature will form a committee to address the increase of existing court fees and to establish new fees pursuant to House Bill 2287. This step was taken due to the dire state of the state’s finances for 2009-2011, which required a 10% cut in the Oregon Judicial Department’s budget. The goal is to use these funds to reduce the budget cut to 7.5%, which will still result in a loss of 220 full-time non-judge positions (over 11% of the department’s workforce).

Read more here: http://osbpublicaffairs.homestead.com/files/ci_090708.pdf

AARP Opposes Binding Arbitration Clauses in Nursing Home Contracts

In the June 2009 AARP Bulletin, journalist Emily Sachar addressed the issue of whether mandatory arbitration clauses in nursing home contracts can be waived. These clauses are often buried in the fine print and families dealing with the stress and emotion of moving a loved one into a care facility often do not understand or ignore the clause. The AARP Foundation Litigation attorneys oppose the inclusion of these clauses, which preclude the elderly and their families from litigating disputes in court and require them to enter into binding arbitration instead. The AARP is urging Congress to make binding arbitration clauses in nursing home contracts illegal, and urges families to refuse to sign any papers that include such a clause.

Read the article: http://bulletin.aarp.org/yourworld/law/articles/the_issue_can_mandatory_arbitration_clauses_in_nursing_home_contracts_be_waived_.html

Local News: Judge Invalidates Will

The family of Hillsdale resident Warren Cummins challenged his will which left his entire estate to his caregiver of four months, Patricia McIntosh. After a three-day trial and more than a dozen witnesses, Multnomah County Circuit Court Judge Katherine Tennyson agreed with the challenge and ruled that the caregiver unduly influenced Mr. Cummins to change his will.

Read the story: http://www.swcommconnection.com/news/story.php?story_id=124569106132789300

Oregon's Unusual Jury Requirements

Oregon is one of only two states that does not require unanimous jury decisions in most criminal matters. Whereas most states require unanimity, Oregon can convict or acquit a defendant based on a 10-2 jury vote. Louisiana is the only other state with such a system. Presumably, this makes it easier for a jury to reach "consensus" even with a holdout or two. However, this can also make getting an acquittal easier for a defense attorney.

For an interesting discussion of this rule, see the following article. http://www.nytimes.com/2009/07/07/us/07bar.html?_r=1&hp

Defendant right to DNA evidence not perpetual

[The following summary is provided in whole by NCVLI]

Dist. Attorney’s Office for the Third Jud. Dist. v. Osborne, 129 S. Ct. 2308 (June 18, 2009).

Years following his conviction for sexual assault and other crimes, respondent sought to test certain DNA materials through a 42 U.S.C. § 1983 action, in which the victim has no independent rights. NCVLI joined the individual victim as amicus curiae in the United States Supreme Court, arguing that a convicted offender should not be permitted to circumvent victims’ rights by using a § 1983 action, instead of a habeas petition, to seek access to evidence post-conviction.

The Supreme Court recently issued its opinion in this case. Without resolving the issue of whether respondent’s suit was properly raised as a § 1983 action or whether he should have pursued the evidence through a writ of habeas corpus, the Court rejected his claim, and held that there is no federal substantive due process right to access DNA evidence post-conviction. Justice Roberts, delivering the opinion of the court, reasoned that the convicted have only limited liberty interest and the Brady right of pretrial discovery does not apply in this situation. Roberts noted that state legislatures are responsible for deciding post-conviction evidentiary procedures, and that respondent’s § 1983 suit was an attempt to sidestep the state process. Roberts cautioned that creating a constitutional right of access to DNA evidence post-conviction would burden the federal courts and raise too many questions that are best left to the states to answer. In his concurrence, Justice Alito stated that he would have held that respondent’s claim should have been brought in habeas. Underlying both the majority and concurring opinion was the theme of finality, federalism, and comity.

Justice Stevens, in one of the dissenting opinions, concluded that there is a constitutional right to access DNA evidence post-conviction. In reaching this conclusion, he stated that a state’s arbitrary refusal to allow a convict access to DNA evidence violates the basic principles of due process. Stevens further noted that crime victims, law enforcement, and society in general share a strong interest in identifying the actual perpetrators of crime and this interest overcomes the state’s interest in finality per se.

A PDF of this decision can also be found at www.ncvli.org, under “New & Noteworthy Cases.”

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.