Latest 3 Cases: C.O. Homes, LLC v. Cleveland (Civil Procedure), Oregon v. Fulmer (Constitutional Law), Hopkins/Starrett v. Rosenblum (Election Law)

Which Laws Apply to Broker-Dealers? Federal Laws? State Laws? Both? General Principles Leading to an Answer

TAMAR FRANKEL

BU Law emerita professor Tamar Frankel explains the law of preemption as it pertains to broker-dealers and their investor clients. She predicts, among other things, that either the clients will demand that broker-dealers adhere to a fiduciary duty, or else that states will impose that duty on them.

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C.O. Homes, LLC v. Cleveland

Docket: S066504

Opinion Date: March 5, 2020

Judge: Martha Lee Walters

Areas of Law: Civil Procedure, Landlord - Tenant

In this forcible entry and detainer (FED) action to recover possession of a residential dwelling unit, the issue presented for the Oregon Supreme Court's consideration was whether the trial court erred in allowing landlord’s motion to amend its complaint, pursuant to ORCP 23, after the parties attended a first-appearance hearing and tenant filed her answer. In its original complaint, landlord alleged that it was entitled to possession based on a 72-hour notice - which, under ORS 90.394, could be given for nonpayment of rent - and attached that notice to its complaint. Two days before trial, landlord sought leave to amend its complaint to attach a different notice, a 30-day notice, which, under ORS 90.392, could be given “for cause,” including a material violation of the rental agreement. The Supreme Court determined the proposed amendment substantially changed landlord’s claim for relief and prejudiced tenant, and that the trial court abused its discretion in allowing it. It therefore reversed both the contrary decisions of the Court of Appeals and the trial court.

Oregon v. Fulmer

Docket: S066654

Opinion Date: March 5, 2020

Judge: Thomas A. Balmer

Areas of Law: Constitutional Law, Criminal Law

At issue in this case is evidence discovered in a purse during an inventory of an impounded vehicle. A Hillsboro police officer observed defendant Tamara Fulmer driving a vehicle with expired registration tags. The officer initiated a stop, and defendant pulled over. The officer approached defendant and informed her of the reason for the stop. Defendant admitted not only that her registration tags were expired, but also that her driver’s license had expired and that she did not have insurance. The officer returned to the patrol vehicle, confirmed the information that defendant had given, and began writing a citation. The officer determined that defendant’s vehicle would need to be towed and impounded, as defendant could not legally drive it without a license or insurance, and it was blocking a bicycle lane. The officer called a second officer to assist. The first officer informed defendant that he would need to do an inventory of defendant's vehicle and told her to step out of the vehicle so the second officer could begin that process. Defendant exited the vehicle with her cell phone and a pack of cigarettes in her hand, but her purse remained on the passenger’s seat. Defendant neither asked to nor was told that she could remove additional items from the car. She stood near the patrol vehicle while the inventory took place. The second officer began the inventory by looking in defendant’s purse. In a wallet inside defendant’s purse, the officer found used syringes and a small amount of methamphetamine. Defendant was charged with unlawful possession of methamphetamine. She moved to suppress the evidence found in her purse, arguing that the officers had unlawfully searched her purse. She acknowledged that, the Oregon Supreme Court previously recognized an inventory exception to the warrant requirement, but she asserted that the exception did not apply because the officers had not told her that she could remove her purse from her car. The trial court denied defendant’s motion to suppress, determining that “the inventory search was valid and it was lawfully followed through [the] policy that’s been implemented by the City of Hillsboro.” The trial court also determined that the officers were not required to ask defendant if she wanted to take her purse with her before conducting the inventory. The Supreme Court concluded after review of the trial court record that the application of the inventory exception in this case violated defendant’s rights under Article I, section 9. The trial court therefore erred in denying her pretrial motion to suppress, and the resulting judgment of conviction had to be reversed.

Hopkins/Starrett v. Rosenblum

Docket: S067200

Opinion Date: March 5, 2020

Judge: Duncan

Areas of Law: Election Law

In consolidated cases, petitioners sought judicial review of the Oregon Attorney General’s certified ballot title for Initiative Petition 40 (2020) (IP 40). If enacted, IP 40 would establish requirements for securing firearms, reporting the loss or theft of firearms, and supervising minors’ use of firearms. It would also establish consequences for violating those requirements, including strict liability for injuries caused by use of the firearms involved in the violations. After review, the Oregon Supreme Court concluded the ballot title’s caption and “yes” result statement did not substantially comply with the applicable statutory requirements. Therefore, the Court referred the ballot title to the Attorney General for modification.