49 Trial Lawyer • Summer 2022 Between the Sheets Lisa T. Hunt Cody Hoesly Nadia Dahab By Cody Hoesly, OTLA Guardian By Lisa T. Hunt By Nadia Dahab, OTLA Guardian DECISIONS OF THE OREGON SUPREME COURT In ORCP 23 A motion for leave to amend pleading, trial court may properly consider evidence to determine whether amended claim is “futile.” Ekloff v. Persson, 369 Or 531 (2022), Balmer, J. Lindsey Burrows represented the petitioner and KristenWilliams filed the OTLA amicus brief. Petitioner Ekloff was sentenced to life in prison after a 1995 conviction for aggravated murder. In this second, postconviction proceeding, the petitioner sought to add new claims the state had improperly withheld exculpatory evidence at trial that impugned the credibility of three of the its key witnesses. The post-conviction court denied the petitioner’s ORCP 23 A motion to amend, and the Court of Appeals affirmed the decision under the four [Ramsey] considerations bearing upon a trial court’s exercise of discretion under ORCP 23 A. On review to the Supreme Court, the state’s arguments appeared limited only to the fourth consideration, “the colorable merit of the proposed amendments.” The state argued the petitioner’s proposed amended claims were statutorily barred by ORS 138.550(3), which prohibits alleging claims in subsequent petitions that could have been raised earlier. The Supreme Court noted, to prove the petitioner’s new claims could have been raised earlier, the state would have to show the “petitioner or her counsel discovered or reasonably should have discovered that the prosecutor had withheld [the arguably exculpatory] evidence” by or before the filing of her first petition for post-conviction relief. The Supreme Court first interpreted ORCP 23 A and the phrase “leave shall be freely given when justice so requires.” The Supreme Court determined the phrase (1) requires courts to allow amendments “without restraint or reserve,” and (2) sets forth a discretionary standard because “the quality or characteristic of being just, impartial or fair” considers the fairness of the proposed amendment to both parties. Because ORCP 23 A is modeled after the federal See Sheets 50
RkJQdWJsaXNoZXIy Nzc3ODM=