State v. Atkinson

I should like to think that, were we doing it for the first time, this court would not today decide State v. Tooley, 297 Or 602, 687 P2d 1068 (1984), the way it was decided in 1984. We now find ourselves entangled in a web woven by that decision, a web of our own creation. In Dooney v. Department of Transportation, 305 Or 307, 751 P2d 790 (1988), this court begins to try to control the damage done by Tooley. In the present case, however, the majority inexplicably backslides. I therefore find myself compelled to dissent.

I

A complete review of Tooley is useful in order to appreciate the problems…