December 1, 1997
|In the Matter of Oregon Rule of
Appellate Procedure 15.05,
Relating to the Appellate Settlement
ORDER ADOPTING AMENDMENTS
TO ORAP 15.05 IMPLEMENTING
SECTION 87 OF HB 3737
Chief Justice Order No. 90-33 sets forth the procedure whereby amendments to the Oregon Rules of Appellate Procedure are adopted. Subsection (7) of the order permits adoption of amendments to the Oregon Rules of Appellate Procedure without going through the rulemaking procedures provided in subsections (4), (5) and (6), provided that the order adopting amendments states the nature of the special circumstances justifying adoption of the amendments outside the normal rulemaking process.
The Court of Appeals finds the following special circumstances justify adoption of amendments to ORAP 15.50, relating to the Appellate Settlement Conference Program: HB 3737, a bill adopted by the 1997 Oregon Legislative Assembly, at section 87, requires the Court of Appeals to establish an appellate mediation program, requires the parties to a mediation to pay the mediator's fee, and authorizes the Court to waive or defer the mediator's fee for indigent parties. Further, the provisions of HB 3737 became effective October 4, 1997, and there is insufficient time to publish notice of intended rulemaking and provide opportunity for public review and comment as set forth in Chief Justice Order No. 90-33(4)-(6) before the amendments to ORAP 15.05 must go into effect.
Therefore, effective the date of this order, Oregon Rule of Appellate Procedure 15.05 is amended as set forth in the attached copy of the rule.
DATED this 16th of December, 1997.
|/s/ Mary Deits|
(1) Cases Subject
(a) The procedures in this rule apply to cases filed in the Oregon Court of Appeals. The Chief Judge or the Chief Judge's designee shall determine the individual cases or categories of cases that may be included or excluded from the appellate settlement conference program (program).
(b) A settlement conference shall be held for any case assigned to the program. A person with authority to settle the case must be present at the program settlement conference or, if that is not practicable, then a person with authority to recommend settlement must be present. After the first settlement conference is held, any party may withdraw from the program.
(2) Supervising Judge and Program Director
(a) The Chief Judge shall have overall responsibility for the program but may appoint a supervising judge and a program director for the program.
(b) If a supervising judge is appointed, the supervising judge shall have the powers needed to administer the program. The Chief Judge, and the supervising judge if one is appointed, may delegate authority to the program director.
(c) If the Chief Judge, or the supervising judge if one is appointed, serves as a judge or judge pro tempore of the Court of Appeals, the Chief Judge or supervising judge may not participate in the consideration of any case in which the judge is aware of confidential information concerning the case obtained from the program.
(d) If a judge or judge pro tempore of the Court of Appeals serves as the neutral in a case but the case does not settle and proceeds in the Court of Appeals, that judge shall not thereafter participate in any way in the case. Further, such judge shall take steps as necessary to insure that the judge does not disclose to other judges or to court staff any communication from the settlement conference.
(a) The Chief Judge shall determine the responsibilities and qualifications of neutrals to be provided by the program and shall approve the neutrals selected for the program. The supervising judge, if one is appointed, or program director will assign neutrals for individual cases.
(b) A neutral shall not act in any other capacity in the case.
(4) Abeyance of Appeal
On assignment of a case to the program, the appeal, including preparation of the transcript and the record, and briefing, will be held in abeyance for a period of 120 days from the date of filing of the notice of appeal. Any other extension of time in the case on appeal must be arranged pursuant to Rule 7.25 separately from this rule. The Chief Judge may reactivate a case held in abeyance at any time:
(a) At the request of the program director, or
(b) On motion of a party showing good cause for reactivating the appeal.
(5) Submission of Information
The parties may be required to submit information to facilitate the screening of cases for the program or the program settlement conference. The parties shall submit this information in a timely manner to the program director or the neutral, as designated in the request. Each party also shall submit the requested information to the other parties, with the exception of material that is designated by the party as confidential, which shall be treated by the program director or the neutral as confidential pursuant to subsection (6) of this rule.
(a) Program settlement conferences are subject to Or Laws 1997, chapter 670 (Senate Bill 160).
(b) All materials submitted to the supervising judge, program director or the neutral, and all materials created by the supervising judge, program director or the neutral that pertain to a program settlement conference and are not a part of the record on appeal shall be maintained separately from the record of the case. These materials are not subject to disclosure, except as the law may require or as the parties and the supervising judge may all agree. The materials referred to in this paragraph shall be destroyed at the time and in the manner prescribed by the policy adopted by the State Court Administrator pursuant to the Task Force on Records Retention.
(c) The supervising judge or program director may request the parties or the neutral or both to provide oral and written evaluations of the case settlement process. The materials referred to in paragraph (6)(b), and oral and written evaluations of the case settlement process may be used to evaluate the program. Any evaluation of the program, whether disseminated to the appellate courts or to the public, shall not disclose specific case identifying information.
(7) Neutral's Fees
(a) There shall be a fee for the neutral's services in conducting a settlement conference. The amount of the fee shall be $300 for workers' compensation cases and $500 for all other cases. The parties to the appeal shall share the cost of the neutral's fee equally and shall pay the fee directly to the mediator at the first settlement conference.
(b) The Chief Judge or the Chief Judge's designee may waive or defer payment of the neutral's fee on motion of a party based on a showing that the party is financially unable to pay the fee without substantial hardship in providing basic economic necessities to the party or the party's dependent family. If liability for payment of a party's share of the neutral fee is waived or deferred, that party's portion of the neutral fee shall be paid by the program from funds appropriated to the program it for that purpose.
(c) When a settlement conference is conducted by a volunteer neutral, an administrative law judge, "Plan B" retired judge, or other person who does not accept a fee for the services, the parties shall pay the neutral's fee, but the neutral shall forward the fee so paid to the Judicial Department to be disposed of as provided by law.
(d) A party whose share of the neutral's fee is deferred and who has not paid the fee by the conclusion of the settlement conference shall remain liable for the unpaid fee, unless the fee is waived following completion of the settlement conference. If a party's share of the neutral's fee has been paid by the State Court Administrator and the party thereafter pays the fee, the fee shall be paid to the State Court Administrator.
(8) Actions Are Not Reviewable
The actions of a neutral or of a supervising judge shall not be subject to review by the Court of Appeals or by the Supreme Court.
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