January 15, 1998
|In the Matter of the Adoption of
Temporary Amendments to Rules
of Appellate Procedure 1.15, 2.05,
2.35, 3.05, 3.61, 5.70, 5.80, Brief
Time Chart 1, and 6.15.
ORDER SPECIALLY ADOPTING
TEMPORARY AMENDMENTS TO
CERTAIN RULES OF APPELLATE PROCEDURE
By orders dated January 29, 1990, and January 13, 1998, the Supreme Court and Court of Appeals prescribed a procedure for adopting amendments to the Oregon Rules of Appellate Procedure. Those orders, at Part (5), require that all proposed amendments be published in the Oregon Appellate Courts Advance Sheets and require a 49-day public comment period. Those orders, at Part (7), also provide that the appellate courts may adopt an amendment without publication in the Advance Sheets and without opportunity for public comment, subject to the conditions prescribed therein.
The Court of Appeals finds that special circumstances justify adoption of amendments to certain Rules of Appellate Procedure without prior publication in the Advance Sheets: The Oregon Legislature has consolidated the functions of the district and circuit courts and has abolished the district court effective January 14, 1998. Some Rules of Appellate Procedure provide different procedures for appeals arising from district court cases. Because district courts cease to exist January 14, 1998, those rules will no longer apply and need to be amended before the normal rulemaking procedure can be followed.
Therefore, amendments to Oregon Rules of Appellate Procedure 1.15, 2.05, 2.35, 3.05, 3.61, 5.70, 5.80, 6.15 and Brief Time Chart 1 are hereby adopted and become effective immediately. The rules as amended are attached to this order; material being deleted is bracketed and in italic print; material being added is in bold print.
DATED this ____________ day of January, 1998.
Chief Judge Mary J. Deits
(1) Headings in these rules do not in any manner affect the scope, meaning or intent of the rules.
(2) Singular and plural shall each include the other, where appropriate.
(3) In these rules, unless expressly qualified or the context or subject matter otherwise requires:
(a) "Administrator" means the State Court Administrator.
(b) "Agreed narrative statement" means the parties' stipulated account of proceedings in lieu of a transcript or audio record.
(c) "Appeal" includes judicial review.
(d) "Appellant" means a party who files a notice of appeal or petition for judicial review.
(e) "Appellate court" means the Supreme Court, Court of Appeals or both, as appropriate.
(f) "Audio record" means an electronic tape recording of proceedings before a trial court or agency.
(g) "Cassette" means the cartridge containing the audio or video recording.
(h) "Cross-appellant" means a party, already a party to an appeal, who files an appeal against another party to the case.
(I) "Cross-respondent" means a party who is adverse to a cross-appellant.
(j) "Decision" shall have the meaning set forth in Rule 14.05(1)(b).
(k) "Judgment" includes a decree or appealable order entered by a trial court.
(l) "Nonfelony criminal case" means a case in which the defendant is charged only with a violation of a municipal charter or ordinance of a city, a misdemeanor, or a state offense other than a felony.
[(l)](m) "Notice of appeal" includes a petition for judicial review and a notice of cross-appeal.
[(m)](n) "Original" in reference to any thing to be served or filed shall mean the thing signed by the appropriate attorney or party and submitted for filing.
[(n)](o) "Petitioner" means a party who files a petition.
[(o)](p) "Respondent" means the party adverse to an appellant or a petitioner.
[(p)](q) "Transcript" means a typewritten transcription of proceedings before a trial court or agency.
[(q)](r) "Trial court" means the court or agency from which an appeal or judicial review is taken.
[(r)](s) "Trial court clerk" includes a trial court administrator.
The notice of appeal shall be served and filed within the time allowed by ORS 19.026, 46.250, 138.071 or other applicable statute, shall be substantially in the form illustrated in Appendix A and shall contain:
(1) The complete title of the case as it appeared in the trial court, naming all parties completely, including their designations in the trial court (e.g., plaintiff, defendant, cross-plaintiff, intervenor), and designating the parties to the appeal, as appropriate (e.g., appellant, respondent, cross-appellant, cross-respondent). The title also shall include the trial court case number or numbers.
(2) The heading "Notice of Appeal" or "Notice of Cross-Appeal," as appropriate.
(3) A statement that an appeal is taken from the judgment or some specified part of the judgment and a designation of the adverse parties on appeal.
(4) The names of the parties and the names, bar numbers, mailing addresses and telephone numbers of the attorneys for the respective parties, identifying the party or parties that each attorney represents and the names, mailing addresses and telephone numbers of parties appearing pro se.
(5) The name of the court and county from which the appeal is taken and the name of the trial judge or judges whose judgment is appealed from.
(6) A designation of those portions of the proceedings and exhibits to be included in the record in addition to the trial court file.1 In a [district court] nonfelony criminal case, if an audio or video record is designated as part of the record on appeal, the notice of appeal shall contain a request that a copy of the audio or video record be served on each party to the appeal.
(7) A plain and concise statement of the points on which the appellant intends to rely; but if the appellant has designated for inclusion in the record all of the testimony and all of the instructions given and requested, no statement of points is necessary.
(8) If more than 30 days has elapsed from the date when the judgment was entered, a statement as to why the appeal is nevertheless timely
(9) If appellate jurisdiction is not free from doubt, citation to statute or case law to support jurisdiction.
(10) Proof of service on all parties who appeared in the trial court and the trial court clerk, specifying the date of service.
(11) If any portion of the record of oral proceedings in the trial court has been designated as part of the record on appeal, proof of service on the office of the trial court administrator, attention: transcript coordinator.2
(12) A copy of the judgment, decree or order appealed from and of any other orders pertinent to appellate jurisdiction.
1 See Rule 3.25 regarding making arrangements for transmitting exhibits to the appellate court for use on appeal. See also UTCR 6.120(2) regarding retrieval of exhibits by trial court clerks for use on appeal.
2 See Rule 1.35(3)(b).
See ORS 19.023, 19.029, 46.250 and 138.071; see also Rule 8.20 regarding bankruptcy.
See Appendix A for a form of notice of appeal.
(1) As used in this rule, "decision" means any oral or written ruling of a [district,] circuit or the tax court.
(2) The Supreme Court in a direct appeal of a decision to that court and the Court of Appeals in an appeal of a decision to that court may make a summary determination of whether the decision is appealable.
(3) (a) If the court makes a summary determination of appealability, the order or opinion expressing the court's determination shall expressly state that the determination is a summary determination under ORS 19.034(3). The order or decision also shall contain a notice informing the parties that the order or decision is a summary determination of appealability under ORS 19.034(3), that the determination is subject to review or reconsideration by the Supreme Court, that the petition for review shall be filed within 14 days of the order or decision or such shorter time as may be ordered by either court and that the Supreme Court will expedite its consideration of the petition.
(b) If an appellate determination of appealability does not expressly state that it is a summary determination of appealability under ORS 19.034(3), then the determination is not subject to ORS 19.034(3) or this rule.
(4) Unless a shorter period of time is ordered by the Court of Appeals or the Supreme Court, a petition for review of a summary determination by the Court of Appeals or a petition for reconsideration of a summary determination by the Supreme Court shall be filed within 14 days of the date of the appellate court's determination. The Supreme Court shall expedite its consideration of a petition for review or reconsideration of a summary determination of appealability.
(5) If the appellate court has determined that the decision is not appealable and has dismissed the appeal, and the opportunity for review or reconsideration of that determination as provided in this rule has been exhausted or has expired, the Administrator shall immediately issue the appellate judgment.
See generally ORS 19.034(3).
(1) In any appeal from a trial court, the trial court record on appeal shall consist of the trial court file, exhibits and as much of the record of oral proceedings as has been designated in the notice or notices of appeal filed by the parties.
(2) In circuit and tax court cases, the record of oral proceedings shall be a transcript, unless the oral proceedings were recorded by audio or video recording equipment and the appellate court has waived preparation of a transcript and ordered that the appeal proceed on the audio or video record alone.
(3) In [district court] nonfelony criminal cases, the record of oral proceedings shall be an audio record unless the oral proceedings were reported by a court reporter or video recording equipment, in which event the record of oral proceedings shall be a transcript or video record, as appropriate. If a party causes a transcript of an audio or video record to be prepared in accordance with Rule 3.35, the transcript may be submitted to the appellate court if all parties to the appeal join in a motion to accept the transcript for purposes of the appeal. If the court accepts the transcript under this subsection, the transcript shall be filed with the appellate court no later than the date the appellant's brief is filed and the transcript may be cited on appeal in lieu of citation to the audio or video record.
(4) The parties may file an agreed narrative statement in lieu of or in addition to a transcript or audio or video record, as provided in ORS 19.088 and Rule 3.45.
(5) The appellate court, on motion of a party or on its own motion, may order that any thing in the record in the trial court whether or not designated as part of the record in the notice of appeal, be transmitted to it or that portions of the oral proceedings be copied or transcribed, certified and transmitted to it.1
1 See ORS 19.108 regarding supplementation and correction of the record; see also Rule 3.40 regarding correction of transcripts.
(1) When all or part of the record of oral proceedings in the trial court is an audio or video record, the appellant shall designate in the notice of appeal as much of the audio or video record as is desired to be part of the record on appeal.
(2) In a [district court] nonfelony criminal case, as much of the audio or video record as has been designated shall be the record on appeal, unless the appellate court authorizes the audio or video record to be transcribed.1
(3) In a circuit court case, as much of the audio or video record as has been designated shall be transcribed, unless the appellate court waives preparation of a transcript.2
(4) The record on appeal shall consist of the trial court file and any designated exhibits, and may also include the parties' agreed narrative statement when:
(a) No audio or video record of oral proceedings in the trial court was made,3 or
(b) No part of the record of oral proceedings in the trial court has been designated as part of the record on appeal.
1 See ORS 46.340(1).
2 See ORS 19.069.
3 See ORS 46.335 concerning cases in which the making of an audio record is waived.
See ORS 19.130(3) regarding cases in which the audio record is lost or damaged.
(1) Except as provided in subsection (2) of this rule and Rule 4.66(3), a party may file a reply brief to a respondent's brief or an answering brief of a cross-respondent. The content of a reply brief shall be confined to matters raised in the respondent's brief or the answering brief of a cross-respondent, and the form shall be similar to a respondent's brief, but the reply brief need not contain a summary of argument.
(2) Except on request of the appellate court or on motion of a party that demonstrates the need for a reply brief, reply briefs shall not be submitted in the following cases:
(a) criminal, probation revocation, habeas corpus and post-conviction;
(b) mental commitment;
(c) domestic relations, juvenile and adoption;
(d) workers' compensation;
(e) judicial review (including disciplinary review and parole review) of agency action; and
(f) appeals from circuit court review of any agency action under the Administrative Procedures Act (ORS Chapter 183) or ORS 813.450 (relating to suspension of drivers' licenses)[; and].
[(g) district court cases.]
(3) A motion under subsection (2) of this rule shall be submitted, without copies, within seven days after the filing of the brief to which permission to reply is sought.
(1) Unless otherwise provided by statute or these rules, the appellant's opening brief and abstract shall be served and filed within 49 days after:
(a) the entry of the trial court order settling the transcript; or
(b) the filing of an agreed narrative statement with the trial court; or
(c) the transcript is deemed settled under ORS 19.078(4) or Rule 3.40; or
(d) the appellate court enters an order waiving a transcript under Rule 3.76(6); or
(e) if a transcript, narrative statement or audio record is not designated, the filing of the notice of appeal; or
(f) in a judicial review case, the agency record has been filed.
(2) In a [district court] nonfelony criminal case, the appellant's opening brief and abstract shall be served and filed within 63 days after notice of appeal.
(3) The respondent's brief shall be served and filed within 49 days after the filing of the appellant's brief. If the court has given an appellant leave to file a supplemental brief after the respondent's brief has been filed, the respondent's supplemental brief shall be served and filed within 21 days after the filing of the appellant's supplemental brief.
(4) A reply brief, if any, shall be served and filed within 21 days after the filing of the respondent's brief or after a motion to file a reply brief is allowed, unless otherwise provided in the order allowing the motion.
(5) An appellant's answering brief on cross-appeal shall be served and filed within 21 days after the filing of the brief on cross-appeal.
(6) When a party other than an appellant is made a cross-respondent, that party shall have 21 days after the filing of the brief on cross-appeal to serve and file an answering brief on cross-appeal.
(7) A cross-appellant shall have 21 days from the date of the filing of an answering brief on cross-appeal in which to serve and file a reply brief, if permitted to do so by these rules or by order of the court.
The reference to "District Court Appeal" in Brief Time Chart 1 is amended to read "Nonfelony Criminal Case"
(1) In all cases in the Court of Appeals and Supreme Court, except as provided in subsection (2) of this rule:
(a) The appellant, petitioner or petitioner on review shall have not more than 30 minutes to argue; and the respondent or respondent on review shall have not more than 30 minutes to argue.
(b) The appellant, petitioner or petitioner on review shall argue first and may reserve not more than 10 minutes of the time allowed for argument in which to reply.
(c) If there are two or more parties on one side, they shall divide their allotted time among themselves, unless the court orders otherwise.
(2) (a) Unless the court otherwise orders, on oral argument in the Court of Appeals in the following cases the appellant or petitioner shall have not more than 15 minutes and the respondent shall have not more than 15 minutes to argue:
(I) criminal, probation revocation, habeas corpus and post-conviction;
(ii) mental commitment;
(iii) domestic relations, juvenile and adoption;
(iv) workers' compensation;
(v) judicial review of agency action, including disciplinary review and parole review, but excluding judicial review of Land Use Board of Appeals orders; and
(vi) appeals from circuit court review of any agency action under the Administrative Procedures Act (ORS Chapter 183) or ORS 813.450 (relating to suspension of drivers' licenses).[; and]
[(vii) district court cases.]
(b) The appellant or petitioner may reserve not more than five minutes of the time allowed for argument in which to reply.
(3) A motion for additional time for argument shall be filed at least seven days before the time set for argument.
(4) No point raised by a party's brief shall be deemed waived by the party's failure to present that point in oral argument.
(5) For the purpose of this rule, a cross-appellant shall be deemed a respondent.
(6) It is the general policy of Oregon appellate courts to prohibit reference at oral argument to any authority not cited either in a brief or in a pre-argument memorandum of additional authorities.1 If a party intends to refer in oral argument to an authority not previously cited, counsel shall inform the court at the time of argument and shall make a good faith effort to inform opposing counsel of the authority at the earliest practicable time. The court may, in its discretion, permit reference at argument to that authority and may give other parties leave to file a post-argument memorandum of additional authorities or a memorandum in response.
(7) If counsel desires to have present at oral argument an exhibit that has been retained by the trial court, it is counsel's responsibility to arrange to have the exhibit transmitted to the appellate court.2
1 See Rule 5.85 regarding memoranda of additional authorities.
2 See Rule 3.25.
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