|In the Matter of the Adoption
of Amendments to the Oregon
Rules of Appellate Procedure
NOTICE OF PROPOSED RULEMAKING
(2) Adopts these new Rules of Appellate Procedure: 4.22 and 5.52.Amended rules are shown with material to be deleted in italics and [bracketed] and material to be added in boldface print. If a rule with multiple subsections is being amended, only those subsections and footnotes containing amendments are set forth; subsections and footnotes containing no amendments are omitted and are denoted by asterisks ("* * *"). Proposed new rules are denoted by "Proposed New Rule ___ ", with the title and text of the new rule in boldface print. Interested persons shall have until the close of business on August 28, 2000, to submit written comments on the proposed rule changes. Comments shall be submitted to:
of the State of Oregon
Appellant (or Cross-Appellant) $140.00
Petitioner (or Cross-Petitioner) $140.00
Respondent $ 84.00
Plaintiff or Petitioner $ 35.00
Defendant or Respondent $ 20.00
Copying $ .25 per page
Administrator's Certification $ 1.00 per document
Opening . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Blue
Answering . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Red
Combined Answering and cross-opening . . . . . . . . . . Violet
Cross-[Respondent]Answering . . . . . . . . . . . . . . . . . . . . Red
Reply [or] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Gray
Combined Reply and Cross-[Respondent]Answering . . . . Gray
Answering to Cross-Assignment of Error
[Intervenor or] Amicus curiae . . . . . . . . . . . . . . . . . . . . . Green
Supreme Court Only
Petition for Review of Court of Appeals decision . . . . . . . . Yellow
Response to Petition for Review [or
Brief on the Merits of Petitioner on Review . . . . . . . . . . . . . White
Brief on the Merits of Respondent on Review . . . . . . . . . . . . . Tan
Petition for Reconsideration . . . . . . . . . . . . . . . . . . . . . Yellow
Response to Petition for Reconsideration . . . . . . . . . . Orange
(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:
* * * * *
(k) ''Domestic relations case'' includes but is not necessarily limited to these kinds of cases: dissolution of marriage, dissolution of domestic partnership, filiation, paternity, child support enforcement, child custody, and modification of judgment of dissolution of marriage or domestic partnership.
* * * * *
(q) ''Transcript'' means a typewritten or printed transcription of oral proceedings before a trial court or agency.
* * * * *
(1) The Administrator may refuse to file any thing delivered for filing that does not comply with these rules or applicable statutes.
(2) The court on its own motion or on motion of a party may strike, with or without leave to refile, any brief, [abstract] excerpt of record, motion or other thing which does not conform to applicable statutes or these rules.
(3) If a party responsible for causing a transcript to be prepared and filed fails to do so, after notice and opportunity to cure the default, the court may direct that the appeal proceed without the transcript. If the court directs that the appeal proceed without the transcript and the party is the appellant, the appellant shall file a statement of points relied on.1
[(3)](4) The court on its own motion or on motion of a party may dismiss an appeal for want of prosecution if:
(a) the appellant has failed to comply with applicable statutes or these rules;
(b) 14 days' notice of the noncompliance has been given to each attorney of record and to parties not represented by counsel; and
(c) the court has not received a satisfactory response to the notice.
[(4)](5) For good cause, the court on its own motion or on motion of any party may waive any rule.
1See ORS 19.250(1)(e).
[The times provided in these rules for an act to be performed shall be computed by excluding the day of the event from which the designated period of time begins to run. The act must be performed on the last day of the period unless that day is a Saturday, Sunday or legal holiday, in which case the act must be performed on the next judicial day.]
(1) In computing any period of time prescribed or allowed by these rules or order of the court, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless that day is a Saturday or a legal holiday, including Sunday, in which event the period runs until the end of the next day which is not a Saturday or a legal holiday, including Sunday.
(2) When the period of time prescribed or allowed relates to serving a public officer or filing a document at a public office, and if the last day falls on a day when that particular office is closed before the end of or for all of the normal work day, the last day shall be excluded in computing the period of time within which service is to be made or the document is to be filed, in which event the period runs until the close of office hours on the next day the office is open for business.
(3) Except for an oral extension of time under Rule 7.27, when the period of time prescribed or allowed is less than seven days, intermediate Saturdays and legal holidays, including Sundays, shall be excluded in the computation.
(4) As used in this rule, "legal holiday" means legal holiday as defined in ORS 187.010 and ORS 187.020.
(5) The normal work day of the Records Section of the Office of the State Court Administrator is 8:00 a.m. to 5:00 p.m.
See ORS 174.120 and ORCP 10 A.
(a) * * *
(b) A person filing a notice of appeal, petition for judicial review or petition under the original jurisdiction of the Supreme Court may file by mail and the filing shall be complete on deposit in the mail if mailed in accordance with ORS 19.260(1). If the person relies on the date of mailing as the date of filing under ORS 19.260(1), the person shall certify the date of mailing and shall file the certificate, together with acceptable proof from the post office of the date of mailing, with the Administrator with proof of service on the parties to the appeal, judicial review or original proceeding. * * *
(c) Filing of briefs, petitions for attorney fees, statements of costs and disbursements, motions, petitions for review, and all other things required to be filed within a prescribed time, shall be complete if mailed on or before the due date by first-class mail through the United States Postal Service.
(d) If filing is not done as provided in subsections (b) or (c) of this section, then [filing shall not be timely unless] the thing shall not be deemed filed until the thing actually is [actually] received by the Administrator [within the time fixed for filing].
(2) Service Generally
(a) * * *
(b) Except as otherwise provided by law,1 service may be in person or by first-class mail. Service by mail through the United States Postal Service shall be complete on deposit in the mail unless otherwise provided by statute.
(c) All service copies must include a certificate showing the date of filing.
(d) Any thing filed with the Administrator shall contain either an acknowledgment of service by the person served or proof of service in the form of a statement of the date of personal delivery or deposit in the mail and the names and addresses of the persons served, certified by the person who made service.
(3) * * *
(4) * * *
(5) * * *
1 See, e.g., ORS 183.482(2), relating to cases arising under the Administrative Procedures Act and ORS 197.850(4), relating to judicial review of Land Use Board of Appeals orders, each of which requires service of petitions for judicial review by registered or certified mail.
* * * * *
The notice of appeal shall be served and filed within the time allowed by ORS 19.255, ORS 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 judgment1, 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 being appealed.
(4) A designation of the adverse parties on appeal.
[(4)](5) 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 proceedings2 and exhibits3 to be included in the record in addition to the trial court file.
(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 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, specifying the date of service, on:
(a) All parties who appeared in the trial court,
(b) The trial court administrator, and
(c) The transcript coordinator, if any portion of the record of oral proceedings in the trial court has been designated as part of the record on appeal.4
(11) A copy of the judgment, decree or order appealed from and of any other orders pertinent to appellate jurisdiction.
1 See Rule 2.10 regarding filing separate notices of appeal when there are multiple judgments entered in a case, including multiple judgments in consolidated cases.
2 See Rule 3.33 regarding the appellant's responsibility to make financial arrangements with either the court reporter or the transcript coordinator for preparation of a transcript of oral proceedings.
 3 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 administrators for use on appeal.
 4 See Rule 1.35(3)(b).
See ORS 19.240, 19.250 and 138.081; see also Rule 8.20 regarding bankruptcy.
See Appendix A for a form of notice of appeal.
(1) When two or more judgments collectively dispose of all claims or adjudicate the rights and liabilities of all parties in a case,1 one notice of appeal is sufficient. The notice of appeal shall identify which judgment was entered last and the date of entry. The notice of appeal may identify one or more other judgments which the appellant intends to contest,2 but the appellant shall not be limited to contesting the judgment or judgments so identified.
(2) If the trial court consolidates two or more cases but enters a separate judgment for each case, a separate notice of appeal must be filed as to each judgment, if a party wishes to appeal from each.
(3) After a party has filed a notice of appeal from a decision in a trial court case, if another party files a notice of appeal from a decision in the same trial court case, the Administrator may place the subsequent notice of appeal in the same appellate file as the first notice of appeal or may assign a new appellate case number to the subsequent notice of appeal, subject to the following:
(a) When the Administrator has placed a subsequent notice of appeal in
the same appellate case file, any party may move the court to sever the case and
for assignment of a new appellate case number to the subsequent notice of
(b) When the Administrator has assigned a new appellate case number to a subsequent notice of appeal, any party to either appeal may move to consolidate the appellate cases.
[(3)](4) With respect to violation or infraction cases initiated by citations and heard by the trial court at the same time, one notice of appeal identifying the judgment or judgments being appealed is sufficient.
1 See State ex rel Zidell v. Jones, 301 Or 79, 720 P2d 350 (1986); State ex rel Orbanco Real Estate Serv. v. Allen, 301 Or 104, 720 P2d 365 (1986).
2 See ORS 19.250(1)(c).
CASE [TITLES AND] TITLE CHANGE
(1) With respect to appeals from courts:
(a) The case title shall include all parties or entities ever named in the case,
* * *.
(b) All parties should be named completely and should be identified by their designations in the trial court * * * .
(c) Parties to a crossclaim, third-party claim or counterclaim should be set forth in a separate case title under the original case title.
(d) Where the trial court has used an ``In Re'' or other similar case title that does not identify the adverse parties to the proceeding, such as in probate and juvenile court cases, the contesting parties should be set forth in a separate case title under the original case title.
(e) The title shall include the trial court case number or numbers.1
[(2) With respect to agency proceedings, if the title of the agency proceeding does not include the names of the parties to the proceeding, the title of the case on judicial review shall designate the party seeking judicial review as the ``petitioner'' and the party against whom relief is sought as the ``respondent.'']
[(3)](2) The Administrator may correct the title of the case on appeal or judicial review to include all persons who were parties to the proceeding below and to designate properly the parties according to their status on appeal or judicial review. If the Administrator corrects the title, the Administrator shall give notice and opportunity to respond to all parties to the appeal or judicial review.
(3) (a) A person who was a party to the case in the tribunal from which the
appeal was taken but who was not designated in the notice of appeal as a party
to the appeal may appear as of right as a party to the appeal by filing a notice of
intent to participate as a party.
(b) If the notice of appeal in a juvenile court, guardianship, conservatorship or other similar proceeding does not identify the juvenile or protected person as a party to the appeal, the juvenile or protected person may appear as of right as a party to the appeal by filing a notice of intent to participate as a party.
(c) A notice of intent to participate on appeal under paragraph (a) or (b) of this section shall be filed within 21 days of the date of filing of the notice of appeal, or within such further time as may be allowed by the court, and shall be served on all other parties to the appeal and on the court reporter or transcriptionist, if any, preparing the transcript.
(d) A party who appears on appeal under paragraph (a) or (b) of this subsection may recover costs and attorneys fees, if any, and is liable for costs and attorney fees, if any, the same as any party to an appeal.
(4) On motion of a party, the court may modify the case title as it will appear[s] in the published decision for the purpose of protecting the identities of juveniles or for other good cause shown. The motion must be filed no later than when the party's brief is filed.
1Regarding case titles on judicial review of agency orders, see Rule 4.15(2).
See Appendix B.
PREPARATION AND FILING OF
(1) The trial court administrator shall prepare and file the record in the same manner in all appeals [from trial courts].
(2) The trial court administrator shall identify separately by certificate and promptly forward on request of the appellate court:
(a) the trial court file or portion thereof designated by the parties, if less than the entire file has been designated;
(b) the exhibits specified in the designation of record;
(c) the transcript of oral proceedings or the audio or video record specified in the designation of record, or agreed narrative statement; and
(d) any portion of the trial court record ordered by the appellate court pursuant to Rule 3.05[(5)](3).
(3) If the record of oral proceedings is an audio record and the appellate court has directed that the appeal proceed on the audio record without a transcript, the trial court administrator shall place the original audio record and the official log and reporter's certificate in an envelope or other suitable container, clearly identified as containing the audio record and official log, and forward the envelope or other container to the Administrator along with the trial court file.
See ORS 18.335, ORS 19.005, ORS 19.365, and ORS 138.185(1).
See Rule 3.63 regarding the trial court record in proceedings recorded by videotape equipment.
(1) A transcript shall meet these specifications:
(a) It shall be typewritten or printed. Type shall be standard pica or equivalent size or, if word processing equipment is used, 10 or 12 pitch print, no fewer than 9 or 10 characters to the typed inch, first impression and clear and legible.
(b) It shall be prepared on good quality white, opaque, unglazed paper, 8-1/2 x 11 inches in size, with numbered lines. It shall be double-spaced and each page shall contain [no more than] 25 lines of text, no more and no less, except for the last page of the transcript, with margins of 1-1/2 inches on the left and 1/2-inch on the right.(i) Each question shall be prefaced by "Q" and each answer shall be prefaced by "A." Each question and answer shall begin on a separate line no more than five spaces from the left margin and no more than five spaces from the "Q" and "A" to the beginning of the text. Text that carries on to the next line shall begin at the left margin.
(ii) Colloquy, parentheticals, and exhibit markings shall begin no more than 15 spaces from the left margin. Text that carries on to the next line shall begin at the left margin.
(iii) Quoted material shall begin no more than 15 spaces from the left margin. Text that carries on to the next line shall begin no more than 10 spaces from the left margin.
(c) Each page shall be consecutively numbered at the top right corner, and to the left thereof shall be given the name of the witness followed by a notation indicating whether the testimony is on direct, cross, redirect or recross examination, indicated by ``D,'' ``X,'' ``ReD'' or ``ReX.''
(d) Appropriate notation shall similarly be made of other proceedings, such as a motion for dismissal or a directed verdict, requested jury instructions, jury instructions, any opinion by the court and other matters of special importance.
(e) It shall be preceded by an appropriate title page followed by an index noting:(i) the first page of the direct, cross, redirect and recross testimony of each witness;
(ii) all exhibits, with notation of the nature thereof and of the page of the record where offered and, when appropriate, where received in evidence; and
(iii) appropriate notations of other proceedings such as motions for nonsuit and directed verdict, requested jury instructions, jury instructions, opinion of the court and other matters of special importance.
(f) Pages shall be bound at the left, with spiral or plastic binding, if available; otherwise tip bound, wired, stitched, or firmly stapled, and if stapled, then at four equidistant places. Bindings shall be within 3/8 inch of the left edge.
(g) It shall have a cover sheet of clear plastic or 65-pound weight paper, front and back.
(h) If a transcript exceeds 200 pages, it shall be bound into volumes of approximately equal size of not more than 200 pages each. Volumes shall be consecutively numbered on their covers.
(2) A transcript in excess of one volume may be prepared by reducing the pages of the transcript in such a manner as to fit up to four pages of transcript onto a single 8-1/2 x 11 inch page.1
(3) If a court reporter or transcriber prepares a transcript in a manner suitable for storage on computer diskette, at the request of a party and on payment of a fee of no more than [$15] $5 per diskette, the court reporter shall furnish the transcript, or as much of the transcript as has been requested by the party, on computer diskette in a format convenient for the court reporter or transcriber. A transcript furnished to a party under this subsection is not in lieu of a written transcript.
1 See illustration at Appendix E.
ADDITION TO OR
(1) A party desiring to correct or add to the transcript shall file a motion in the trial court within 15 days after the filing of the transcript and[, at the time the motion is filed,] mail a copy of the motion to the Administrator.1 When multiple portions of the oral record have been designated as part of the record on appeal or if more than one court reporter or transcriptionist is preparing the transcript, the transcript is not deemed filed until the last portion of the transcript due on appeal is filed.
(2) * * *
(3) * * *
(4) * * *
(5) * * *
1 Under ORS 19.395, the appellate court, not the trial court, has the authority to extend the time in which to file a motion to correct or add to the transcript.
* * * * *
* * * * *
FORM, CONTENT AND SERVICE OF PETITION
(1) * * *
(2) [(a)] The title shall be as it was before the agency to the extent possible. The title shall include the names of the parties to the proceeding regardless of whether the title of the agency proceeding included the names of the parties. The title also shall include the agency if the agency is a party to the judicial review. [If the agency title identifies parties to the case,] The parties shall be shown on judicial review with appropriate party designations as "petitioner" for the party seeking judicial review and "respondent" for the party against whom relief is sought. [If the agency title does not identify parties to the case, the petition for judicial review shall identify the petitioner(s) and respondent(s) on judicial review.] A subsequent [petitioner] party seeking judicial review of the same agency order shall be designated as "cross-petitioner".1
[(b) The Administrator may correct the title of the petition for judicial review to include all persons who were parties to the proceeding before the agency and to designate properly the parties according to their status on judicial review. If the Administrator corrects the title, the Administrator shall give notice and opportunity to respond to all parties.]
(3) * * *
(4) * * *
(5) The petition shall show proof of service on:
(a) the agency whose order, rule or ruling is involved (unless the agency is the petitioner), even if the agency is not a party;
(b) the Attorney General, even if the agency is not a party[, except in workers' compensation cases in which the State Accident Insurance Fund Corporation is not a party;]. In a workers' compensation case, the petition shall show proof of service on the Attorney General only if the State Accident Insurance Fund Corporation is a party to the case.
(c) the Workers' Compensation Board by registered or certified mail in workers' compensation cases;
(d) all other parties of record in the proceeding; and
(e) any other person required by law to be served.
1 See Rule 2.25(2) regarding the authority of the Administrator to correct the case title.
* * * * *
Unless a statute prescribes a different procedure in particular cases, the record on direct judicial review of an agency order shall be corrected or added to as follows:
(1) Within 14 days after the agency files the record of agency proceedings, or such further time as may be allowed by the court, any party may file with the agency a motion:
(a) To correct any errors appearing in the transcript or to have additional parts of the proceedings transcribed, if the record includes a transcript.
(b) To correct the record, other than the transcript, by removing material appearing in the agency record as filed that was not made part of the record before the agency, or by adding material that was made part of the record before the agency but was omitted from the record as filed. This paragraph does not authorize supplementing the record on judicial review with evidence that never was part of the record before the agency.1
(2) The party shall serve the court with a copy of the motion.
(3) (a) If the agency grants in whole or in part a motion to correct the record or to correct or add to the transcript, the agency shall serve on the adverse party or parties and file with the court a corrected record, a corrected transcript, or an additional transcript, as appropriate. When the agency files a corrected record or transcript, in the discretion of the agency, the agency may serve and file only those pages as have been corrected.
(b) If the agency denies in whole or in part a motion to correct the record or to correct or add to the transcript, the agency shall file with the court the agency's order disposing of the motion. If the agency allows in part and denies in part a motion to correct the record or to correct or add to the transcript, the court shall file its order along with the record or transcript as corrected.
(4) When the agency has filed the corrected record or transcript or its order denying a motion to correct the record or the transcript, the record shall be deemed settled and the time for filing petitioner's opening brief shall begin.
(5) Any party aggrieved by the agency's disposition of a motion to correct the record or to correct or add to the transcript, may request, by motion filed within 14 days of the date of filing of the agency's disposition, that the court review the agency's disposition.
See ORS 183.482(4) regarding the correction to the record on judicial review of orders in contested cases, see ORS 183.482(4): "* * * The court may require or permit subsequent corrections or additions to the record when deemed desirable. * * *"
1See ORS 183.482(5) regarding an application for leave to present additional evidence that was never part of the record before the agency in the proceeding.
Except as prescribed in ORS 197.850(7) and ORS 197.860, in the Court of Appeals, no continuance or extension shall be granted as to the time specified by statute for transmission of the record, the time specified by these rules for filing the cross-petition and the briefs or the time set for oral argument.
(1) * * *
(2) (a) No opening, answering, or combined brief[, including a combined respondent-cross-appellant's brief or a cross-respondent's combined reply and answering brief,] shall exceed 50 pages in length.1 This limitation does not include the index, [abstract] excerpt of record or appendices. [On motion of a party, the court may permit the filing of a brief exceeding the 50-page limit, but the party shall file such motion not less than seven days before the brief is due and shall state specific reasons for an extended brief.
[(b) An appendix shall not include any matter otherwise appearing in the trial court record, unless the matter is necessary to support a reference in the text of the brief.]
[(c)](b) A party's [abstract] excerpt of record or appendix or combined [abstract] excerpt of record and appendix shall not exceed 50 pages in length[, unless, on motion of a party filed not less than seven days before the brief is due, the court grants permission for a longer abstract of record, appendix, or combined abstract of record and appendix, in which case the abstract of record, appendix, or combined abstract of record and appendix shall be bound separately from the brief].
(c) No reply brief shall exceed 15 pages in length.
(d) Unless the court orders otherwise, no supplemental brief shall exceed five pages in length.
(3) (a) On motion of a party stating a specific reason for exceeding the prescribed limit, the court may permit the filing of a brief, an excerpt of record, an appendix, or a combined excerpt of record and appendix exceeding the page limits prescribed in section (2) of this rule or prescribed by order of the court. A party filing a motion under this subsection shall make every reasonable effort to file the motion not less than seven days before the brief is due. The court may deny an untimely motion under this subsection on the ground that the party failed to make a reasonable effort to file the motion timely.
(b) If the court grants permission for a longer excerpt of record, appendix, or combined excerpt of record and appendix, the excerpt of record, appendix, or combined excerpt of record and appendix shall be printed on both sides of each page and shall be spiral bound separately from the brief.2
[(3) No reply brief shall be longer than 15 pages, unless a longer brief is allowed by the court on motion of the party.
[(4) The abstract of record shall appear following the conclusion of the substance of the brief and shall be independently numbered as provided in subparagraph 5(h) of this rule. The court may strike any brief containing an unreasonably voluminous abstract of record.]
(5) All briefs shall conform to these requirements:
(a) Front and back covers shall be paper of at least 65-pound weight. The cover of the [opening] brief shall be [blue;]:
(i) For an opening brief, blue;
(ii) For an [the] answering brief[, including one containing a cross-appeal], [shall be] red;
(iii) For a combined answering and cross-opening brief, violet;
(iv) For a [the] reply or combined reply and answering brief on cross-appeal, or an answering brief to a cross-assignment of error or cross-argument for affirmance under Rule 5.57, [shall be] gray;
(v) For the brief of an intervenor, the color of the brief of the party on whose side the intervenor is appearing;
(vi) For the brief of [or] amicus curiae, [shall be] green;
(vii) For a supplemental brief, the same color as the primary brief.
(viii) For a petition for review or reconsideration in the Supreme Court, [shall be] yellow;
(ix) For a response to a petition for review or reconsideration [of a] in the Supreme Court decision, [shall be] orange;
(x) For a brief on the merits of a petitioner on review in the Supreme Court, white;
(xi) For a brief on the merits of a respondent on review in the Supreme Court, tan.
(b) * * * The front cover shall set forth the full title of the case, the appropriate party designations as the parties appeared below and as they appear on appeal, the case number assigned below, the case number assigned in the appellate court, designation of the party on whose behalf the brief is filed, the court from which the appeal is taken, the name of the judge thereof, and the names, bar numbers, addresses and telephone numbers of counsel for the parties and the name, address and telephone number of a party appearing pro se.3
(c) * * *
(d) Paper for the text of the brief shall be white bond, regular finish without glaze, and at least 20-pound weight with surface suitable for both pen and pencil notation. If both sides of the paper are used for text, the paper shall be sufficiently opaque to prevent the material on one side from showing through on the other. 4
(e) * * *
(f) * * *
(g) * * *
(h) Pages shall be consecutively numbered at the top of the page within 3/8 inch from the top of the page. Pages of the [abstract] excerpt of record shall be numbered independently of the body of the brief, and each page number shall be preceded by ``A'': A-1, A-2, A-3, et seq. Pages of appendices shall be preceded by ``App'': App-1, App-2, App-3, et seq.
(i) * * *
(6) The court on its own motion may strike any brief that does not comply with this rule.
1 Briefs to which this restriction applies include, but are not limited to, a combined respondent - cross-appellant's brief, a cross-respondent's combined reply and answering brief, and a brief that includes a response to a cross-assignment of error.
2 See Rule 5.50 regarding the excerpt of record generally.
3 See Rule 5.95 regarding the title page of a brief containing confidential material.
 4 See ORS 7.250 and Rule 1.35(5) regarding use of recycled paper and printing on both sides of a page.
See Appendix G.
PROOF OF SERVICE
(1) Any party filing a brief on appeal or on judicial review in the Court of Appeals shall file with the Administrator one brief, marked as the original, and 20 copies except that the original and five copies only need be filed for:
(a) A brief submitted pursuant to Rule 5.90;
(b) A respondent's brief confessing error and not opposing the relief sought in the opening brief;
(c) A brief submitted by a party who is not represented by an attorney and who has been determined to be indigent by the court or whose brief has been copied at the expense of the public institution of which the party is a resident.
(2) Any party filing a brief on appeal, judicial review or other proceeding originally heard in the Supreme Court1 shall file with the Administrator one brief, marked as the original, and 15 copies.
[(3) An appellant or petitioner also shall file one additional copy of the front brief cover of the opening brief.]
[(4)](3) Any party filing a brief shall serve two copies of the brief on every other party to the appeal, judicial review or proceeding[, and shall file proof of service].
(4) The original of each brief shall contain proof of service on all other parties to the appeal. The proof of service shall be the last page of the brief or printed on or affixed to the inside of the back cover of the brief.
1 For example, appeals from the tax court, judicial review of orders of the Energy Facility Siting Council relating to site certificate applications, bar admission and disciplinary proceedings and original jurisdiction cases under the Oregon Constitution, Article VII (Amended), section 2.
See Rule 9.05(5) regarding the number of copies of a petition for review, Rule 9.10(3) regarding the number of copies of a response to a petition for review and Rule 9.25(2) regarding the number of copies of a petition for reconsideration of a Supreme Court decision.
CHALLENGING CONSTITUTIONALITY OF
STATUTES OR CONSTITUTION
A party filing a brief [or], petition for review, or petition invoking the court's original jurisdiction that challenges the constitutionality of an Oregon statute or an Oregon constitutional provision shall, at the time the brief or petition [for review] is filed, provide the Attorney General with a copy of the brief or petition [for review].
The appellant's brief shall open with a clear and concise statement of the case, which shall set forth in the following order under separate headings:
(1) The nature of the action or proceeding, the relief sought and, in criminal cases, the indictment or information, including citation of the applicable statute.
(2) The nature of the judgment sought to be reviewed and, if trial was held, whether it was before the court or a jury.
(3) A statement of the statutory basis of appellate jurisdiction and, where novelty or possible doubt makes it appropriate, other supporting authority.
(4) A statement [showing the effective date for appeal purposes of the judgment from which the appeal is taken;] of the date of entry of the judgment in the trial court register, the date that the notice of appeal was served and filed, and, if more than 30 days elapsed between those two dates, why the appeal nevertheless was timely filed; and any other information relevant to appellate jurisdiction.
(5) In cases on judicial review from a state or local government agency, a statement of the nature and the jurisdictional basis of the action of the agency and of the trial court, if any.
(6) A brief statement, without argument and in general terms, of questions presented on appeal.
(7) A concise summary of the arguments appearing in the body of the brief.
(8) A concise summary, without argument, of all the facts of the case material to determination of the appeal. The summary shall be in narrative form with references to the places in the transcript, narrative statement, audio record, record or excerpt where such facts appear.
(9) In a dissolution proceeding or a proceeding involving modification of a dissolution decree, the summary of facts shall begin with the date of the marriage, the ages of the parties, the ages of any minor children of the parties, the custody status of any minor children, the amount and terms of any spousal or child support ordered and the party required to pay support.
(10) Any significant motion filed in the appeal and the disposition of the motion. A party need not file an amended brief to set forth any significant motion filed after that party's brief has been filed.
(11) Any other matters necessary to inform the court concerning the questions and contentions raised on the appeal, insofar as such matters are a part of the record, with reference to the portions of the record where such matters appear.
[(1) Assignments of error are required in all opening briefs of appellants and cross-appellants.
(2) No matter assigned as error will be considered on appeal unless it was preserved in the lower court and assigned as error in the party's opening brief; provided that the appellate court may consider errors of law apparent on the face of the record.
(3) An assignment of error that would require the court to search for the pertinent portion of the record in which the matter complained of appears shall not be considered.
(4) Each assignment of error shall be clearly and concisely stated under a separate and appropriate heading, must be specific and must set out verbatim the pertinent portions of the record, if it relates to a specific ruling that is being challenged.
(5) The arrangement and form of assignments of error, together with reference to pages of the transcript or narrative statement, should conform to the illustrations in Appendix H.
(6) A separate argument shall follow each assignment of error, except that if several assignments of error present essentially the same legal question, the argument in support of them shall be combined so far as practicable. At the beginning of each argument the appellant shall identify the applicable standard of review,1 followed by citation to the statute, case law or other legal authority for that standard of review.
(7) A brief not complying with these rules may be stricken in whole or in part.
1 Standards of review include but are not limited to de novo review and substantial evidence for factual issues, errors of law and abuse of discretion for legal issues, and special statutory standards of review such as those found in the Administrative Procedures Act, ORS 183.400(4) and ORS 183.482(7) and (8).]
(1) A question or issue to be decided on appeal shall be raised in the form of an assignment of error, as prescribed in this rule. Assignments of error are required in all opening briefs of appellants and cross-appellants.
(2) Each assignment of error shall be separately stated under a numbered heading. The arrangement and form of assignments of error, together with reference to pages of the record, should conform to the illustrations in Appendix H.
(3) Each assignment of error shall identify precisely the legal, procedural, factual, or other ruling that is being challenged.
(4) (a) Each assignment of error shall demonstrate that the question or
issue presented by the assignment of error timely and properly was raised and
preserved in the lower court. Under the subheading "Preservation of Error":
(i) Each assignment of error, as appropriate, must specify the stage in the proceedings when the question or issue presented by the assignment of error was raised in the lower court, the method or manner of raising it, and the way in which it was resolved or passed on by the lower court.
(ii) Each assignment of error must set out pertinent quotations of the record where the question or issue was raised and the challenged ruling was made, together with reference to the pages of the transcript or other portions of the record quoted or to the excerpt of record if the material quoted in set out in the excerpt of record. When the portions of the record relied on under this paragraph are lengthy, they shall be included in the excerpt of record instead of the body of the brief.
(b) An assignment of error for a claimed error apparent on the face of the record shall comply with the requirements for assignments of error generally by identifying the precise ruling, specifying the state of the proceedings when the ruling was made, and setting forth pertinent quotations of the record where the challenged ruling was made.1
(c) The court may decline to consider any assignment of error that requires the court to search the record to find the error or to determine if the error properly was raised and preserved.
(5) Under the subheading "Standard of Review," each assignment of error shall identify the applicable standard or standards of review, supported by citation to the statute, case law, or other legal authority for each standard of review.
(6) Each assignment of error shall be followed by the argument. If several assignments of error present essentially the same legal question, the argument in support of them may be combined so far as practicable. The argument in support of a claimed error apparent on the face of the record shall demonstrate that the error is of the kind that may be addressed by the court without the error having been preserved in the record.
1See State v. Brown, 310 Or 347, 355-56, 800 P2d 259 (1990).
[(1) The abstract of record shall set forth only such parts of the trial court file as are essential to consideration of the issues presented, including relevant portions of the pleadings, exhibits, verdict, the trial court's opinion, if any, the judgment being appealed and any motions, together with the rulings and orders thereon. Only relevant matter should be included and the appellant shall summarize, wherever possible, those portions of the proceedings that are not questioned by the appellant. The material may be single-spaced when set forth verbatim. The contents of the abstract shall be legible and in chronological order.
(2) In criminal, civil commitment, and juvenile cases, no abstract of record is necessary, but the order or judgment being appealed shall be included as an appendix to the brief.
(3) In judicial review cases (including workers' compensation), the abstract shall include the opinions and orders of hearing officers and administrative agencies.
(4) If the appellant's abstract of record is incomplete, the respondent may include after the substance of the brief such additional abstract as the respondent believes necessary to a full understanding of the questions presented, following, as appropriate, the form prescribed in subsection (1) of this rule.
(5) If matter properly in the abstract of record under subsection (1) of this rule sets forth completely and concisely matter required to be in a brief, such as a summary of facts or the verbatim ruling of the court in an assignment of error, it is sufficient if the brief refers to the places in the abstract of record where such matter can be found.]
(1) After the conclusion of the substance of the brief, the appellant shall set forth an excerpt of record.
(2) When preparing an excerpt of record, the appellant shall be guided by the following considerations. The appellant shall include, in the excerpt of record, documents and portions of documents that either are essential to or significantly helpful in understanding the arguments developed in the brief, particularly for purposes of assisting the court in advance of oral argument. The issues on appeal and the procedural posture of the case should determine the contents of the excerpt of record. The appellant should be selective, should avoid unnecessary length, and should not merely duplicate the entire trial court file rather than exercise considered judgment as to the content of the excerpt of record. The full record is available to and used by the court after oral argument or submission of the case.1
(3) It generally is not necessary to include in the excerpt of record memoranda of law filed in the trial court, unless the fact that a particular argument was or was not made in a memorandum has independent significance (e.g., a dispute over preservation of an issue.)
(4) The respondent shall prepare an excerpt of record if the appellant either has failed to do so or has failed to include materials that the respondent deems essential to or significantly helpful in the court's preparation for oral argument.
(5) In criminal, civil commitment and juvenile cases, the excerpt of record shall contain the judgment or order being appealed, and such other portions of the record as are appropriate to include.
(6) In agency review cases, including workers' compensation, the excerpt of record shall include the order of the administrative law judge, the agency, and other administrative tribunal, if part of the lower tribunal's record, together with such other portions of the record as are appropriate to include.
(7) The excerpt of record shall be in the following form:
(a) All documents or portions of documents shall be copies of documents included in the record, rather than summarized or paraphrased. Omissions, if not apparent, shall be noted. No matter shall be omitted if to do so would change the meaning of the matter included.
(b) Contents shall be set forth in chronological order. The excerpt shall be consecutively paginated, with the first page being page ER 1. The excerpt shall begin with an index organized chronologically, describing each item and identifying where the item may be found in the trial court or agency record, and the page where the item may be found in the excerpt.
(c) The materials included shall be reproduced on letter size white paper by any duplicating or copying process that produces a clear, black, legible image.
(d) The excerpt of record shall comply with the applicable requirements, including page limitations, of Rule 5.05.
1See Appendix J, which sets forth examples of documents that a party should consider including in the excerpt of record depending on the nature of the issues raised in the briefs.
The purpose of an appendix to a brief is to provide, for the convenience of a reader of the brief, materials that would be helpful in understanding and resolving an issue raised on appeal. A party appropriately may include in an appendix, for instance, copies of a statute or statutes at issue in the appeal, or copies of cases that are not readily available from standard research sources. A party should not include in the appendix materials from the record of the tribunal from which the appeal is taken that should be in the excerpt of record.
CROSS-ASSIGNMENTS OF ERROR;
CROSS-ARGUMENTS FOR AFFIRMANCE
(1) A respondent must cross-assign as error any trial court ruling described in this subsection [(2)] in order to raise the claim of error in the appeal.1 A cross-assignment of error is appropriate:
[(2) A cross-assignment of error is appropriate:]
(a) If, by challenging the trial court ruling, the respondent does not seek to reverse or modify the judgment on appeal; and
(b) If the relief sought by the appellant were to be granted, respondent would desire reversal or modification of an intermediate ruling of the trial court.
(2) A respondent must make a cross-argument for affirmance of a trial court ruling under the circumstances described this subsection in order to seek affirmance of a trial court ruling for a reason different from that given by the trial court. A cross-argument for affirmance is appropriate:
(a) If, by challenging the trial court's reason for its ruling, the respondent does not seek to reverse or modify the ruling, but, rather, seeks to affirm the ruling for a reason different from that given by the trial court;
(b) If the trial court record, when necessary, supports the alternative basis for affirming the trial court's ruling; and
(c) If the alternative basis for affirming the trial court's ruling was properly presented to the trial court or, if not, if the appellant is not prejudiced by the assertion of the alternative basis for affirmance for the first time on appeal.
(3) To the extent practicable, cross-assignments of error and cross-arguments for affirmance shall conform to the requirements of Rule 5.45.
[(3)](4) To the extent practicable, the appellant's response to a cross-assignment of error or cross-argument for affirmance shall be in the form prescribed by Rule 5.55 for a respondent's brief and shall be:
(a) Contained in a separate section of the reply brief, if a reply brief is permitted under Rule 5.70, and designated ``response to cross-assignment of error'' or "response to cross-argument for affirmance," as appropriate;or
(b) Filed within 21 days after the filing of the respondent's brief, if a reply brief is not permitted under Rule 5.70, and entitled ``appellant's response to cross-assignment of error'' or "response to cross-argument for affirmance," as appropriate. The brief shall be no longer than 15 pages.2
[(4)](5) A respondent may file a reply to an appellant's answer to a cross-assignment of error or cross-argument for affirmance only if the nature of the case is one in which a reply brief is permitted under Rule 5.70 and Rule 5.80(4). The reply shall be no longer than 15 pages in length, have a gray brief cover and shall be filed within 21 days after the filing of the appellant's answer to a cross-assignment of error.
1 This rule does not apply to [cross-appeals] a respondent who also is a cross-appellant and is assigning error as a cross-appellant.
2 A brief under this rule is required to have a gray brief cover. Rule 5.05(5)(a)(iv).
(1) (a) Except as provided in subsection [(2)](3) 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.
(b) [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]; reply briefs that merely restate arguments made in the opening brief are discouraged.
(c) The court encourages a party who decides not to file a reply brief, as soon as practicable thereafter, to notify the court in writing to that effect.
(2) The form of a reply brief shall be similar to a respondent's brief. A reply brief shall have an index[, but need not] and shall contain a summary of argument.
[(2)](3) (a) 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:
(i) violations, including, not necessarily limited to traffic, boating, and wildlife violations.
[(a)](ii) criminal, probation revocation, habeas corpus and post-conviction relief;
[(b)](iii) mental commitment;
[(c) domestic relations, juvenile and adoption;]
[(d) judicial review of administrative agency action;1 ]
[(e) 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 driver licenses); and]
[(f)](iv) forcible entry and detainer; and
(v) judicial review of orders of the Land Use Board of Appeals, as provided in Rule 4.66(3).
[(3)] (b) A motion [under subsection (2) of this rule] for leave to file a reply brief shall be submitted, without copies, within 14 days after the filing of the brief to which permission to reply is sought.
[1 Agencies subject to this provision include but are not limited to the Workers' Compensation Board, the Land Use Board of Appeals, and the Board of Parole and Post-Prison Supervision.]
TIME FOR FILING BRIEFS
(1) Unless otherwise provided by statute or these rules, the appellant's opening brief and [abstract] excerpt of record 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 19.370(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 or narrative statement is not designated, the filing of the notice of appeal; or
(f) in a judicial review case, the agency record has been filed.
(2) * * *
(3) * * *
(4) * * *
(5) * * *
(6) * * *
(7) In cases in which the appellant is represented in the Court of Appeals by the State Public Defender, the appellant's brief shall be served within a period of time established from by the Chief Judge in consultation with the State Public Defender.
(8) In the Supreme Court on automatic review in death sentence cases, the court will establish a briefing schedule in each case.
(1) If counsel appointed by the court to represent an indigent defendant in a criminal case on direct appeal has thoroughly reviewed the record [and], has discussed the case with trial counsel and the client, and has determined that the case does not raise any arguably meritorious issues [wishes to file a brief pursuant to State v. Balfour, 311 Or 434, 451-53, 814 P2d 1069 (1991),] counsel shall file a brief with two sections:
(a) Section A of the brief shall contain:
(i) A statement of the case, including a statement of the facts of the case[, sufficient to apprise the court of the jurisdictional basis for the appeal]. If the brief contains a Section B with one or more claims of error asserted by the client, the statement of facts shall include facts sufficient to put the claim or claims of error in context.
(ii) A description of any demurrer or significant motion filed in the case, including, but not limited to, a motion to dismiss, a motion to suppress and a motion in limine, and the trial court's disposition of the demurrer or motion.
(iii) A statement that the case is being submitted pursuant to this rule, that counsel has thoroughly reviewed the record and discussed the case with trial counsel and the client, and that counsel has not identified any meritorious issue on appeal. If the brief does not contain a Section B, counsel also shall state that counsel contacted the client, gave the client reasonable opportunity to identify a claim or claims of error, and that the client did not identify any claim of error for inclusion in the brief.
(iii) Counsel's signature [and shall be signed by counsel].
(b) Section B of the brief shall contain any claim of error requested by the client and shall be signed by the client. Section B shall attempt to state the claim and any argument in support of the claim as nearly as practicable in the manner that the client seeks, in proper appellate brief form. [If a brief submitted under this rule contains a Section B with one or more claims of error asserted by the client, Section A of the brief shall contain a statement of facts sufficient to put the claim or claims of error in context.]
(2) A case in which appellant's brief is prepared and filed under this rule shall be submitted without oral argument, unless otherwise ordered by the court.
(3) In a case other than a criminal case on direct appeal, court-appointed counsel who determines that there are no meritorious issues on appeal may submit a brief under this rule, in which case the matter will be submitted without oral argument, unless otherwise ordered by the court.
(4) In any case in which the appellant is represented by court-appointed counsel on appeal and counsel filed a brief in the Court of Appeals under subsection (1) of this rule, counsel may submit a petition for review that contains a Section A that complies with Rule 9.05(1), (2), and (3)(g), and a Section B that complies with subsection (1)(b) of this rule.
See, generally, State v. Balfour, 311 Or 434, 451-53, 814 P2d 1069 (1991)
(1) If a brief contains matter that is, by statute or court order, confidential or
exempt from disclosure,1 the party submitting the brief shall file two original briefs:
(a) One brief shall contain the material that is confidential or exempt from disclosure. The title page of the brief shall contain in or under the case caption the words "CONFIDENTIAL BRIEF UNDER _____ " followed by the statutory citation or a description of the court order under which confidentiality is claimed.* The material that is confidential or exempt from disclosure shall be printed in italic print, highlighted or otherwise marked so that the court can distinguish between the material that is confidential or exempt from disclosure and the material that is not. The original of the brief shall be placed in a sealed envelope marked "CONFIDENTIAL BRIEF". (b) One brief shall have the material that is confidential or exempt from disclosure removed or marked out. The title page of the brief shall contain in or under the case caption the words "REDACTED BRIEF UNDER _____ " followed by the statutory citation or a description of the court order under which confidentiality is claimed.* (2) (a) If a brief described in subsection (1) of this rule is filed in the Court of Appeals, the party filing the brief shall file 15 copies of the confidential brief and five copies of the redacted brief. (b) If a brief described in subsection (1) of this rule is filed in the Supreme Court, the party filing the brief shall file 10 copies of the confidential brief and seven copies of the redacted brief. [(c) Each copy of a confidential brief filed under paragraphs (a) or (b) of this subsection shall be placed in a separate sealed envelope and marked "CONFIDENTIAL BRIEF".] [(d)](c) A party filing a brief under this rule shall serve two copies of the confidential brief and two copies of the redacted brief on each other party to the case on appeal or review.(3) The Administrator shall keep both original briefs in the appellate file for the case. The Administrator shall make the redacted version of the brief available for pubic inspection and copying.
(4) (a) On motion of a person, the court shall make available for public inspection and copying a confidential brief based on a showing that the brief does not contain matter that is confidential or exempt from disclosure. (b) On motion of a person and under such conditions as the court may deem appropriate, the court may authorize inspection or copying of a confidential brief based on a showing that the person is entitled as a matter of law to inspect or copy the material that is confidential or exempt from disclosure.(5) When the appellate judgment issues terminating a case, the Administrator shall distribute to brief storage facilities only the redacted copies of a brief filed under subsection (1)(b) of this rule.
1 See, e.g., ORS 36.222(5) and (6) regarding confidential mediation communications and agreements; ORS 135.139, ORS 179.495, ORS 179.505, ORS 433.045(3), and ORS 433.055 regarding records revealing HIV testing information; ORS 137.077 regarding presentence investigation reports; ORS 179.495 and ORS 192.525 regarding medical records; ORS 179.505 regarding medical records maintained by state institutions; ORS 418.135, ORS 418.747(13), and ORS 419A.035 regarding abuse investigation records; ORS 426.160 and ORS 426.370 regarding records in mental commitment cases; and ORS 430.399 regarding alcohol and drug abuse records.
FAILURE TO APPEAR AT ARGUMENT
(1) A party may present oral argument only if the party has filed a brief.
(2) An amicus curiae may present oral argument only if permitted by the court on motion or on its own motion.
(3) An attorney who was a witness for a party, except as to merely formal matters such as attestation or custody of an instrument, shall not argue the cause without leave of the court.
(4) [(a)] Only active members of the Oregon State Bar shall argue unless the court, on motion filed not less than 21 days before the date for argument orders otherwise. If the court has allowed a lawyer from another jurisdiction to appear on appeal pro hac vice (for a particular case) under Rule 8.10(4), the lawyer does not need leave of the court to participate in oral argument of the case.
[(b) An attorney admitted to the practice of law in another jurisdiction and who has been given leave to appear on appeal under Rule 8.10(4) may argue the appeal without obtaining additional leave of the court.]
(5) If counsel for a party fails to appear, the court may deem the cause submitted without oral argument as to that party. A party's failure to appear shall not preclude oral argument by the other party. The respondent shall be entitled to recover from counsel for appellant costs and attorney fees related to preparation for and attendance at oral argument, if counsel for [the] appellant fails to appear without having provided at least 48 hours' notice to respondent, unless good cause is shown for such failure.
[See ORS 138.210 regarding the necessity of appearance by the appellant in a criminal case. Concerning a lawyer as a witness, see Oxley et al v. Linnton Plywood Ass'n, 205 Or 78, 284 P2d 766 (1955).]
(1) * * *
(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) violations, including, but not necessarily limited to, traffic, boating, and wildlife violations.
[(i)](ii) criminal, probation revocation, habeas corpus and post-conviction;
[(ii)](iii) mental commitment;
[(iii)](iv) domestic relations, juvenile and adoption;
[(iv)](v) judicial review of administrative agency action;1
[(v)](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 driver licenses); and
[(vi)](vii) forcible entry and detainer.
(b) * * *
(3) * * *
(4) * * *
(5) * * *
(6) * * *
(7) * * *
(8) * * *
1 Agencies subject to this provision include but are not limited to the Workers' Compensation Board, the Land Use Board of Appeals, and the Board of Parole and Post-Prison Supervision.
* * * * *
COURT OF APPEALS
(1) * * *
(2) A petition for reconsideration shall be filed within 14 days of the Court of Appeals decision. The petition shall have attached to it a copy of the decision for which reconsideration is sought. The form of the petition and the manner in which it is served and filed shall be the same as for motions generally, except that:
(a) The petition shall be accompanied by [three] four copies, if the case was decided by a department of the court, or by 10 copies, if the case was decided by the full court, and
(b) The petition shall have a title page printed on plain white paper and containing the following information:
(i) The full case caption, including appropriate party designations for the parties as they appeared in the court from which the appeal was taken and as they appear on appeal, and the trial and appellate court case numbers;
(ii) A title designating the party filing the petition, such as "Appellant's Petition for Reconsideration" or "Respondent's Petition for Reconsideration"; and
(iii) The names, bar numbers, addresses, and telephone numbers of counsel for the parties, and the names, addresses, and telephone numbers of parties appearing without an attorney.
(3) * * *
(4) * * *
(5) * * *
(6) * * *
(7) * * *
PREPARATION, FILING AND
(1) Motions, responses to motions and supporting memoranda shall be on 8-1/2 x 11 inch paper, printed [on only one side of the paper,] or typewritten, double-spaced and securely fastened in the upper left-hand corner with a single staple [and]. The motion shall note the names, bar numbers, addresses and telephone numbers of counsel for all parties or names, addresses and telephone numbers of parties appearing [pro se] without counsel, either on the first page of the motion, on the signature page, or on the proof of service.
(2) Memorandum longer than  20 pages, exclusive of appendices or exhibits, in support of or in opposition to any motion shall include a title page and contain a table of contents, an index of appendices or exhibits and table of authorities,1 each with page references. The title page shall be printed on plain white paper and shall contain the following information:
(a) The full case caption, including appropriate party designations for the parties as they appeared in the court from which the appeal was taken and as they appear on appeal, and the trial and appellate court case numbers;
(b) A title designating the party filing the petition, such as "Appellant's Petition for Reconsideration" or "Respondent's Petition for Reconsideration"; and
(c) The names, bar numbers, addresses, and telephone numbers of counsel for the parties, and the names, addresses, and telephone numbers of parties appearing without an attorney.
(3) * * *
(4) * * *
1 See Rule 5.35(4).
(1) The Chief Justice or the Chief Judge may determine any motion made before submission of a case to the court or after the date of the decision or may refer the motion to any other judge or judges of the court for decision.
(2) Any motion filed after submission of a case, but before decision, shall be decided by the court or, in the Court of Appeals, may be decided by the department to which the case has been submitted.
(3) If any motion other than a challenge to the court's jurisdiction is denied before submission of the case, the motion may not be resubmitted without leave of the court in the order on the motion.
(4) Except for a ruling on an oral motion for extension of time under Rule 7.27, the court will rule on a motion by written order.
(1) If a party files a motion for substantive relief and requires relief in less than 21 days, the party shall include in the caption of the motion a statement that the motion is an ``EMERGENCY MOTION UNDER ORAP 7.35.''
(2) Before filing the motion, the movant shall make a good faith effort to notify the opposing counsel or opposing party, if the party is not represented by counsel. The motion shall state whether the other party has been notified and served.
(3) A motion seeking emergency relief, other than a motion for an extension of time, and any response to a motion seeking emergency relief may be served and filed by telephonic facsimile [transmission] communication device, provided that the material being transmitted does not exceed 10 pages[.] and subject to the following conditions:
(a) Filing shall not be deemed complete [when] until the entirety of the motion or response being transmitted has been received by the Administrator[.], but, as so filed, the facsimile transmission shall have the same force and effect as filing of the original.
(b) The party or attorney being served maintains a telephonic facsimile communication device at the party's address or at the attorney's office and the device is operating at the time service is made. The proof of service shall contain the facsimile number of any party or attorney served by facsimile transmission.1
1 See ORCP 9 F.
ASSOCIATION OF ATTORNEYS
(1) Except as to a party represented by court-appointed counsel, after the filing of a notice of appeal, an attorney may not withdraw from a case except on order of the appellate court. A motion to withdraw must be filed and served on the client and opposing parties and is subject to ORS 9.380 and ORS 9.390.
(2) Except as to a party represented by court-appointed counsel, substitution of attorney shall be accomplished in the manner prescribed in ORS 9.380. The substitution of attorney shall be accompanied by proof of service on all parties to the appeal. Unless it appears otherwise from the record, the court will presume that good and sufficient cause exists for substitution of counsel if both attorneys sign the substitution of counsel and, on filing the substitution of counsel in proper form, the substitution shall be deemed to have been ordered by the appellate court.
(3) An attorney who associates another attorney from a different firm on appeal shall file a notice of association with the appellate court, accompanied by proof of service on all parties to the appeal.
(4) [With leave of the court,] An attorney admitted to the practice of law in another jurisdiction, but not in Oregon, may appear by brief and argue the cause in a proceeding before an appellate court[, but only if that attorney associates in the proceeding with an active member of the Oregon State Bar. Leave shall be sought by motion accompanied by proof of service on all parties to the appeal] in the manner prescribed in Uniform Trial Court Rule 3.170.1
(5) As to a party represented by court-appointed counsel on appeal, if the attorney wishes to withdraw from representing the party without appointment of new counsel, the motion to withdraw shall be filed in the appellate court. If the attorney wishes to withdraw and have new counsel appointed, the motion should be filed in the trial court. If the trial court appoints new counsel, the trial court administrator shall forward a copy of the order to the appellate court.
1 See ORS 9.241; see also Rule 6.10 (4) concerning appearing for oral argument only.
(1) A person1 may appear as amicus curiae in any case pending before the appellate court only by permission of the appellate court on written application setting forth the interest of the person in the case. The application shall state whether the applicant intends to present a private interest of its own or to present a position as to the correct rule of law that does not affect a private interest of its own. The application shall not contain argument on the resolution of the case.
(2) * * *
(3) * * *
(4) * * *
(5) * * *
(6) If a party obtains an extension of time to file a petition for review, a response to a petition for review or a brief on the merits and if an amicus curiae brief was due on the same date as the petition, response or brief on the merits, the time for filing the amicus curiae brief is automatically extended to the same date.
(7) Amicus curiae may file a memorandum of additional authorities under the same circumstances that a party could file a memorandum of additional authorities under Rule 5.85.
[(7)](8) Amicus curiae shall not be allowed to orally argue the case, unless the court specifically authorizes or directs oral argument.4
[(8)](9) The State of Oregon may appear as amicus curiae in any case in the Supreme Court and Court of Appeals without permission of the court.
1 As used in this rule, ``person'' includes an organization.
2 See Rules 5.05 et seq. concerning requirements for briefs.
3 See Rule 9.17 concerning the due dates of briefs on review.
4 See Rule 6.10 concerning oral argument.
JUDGMENTS IN CRIMINAL CASES AFTER
NOTICE OF APPEAL FILED
(1) After a notice of appeal is filed in a criminal case, if either the state or the defendant files a motion in the trial court for entry of a modified, corrected or amended judgment, the party filing the motion shall transmit a copy of the motion to the appellate court.1
(2) * * *
(3) * * *
1 See, for instance, a motion in the trial court under ORS 138.083(1) for entry of a modified judgment to correct arithmetic or clerical errors or to delete or modify any erroneous term in the judgment; a motion in the trial court under ORS 138.083(2) for entry of an amended judgment specifying the amount of restitution to be paid by the defendant; a motion for a modified sentence under [ORS 137.712(1) or] the temporary provisions of Oregon Laws 1997, chapter 852, sections 5 to 7a (printed following ORS 137.712); and a motion for a modified judgment under ORS 137.754.
(1) If a party or counsel for a party discovers that a sitting Court of Appeals or Supreme Court judge participated in the case in the proceedings being appealed or reviewed, the party or counsel shall notify the Administrator by letter of the judge's participation as soon as possible after discovering the judge's participation.
(2) The duty of a party or counsel to notify the Administrator of a sitting appellate judge's previous participation in the proceeding includes, in post-conviction relief and habeas corpus cases, the underlying criminal proceeding.
(3) (a) In addition to the notice required by subsection (1) of this rule, a party or attorney for a party in a case before the Supreme Court or Court of Appeals may move to disqualify a judge of the Supreme Court or Court of Appeals for one or more of the grounds specified in ORS 14.210, or upon the ground that the judge's participation in the case would violate the Oregon Code of Judicial Conduct. The motion shall be filed as soon as practicable after the party or attorney learns of the ground for disqualification.
(b) (i) The Administrator shall forward a copy of the motion to the judge against whom the motion is directed without waiting for an answer to the motion. The judge may grant the motion with or without an answer having been filed. If the judge does not believe that the motion is well taken, the judge shall refer the motion to the presiding judge for decision. The judge's referral may be accompanied by any written response the judge may wish to make. If the judge accompanies the referral with written response, the judge shall provide the parties with a copy of the written comments. The presiding judge may rule on the motion or may refer the motion to the full court for a decision.
(ii) In the Court of Appeals, "presiding judge" means the Chief Judge, unless the motion to disqualify is directed at the Chief Judge, in which case "presiding judge" means the next senior judge available to rule on the motion. In the Supreme Court, "presiding judge" means the Chief Justice, unless the motion to disqualify is directed at the Chief Justice, in which case "presiding judge" means the next senior judge available to rule on the motion.
COURT OF APPEALS DECISION
(1) Any party seeking to obtain review of a decision of the Court of Appeals shall file a petition for review in the Supreme Court within 35 days from the date of the Court of Appeals decision.
(2) * * *
(3) * * *
(4) * * *
(5) * * *
1 See Appendix L.
2 See Rule 9.17.
3 See Rule 9.07 regarding the criteria considered by the Supreme Court when deciding whether to grant discretionary review.
See generally, ORS 2.520; see Rule 7.25(2) regarding moving for an extension of time to file a petition for review.
See Rule 5.90(4) regarding filing a petition for review where a "Balfour" brief was filed on behalf of the appellant in the Court of Appeals.
CRITERIA FOR GRANTING
The Supreme Court considers the items set out below to be relevant to the decision whether to grant discretionary review. These criteria are published to inform and assist the bar and the public. They are neither exclusive nor binding. The court retains the inherent authority to allow or deny any petition for review. A petition for review may refer to those items that are relevant to the case and need not address each listed item.1
(1) Whether the case presents a significant issue of law. A significant issue of law may include, for example:
(a) the interpretation of a constitutional provision,
(b) the interpretation of a statute,
(c) the constitutionality of a statute,
(d) the legality of an important governmental action,
(e) the use or effect of a rule of trial court procedure,
(f) the jurisdiction of the Court of Appeals or the trial court, or
(g) the application or proposed modification of a principle of common law.
(2) Whether the issue or a similar issue arises often.
(3) Whether many people are affected by the decision in the case. Whether the consequence of the decision is important to the public, even if the issue may not arise often.
(4) Whether the legal issue is an issue of state law.
(5) Whether the issue is one of first impression for the Supreme Court.
(6) Whether the same or a related issue is pending before the Supreme Court.
(7) Whether the legal issue is properly preserved, and whether the case is free from factual disputes or procedural obstacles that might prevent the Supreme Court from reaching the legal issue.
(8) Whether the record does, in fact, present the desired issue.
(9) Whether present case law is inconsistent (among Court of Appeals cases, between Court of Appeals cases and Supreme Court cases, or among Supreme Court cases).
(10) Whether it appears that trial courts or administrative agencies are inconsistent or confused in ruling on the issue that the case presents.
(11) Whether the Court of Appeals published a written opinion.
(12) Whether the Court of Appeals was divided on the case.
(13) Whether the Court of Appeals decided the case en banc.
(14) Whether the Court of Appeals decision appears to be wrong. If the decision appears to be wrong:
(a) Whether the error results in a serious or irreversible injustice or in a distortion or misapplication of a legal principle.
(b) Whether the error can be corrected by another branch of government, such as by legislation or rulemaking.
(15) Whether the issues are well presented in the briefs.
(16) Whether an amicus curiae has appeared, or is available to advise the court.
1 A party may include in an appendix to a petition for review materials in support of criteria under this rule that are not otherwise part of the record on appeal, such as materials demonstrating how the case may affect persons other than the parties to the immediate case or how the case is important to the public.
(1) * * *
(2) (b) The brief on the merits of the petitioner on review shall contain:
(i) Concise statements of the legal question or questions presented on review and of the rule of law that petitioner proposes be established. The questions should not be argumentative or repetitious. The phrasing of the questions need not be identical with any statement of questions presented in the petition for review, but the brief may not raise additional questions or change the substance of the questions already presented.
(ii) A concise statement of:
(A) The nature of the action or proceeding, the relief sought in the trial court, and the nature of the judgment rendered by the trial court; and
(B) All the facts of the case material to determination of the review, in narrative form with references to the places in the record where the facts appear.
(iii) A summary of the argument.
(iv) The argument.
(v) A conclusion, specifying with particularity the relief which the party seeks.
(3) (a) * * *
(b) Items required by subsection [(3)](2)(b) of this rule need not be included in the brief on the merits of the respondent on review unless respondent is dissatisfied with their presentation in petitioner's brief.
(c) * * *
(4) * * *
(1) A party seeking a writ of mandamus in the Supreme Court shall apply by filing a petition substantially in the form prescribed by this rule.
(2) (a) In a mandamus proceeding that challenges the action of a judge in a particular case in the circuit court, the Tax Court or the Court of Appeals, the case title of the proceeding shall be the same as the case title in the lower court, except that the party seeking relief shall be designated as the "relator" in addition to that party's designation in the trial court and the adverse real party in interest shall be designated as the "adverse party" in addition to that party's designation in the trial court. The judge or court shall not be named as a defendant in the mandamus proceeding.*
(b) In any other mandamus proceeding,1 the case title of the proceeding shall be ``State ex rel ____________, Plaintiff-Relator, v. ____________, Defendant,'' which title shall appear on the petition and all other documents filed in the proceeding.**
(3) (a) The petition shall have a title page with a caption containing the title of the proceeding, a heading indicating the type of writ requested (e.g., ``petition for alternative writ of mandamus,'' ``petition for peremptory writ of mandamus''), and, if the mandamus proceeding arises from a matter before a lower court or administrative agency, the identifying number, if any, assigned to the matter below. The caption of any memorandum, motion or any other document filed in the mandamus proceeding, except the petition for a writ of mandamus, shall display prominently the words "MANDAMUS PROCEEDING." ***
(b) The title page also shall contain:
* * * * *
(4) In addition to any matters required by law, the petition shall contain:
(a) a concise but complete statement of facts material to a determination of the question or questions presented and the relief sought;
(b) a statement of why the petition is timely.2
[(b)](c) a statement why application was not made to the circuit court for relief; and
[(c)](d) a statement why appeal or any other applicable potential remedy is not a plain, speedy and adequate remedy in the ordinary course of law, precluding issuance of the writ. 3
(5) The relator shall accompany the petition with:
(a) A copy of the order or decision, if the mandamus proceeding challenges a written order or decision, which shall be attached to the petition.
(b) A copy of such portions of the record relating to the matter as is necessary for a determination of the question or questions presented and the relief sought, if the mandamus proceeding arises from a matter in which a record has been made.
(c) A memorandum of law with supporting arguments and citations. The form of the memorandum shall comply with Rule 7.10(1) and (2).
(6) The form of a petition shall comply with Rule 5.05(5)(c) through [(i)](h). Relator shall assemble and submit the petition, the record (if any), and the memorandum in support of the petition as separate documents, and file the original and nine copies with the Administrator. If the record is more than 50 pages in length, relator need file only two copies of the record.
(7) * * *
(8) * * *
* See Illustration 1a in Appendix N.
1 For example, mandamus proceedings that challenge the act or failure to act of a public official or administrative agency, or that challenge administrative action of a judge or other action of a court of an institutional nature.
** See Illustrations 2 and 3 in Appendix N.
*** See Illustration 1b in Appendix N.
2 See State ex rel Redden v. Van Hoomissen, 281 Or 647, 576 P2d 355 (1978), and State ex rel Fidanque v. Paulus, 297 Or 711, 717-18, 688 P2d 1303 (1984), regarding timeliness.
 3 See ORS 34.110; State ex rel Automotive Emporium v. Murchison, 289 Or 265, 611 P2d 1169 (1980).
See generally ORS 34.250.
See ORS 21.040 regarding filing fees. [See State ex rel Redden v. Van Hoomissen, 281 Or 647, 576 P2d 355 (1978), and State ex rel Fidanque v. Paulus, 297 Or 711, 717-18, 688 P2d 1303 (1984), regarding timeliness.]
RESPONSE BY ADVERSE PARTY
AND CONSIDERATION BY THE COURT
(1) Unless the court directs otherwise, the adverse party in a mandamus proceeding that challenges the action of a judge in a particular case in the circuit court, the Tax Court or the Court of Appeals or the defendant in any other mandamus proceeding may file a memorandum in opposition.1 The form of the memorandum shall comply with Rule 7.10(1) and (2). The original and nine copies of the memorandum shall be filed within14 days from the date the petition was filed[, serve and file an original and nine copies of a memorandum in opposition].
(2) * * *
(3) * * *
(4) * * *
(5) * * *
1 See ORS 34.130(4) regarding an attorney for a party in an underlying proceeding appearing on behalf of a judge who is the defendant in a mandamus proceeding. See ORS 34.250(4) regarding a judge who is not the named defendant in a mandamus proceeding but whose action is challenged in the proceeding moving to intervene as a party.
2 See ORS 34.170, ORS 34.180, ORS 34.190.
See generally ORS 34.110 through 34.250 and Oregon Constitution, Article VII (Amended), section 2.
QUO WARRANTO PROCEEDINGS
(1) With respect to a [writ of habeas corpus and a writ of quo warranto] habeas corpus or quo warranto proceeding under the Oregon Constitution, Article VII (Amended), section 2, the procedure for filing a petition (including a statement in the petition why application was not made to the circuit court), the defendant's appearance in opposition thereto, the court's consideration of the petition, and briefing and oral argument shall be the same insofar as practicable as for a writ of mandamus.
(2) A petition for a writ of habeas corpus shall be entitled ``____________, Plaintiff, v. ____________, Defendant.'' A petition for a writ of quo warranto shall be entitled ``_______________, Petitioner, v. _______________, Respondent.''
See ORS 34.310 through ORS 34.730 and Oregon Constitution, Article VII (Amended), section 2; see also ORS 30.510 through ORS 30.640 relating to actions for usurpation of an office or of a franchise.
The practice and procedure governing a petition to the Supreme Court to review a ballot title shall be:
(1) Any elector dissatisfied with a ballot title provided by the Attorney General under ORS 250.067 or ORS 250.075(2), or by the Legislative Assembly under ORS 250.075(1), may file with the Administrator a petition to review ballot title.
(2) The petition must be filed within 10 business days after the day upon which the Attorney General certifies the ballot title to the Secretary of State, or the Legislative Assembly files the ballot title with the Secretary of State. If a petition is mailed to the Administrator in compliance with Rule 1.35(1)(b)[(i)], then the petition is deemed filed when mailed; otherwise, a petition is deemed filed when actually received by the Administrator.
(3) * * *
(4) * * *
(5) * * *
(6) * * *
(7) * * *
(8) Additional persons, including the chief proponent or proponents of a measure, interested in a ballot title that is the subject of a petition may file a motion in the form prescribed by Rule 7.10, asking leave of the Supreme Court to intervene and respond to the petition or the Attorney General's answering memorandum, or both. If the Supreme Court allows the motion to intervene, the intervenor's memorandum shall be due within seven calendar days after the filing of the petition or within seven calendar days after the filing of the Attorney General's answering memorandum, whichever is applicable. Further, the court's order will state whether the intervenor will be allowed to argue orally to the court. No intervenor may assert an alleged defect in the Attorney General's certified ballot title not asserted by any petitioner.
(9) * * *
(10) * * *
See ORS 250.035, ORS 250.039 and ORS 250.085
REQUEST FOR CERTIFICATION OF
COURT-APPOINTED COUNSEL COMPENSATION,
COSTS AND EXPENSES
(1) * * *
(2) A party seeking compensation, costs or expenses of counsel shall file a request for certification in the form prescribed in Appendix P. The request for certification must have attached to it a brief statement of the tasks involved and the time devoted to each task:
(a) In the Court of Appeals:
(i) Preliminary Tasks
* * * * *
(ii) Research and Writing
* * * * *
(iii) Attending Oral Argument
* * * * *
(iv) Post-Argument/Post-Submission Tasks
(A) Reviewing the decision and communicating the decision to the client;
(B) Preparing a petition [for review] or motion for reconsideration or response thereto;
(C) Preparing a request for certification of court-appointed attorney compensation, costs and expenses.
(v) Other Tasks
* * * * *
(b) In the Supreme Court:
* * * * *
(3) * * *
(4) Reimbursable costs and expenses are those specified in the State Court Administrator's Indigent Defense Payment Policies and Procedures (``Policies and Procedures''), except:
(a) Reimbursable postage includes mailing the notice of appeal by registered or certified mail and mailing copies of the brief to the client, opposing counsel and the client's trial attorney. If the total amount of postage exceeds $25, postage shall be itemized.
(b) Reimbursable expenses incurred in connection with the record on appeal include:
(i) A copy of every audio tape, when the record of oral proceedings in the trial court is an audio record, and
(ii) Preparation of a transcript of the audio record in all circuit court cases and those district court cases in which the appellate court has authorized preparation of a transcript. Reimbursement shall be limited to $2.50 per page for the original transcript, if the transcript is prepared by an official court reporter, or $10 per hour, whichever is less.
(c) Reimbursable copying expenses include printing the original brief and copying of the number of copies required to be filed or actually filed, whichever is less, plus two copies for each party served and four copies for each party on whose behalf the brief is filed. Copying expenses for briefs stricken by the court are not reimbursable. A receipt showing payment of the copying expenses need not be attached to the request for certification but shall be retained by counsel and submitted to the court on request. If the total copying expense exceeds $75, the claim for reimbursement shall show the number of pages of each brief for which reimbursement is sought or, if a receipt for copying expenses shows the number of pages copied, a copy of the receipt may be appended.
(d) Counsel's travel expenses, including parking, for oral argument and for essential visits with an incarcerated client is reimbursable irrespective of the distance from counsel's office.
(e) Law clerk, legal assistant and paralegal time need not be preauthorized; however, reimbursement at a rate in excess of $10 per hour must be preauthorized.
(5) * * *
(6) * * *
(7) * * *
(8) * * *
* * * * *
(e) A final certification by the Court of Appeals is subject to a petition for review under Rule 9.05[, but it shall not be treated as a petition for reconsideration by the Court of Appeals under Rule 9.15].
* * * * *
* * * * *
(1) * * *
(2) * * *
(3) [The Administrator shall enter the original and send copies of the appellate judgment as soon as practicable after the court has filed its decision; provided that:] The Administrator shall prepare the appellate judgment, enter the appellate judgment in the register, send a copy of the appellate judgment with the court's seal affixed thereto to the court or administrative agency from which the appeal or judicial review was taken, and send a copy of the appellate judgment to each of the parties.
(a) With respect to a decision of the Court of Appeals, the Administrator [shall] will not issue the appellate judgment for a period of 35 days after the decision to allow time for a petition for review pursuant to ORS 2.520 and Rule 9.05. If a petition for review is filed, the appellate judgment will not issue until the petition is resolved.
(b) With respect to an order of the Supreme Court denying review or a decision of the Supreme Court, the Administrator [shall] will not issue the appellate judgment for a period of 21 days after the order or decision to allow time for a petition for reconsideration under Rule 9.25, or a petition for attorney fees or submission of a statement of costs and disbursements under Rules 13.05 and 13.10.
(c) If one or more statements of costs and disbursements, petitions for attorney fees or motions or petitions for reconsideration are filed, the Administrator [shall] will not issue the appellate judgment until all statements of costs and disbursements, petitions for attorney fees, or petitions for reconsideration are determined by order of the court.
[(d) After entry of the court's order denying a petition for reconsideration or, where more than one party petitions for reconsideration, after entry of the order or orders disposing of all such petitions, the Administrator shall forthwith enter and send copies of the appellate judgment, subject to the prerogative of the court to recall the appellate judgment as the interests of justice require.
(4) A party may move for waiver of subsection (3) of this rule and for] (d) Notwithstanding paragraphs (a), (b), and (c) of this subsection, a party may request immediate issuance of the appellate judgment based on a showing that no party intends to file a petition for review, petition for attorney fees or any other thing requiring a judicial ruling.
(5) (a) The money judgment portion of an appellate judgment for costs, attorney fees, or both, in favor of a party other than the Oregon Judicial Department that has been entered in the judgment docket of a circuit court may be satisfied in the circuit court in the manner prescribed in ORS 18.400, ORS 18.410, or other applicable law.
(b) The money judgment portion of an appellate judgment for an unpaid filing fee or other costs in favor of the Oregon Judicial Department shall be satisfied as follows. Upon presentation to the Administrator of sufficient evidence that the amount of the money judgment has been paid:
(i) The Administrator shall note the fact of payment in the appellate court case register; and
(ii) If requested by the party and upon payment of the certification fee, the Administrator shall issue a certificate showing the fact of satisfaction of the money judgment. As requested by the party, the Administrator shall issue a certificate to the party, to the court or administrative agency to which a copy of the appellate judgment was sent, or to both.
STAY PENDING ACTION BY THE
SUPREME COURT OF THE UNITED STATES
With respect to a motion requesting stay of issuance of the appellate judgment, stay of enforcement of the appellate judgment, or a recall of the appellate judgment pending the filing of and action on an appeal or petition for a writ of certiorari to the Supreme Court of the United States:
(1) The motion shall be addressed to and acted upon by the Court of Appeals when the decision of the Court of Appeals decides a case, including when the Oregon Supreme Court has denied review except as provided in subsection (2) of this rule.
(2) The motion shall be addressed to and acted upon by the Oregon Supreme Court when the decision of that court decides a case and when the Supreme Court has denied review but granted a stay pending a decision on a petition for review.
See ORS 19.270(6)(b) and (c).
(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). Upon the court's own motion, at any time, a panel of the Court of Appeals may refer a case to the program.
(b) (i) 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] unless that person's absence or appearance by telephone is approved prior to the conference by the Director. If the absence is approved, a person with authority to recommend settlement must be present.
(ii) After the first settlement conference is held, any party may withdraw from the program, except that the Director may require the parties to attend one or more additional conferences as reasonable and necessary to facilitate a settlement. If the Director requires the parties to attend one or more additional conferences, the neutral's fee for any additional conference will be paid by the program and not by the parties.
(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 and 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
(a) On assignment of a case to the program, the court will hold preparation of the transcript and the record, and briefing, in abeyance for a period of 120 days from the date of filing of the notice of appeal. During that time, a party to the appeal may file an amended designation of record. A party wishing to hold in abeyance any other aspect of the appeal or seeking an extension of time to complete any other task required by law or by the Rules of Appellate Procedure must file an appropriate motion with the court.1
(b) The Chief Judge may reactivate a case held in abeyance at any time:
(i) At the request of the program director pursuant to the request of a party or on the director's own motion, or
(ii) On motion of a party showing good cause for reactivating the appeal. In addition to serving a copy of the motion on all other parties to the appeal, a party filing a motion to reactivate shall serve a copy of the motion on the program director.
(5) Submission of Information
* * * * *
(a) Program settlement conferences are subject to [Or Laws 1997, chapter 670 (Senate Bill 160) (]ORS 36.210 to 36.238[)].
(b) * * *
(c) * * *
(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 for up to six hours of the neutral's actual mediation time. The parties to the appeal shall share the cost of the neutral's fee equally and shall pay the fee directly to the neutral [at the first settlement conference] or, if instructed by the Director, to the Judicial Department no later than the first settlement conference.
(b) If a settlement conference involves a total of more than six hours of actual mediation time and the parties agree to extend the settlement conference, the parties will compensate the neutral for additional time at the rate of $125 per hour.
[(b)](c) 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 economic 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 for that purpose.
[(c)](d) When a settlement conference is conducted by a 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] a settlement conference fee equal to the amount of the neutral's fee under this subsection. The parties shall pay the fee directly to the Judicial Department to be disposed of as provided by law.
(8) Actions Are Not Reviewable
Except as necessary to decide a motion for sanctions under subsection (9) of this rule, the actions of a neutral, a director or [of] a supervising judge shall not be reviewed by the Court of Appeals or by the Supreme Court.
At the request of the Director, the court may impose sanctions against a party, or counsel for a party, or both, for the failure of the party, or counsel, or both to perform any act required by this rule or by the written policies of the Appellate Settlement Conference Program. Sanctions include but are not necessarily limited to monetary assessments and dismissal of the appeal.
_____________1 See Rule 3.40 regarding the due date of a motion to correct a transcript filed while an appeal is being held in abeyance pending mediation under this rule.
See ORS 2.560(3).
PROGRAM IN THE SUPREME COURT
(1) Cases Subject
(a) The procedures in this rule apply only to cases filed in the Supreme Court. The court shall determine which pending cases or category of cases, if any, may be included in the Appellate Settlement Conference Program (program).
(b) Cases shall be screened and settlement conferences held in the manner prescribed by Oregon Rule of Appellate Procedure 15.05, unless otherwise stated in this rule.
(2) Abeyance of Case
(a) On assignment of a case to the program, the Chief Justice or his designee shall inform the program director and/or parties whether any abeyance of the case will occur pending the settlement conference.
(b) The court may reactivate a case held in abeyance at any time:
(i) At the request of the program director pursuant to the request of a party or on the director's own motion, or
(ii) On the motion of a party showing good cause for reactivating the case. In addition to serving a copy of the motion on all parties to the case, a party filing a motion to reactivate shall serve a copy of the motion on the program director, or
(iii) On the court's own motion.
On the ___ day of __________ , 19__ , plaintiff filed in the Circuit Court of ___________ County a
stating a claim as follows:
[Set forth so much of the complaint as necessary to an understanding of the questions to be presented to the appellate court.
Give the date of filing of the original complaint, but omit the text thereof if an amended complaint has been filed, unless special circumstances necessitate presenting both. Separately copy each paragraph of the complaint except where the paragraph may be properly summarized, such as regarding damages, personal injuries and prayer (examples below).
If a paragraph of the complaint alleges corporate, marital or other capacity of the plaintiff or defendant, and if no issue is raised as to the fact or form of the allegations, simply state, without legal formality, ``Paragraph No. ___ alleges the corporate (or other) capacity of the plaintiff (defendant).'']
[If the pleading contains a lengthy description of real or personal property and no question is raised as to its correctness, omit it from the abstract and refer to the paragraph of the original pleading wherein it may be found.]
[If the complaint is for damages, and if the questions raised on the appeal do not relate to the issue of damages, summarize the allegation.]
[Omit parts of exhibits which may be formally required but are not relevant; for example, if the exhibit is a deed or mortgage, and no question is raised on appeal as to the acknowledgment, omit the acknowledgment.]
[Unless the nature or extent of injuries is relevant to issues on appeal, merely summarize the pertinent allegations.]
[Wherever possible, summarize the prayer of the complaint, e.g.:]
The prayer of the complaint is for ______ dollars general and ______ dollars special damages.
On the ____ day of ____________ , 19__ , defendant filed an
[Here give so much of the answer as necessary to explain the questions raised on appeal, omitting all merely formal parts. If the answer either admits or denies all of the allegations of a paragraph of the complaint, state only:]
Paragraph No. ____ is admitted (denied).
[If a reply was filed, continue:]
On the ___ day of ________ , 19__ , plaintiff filed a
[Summarize or copy the reply, following as nearly as possible the illustrations of complaint and answer.]
[If a pleading was moved against, continue:]
On the ___ day of _________ , 19__ , defendant (plaintiff) filed a motion to the complaint (answer or reply).
[Specify the grounds relied on.]
On the___ day of ________ , 19__ , the motion was overruled (sustained).
[Give the substance of motions and orders relevant to the appeal, without legal formality. If no question is raised on appeal regarding rulings of the trial court on motions, they should not be mentioned in the abstract.]
[When the abstract shows issue joined, proceed:]
On the ___ day of ________ , 19__ , said cause was tried by a jury.
On the ___ day of ________ , 19__ , jury returned the following verdict:
[Set out the verdict if necessary to a full understanding of the questions presented; if not, state the party in whose favor the verdict was rendered and the amount or character of relief awarded.]
[If a cause was tried by the court without a jury, the findings, objections thereto, and requested findings of the appellant, if any, when relevant to the appeal, should be set out; if not relevant, it must be stated in whose favor the findings were made and the court's conclusion of law.]
On the ___ day of _________ , 19__ , judgment was entered.
[Set forth only so much of the judgment as necessary.]
[Where the appeal is from an order granting a new trial, or judgment n.o.v., set forth verbatim the grounds specified in the motion and the order thereon.]
[If a motion for a new trial has been denied and the ruling is one which this court may consider on appeal, e.g., a motion based on newly discovered evidence, set forth verbatim the ground specified in the motion and the order thereon.] ]
In civil cases, the excerpt of record properly might contain:
(1) When a claim or defense is an issue on appeal, the specific portions of the complaint, petition, answer or other pleading that are essential to consideration of the issue on appeal; otherwise, as much of the complaint, petition, answer or other pleading as is essential to frame the issue on appeal;
(2) When an issue on appeal is based on the grant or denial of a written motion, the motion, the response to the motion, those specific portions of any affidavits, exhibits or similar attachments submitted in support of or in opposition to the motion that are essential to consideration of the issue on appeal, and the written order ruling on the motion;
(3) Any opinion, findings of fact or conclusions of law relating to an issue on appeal.
(4) When an issue on appeal is based on a ruling, order, finding of fact or conclusion of law that was delivered orally, that specific portion of the transcript containing the ruling, order, finding of fact, or conclusion, together with any discussion of the matter by the judge, counsel or a party;
(5) When an issue on appeal is based on a challenge to the admission or exclusion of evidence, the specific portion of the transcript containing any discussion involving the evidence by the court, counsel, or a party, and any offer of proof, ruling or order, and objection;
(6) When an issue on appeal is based on a written exhibit, including an affidavit, the specific portion of the exhibit essential to consideration of an issue on appeal;
(7) When an issue on appeal is based on a jury instruction given or refused, the jury instruction and the specific portion of the transcript containing any discussion of the jury instruction by the court, counsel or a party, and any ruling and objection;
(8) When an issue on appeal is based on the verdict, the written verdict, if any, or, if the verdict was rendered orally, the specific portion of the transcript containing the verdict.
The case title of a Petition for Review is to appear as shown on the appellate decision in substantially the following form:
Petitioner) on Review,
Respondent) on Review.
CA No. __________
Petition for review of the decision of the Court of Appeals an appeal from a judgment of the Circuit Court for ______________ County, Honorable __________ , Judge (or an order of [name of agency]).
Opinion Filed: [date]
Author of Opinion: ______________________________________________
Concurring Judge(s): ____________________________________________
Dissenting Judge(s): _____________________________________________
(Affirmed Without Opinion / Affirmed From the Bench / Per Curiam)
Before __________________________________________ , Presiding Judge
_____________________________ , Attorney for Appellant
[Mailing address, bar number and telephone number]
____________________________ , Attorney for Respondent
[Mailing address, bar number and telephone number]
1. Sample Brief Caption for Brief Containing Confidential Material
|STATE OF OREGON,|
_______ County Circuit
Court No. _______
CA A _______
UNDER ORS 137.077
TRIAL COURT ORDER
DATED JANUARY 1, 1999
APPELLANT'S BRIEF AND [ABRSTRACT]
EXCERPT OF RECORD
2. Sample Brief Caption for Brief With Confidential Material Redacted
|STATE OF OREGON,|
_______ County Circuit
Court No. _______
CA A _______
UNDER ORS 137.077
DATED JANUARY 1, 1999
APPELLANT'S BRIEF AND [ABSTRACT] EXCERPT OF RECORD