Judicial Seal

Rule Amendments

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IN THE SUPREME COURT OF THE
STATE OF OREGON

In the Matter of the   )   CJO No. 98-093
Adoption of Amendments   )   
to the Oregon Rules   )   ORDER ADOPTING
of Appellate Procedure   )   AMENDMENTS

The Supreme Court:

(1) Adopts amendments to these Oregon Rules of Appellate Procedure: 1.15, 1.35, 2.05, 2.25, 3.05, 3.10, 3.25, 3.30, 3.33, 5.05, 5.10, 5.40, 5.50, 5.55, 5.57, 5.70, 5.77, 5.80, Brief Time Chart 1, 5.85, 5.90, 6.10, 6.15, 6.20, 6.25, 7.10, 7.25, 7.30, 7.35, 8.15, 9.10, 9.17, 10.10, 10.15, 11.05, 11.10, 11.15, 12.10, 13.10, 13.15, 14.10, and 15.05, and Appendices A, D, E, F, and K;

(2) Adopts a prologue and these new Rules of Appellate Procedure: 7.27, 8.27, 8.28, 8.45, 10.20, 11.17, and 11.27, and adopt a new Appendix for Rule 11.05.

(3) Deletes Oregon Rule of Appellate Procedure 3.61.

(4) Recommends to the Uniform Trial Court Rules Committee that it adopt amendments to UTCR 6.120.

Amended rules are shown with material deleted in italics and [bracketed] and material added in boldface print. If a rule with subsections or footnotes 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 ("***"). New rules are denoted by "Rule ___" in boldface print.

These changes to the Oregon Rules of Appellate Procedure become effective January 1, 1999.

Dated this 14th day of October, 1998.
WALLACE P. CARSON, JR.
Chief Justice

IN THE COURT OF APPEALS OF THE
STATE OF OREGON
In the Matter of the   )   ORDER ADOPTING
Adoption of Amendments   )   AMENDMENTS
to the Oregon Rules   )   
of Appellate Procedure   )   

The Court of Appeals:

(1) Adopts amendments to these Oregon Rules of Appellate Procedure: 1.15, 1.35, 2.05, 2.25, 3.05, 3.10, 3.25, 3.30, 3.33, 5.05, 5.10, 5.40, 5.50, 5.55, 5.57, 5.70, 5.77, 5.80, Brief Time Chart 1, 5.85, 5.90, 6.10, 6.15, 6.20, 6.25, 7.10, 7.25, 7.30, 7.35, 8.15, 9.10, 9.17, 10.10, 10.15, 11.05, 11.10, 11.15, 12.10, 13.10, 13.15, 14.10, and 15.05, and Appendices A, D, E, F, and K;

(2) Adopts a new prologue and these new Rules of Appellate Procedure: 7.27, 8.27, 8.28, 8.45, 10.20, 11.17, and 11.27, and adopt a new Appendix for Rule 11.05.

(3) Deletes Oregon Rule of Appellate Procedure 3.61.

(4) Recommends to the Uniform Trial Court Rules Committee that it adopt amendments to UTCR 6.120.Amended rules are shown with material deleted in italics and [bracketed] and material added in boldface print. If a rule with subsections or footnotes is being amended, only those subsections and footnotes containing amendments are set forth; subsections and footnotes containing no amend ments are omitted and are denoted by asterisks ("***"). New rules are denoted by "Rule ___" in boldface print.

These changes to the Oregon Rules of Appellate Procedure become effective January 1, 1999.

Dated this 14th day of October, 1998.
MARY J. DEITS, Chief Judge

IN THE SUPREME COURT OF THE
STATE OF OREGON

In the Matter of the)CJO No. 98-094
Adoption of Amendments)
to Rules 11.32 and 11.34)ORDER SPECIALLY
of the Rules of)ADOPTING
Appellate Procedure.)ORAP AMENDMENTS

By order dated January 13, 1998, the Supreme Court and Court of Appeals amended the procedure for adopting amendments to the Oregon Rules of Appellate Procedure. Part (5) of that order requires that all proposed amendments be published in the Oregon Appellate Courts Advance Sheets and requires a 49-day public comment period. Part (6) of that order provides that the appellate courts may adopt an amendment without publication in the Advance Sheets and without opportunity for public comment, subject to the conditions prescribed therein.

Pursuant to part (6) of the order of January 13, 1998, the court finds that special circumstances justify adoption of amendments to Oregon Rules of Appellate Procedure 11.32 and 11.34 without prior publication in the Advance Sheets:

Current Rules 11.32 and 11.34 do not make clear that the Attorney General of the State of Oregon is to be served with a petition for review of a Voters' Pamphlet Explanatory Statement and a petition for review of an Estimate of Financial Impact, respectively but that the Attorney General is not a party to such review proceedings. Failure to amend the rules may confuse or mislead litigants in the Supreme Court and result in petitioners in Voters' Pamphlet Explanatory Statement or an Estimate of Financial Impact review proceedings to identify the wrong party as the respondent and to fail to serve a copy of the petition on the Attorney General.

Therefore, notwithstanding that these amendments were not published in the Advance Sheets, the amendments to Rules 11.32 and 11.34 as set forth in the attached pages are adopted effective January 1, 1999.

Amended rules are shown with material deleted in italics and [bracketed] and material added in boldface print. If a rule with subsections or footnotes 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 ("***"). New rules are denoted by "Rule ___" in boldface print.

Dated this 14th day of October, 1998.
WALLACE P. CARSON, JR.
Chief Justice

Proposed Amendment to UTCR 6.120:

(1) Unless otherwise ordered, all exhibits shall be returned to the custody of counsel for the submitting parties upon conclusion of the trial or hearing. [The custodian] Such counsel must sign an acknowledgment of receipt for the exhibits returned. [The party] Counsel to whom any exhibits has been returned must retain custody and control until final disposition of the case or, with respect to documentary exhibits, until the filing of a notice of appeal by any party. Both documentary

and nondocumentary exhibits submitted by parties not represented by counsel shall be retained by the trial court, subject to subsection (4) of this rule.

(2) Upon the filing of a notice of appeal by any party, the trial court administrator promptly shall notify all counsel that they are required to return all documentary exhibits in their custody to the trial court within 21 days of receipt of the trial court's request. The trial court promptly will transmit the documentary exhibits to the appellate court, when requested to do so by the appellate court, under ORAP 3.25.

[(2)] (3) Upon request by an appellate court for transmission of nondocumentary exhibits, under ORAP 3.25, the trial court shall notify the party in whose custody the nondocumentary exhibits have been placed. The [custodian] party must resubmit the designated exhibits to the custody of the trial court for [submission] transmittal to the appellate court.

[(3)] (4) Exhibits not returned to the parties shall be processed as follows:

(a) Such exhibits shall be retained by the trial court until the appeal period has elapsed and there is a final disposition of the case.

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[(4)] (5) Nothing contained in this rule shall prevent parties to any matter before the court from seeking the release or return of exhibits before the times specified in this rule.

[(5)] (6) Exhibits in the court's custody shall not be removed from the trial court administrator's control except by stipulation or by order of the court.

[(6)] (7) For purposes of this rule, "documentary exhibits" include text documents, photos and maps, if not oversized, and audio and video tapes. An oversized document is one larger than standard letter size or legal size.

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Note: In addition to the potential for sanctions imposed by the trial court under UTCR 1.090, failure to comply may have adverse consequences on appeal, as provided for in ORAP 3.25.

PROLOGUE

These rules, applicable to all proceedings in the Supreme Court and Court of Appeals, supplement the statutory requirements for appeals and judicial review contained in the Oregon Revised Statutes (ORS) in chapters 19, 20, 138, 183, and in many other ORS chapters, depending on the kind of case. It is beyond the scope of this publication to set forth all ORS provisions bearing on appeals. For the convenience of appellate practitioners, however, a copy of ORS chapter 19 governing appeals, as amended by the 1997 Oregon Legislature, is appended to these rules.

Caveat: Statutory provisions bearing on appeals are subject to amendment in each legislative session. Appellate practitioners are advised to check the Oregon Revised Statutes for current provisions in ORS chapter 19 and elsewhere that bear on their appeals.

Rule 1.15

TERMINOLOGY

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(3) In these rules, unless expressly qualified or the context or subject matter otherwise requires:

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(k) "Domestic relations case" includes but is not necessarily limited to these kinds of cases:dissolution of marriage, dissolution of domesticpartnership, filiation, paternity, child support enforcement.

[(k)] (l) ***
[(l)] (m) ***
[(m)] (n) ***
[(n)] (o) ***
[(o)] (p) ***
[(p)] (q) ***
[(q)] (r) ***
[(r) "Trial court clerk" includes a trial court administrator.]

Rule 1.35
FILING AND SERVICE

(1) Filing

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(b) [Filing may be accomplished by mail and shall be complete on deposit in the mail in the following circumstances:

(i) all notices of appeal, petitions for judicial review and petitions under the original jurisdiction of the Supreme Court and Court of Appeals, if mailed in accordance with ORS 19.028(1). If the date of mailing is relied upon as the date of filing under ORS 19.028, acceptable "proof from the post office" shall be a receipt stamped by the United State Postal Service showing the date mailed and the certified or registered number. The receipt shall be submitted to the Administrator, with proof of service.]

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. Acceptable proof from the post office of the date of mailing shall be a receipt for certified or registered mail, with the certified or registered mail number on the envelope or on the item being mailed, with the date of mailing either stamped by the United States Postal Service on the receipt or shown by a United States Postal Service postage validated imprint on the envelope received by the Administrator.

[(ii)] (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.

[(c)] (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 is actually received by the Administrator within the time fixed for filing.

(2) Service Generally

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(3) Service on Trial Court [Clerks] Administrators and [Court Reporters] Transcript Coordinators

(a) When a copy of a notice of appeal is required to be served on the trial court [clerk] administrator, service is sufficient if it is mailed or delivered to the person serving in the capacity of trial court [clerk] administrator for the county in which the judgment or appealable order is entered.

(b) When a copy of a notice of appeal is required to be served on the [court reporter or reporters who reported proceedings included in the designation of record in the notice of appeal] transcript coordinator for the court from which the appeal is taken, the notice shall be mailed or delivered to the office of the trial court administrator addressed to [, "attention:] "transcript coordinator[,]" [for the court from which the appeal is taken2].

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(5) (a) Parties filing any thing in the Supreme Court or Court of Appeals, including but not limited to notices of appeal, petitions for judicial review, and petitions invoking original jurisdiction, motions, and briefs, are

(i) Required to use recycled paper if recycled paper is readily available at a reasonable price in the party's community. Further, parties are encouraged to use paper containing the highest available content of post-consumer waste, as defined in ORS 279.545, that is recyclable in the office paper recycling program in the party's community, and

(ii) Encouraged to print on both sides of each sheet of paper of the thing being filed.

(b) The court will not decline to accept any filing on the ground that the filing does not comply with paragraph (a) of this subsection (5) of this rule.2

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1 See, e.g., ORS 183.482(2), relating to cases arising under the Administrative Procedures Act[, ORS 656.298(3), relating to cases arising under the Workers' Compensation Law,] 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.

2 ["Trial court administrator" includes a trial court clerk for a court served by a trial court clerk. See Rule 3.35 regarding the responsibility of the trial court administrator or trial court clerk to arrange for preparation of the transcript.] See ORS 7.250.

Rule 2.05
CONTENTS OF NOTICE OF APPEAL

The notice of appeal shall be served and filed within the time allowed by ORS 19.026, 46.250, 138.071 or other applicable statute, shall be substantially in the form illustrated in Appendix A and shall contain:

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(6) A designation of those portions of the proceedings and exhibits to be included in the record in addition to the trial court file.1 [In a nonfelony criminal case, if an audio or video record is designated as part of the record on appeal, the notice of appeal shall contain a request that a copy of the audio or video record be served on each party to the appeal.]

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(10) Proof of service, specifying the date of service, on:

(a) All parties who appeared in the trial court, [and]

(b) The trial court [clerk] administrator, [specifying the date of service.] and

(c) [(11)] 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[, proof of service on the office of the trial court administrator, attention: transcript coordinator].2

[(12)] (11) A copy of the judgment, decree or order appealed from and of any other orders pertinent to appellate jurisdiction.

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1 See Rule 3.25 regarding making arrangements for transmitting exhibits to the appellate court for use on appeal. See also UTCR 6.120(2) regarding retrieval of exhibits by trial court [clerks] administrators for use on appeal.

2 See Rule 1.35(3)(b).

See ORS 19.023, 19.029, 46.250 and 138.071; see also Rule 8.20 regarding bankruptcy.

See Appendix A for a form of notice of appeal.

Rule 2.25
CASE TITLES AND TITLE CHANGE BY ADMINISTRATOR

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(4) On motion of a party, the court may modify the case title as it appears 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.

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See Appendix B.

Rule 2.35
SUMMARY DETERMINATION OFAPPEALABILITY AND EXPEDITED SUPREME COURT REVIEW

(1) As used in this rule, "decision" means any oral or written ruling of a [district,] circuit or tax court.

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Rule 3.05
TRIAL COURT RECORD ON APPEAL; SUPPLEMENTING THE RECORD

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(2) [In circuit and tax court cases,] The record of oral proceedings shall be a transcript, unless the oral proceedings were recorded by audio or video recording equipment and the appellate court has waived preparation of a transcript and ordered that the appeal proceed on the audio or video record alone. The parties may file an agreed narrative statement in lieu of or in addition to a transcript, as provided in ORS 19.088 and Rule 3.45.

[(3) In district court cases, the record of oral proceedings shall be an audio record unless the oral proceedings were reported by a court reporter or video recording equipment, in which event the record of oral proceedings shall be a transcript or video record, as appropriate. If a party causes a transcript of an audio or video record to be prepared in accordance with Rule 3.35, the transcript may be submitted to the appellate court if all parties to the appeal join in a motion to accept the transcript for purposes of the appeal. If the court accepts the transcript under this subsection, the transcript shall be filed with the appellate court no later than the date the appellant's brief is filed and the transcript may be cited on appeal in lieu of citation to the audio or video record.]

[(4) The parties may file an agreed narrative statement in lieu of or in addition to a transcript or audio or video record, as provided in ORS 19.088 and Rule 3.45.]

[(5)] (3) ***

Rule 3.10
DUTIES OF TRIAL COURT [CLERK] ADMINISTRATOR REGARDING JUDGMENTS AND ORDERS ENTERED AFTER NOTICE OF APPEAL

(1) The trial court [clerk] administrator shall promptly send to the Administrator and to each party to the appeal a copy of any order settling the transcript.1 If the date of entry in the register is not apparent from the face of the order, the trial court [clerk] administrator shall state on the order the date of entry.

(2) In criminal and other cases in which the trial court appoints an attorney to represent a party or authorizes preparation of a transcript at state expense, the trial court [clerk] shall promptly send to the Administrator and to the transcript coordinator a copy of any order appointing an attorney on appeal or authorizing preparation of a transcript at state expense.

(3) In a criminal case, after a notice of appeal is filed, if the trial court, on motion of a party or on its own motion, enters a judgment or a modified, corrected or amended judgment, the trial court administrator promptly shall transmit a copy of the judgment to the Administrator, to the defendant or to the attorney for the defendant if the defendant is represented by counsel, to the district attorney, and to the Solicitor General of the Department of Justice.2

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2 See, for instance, a modified judgment to correct arithmetic or clerical errors or to delete or modify any erroneous term in the judgment under ORS 138.083(1); an amended judgment specifying the amount of restitution to be paid by the defendant under ORS 138.083(2); 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); a modified judgment under ORS 137.754, and a judgment or new or amended judgment under 19.270(4).

Rule 3.25
EXHIBITS

(1) Exhibits designated as part of the record on appeal shall not be transmitted to the appellate court unless requested by the Administrator. The Administrator will request transmittal of documentary exhibits when it requests transmittal of the trial court file under Rule 3.15(2), or sooner if requested by a party. The Administrator will request [transmission] transmittal of [an] a nondocumentary exhibit only if requested to do so by a party to the appeal or at the direction of the court. A party wishing to have one or more nondocumentary exhibits transmitted to the appellate court shall notify the Administrator by letter specifying the exhibit or exhibits to be transmitted. The letter shall be submitted to the Administrator no later than the date of filing of that party's brief and shall be copied to all other parties to the appeal.

(2) [If] When the appellate court requests [transmission] transmittal of [one or more] documentary exhibits, the trial court [clerk] administrator promptly shall transmit the documentary exhibits [as requested] to the appellate court in a single envelope, so far as practicable, and shall note thereon or, if no envelope is used, on a separate list, the number and description of all exhibits being transmitted, with notations indicating those received and those not received in evidence.

(3) Notwithstanding a party's request for nondocumentary exhibits pursuant to subsection (1) of this rule, the trial court clerk need not transmit exhibits which are bulky, dangerous or difficult to transmit or store, such as machinery, firearms, clothing, narcotics, chemicals, money or jewelry, unless a party in its request to the Administrator identifies the exhibit with particularity and requests that the Administrator arrange to have the exhibit transmitted to the appellate court. The trial court clerk shall make appropriate notation of retained exhibits on the exhibit list.

(4) If a party fails to comply with UTCR 6.120(2) requiring return of exhibits of documentary exhibits within 21 days of receipt of the trial court's request, following the filing of a notice of appeal by any party, the appellate court may order that the appeal proceed without consideration of that party's exhibits.

(5) For purposes of this rule, "documentary exhibits" include text documents, photographs and maps, if not oversized, and audio and video tapes. An oversized document is one larger than standard letter size or legal size.

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[See UTCR 6.120(2) regarding the trial court's responsibility to notify parties that the appellate court has requested exhibits and the parties' responsibility to resubmit exhibits to the trial court for transmission to the appellate court.]

Rule 3.30
EXTENSION OF TIME FOR PREPARATION OF TRANSCRIPT

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See [ORS 19.095] ORS 19.395. [ORS 19.078(1)] ORS 19.370(1) provides that the transcript shall be filed by the reporter with the trial court [clerk] administrator within 30 days after the filing of the notice of appeal [(60 days in criminal cases)] or within 30 days after the [filing] entry of an order granting a transcript at state expense under ORS 138.500[(2)](3).

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Rule 3.33
PERSONS RESPONSIBLE FOR PREPARING TRANSCRIPT

[(1) Where preparation of a transcript is required by law or authorized by an appellate court, after the party requesting the transcript has made satisfactory arrangements for payment of the transcript preparation cost, it shall be the responsibility of the trial court clerk of the court from which the appeal was taken to arrange for the preparation and filing of the transcript or portion thereof designated in the notice of appeal by:

(a) Delivering a certified copy of the audio or video tape recording to the transcriber, as to proceedings recorded by audio or video recording equipment;

(b) Notify the transcriber or court reporter, as appropriate, of the date the transcript is due and of the proper form of a transcript; and

(c) Notify the appellate court and the parties to the appeal of the name, address and telephone number of each court reporter and transcriber who will be preparing all or part of the transcript.]

(1) On being served with a copy of a notice of appeal, the transcript coordinator shall examine the notice of appeal and determine:

(a) Whether the party has designated a record of oral proceedings as part of the record on appeal;

(b) Whether preparation of a transcript of the designated proceedings is required by law or these rules; and,

(c) Whether the proceedings were reported by a court reporter or recorded by audio or video recording equipment, or both.

(2) When a party has designated as part of therecord on appeal a transcript of oral proceedings reported by a court reporter:

(a) The transcript coordinator shall forward a copy of the notice of appeal to the court reporter or reporters who reported the proceedings designated as part of the record on appeal and inform the reporter or reporters of the due date of the transcript.

(b) Except as provided in subsection (c) of this section, the party shall make financial arrangements with the court reporter or reporters for preparation of the transcript.

(c) If the trial court has issued an order authorizing preparation of a transcript at state expense, the transcript coordinator shall forward a copy of the order to the court reporter(s) or transcriber(s) responsible for preparation of all or a part of the transcript.

(3) When a party has designated as part of therecord on appeal a transcript of oral proceedings reported by audio or video recording:

(a) The party shall make financial arrangements with the transcript coordinator for preparation of the transcript; and

(b) The transcript coordinator shall identify one or more qualified transcribers, forward a copy of the notice of appeal to the transcriber(s) along with a certified copy of the audio or video tape recording, and notify the transcriber(s) of the due date of the transcript.

(4) After making arrangements with the court reporter(s) or transcriber(s) as provided in subsections (2) and (3) of this rule, the transcript coordinator shall notify the appellate court and the parties to the appeal of the name, address and telephone number of each court reporter or transcriber, or both, as appropriate, who will be preparing all or a portion of the transcript.

[(2)] (5) It shall be the responsibility of each court reporter or transcriber [with whom the trial court clerk has made arrangements to prepare a transcript] with whom arrangements have been made to prepare a transcript to:

(a) Cause the transcript to be prepared in conformity with [this rule] Rule 3.35, and

(b) Serve and file the transcript within the time provided in ORS [19.078] 19.370 and, if the transcript is not served and filed within that time, to move for an extension of time.

Rule 3.35
FORM OF TRANSCRIPT

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(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

[(2)] (3) ***

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1 See illustration at Appendix E.

[Rule 3.61
THE RECORD ON APPEAL

(1) When all or part of the record of oral proceedings in the trial court is an audio or video record, the appellant shall designate in the notice of appeal as much of the audio or video record as is desired to be part of the record on appeal.

(2) In a district court case, as much of the audio or video record as has been designated shall be the record on appeal, unless the appellate court authorizes the audio or video record to be transcribed.1

(3) In a circuit court case, as much of the audio or video record as has been designated shall be transcribed, unless the appellate court waives preparation of a transcript.2

(4) The record on appeal shall consist of the trial court file and any designated exhibits, and may also include the parties' agreed narrative statement when:

(a) No audio or video record of oral proceedings in the trial court was made,3 or

(b) No part of the record of oral proceedings in the trial court has been designated as part of the record on appeal.

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1 See ORS 46.340(1).

2 See ORS 19.069.

3 See ORS 46.335 concerning cases in which the making of an audio record is waived.

See ORS 19.130(3) regarding cases in which the audio record is lost or damaged.]

Rule 5.05
SPECIFICATIONS FOR BRIEFS

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(2) (a) No brief, including a combined respondent-cross-appellant's brief or a cross-respondent's combined reply and answering brief, shall exceed 50 pages, [unless permission for a longer brief is allowed by the court on motion of the party] This limitation does not include the index, abstract of record or appendices[; but]. 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. [The court may strike any brief containing an unreasonably voluminous appendix.]

(c) A party's abstract of record or appendix or combined abstract 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.

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(5) All briefs shall conform to these requirements:

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(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.1

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(i) Briefs may be bound with a single staple securely fastened in the upper left-hand corner, or may be bound with a spiral binding along the left-hand margin so that the pages of the brief lie flat when open. If the text of the brief is prepared using both sides of the pages, then the brief may be bound by a staple in the upper left-hand corner if the brief does not exceed 20 pages (10 pieces of paper), excluding the cover but including the index, the abstract of record and any appendix); otherwise, the brief[s] must be bound by spiral binding. Binding is to be within 3/8-inch of the left edge, and if a staple is used it shall be placed as close to the upper left-hand corner as is consistent with securely binding the pages.

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1 See ORS 7.250 and ORAP 1.35(5) regarding use of recycled paper and printing on both sides of a page.

See Appendix G.

Rule 5.12
BRIEFS OR PETITIONS FOR REVIEW CHALLENGING CONSTITUTIONALITY OF STATUTES OR CONSTITUTION

A party filing a brief or petition for review 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.

Rule 5.40
APPELLANT'S BRIEF: STATEMENT OF THE CASE

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:

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(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.

[10)] (11) ***

Rule 5.50
ABSTRACT OF RECORD

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(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.

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See Appendix J.

Rule 5.55
RESPONDENT'S BRIEF

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(2) Under the heading "Statement of the Case," the respondent shall specifically accept the appellant's statement of the case, or shall identify any alleged omissions or inaccuracies, and may state additional relevant facts or other matters of record as may apply to the appeal, including any significant motion filed on appeal and the disposition of the motion. The additional statement shall refer to the pages of the transcript, narrative statement, audio record, record or abstract in support thereof but without unnecessary repetition of the appellant's statement.

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Rule 5.57
RESPONDENT'S BRIEF: CROSS-ASSIGNMENTS OF ERROR

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(4) A respondent may file a reply to an appellant's [response] answer to a cross-assignment of error 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 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.

Rule 5.70
REPLY BRIEF

(1) Except as provided in subsection (2) of this rule and Rule 4.66(3), a party may file a reply brief to a respondent's brief or an answering brief of a cross-respondent. The content of a reply brief shall be confined to matters raised in therespondent's brief or the answering brief of a cross-respondent, and the form shall be similar to a respondent's brief. A reply brief shall have an index, but [the reply brief] need not contain a summary of argument.

(2) Except on request of the appellate court or on motion of a party that demonstrates the need for a reply brief, reply briefs shall not be submitted in the following cases:

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[(d) workers' compensation;]

[(e)] (d) judicial review [(including disciplinary review and parole review)] of administrative agency action;1

[(f)] (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

[(g)](f)[district court cases] forcible entry and detainer.

(3) A motion under subsection (2) of this rule shall be submitted, without copies, within [seven] 14 days after the filing of the brief to which permission to reply is sought.

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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.

Rule 5.77
JOINT AND ADOPTED BRIEFS

(1) In a case involving more than one party on the same side, including cases consolidated on appeal, the court discourages the filing of briefs that duplicate arguments made in another brief in the same case and encourages parties to file joint briefs or to adopt to the extent practicable a brief filed by another party in the same case.1

(2) A party may join or adopt a brief submitted in the same case or consolidated case but shall not join or adopt a brief in another case.

[(2)] (3) Joint Briefs

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[(3)] (4) Adopted Briefs

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________________________

1 As used in this rule, "party" includes amicus curiae.

Rule 5.80
TIME FOR FILING BRIEFS

(1) Unless otherwise provided by statute or these rules, the appellant's opening brief and abstract shall be served and filed within 49 days after:

*****

(e) if a transcript[,] or narrative statement [or audio record] is not designated, the filing of the notice of appeal; or

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[(2) In a district court case, the appellant's opening brief and abstract shall be served and filed within 63 days after notice of appeal.]

[(3)] (2) ***

[(4)] (3) ***

[(5)] (4) ***

[(6)] (5) ***

[(7)] (6) ***

BRIEF TIME CHART 1

Delete the lines referring to "District Court Appeal."

Rule 5.85
ADDITIONAL AUTHORITIES

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(2) [A memorandum of additional authorities shall indicate the proposition of law in the brief to which the authorities apply, and may contain a brief statement concerning their application, but shall not include argument.] A memorandum of additional authorities and a response, if any, shall include citations to relevant cases and statutes and shall identify the issue that has been previously briefed to which the new citations apply, but shall not exceed two pages without leave of the court.

[(2)] (3) A memorandum of additional authorities after oral argument may be submitted only by leave of the appellate court and in the manner provided in subsections (1) and (2) of this rule and instructions of the court.

Rule 5.90
"BALFOUR" BRIEFS FILED BY COURT-APPOINTED COUNSEL

(1) ***

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(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 [Part] Section B with one or more claims of error asserted by the client, [Part] Section A of the brief shall contain a statement of facts sufficient to put the claim or claims of error in context.

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(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 this 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 State v. Balfour, 311 Or 434, 451-53, 814 P2d 1069 (1991).]

Rule 6.10
WHO MAY ARGUE; FAILURE TO APPEAR AT ARGUMENT

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(4) (a) Only active members of the Oregon State Bar shall argue unless the court, on motion filed not less than [seven] 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), the lawyer does not need leave of the court to participate in oral argument of the case.

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(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 costs and attorney fees related to preparation for and attendance at oral argument, if 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).

Rule 6.15
PROCEDURE AT ORAL ARGUMENT

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(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:

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[(iv) workers' compensation;]

[(v)] (iv) judicial review of administrative agency action[, including disciplinary review and parole review, but excluding judicial review of Land Use Board of Appeals orders];1

[(vi)] (v) ***

[(vii)] (vi) [district court cases] forcible entry and detainer.

(7) The Court of Appeals encourages any party who is aware of another case pending under advisement in the Court of Appeals raising the same or a similar issue as the case being argued to bring that fact to the attention of the court.

[(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.

Rule 6.20
ARGUMENT IN PENDLETON (CERTAIN COUNTIES)

(1) The Court of Appeals [shall] may set [all] civil cases arising in the following counties for oral argument in Pendleton[, unless the court orders otherwise or on stipulation or motion to the contrary filed within 49 days after the appellant's opening brief has been filed]: Baker, Harney, Malheur, Morrow, Umatilla, Union, Wallowa, Gilliam, Grant and Wheeler. A party to a civil case arising in one of the aforementioned counties may move to set the case for oral argument in Pendleton. The party shall file such motion within 49 days after the appellant's opening brief is filed.

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Rule 6.25
RECONSIDERATION BY COURT OF APPEALS

(1) As used in this subsection, "decision" means an opinion, per curiam or memorandum opinion of the Court of Appeals, including a decision affirming from the bench or affirming without opinion, and an order ruling on a motion or an own motion matter that dismisses the appeal. A party seeking reconsideration of a decision of the Court of Appeals shall file a petition for reconsideration. A petition for reconsideration shall be based on one or more of these contentions:

[(i)] (a) ***

[(ii)] (b) ***

[(iii)] (c) ***

[(iv)] (d) ***

[(v)] (e) ***

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(4) If a timely petition for reconsideration of a decision of the Court of Appeals is filed by any party, the time for filing a petition for review under Rule 9.05 concerning that decision for all parties shall not begin to run until the petition for reconsideration is decided.

*****

(6) If a response to a petition for reconsideration is filed, the response shall be filed within seven days after the petition for reconsideration was filed. The court will proceed to consider a petition for reconsideration without awaiting the filing of a response, but will consider a response if one is filed before the petition for reconsideration is considered and decided.

[(6)] (7) A request for reconsideration of [a] any other Court of Appeals order ruling on a motion or an own motion matter shall be entitled "motion for reconsideration." A motion for reconsideration is subject to Rule 7.05 regarding motions in general. Subsections (4) and (5) of this rule do not apply to a motion for reconsideration under this subsection.

Rule 7.10
PREPARATION, FILING AND SERVICE OF MOTIONS

*****

(4) Any party filing a motion to dismiss before the transcript has been filed shall serve a copy of the motion on the transcript coordinator and, if known to the party filing the motion to dismiss, all court reporters and transcribers who [were served with the notice of appeal and attach proof of service to the motion] are responsible for preparing all or any part of the transcript on appeal.

Rule 7.25
MOTION FOR EXTENSION OF TIME

*****

(4) An objection to a motion for extension of time shall articulate specific grounds for the objection. An attorney may object on the ground that the client has instructed counsel to object to any extension, but that alone will not be a sufficient ground to deny or reduce any extension of time.

(5) An objection to a request for an extension of time may be filed by facsimile transmission, provided that the objection does not exceed five pages. Filing shall be deemed complete when the entirety of the objection being transmitted has been received by the Administrator. The facsimile transmission shall have the same force and effect as filing of the original.

[(4)] (6) ***

[(5)] (7) ***

________________________

See Appendix K for illustration of a motion for extension of time.

Rule 7.27
ORAL REQUEST FOR EXTENSION OF TIME TO FILE BRIEF

(1) For good cause shown, the Administrator's designee may grant an oral request for an extension of time of no more than 14 days to file an opening, response or reply brief, provided that:

(a) The party making the request for an extension of time under this rule shall give prior notice to the other parties to the appeal; and

(b) The party previously has not obtained written extension or extensions of time of more than 28 days.

(2) A party may request an oral extension of time under this rule, and the Administrator's designee may grant or deny the motion, by telephone.

(3) The Administrator's designee acting on an oral request for an extension of time shall enter the grant or denial of the request in the appellate case register.

(4) The grant of an extension of time under this rule will bar any further motion for time to file the brief unless such motion, made in writing, demonstrates extraordinary and compelling circumstances.

Rule 7.30
MOTIONS THAT TOLL TIME

*****

Unless the court otherwise orders, [filing] any motion that must be ruled on before the next event in the appellate process occurs, including but not necessarily limited to a motion to hold the appeal in abeyance, a motion to amend a designation of record, to dismiss, to determine jurisdiction, for summary affirmance under ORS 34.712, 138.225 or 138.660, to remand, to strike a brief, to supplement the record, or for leave to present additional evidence under Rule 4.25, tolls the time for the next event in the appellate process as established in these rules, until the court disposes of the motion. The motions listed in this rule do not toll the running of any period of time established by statute.

RULE 7.35
MOTIONS SEEKING EMERGENCY RELIEF

*****

[(4) A party filing a motion or a response by facsimile transmission may serve the motion or response on other parties to the appeal by facsimile transmission provided that:

(a) The facsimile equipment of the receiving party is located in the office of that party or that party has consented to receipt of the facsimile transmission at another location; and

(b) The proof of service of the filed motion or response contains language as appropriate showing that service was made by facsimile transmission, including the facsimile number and regular telephone number of the receiving party.]

Rule 8.15
AMICUS CURIAE

*****

(4) In the Court of Appeals, unless the court grants leave otherwise for good cause shown, an amicus brief shall be due [within 14 days after the court allows appearance as amicus curiae or on the date specified by the court in the order allowing an appearance] on the date the brief is due of the party with whom amicus curiae is aligned or, if amicus curiae is not aligned with any party, on the date the opening brief is due.

(5) With respect to review in the Supreme Court:

*****

(b) Unless the court grants leave otherwise for good cause shown, an application to appear amicus curiae in support of or in opposition to a petition for review shall be filed within 21 days after the filing of a petition for review.

(c) Unless the court grants leave otherwise for good cause shown, an application to appear amicus curiae on the merits of a case on review shall be filed:

*****

(8) 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.

Rule 8.27
MODIFICATION OF JUDGMENT OF DISSOLUTION OF MARRIAGE DURING PENDENCY OF APPEAL

(1) During the pendency of an appeal from a judgment of dissolution of marriage, if it comes to the attention of the court that a party has filed a motion under ORS 19.275(1) to modify the judgment of dissolution of marriage, including a motion to reconsider spousal or child support provisions of a judgment pursuant to ORS 107.135, the appellate court may hold the appeal in abeyance pending disposition of the motion or to allow the appeal to go forward. Any party to the appeal may move the court to hold the appeal in abeyance or to allow the appeal to go forward. In the absence of a motion from a party, the court on its own motion may review the motion filed in the trial court, decide whether to hold the appeal in abeyance and notify the parties if it decides to do so. If the court does not order the appeal to be held in abeyance, the appeal will go forward.

(2) A party wishing to appeal the trial court's final decision on a motion under ORS 19.275(3) during the pendency of an appeal shall file a notice of appeal within the time and in the manner prescribed in ORS chapter 19. The notice of appeal as filed shall bear the same appellate case number assigned to the original notice of appeal.

(3) If the appellate court holds an appeal in abeyance pending disposition of a motion under ORS 19.275(1) and subsequently receives a copy of the trial court's final decision, the appellate court shall decide whether to reactivate the appeal or take other action after expiration of the period within which an appeal from the final decision may be filed. If a timely appeal from the final decision on a motion under ORS 19.275 is filed, the court may direct that both appeals be heard at the same time or may allow the appeals to be proceed independently of one another.

Rule 8.28
MODIFIED, AMENDED OR NEW 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) (a) If the trial court enters a modified, corrected or amended judgment on motion of a party or on its own motion, a party wishing to appeal the modified, corrected or amended judgment shall file a notice of appeal within the time and in the manner prescribed in ORS chapter 138 and shall use the appellate case number assigned to the appeal from the original judgment.

(b) If the trial court enters a modified, corrected or amended judgment and the appellant does not wish to appeal the judgment, the appellant shall file a motion to dismiss the appeal.

(c) If the trial court denies a motion to modify, correct or amend a judgment subject to subsection (1) of this rule, the party who filed the motion shall notify the Administrator in writing and within seven days of the date of entry of the trial court's order and shall attach a copy of the order denying the motion.

(3) When a party has filed a motion subject to subsection (1) of this rule, pending a final ruling on the motion by the trial court, the appellate court, on motion of a party or on its own motion, may order that the appeal be held in abeyance. If an order is entered holding the appeal in abeyance, when the court receives notice under subsection (2) of this rule that the trial court has entered a modified, corrected or amended judgment or a final order disposing of the motion, the appellate court shall reactivate the appeal or issue such other order as may be appropriate.

________________________

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.

Rule 8.40
REVIEW OF TRIAL COURT RULINGS AFFECTING APPEAL

During the pendency of an appeal, if the trial court rules on a matter affecting the appeal,1 a party may seek review of that ruling by filing a motion in the court in which the appeal is pending seeking appropriate relief. The appellate court may review the ruling of the trial court on a matter affecting an appeal as necessary to decide a matter before the court.

________________________

1 [See, e.g., ORS 19.038 (sufficiency of undertakings and qualifications of sureties), ORS 19.040 (amount of undertakings for costs on appeal and supersedeas undertakings, and other terms for supersedeas undertakings), ORS 19.045(2) (approval of stipulations dispensing with undertaking requirements and waiver, reduction or limitation of undertaking for good cause), ORS 19.050(1) and (2) (sale of perishable property and dispensing with or limiting undertakings by fiduciaries), ORS 19.078(3) and (4) (correction of, addition to and settling transcripts), and ORS 19.084(2) (designating party responsible for preparation of additional portions of the transcript).

See also ORS 19.034(3) (trial court summary determinations of appealability), ORS 19.050(3) and (4) (stays in cases not provided for under ORS 19.040), and ORS 19.500 (determinations of indigence and entitlement to a transcript at state expense and appointed counsel on appeal).]

See, e.g., ORS 19.235(2) (trial court summary determinations of appealability); ORS 19.370(3) and (4) (correction of, addition to and settling of transcripts); ORS 19.375(2) (designating party responsible for preparation of additional portions of transcript); ORS 138.500 (determinations of indigency and preparation of a transcript at state expense and appointment of counsel on appeal).

See also, with respect to undertakings and stays on appeal generally, ORS 19.360 (prescribing time within which to move for appellate review of trial court orders relating to undertakings and stays on appeal, the standard of the court's review, and the scope of relief the appellate court may grant generally. With respect to specific statutes relating to undertakings and stays, see ORS 19.300 (amount of undertaking for costs on appeal); ORS 19.305 (qualifications of sureties and objections to sufficiency of an undertaking); ORS 19.310 (approval of stipulations dispensing with undertaking requirements and waiver, reduction or limitation of undertaking for good cause); ORS 19.335 (supersedeas undertakings); ORS 19.340 (sale of perishable property); ORS 19.350 (discretionary stays); and ORS 19.355 (stays in domestic relations cases).

Rule 8.45
DUTY TO SERVE NOTICE OR FILE MOTION ON OCCURRENCE OF EVENT RENDERING APPEAL MOOT

Except as to facts the disclosure of which is barred by the attorney-client privilege, when a party becomes aware of facts that probably renders an appeal moot,1 that party shall provide notice of the facts to the court and to the other party or parties to the appeal, and may file a motion to dismiss the appeal. If a party becomes aware of facts that probably render an appeal moot and fails promptly to inform the other party or parties to the appeal and the court dismisses the appeal as moot, the court, on motion of the aggrieved party, may award costs and attorney fees incurred by the aggrieved party incurred after notice should have been given of the facts probably rendering the appeal moot, payable by the party who had knowledge of the facts.

________________________

1 For example, the death of the defendant in a criminal case, the release from custody of the plaintiff in a habeas corpus case, or settlement of a civil case.

Rule 9.05
PETITION FOR SUPREME COURT REVIEW OF COURT OF APPEALS DECISION

*****

(2) The petition shall be in the form of a brief, prepared in conformity with Rules 5.05 and 5.35. The cover of the petition shall [identify]:

(a) Identify which party is the petitioner, including the name of the specific party or parties on whose behalf the petition is filed, if there are multiple parties on the same side in the case;

(b) Identify the date of the decision of the Court of Appeals;

(c) Identify the means of disposition of the case by the Court of Appeals:

*****

(d) Contain a notice whether, if review is allowed, the petitioner intends to file a brief on the merits or to rely on the petition for review and brief or briefs filed in the Court of Appeals.2

(4) An assertion of the grounds on which the Court of Appeals is claimed to be wrong, without more, does not constitute compliance with subsection 3(e) of this rule.[2] 3

*****

________________________

1 See example in Appendix L.

2 See Rule 9.17.

[2] 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.

Rule 9.10
RESPONSE TO PETITION FOR REVIEW

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(3) A response shall conform to Rules 5.05 and 5.35. The cover of a response shall be orange. Any party filing a response shall file with the Administrator one response, marked as the original, and [15] 12 copies, serve two copies of the response on every other party to the review and file proof of service.

Rule 9.17
BRIEFS ON THE MERITS ON REVIEW

*****

[(2) Within seven days after the petition for review is filed, the petitioner shall file with the court and serve on the parties to the review a notice stating whether petitioner intends to file a brief on the merits or to rely on the petition for review and brief or briefs filed in the Court of Appeals. If the petitioner files no notice, petitioner will not be permitted to file a brief without leave of the court.]

[(3)] (2) (a) If a petitioner on review has [filed a] given notice of intent to file a brief on the merits as provided in Rule 9.05(2)(c), the petitioner shall have 28 days from the date that the Supreme Court allows review to file the brief.

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[(4)] (3) (a) The brief on the merits of the respondent on review shall be filed within these time limits:

*****

(ii) If petitioner on review [files a] gives notice of intent to file a brief on the merits but ultimately either does not do so or does not do so within the time allowed, respondent's brief is due within 28 days after the date on which petitioner's brief was due;

(iii) If petitioner on review either has failed to give notice of intent to file a brief on the merits as provided in Rule 9.05(2)(c) or has given [files a] notice of intent not to file a brief on the merits, respondent's brief is due within 28 days after review is allowed.

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[(5)] (4) The original of each brief, marked as such, and 12 copies, shall be filed with the Administrator, together with proof of service. Two copies of the brief shall be served on each party to the review.

Rule 10.10
CERTIFICATION OF APPEAL TO SUPREME COURT BY COURT OF APPEALS

*****

[(2) No party to an appeal may request certification. ORS 19.210(1).

(3) The Court of Appeals will not consider a petition, motion or any form of request for certification from a party or any other person.]

[(4)] (2) ***

[(5)] (3) ***

[(6)] (4) ***

[(7)] (5) ***

[(8)] (6) ***

[(9)] (7) ***

________________________

See ORS 250.044 regarding special provisions for certifying certain appeals arising from cases filed in Marion County Circuit Court challenging the constitutionality of a state statute or an amendment to the Oregon Constitution by a ballot measure.

Rule 10.15
TERMINATION OF PARENTAL RIGHTS CASES

*****

(2) The caption of the notice of appeal, notice of cross-appeal, motion or any other thing filed shall prominently display the words[,] "TERMINATION OF PARENTAL RIGHTS."1

(3) Within seven days after filing the notice of appeal or appointment of counsel on appeal, whichever is later, appellant shall make arrangements [satisfactory to the court reporter to pay] for preparation of the transcript, or, if appellant is indigent, appellant shall cause an order for preparation of the transcript at state expense to be served on the [court reporter] transcript coordinator.

*****

(5) (d) The court shall not grant an extension of time of more than 14 days for the filing of any brief, nor shall the court grant more than one extension of time.

(6) The court will set the case for oral argument within [49] 56 days after the filing of the opening brief.

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(8) The Supreme Court shall not grant an extension or extensions of time totaling more than 21 days to file a petition for review.

________________________

1 See Appendix M.

2 See ORS [19.078(1)] 19.370(1).

3 See ORS [19.078(3)] 19.370(3).

Rule 10.20
ARBITRATION OF DISPUTES OVER PROVISION OF PUBLIC SERVICES FOR PRISON SITES

(1) When a motion is filed under ORS 421.628(7) seeking selection of an arbitrator:

(a) The case title shall identify the moving party as the petitioner and the adverse party as the respondent.

(b) The motion shall be entitled "MOTION FOR SELECTION OF ARBITRATOR UNDER ORS 421.628(7)."

(c) The motion may nominate one or more arbitrators and shall suggest rules and procedures for the arbitration proceeding.

(d) The moving party shall serve a copy of the motion on the adverse party and the motion shall contain proof of service on the adverse party.

(e) The adverse party shall have 14 days from the date the motion was filed to file an answer to the motion. The adverse party may nominate one or more arbitrators and may suggest alternative rules and procedures for the arbitration proceeding.

(f) When the Chief Judge of the Court of Appeals selects an arbitrator and decides the rules and procedures to be followed in the proceeding, the Administrator shall so inform the parties. Thereafter, the parties will be responsible for contacting the arbitrator and making arrangements for the arbitration proceeding, including sharing the expense of the arbitration proceeding and the arbitrator's fee.

(2) Following the arbitration proceeding, if either party files exceptions to the arbitrator's decision and award:

(a) The case caption shall contain the same case title and appellate case number as the motion for selection of arbitrator and the exceptions shall have attached to it a copy of the arbitrator's decision and award.

(b) The arbitrator shall have 14 days from the date of being served with a copy of the exceptions to submit to the Court of Appeals the original of the arbitration decision together with any exhibits, memoranda or other written materials made part of the record by the arbitrator.

(c) No later than 14 days after the arbitrator's record is submitted to the Court of Appeals, any party wishing to have a special master appointed shall file a motion demonstrating the need for a special master. The adverse party shall have 14 days to file an answer to the motion. If the court appoints a special master, the court's order will prescribe the rules and procedure for the proceeding before the special master.

(d) If no party requests appointment of a special master, the party filing objections shall have 14 days after the arbitrator submits the record to the Court to serve and file a memorandum in support of the objections.

(e) If a special master is appointed, the party filing objections shall have 14 days after the special master submits the special master's findings to the court to file a memorandum in support of the objections.

(f) The adverse party shall have 14 days after being served with the memorandum in support of the objections to file an answer to the objections.

(g) The court in its discretion will hear oral argument on the objections to the arbitrator's decision.

Rule 11.05
MANDAMUS: INITIATING A MANDAMUS PROCEEDING

(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 [and accompanied by a memorandum of law with supporting arguments and citations. If the mandamus proceeding arises from a matter in which a record has been made, the petition also shall be accompanied by copies of such portions of the record relating to the matter as are necessary for a determination of the question or questions presented and the relief sought].

(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 [a mandamus proceeding shall be entitled,] 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:

(i) In a mandamus proceeding challenging the action of a judge in a particular case in the circuit court, the Tax Court or the Court of Appeals, the name, bar number, mailing address and telephone number of the attorney for the relator and the attorney for the adverse party.

(ii) In any other mandamus proceeding, the name, bar number, mailing address and telephone number of the attorney for the relator and the defendant. If the mandamus proceeding arises from a matter before [a lower court or] an administrative agency, the title page also shall contain the name, bar number, mailing address[,] and telephone number[, and bar number] of the attorney for the adverse party in the matter below. [and]

(iii) In any mandamus proceeding, the name, mailing address and telephone number of any [adverse] party not represented by an attorney.

[(c) The form of a petition shall comply with Rule 5.05(5)(c) through (i). The petition, the memorandum in support of the petition and the proposed writ shall be assembled and submitted as separate documents.]

(4) In addition to any matters required by law, the petition shall contain:

*****

(c) 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.[1] 2

(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.

[(5) The relator shall file with the Administrator, with proof of service, the original and nine copies of the petition, including copies of relevant portions of the record and the supporting memorandum of law, and the original and two copies of the writ sought to be issued.]

(6) The form of a petition shall comply with Rule 5.05(5)(c) through (i). 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.

[(6) The relator shall accompany the petition with proof of service of the petition on the defendant and, if the mandamus proceeding arises from a matter before a lower court or administrative agency, on the adverse party or parties to the matter below.]

(7) (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 relator shall accompany the petition with proof of service on the adverse party, any other party (if any) to the proceeding in the lower court, and the judge or court whose action is challenged in the mandamus proceeding.

(b) In any other mandamus proceeding, the relator shall accompany the petition with proof of service on the defendant and, if the mandamus proceeding arises from another proceeding or controversy, proof of service on any other party to the proceeding or controversy.

(8) If the relator seeks a stay in the proceedings from which the mandamus proceeding arises, the relator shall show that the relator requested a stay from the court, judge, or administrative agency or official whose decision is being challenged and that the request for a stay was denied, or that it would be futile to request a stay from the court, judge, or administrative agency or official.

________________________

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 Illustration 1a in Appendix N.

** See Illustrations 2 and 3 in Appendix N.

*** See Illustration 1b in Appendix N.

[1] 2 See generally, ORS 34.250.

[1] 3 See ORS 34.110; State ex rel Automotive Emporium v. Murchison, 289 Or 265, 611 P2d 1169 (1980).

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.

RULE 11.10
MANDAMUS: 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 within 14 days from the date [of filing such] the petition was filed, serve and file an original and nine copies of a memorandum in opposition. [If the mandamus proceeding arises from a proceeding before a lower court or administrative agency and a party or parties adverse to relator appeared in the matter, the attorney for such adverse party or parties, with the consent of the defendant, may appear on behalf of the defendant. Alternatively, such adverse party or parties may move to intervene in the mandamus proceeding.]1

(2) The petition and any memoranda in opposition to the petition shall be considered by the court without oral argument unless otherwise ordered. If the court determines to accept jurisdiction, it shall issue an order [a writ to issue] allowing the petition. Otherwise, the petition shall be denied by order of the court.

(3) If the court issues an alternative writ of mandamus in a mandamus proceeding that challenges the action of a judge in a particular case in the circuit court, the Oregon Tax Court or the Court of Appeals, the Administrator shall mail copies of the order allowing the petition and the alternative writ of mandamus to the relator, to the adverse party, to any intervenor, and to the judge or court whose action is challenged in the petition. Proof of service of an alternative writ of mandamus need not be filed with the court. Unless the alternative writ of mandamus specifically requires that a return, answer, or responsive pleading be filed, the judge or court to which the writ is issued need not file a return, answer, or responsive pleading.

[(3)] (4) If the court issues an alternative writ in any other mandamus proceeding, the court shall set a return date in the writ, and the Administrator shall mail copies of the order allowing the petition and the alternative writ of mandamus to the relator, to the defendant, and to any intervenor. On or before [that] the return date in the writ, the defendant shall either file a certificate of compliance or show cause by answer or motion to dismiss as provided by ORS 34.170. If the defendant fails to file a certificate of compliance or show cause by answer or motion to dismiss on or before the return date set in the writ, the court without further notice to the parties, may issue a peremptory writ of mandamus, as provided in ORS 34.180. When the case is at issue on the pleadings,2 the court will notify the parties to that effect.

(5) At any time after the filing of a petition for writ of mandamus or the issuance of an alternative writ of mandamus, if the defendant, judge or court performs the act sought in the petition or required in the alternative writ, the relator shall notify, and the defendant, judge, court, or any other party to the lower court case may notify, the court of that compliance. After receiving notice of the compliance, the court on motion of any party or on its own motion may dismiss the mandamus proceeding.

________________________

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, 34.180, 34.190.

See generally, ORS 34.110 through 34.[240]250 and Oregon Constitution, Article VII (Amended), section 2.

RULE 11.15
MANDAMUS: BRIEFS AND ORAL ARGUMENT

(1) [When the case is at issue on the pleadings,1 the court will notify the parties to that effect. Unless otherwise directed by the court, the relator shall have 28 days from the date of notice that the case is at issue to file the opening brief, and defendant shall have 28 days from the date relator serves and files the opening brief to file the answering brief and defendant shall have 28 days from the date relator serves and files the opening brief to file the answering brief.] Unless otherwise directed by the court, and provided that the court does not receive notice of compliance with the alternative writ of mandamus by the official to whom the writ was issued, the relator shall file the opening brief:

(a) Within 28 days of the date of issuance of the alternative writ of mandamus, in a mandamus proceeding the challenges the action of a judge in a particular case in the circuit court, the Oregon Tax Court or the Court of Appeals; or

(b) Within 28 days of the date that the case is at issue on the pleadings, in any other mandamus proceeding.

(2) The adverse party in a mandamus proceeding that challenges the action of a judge in a particular case in the circuit court, the Oregon Tax Court or the Court of Appeals, or the defendant in any other mandamus proceeding, shall have 28 days from the date relator serves and files the opening brief to file the answering brief.

[(2)] (3) Relator may file a reply brief only with leave of the court. A motion requesting leave to file a reply brief shall be filed, without copies, within seven days after the filing of the brief to which permission to reply is sought. The content of the reply brief shall be confined to matters raised in the [defendant's] answering brief, and the form shall be similar to an [defendant's] answering brief, but need not contain a summary of argument.

*****

________________________

[1 See ORS 34.170, 34.180 and 34.190.]

Rule 11.17
MANDAMUS: ISSUANCE OF COMBINED PEREMPTORY WRIT OF MANDAMUS AND APPELLATE JUDGMENT

If the court has determined that the relator is entitled to a peremptory writ of mandamus, the court shall direct the Administrator to issue the writ. The peremptory writ may be combined with the appellate judgment and issued together as a single document. If the peremptory writ and the appellate judgment are combined, the relator need not file proof of service of the writ with the court, and the judge or court to which the writ is issued in a mandamus proceeding that challenges the action of a judge in a particular case in the circuit court, the Oregon Tax Court or the Court of Appeals or the defendant in any other mandamus proceeding need not file a return showing compliance with the writ.

Rule 11.27
JUDICIAL DISABILITY AND DISCIPLINARY PROCEEDINGS

(1) Involuntary Retirement for Disability under ORS 1.310.

(a) On receipt of notice from the Secretary of State of a judge's appeal of a determination of disability by the Commission, the Commission shall, within 14 days, transmit the record to the Supreme Court. The Administrator shall inform the judge of the date of receipt of the record from the Commission.

(b) The judge shall have 28 days from the date of the notice from the court of receipt of the record to file a petition for review of the Commission's determination of disability, together with a brief in support of the petition. The Commission shall have 28 days from the date of filing of the judge's brief to file an answering brief. The judge may file a reply brief, which shall be due 14 days after the date of filing of the Commission's answering brief.

(c) If the case is argued orally, the judge shall argue first, followed by the Commission.

(d) If the court remands the matter to the Commission for additional findings of fact, the review will be held in abeyance pending receipt from the Commission of notice of its action on remand.

(e) The decision of the Supreme Court to affirm, reverse or annul the Commission's determination is subject to a petition for reconsideration under Rule 9.25. If no petition for reconsideration is filed or if a petition for reconsideration is filed, on disposition of the petition, the Administrator shall issue the appellate judgment and shall provide a copy of the appellate judgment to the Secretary of State.

(2) Disciplinary Proceedings under ORS 1.420.

(a) Appointment of Masters

Under ORS 1.420(2)(b), if the Commission requests appointment of three masters to hold a hearing, the request shall be made in the form of a petition and the Commission shall serve a copy of the petition on the judge. The Commission may nominate three or more candidates for appointment as masters. The judge shall have 14 days after being served with the Commission's request to file a response, which response may include nominations for three or more candidates for appointment as masters.

(b) Review of Commission's Recommendations1

(i) Under ORS 1.420(4), if the Commission recommends to the court the censure, suspension or removal from office of a judge, the Commission shall accompany its recommendation with the record of proceedings before the commission. The Administrator shall inform the judge of the date of receipt of the record from the Commission.

(ii) A request for receipt of additional evidence shall be filed as a motion in the manner provided in Rule 7.05 et seq.

(iii) The judge shall have 28 days from the date of the notice from the court of receipt of the record to file a brief concerning the Commission's recommendation. The Commission shall have 28 days from the date of filing of the judge's brief to file an answering brief. The judge may file a reply brief, which shall be due 14 days after the date of filing of the Commission's answering brief. If the judge fails to file an opening brief, the Commission may file an opening brief and thereafter the judge may file an answering brief.

(iv) If the case is argued orally, the judge shall argue first, followed by the Commission, unless the judge did not file any brief, in which case the Commission alone may orally argue the matter.

(v) If the court remands the matter to the Commission for additional findings of fact, the review will be held in abeyance pending receipt from the Commission of notice of its action on remand.

(vi) The decision of the Supreme Court to affirm, reverse or annul the Commission's determination is subject to a petition for reconsideration under Rule 9.25. If no petition for reconsideration is filed or if a petition for reconsideration is filed, on disposition of the petition, the Administrator shall issue the appellate judgment. If the decision is for removal of the judge from office, the Administrator shall provide a copy of the appellate judgment to the Secretary of State.

(vii) The decision of the Commission after hearing or upon review of the record and report of masters under ORS 1.425 shall be a public record, together with the recommendations, if any, of the Commission to the Supreme Court.*

(c) Temporary Suspension Under ORS 1.420(5)

(i) If the Supreme Court on its own motion proposes to suspend a judge during the pendency of disciplinary proceedings under ORS 1.420, the Administrator shall provide written notice thereof to the judge.

(ii) If the Commission files a recommendation that a judge be suspended during the pendency of a disability determination proceeding, the Commission shall serve a copy of the recommendation on the judge.

(iii) The judge shall have 14 days from the date of the court's notice of proposed suspension or from the date of the Commission's recommendation that the judge be suspended during the pendency of a disability determination to file a memorandum regarding the proposed or recommended suspension.

(iv) When the court on its own motion proposes to suspend a judge during the pendency of disciplinary proceedings, the Commission shall have 14 days after the date offiling of the judge's memorandum to filea memorandum regarding the proposed suspension.

(v) The matter of a proposed or recommended temporary suspension will not be subject to oral argument unless oral argument is requested by the judge or the Commission.

(d) Consent to Discipline Under ORS 1.420(1)(c)

(i) On receipt of a judge's consent to censure, suspension or removal, the court may request briefing and oral argument before the consent is submitted to the court for decision.

(ii) If the court accepts the stipulation of facts portion of a consent, but rejects the disciplinary action agreed to by the judge and Commission and remands the matter to the Commission for further proceedings, the review will be held in abeyance pending receipt of notice of the Commission's decision on remand.

(iii) A judge's consent to censure, suspension or removal shall not be a public record until the consent or stipulation is submitted to the Supreme Court for a decision. On submission to the court, the consent shall be a public record.*

(3) Temporary Disability Proceedings Initiated by Chief Justice Under ORS 1.425.

(a) Review of Commission's Recommendation

(i) Under ORS 1.425(1)(a), if the Commission elects to proceed as provided in ORS 1.420, the procedure in the Supreme Court shall be the same as provided in subsection (2) of this rule.

(ii) Under ORS 1.425(4)(b), if the Commission finds that the judge has a temporary disability and recommends to the court that the judge be suspended, the Commission shall accompany its recommendation with the record of proceedings before the Commission. The Administrator shall inform the judge of the date of receipt of the record from the Commission.

(iii) A request for receipt of additional evidence shall be filed as a motion in the manner provided in Rule 7.05 et seq.

(iv) The judge shall have 28 days from the date of the notice from the court of receipt of the record to file a brief concerning the Commission's recommendation. The Commission shall have 28 days from the date of filing of the judge's brief to file an answering brief. The judge may file a reply brief, which shall be due 14 days after the date of filing of the Commission's answering brief. If the judge fails to file an opening brief, the Commission may file an opening brief and thereafter the judge may file an answering brief.

(v) If the case is argued orally, the judge shall argue first, followed by the Commission, unless the judge did not file any brief, in which case the Commission alone may orally argue the matter.

(vi) The decision of the Supreme Court is subject to a petition for reconsideration under Rule 9.25. If no petition for reconsideration is filed or if a petition for reconsideration is filed, on disposition of the petition, the Administrator shall issue the appellate judgment and shall provide a copy of the appellate judgment to the Secretary of State.

(vii) The decision of the commission after hearing or upon review of the record and report of masters under ORS 1.425 shall not be a public record, except for a decision and recommendation for suspension under ORS 1.425(4)(b).*

(b) Temporary Suspension Under ORS 1.425(5)

(i) If the Supreme Court on its own motion proposes to suspend a judge during the pendency of disability, the Administrator shall provide written notice thereof to the judge.

(ii) If the Commission files a recommendation that a judge be suspended during the pendency of a disability determination proceedings, the commission shall serve a copy of the recommendation on the judge.

(iii) The judge shall have 14 days from the date of the court's notice of proposed suspension, or the commission's recommendation that the judge be suspended, during the pendency of a disability determination to file a memorandum regarding the proposed or recommended suspension.

(iv) When the court on its own motion proposes to suspend a judge during the pendency of disability proceedings, the Commission shall have 14 days after the date of filing of the judge's memorandum to file a memorandum regarding the proposed suspension.

(v) The matter of a proposed or recommended temporary suspension will not be subject to oral argument unless oral argument is requested by the judge or the Commission.

(c) Consent to Treatment Under ORS 1.425(4)(a)

(i) On receipt of a judge's consent to counseling, treatment or other assistance or to comply with other conditions in respect to the future conduct of the judge, the court may request briefing and oral argument before the consent is submitted to the court for decision.

(ii) A judge's consent to counseling, treatment, or assistance or compliance with other conditions shall not be a public record until the consent is accepted by the Supreme Court.

(4) As used in this rule, "Commission" means the Commission on Judicial Fitness and Disability.

________________________

1 See generally ORS 1.430.

* See ORS 1.440(1).

Temporary Amendments to Rule 11.32
VOTERS' PAMPHLET EXPLANATORY STATEMENT REVIEW

(1) Any elector dissatisfied with a Voters' Pamphlet explanatory statement for which suggestions were offered at the Secretary of State's hearing under ORS 251.215 may file with the Administrator a petition to review the explanatory statement. The petition must be filed within 5 calendar days after the deadline for filing a revised statement with the Secretary of State.

(2) The provisions of Rule 11.30(2), (3), (4), (5), (7), (8), and (9) shall apply, except that:

(a) The citizens committee appointed to prepare the explanatory statement [also] shall be designated "Respondents," the Attorney General shall not be designated as a respondent, and the title of the proceeding shall be "Petition to Review Explanatory Statement"; and

(b) The petition [also] shall show proof of service on each member of the "committee of five citizens" referred to in ORS 251.205(1) and the Attorney General.

*****

Temporary Amendments to Rule 11.34
ESTIMATE OF FINANCIAL IMPACT REVIEW

(1) Any person entitled to petition under ORS 250.131 for review of an estimate of financial impact may file with the Administrator a petition to review the estimate. The petition must be filed not later than 85 calendar days before the election at which the measure is to be voted on. The petition shall not concern the amount of the estimate or whether an estimate should be prepared.

(2) The provisions of Rule 11.30(2), (3), (4), (5), (7), (8), and (9) shall apply, except that:

(a) The officials named in ORS 250.125(1) [also] shall be designated "Respondents," the Attorney General shall not be designated as a respondent, and the title of the proceeding shall be "Petition to Review Estimate of Financial Impact"; and

(b) The petition [also] shall show proof of service on each official named in ORS 250.125(1) and the Attorney General.

Rule 12.10
AUTOMATIC REVIEW IN DEATH SENTENCE CASES

*****

(5) Service of a copy of the packet on a court reporter shall be deemed to be an order by the trial court that the court reporter immediately prepare a transcript of all portions of the criminal proceeding reported by that reporter, including all pretrial hearings but excluding selection of the jury. If either the state or the defendant desires that the report of the jury selection proceedings be transcribed, that party must apply to the Supreme Court for an appropriate order, which will be made only upon a showing of good cause for preparation of that transcript. A transcript shall meet the specifications of Rule 3.35. A transcript shall be filed within 60 days of the date the packet is served on the court reporter. If the court has allowed preparation of a transcript of jury selection, the transcript shall be due 30 days after the date of the order allowing the transcript. Transcripts shall be settled in the same manner as on an appeal pursuant to ORS [138.185(7)] 138.185 and ORS 19.370.

(6) If the defendant desires to file a brief on review, the briefing schedule for both the defendant and the state shall be established by the court after a representative of the court confers with the parties within seven days after the transcript is settled. Specifications for briefs shall be those set forth in Rule 5.05, except that the maximum length of a brief without obtaining leave of the court for a longer brief is 100 pages.

*****

Rule 13.10
PETITION FOR ATTORNEY FEES

*****

(4) When the Supreme Court denies a petition for review, a petition for attorney fees for preparing [a] the petition for review or a response to [a] the petition for review shall be filed in the Supreme Court.

(5) (a) ***

(b) If a petition requests attorney fees pursuant to a statute, the petition shall address any factors, including, as relevant, those factors identified in ORS 20.075(1) and (2) or ORS 20.105(1), that the court may consider in determining whether and to what extent to award attorney fees.

(7) A party to a proceeding under this rule may request findings regarding the facts and legal criteria that relate to any claim or objection concerning attorney fees. A party's failure to request findings in a petition, objection or reply constitutes a waiver of any objection to the absence of findings to support the court's decision.

[(7)] (8) ***

[(8)] (9) ***

*****

________________________

1 ***

See Appendix O.

2 ***

3 See, e.g., Tyler v. Hartford Insurance Group, 307 Or 603, 771 P2d 274 (1989), and Matizza v. Foster, 311 Or 1, 803 P2d 723 (1990), with respect to ORS 20.105(1), and McCarthy v. Oregon Freeze Dry, Inc., 327 Or 84, 957 P2d 1200 (1998), on recons 327 Or 185, 957 P2d 1207 (1998), with respect to ORS 20.075.

Rule 13.15
REQUEST FOR CERTIFICATION OF COURT-APPOINTED COUNSEL COMPENSATION, COSTS AND EXPENSES

*****

(4) ***

*****

(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.

*****

(5) The original of a request for compensation, costs and expenses shall be filed with the Administrator with five copies, if filed in the Court of Appeals, and one copy, if filed in the Supreme Court[, together with proof of service on all parties to the appeal]. The request need not be served on the other parties to the appeal.

*****

________________________

See ORS 138.500(3); see also Appendices P and Q.

Rule 14.10
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 [thereof,] 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:

*****

Rule 15.05
APPELLATE SETTLEMENT CONFERENCE PROGRAM

(1) Cases Subject

(a) The procedures in this rule apply to cases filed in the Oregon Court of Appeals. The [supervising judge] Chief Judge or the Chief Judge's designee shall determine the individual cases or categories of cases that may be included or excluded from the appellate settlement conference program (program).

(b) A settlement conference shall be held for any case assigned to the program. [The supervising judge may require that] A person with authority to settle the case must be present at the program settlement conference or, if that is not practicable, then a person with authority to recommend settlement must be present. After the first settlement conference is held, any party may withdraw from the program.

(2) Supervising Judge and Program Director

(a) The Chief Judge [of the Oregon Court of Appeals] shall have overall responsibility for the program but [shall] may appoint [a judge from the Oregon Court of Appeals or a senior judge retired from the appellate bench to be] a supervising judge and a program director [of] for the program. [The Chief Judge may appoint one or more supervising judges.]

(b) If a supervising judge is appointed, the supervising judge shall have [has] 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) A supervising judge may not serve as a neutral.]

[(d)] (c) If the Chief Judge, or the [a] supervising judge if one is appointed, [is serving] 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 courtstaff any communication from the settlement conference.

(3) Neutrals

(a) [A supervising judge] The Chief Judge shall determine the responsibilities and qualifications [for selection] 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 [select and] assign neutrals for individual cases.

(b) A neutral shall not act in any other capacity in the case.

(4) Abeyance of Appeal

[On assignment of a case to the program, the appeal, including preparation of the transcript, and the record, and briefing, will be held in abeyance for a period of 120 days from the date of filing of the notice of appeal. Any other extension of time in the case on appeal must be arranged pursuant to Rule 7.25 separately from this rule. The Chief Judge may reactivate a case held in abeyance at any time:

(a) At the request of the program director, or

(b) On motion of a party showing good cause for reactivating the appeal.]

(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.

(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

The parties may be required to submit information to facilitate the screening of cases for the program or the program settlement conference. The parties shall submit this information in a timely manner to the [State Court Administrator] program director or the neutral, as designated in the request. Each party also shall submit the requested information to the other parties, with the exception of material that is designated by the party as confidential, [and] which shall be treated by the [State Court Administrator] program director or the neutral as confidential pursuant to subsection (6) of this rule.

(6) Confidentiality

(a) [Pursuant to OEC 101(1), the provisions of OEC 408 shall apply to a program settlement conference.] Program settlement conferences are subject to Or Laws 1997, chapter 670 (Senate Bill 160) (ORS 36.210 to 36.238).

[(b) Evidence, conduct, or statements protected from admissibility pursuant to paragraph (6)(a) shall be deemed to be confidential and, accordingly, shall not be disclosed by a party, a party's agent or lawyer, the supervising judge, or the neutral, unless the law so requires, the parties agree to the disclosure, or a party chooses to disclose information supplied by that party in confidence.]

[(c) Except as permitted by paragraph (6)(d), the neutral shall maintain the confidentiality of the parties and shall not communicate any other information regarding the substance of the case or a program settlement conference to the appellate court clerk, the supervising judge, or the court. The neutral may not communicate information obtained in confidence from one party to another party, except with the permission of the party who supplied the information.]

[(d)] (b) All materials submitted to the supervising judge or to the neutral, and all materials created by the supervising judge or the neutral[, which] that pertain to a program settlement conference and [that] are not a part of the record on appeal[,] shall be maintained separately from the record of the case. These materials are not subject to disclosure, except as the law may require or as the parties and the supervising judge may all agree. The materials referred to in this paragraph [may] shall be destroyed [at such time as the supervising judge deems appropriate] at the time and in the manner prescribed by the policy adopted by the State Court Administrator pursuant to the Task Force on Records Retention.

[(e)] (c) The supervising judge or program director may request the parties or the neutral or both to provide oral and written evaluations of the case settlement process. [The supervising judge may use] The materials referred to in paragraph (6)[(d)](b), and oral and written evaluations of the case settlement process [submitted to the supervising judge by the parties or the neutral], may be used to evaluate the program. [The supervising judge will insure that] Any evaluation of the program, whether disseminated to the appellate courts or to the public, [properly protects the confidentiality of any particular case] shall not disclose specific case identifying information.

[(f) The terms of an agreement to settle a case or an agreement to limit the issues on appeal, reached in or as a result of a program settlement conference, shall not be confidential unless the parties agree in writing that it shall be confidential.]

(7) Neutral's Fees

(a) [Neither the State Court Administrator nor a program-provider shall charge a fee or cost for participation in the program.] There shall be a fee for the neutral's services in conducting a settlement conference. The amount of the fee shall be $300 for workers' compensation cases and $500 for all other cases. The parties to the appeal shall share the cost of the neutral's fee equally and shall pay the fee directly to the neutral at the first settlement conference.

(b) The Chief Judge or the Chief Judge's designee may waive or defer payment of the neutral's fee on motion of a party based on a showing that the party is financially unable to pay the fee without substantial 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) 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 to the Judicial Department to be disposed of as provided by law.

(d) A party whose share of the neutral's fee is deferred and who has not paid the fee by the conclusion of the settlement conference shall remain liable for the unpaid fee, unless the fee is waived following completion of the settlement conference. If a party's share of the neutral's fee has been paid by the State Court Administrator and the party thereafter pays the fee, the fee shall be paid to the State Court Administrator.

(8) Actions Are Not Reviewable

The actions of a neutral or of a supervising judge shall not be reviewed by the Court of Appeals or by the Supreme Court.

APPENDIX A

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9.

CERTIFICATE OF SERVICE

*****

I certify that on [date] , I served a true copy of this notice of appeal on:

______________________     ______________________

______________________     ______________________

______________________     ______________________

[Opposing party(ies) or attorney for opposing party(ies)]

______________________     ______________________

______________________     ______________________

______________________     ______________________

[trial court administrator]     [transcript coordinator, if a transcript is designated as part of the record on appeal]

by [specify method of service]:

____ United States Postal Service, ordinary first class mail
____ United States Postal Service, certified or registered mail, return receipt requested
____ hand delivery
____ other (specify) _____________________________________________________

10.
CERTIFICATE OF FILING

I certify that on [date], I filed the original of this notice of appeal with the State Court Administrator at this address:

State Court Administrator
Supreme Court Building
1163 State Street
Salem, Oregon 97310

by [specify method of service]:

____ United States Postal Service, ordinary first class mail
____ United States Postal Service, certified or registered mail, return receipt requested
____ hand delivery
____ other (specify)

__________________________________________
 [Signature of appellant or attorney]

__________________________________________
 [Typed or printed name of appellant or attorney]

APPENDIX E

*****

CERTIFICATE OF SERVICE

I certify that on [date], I served a true copy of this petition for judicial review on:


	______________________		______________________



	______________________		______________________



	______________________		______________________

	[State agency and address]	[Solicitor General and address]





	______________________		______________________



	______________________		______________________



	______________________		______________________

	[Other party(ies) or attorney for other party(ies)]

by [specify method of service]:

____ United States Postal Service, certified or registered mail
____ United States Postal Service, certified or registered mail, return receipt requested.

CERTIFICATE OF FILING

I certify that [date], I filed the original of this petition for judicial review with the State Court Administrator at this address:

State Court Administrator
Supreme Court Building
1163 State Street
Salem, Oregon 97310

by [specify method of service]:

____ United States Postal Service, ordinary first class mail
____ United States Postal Service, certified or registered mail, return receipt requested
____ hand delivery
____ other (specify)

__________________________________________
 [Signature of appellant or attorney]

__________________________________________
 [Typed or printed name of appellant or attorney]

APPENDIX F

*****

CERTIFICATE OF SERVICE

I certify that on [date], I served a true copy of this petition for judicial review on:

Workers' Compensation Board

______________________________________

______________________________________

______________________________________
        [address]


	______________________		______________________



	______________________		______________________



	______________________		______________________



	[Other party(ies) or attorney for other party(ies)]

by [specify method of service]:

____ United States Postal Service, ordinary first class mail
____ United States Postal Service, certified or registered mail, return receipt requested
____ hand delivery
____ other (specify)

CERTIFICATE OF FILING

I certify that [date], I filed the original of this petition for judicial review with the State Court Administrator at this address:

State Court Administrator
Supreme Court Building
1163 State Street
Salem, Oregon 97310

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PROPOSED NEW APPENDIX N

Illustrations for Rule 11.05

Illustration 1a. Sample case title for a peremptory writ of mandamus proceeding challenging the action of a judge in a particular case (Chris Doe, Plaintiff, v. Out of State Business, Inc., Defendant).

CHRIS DOE,    )   _______ County Circuit
Plaintiff-Adverse Party,   )   Court No. 99-12345-CV
    )   
v.   )   SC S _______________
    )   
OUT OF STATE BUSINESS, INC.,   )   PETITION FOR PEREMPTORY
Defendant-Relator.   )   WRIT OF MANDAMUS


Illustration 1b. Sample case title for a motion in a mandamus proceeding challenging the action of a judge in a particular case.

CHRIS DOE,    )   _______ County Circuit
Plaintiff-Adverse Party,   )   Court No. 99-12345-CV
    )   
v.   )   SC S _______________
    )   
OUT OF STATE BUSINESS, INC.,   )   MANDAMUS PROCEEDING
Defendant-Relator.   )   
    )   MOTION TO DISMISS

Illustration 2. Sample case title for an alternative writ of mandamus proceeding against an administrative agency.

STATE ex rel TERRY DOE,   )   
an elector of the State of Oregon,   )   
Plaintiff-Relator,   )   SC S _____________
    )   
v.   )   
    )   
PAT ROE,   )   
Secretary of State   )   PETITION FOR ALTERNATIVE
for the State of Oregon,   )   WRIT OF MANDAMUS
Defendant.   )   


Illustration 3. Sample case title for an alternative writof mandamus proceeding challenging an administrative action of a judge.

STATE ex rel OREGON)
ADVOCATES FOR JURORS,)
Plaintiff-Relator,)SC S ___________
 )
v.)
 )
KELLY BENCH,)PETITION FOR ALTERNATIVE
Presiding Judge for)WRIT OF MANDAMUS
_______________County Circuit Court,)
Defendant.)
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