IN THE SUPREME COURT OF THE STATE OF OREGON
IN THE COURT OF APPEALS OF THE STATE OF OREGON

In the Matter of the Adoption
of Amendments to the
Oregon Rules of
Appellate Procedure

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NOTICE OF PROPOSED RULEMAKING

The Supreme Court and Court of Appeals propose to:

(1) Adopt amendments to the following Oregon Rules of Appellate Procedure and appendices: ORAP 1.15, 1.25, 1.35, 1.40, 2.05, 2.10, 2.40, 2.45, 3.07, 3.33, 3.35, 3.40, 4.60, 4.64, 4.66, 4.67, 4.68, 4.70, 4.72, 5.05, 5.10, 5.20, 5.40, 5.45, 5.92, 5.95, 7.10, 7.27, 7.45, 8.15, 8.28, 9.05, 9.10, 9.17, 9.25, 9.30, 10.10, 10.15, 11.05, 11.15, 11.25, 11.35, 12.05, 12.10, 12.20, 14.05, 14.10, 15.05, Appendix 2.05, Appendix 3.33, Appendix 4.15-1, Appendix 4.15-2.

(2) Adopt the following new Oregon Rule of Appellate Procedure and appendix: ORAP 10.25, Appendix 3.35.

Amended rules and appendices are shown with material to be deleted in strikeout print and material to be added in bold print. The proposed new rule and appendix are denoted with the title and text in bold print.

Interested persons shall have until the close of business on August 11, 2008, to submit written comments on the proposed rule changes. Comments shall be submitted to:

Hon. Thomas A. Balmer
Chair, Oregon Rules of Appellate Procedure Committee
Supreme Court Building
1163 State Street
Salem, Oregon 97301


Rule 1.15
TERMINOLOGY

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

(a) "Administrator" means the State Appellate Court Administrator or, as appropriate, the Appellate Court Administrator's designee.1

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1 See ORS 8.120 regarding duties of the State Court Administrator to act as court administrator for the Supreme Court and Court of Appeals, and authority of the State Court Administrator to delegate powers, by written designation, to officers and employees of the Oregon Judicial Department. Effective May 1, 2008, the State Court Administrator delegated, by written designation, to the Appellate Court Administrator the duties to act as court administrator for the Supreme Court and Court of Appeals.


Rule 1.25
COMPUTATION OF TIME

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(6) The normal work day of the Appellate Courts Records Section of the Office of the State Court Administrator is 8:00 a.m. to 5:00 p.m.


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Rule 1.35
FILING AND SERVICE

(1) Filing

(a) Any thing to be filed in the Supreme Court or Court of Appeals shall be delivered to the State Appellate Court Administrator, Appellate Courts Records Section, 1163 State Street, Salem, Oregon 97301-2563.

(b) If, pursuant to law or order of a court, a party's address is and telephone number are not subject to public disclosure, the party filing any thing in the Supreme Court or Court of Appeals shall provide an alternative contact address that the court may make available for public inspection and for purpose of service under paragraph (2)(a) of this rule. The court shall not make the party's telephone number or actual address available for public inspection.

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(d) 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 or dispatched to a third-party commercial carrier on or before the due date by first-class mail through the United States Postal Service if the method of mailing or delivery is at least as expeditious as first-class mail.

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(2) Service Generally

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(b) Except as otherwise provided by law,2 service may be in person or by first-class mail, by mail, or by third-party commercial carrier for delivery within three calendar days. Unless otherwise provided by law, sService by mail through the United States Postal Service or by third-party commercial carrier shall be complete on deposit in the mail or on dispatch to the carrier if the method of mailing or delivery is at least as expeditious as first-class mail unless otherwise provided by statute.

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(d) Any thing filed with the Administrator shall contain either an acknowledgment of service by the person served or proof of service in the form of a statement of the date and manner of service, of personal delivery or deposit in the mail and the names and addresses of the persons served, certified by the person who made service.

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(6) Except as otherwise provided in these rules, parties may prepare any thing to be filed in the Supreme Court or Court of Appeals using either uniformly spaced type (such as produced by typewriters) or proportionally spaced type (such as produced by commercial printers and many computer printers). Uniformly spaced type shall not exceed 10 characters per inch (cpi) for both the text of the thing filed and footnotes. If proportionally spaced type is used, it shall not be smaller than 13 point for both the text of the thing filed and footnotes. This subsection does not apply to the record on appeal or review.


Rule 1.40
VERIFICATION; DECLARATIONS; ADOPTING ORCP 17

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(3) A declaration under penalty of perjury may be used in lieu of any affidavit required or allowed by these rules. A declaration under penalty of perjury may be made without notice to adverse parties, must be signed by the declarant, and must include the substance of the following sentence in prominent letters immediately above the signature of the declarant: "I hereby declare that the above statement is true to the best of my knowledge and belief, and that I understand it is made for use as evidence in court and is subject to penalty for perjury." As used in these rules, "declaration" means a declaration under penalty of perjury.

(4) Oregon Rule of Civil Procedure (ORCP) 17 is hereby adopted as a rule of appellate procedure applicable to the Supreme Court and Court of Appeals.1


1 See ORAP 13.25 regarding the procedure for requesting sanctions under this subsection.

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Rule 2.05
CONTENTS OF NOTICE OF APPEAL

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(3) A statement that an appeal is taken from the judgment or some specified part of the judgment,1 the name of the court and county from which the appeal is taken, and the name of the trial judge or judges whose judgment is who signed the judgment being appealed.

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1 See ORAP 2.10 regarding filing separate notices of appeal when there are multiple judgments entered in a case, including multiple judgments in consolidated cases.

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Rule 2.10
SEPARATE NOTICES OF APPEAL

(1) When two or more judgments collectively dispose of all claims or adjudicate the rights and liabilities of all parties in a case,1 one notice of appeal is sufficient. The notice of appeal shall identify which judgment was entered last and the date of entry. The notice of appeal may identify one or more other judgments that the appellant intends to contest,2 but the appellant shall not be limited to contesting the judgment or judgments so identified.

(2) (1) If the trial court consolidates two or more cases but enters a separate judgment for each case, a separate notice of appeal must be filed as to each judgment, if a party wishes to appeal from each.

(3) (2) After a party has filed a notice of appeal from a decision in a trial court case, if another party files a notice of appeal from a decision in the same trial court case, the Administrator may place the subsequent notice of appeal in the same appellate file as the first notice of appeal or may assign a new appellate case number to the subsequent notice of appeal, subject to the following:

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(4) (3) With respect to violation or infraction cases initiated by citations and heard by the trial court at the same time, one notice of appeal identifying the judgment or judgments being appealed is sufficient.


1 See State ex rel Orbanco Real Estate Serv. v. Allen, 301 Or 104, 720 P2d 365 (1986); State ex rel Zidell v. Jones, 301 Or 79, 720 P2d 350 (1986).

2 See ORS 19.250(1)(c).


Rule 2.40
NOTICE OF APPEAL IN GUILTY OR NO CONTEST PLEA,
PROBATION OR SENTENCE SUSPENSION REVOCATION,
AND RESENTENCING CASES

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(2) (a) Except as provided in subsection (b) of this section, iIf, concurrently with filing a notice of appeal in a case subject to subsection (1) of this rule, the defendant has filed a motion for delayed appeal under ORS 138.071(4)(5), the defendant need not identify a colorable claim of error in the notice of appeal.

(b) Where the defendant is unable timely to file notice of appeal because of the need to identify a colorable claim of error in the case, the defendant requesting leave to file a delayed appeal under ORS 138.071(5) may do so by filing a combined notice of appeal and motion for late appeal. The document shall be entitled "Notice of Appeal; Motion -- File Late Appeal" and shall contain a statement, if true in the case, to the effect that the delay in filing the notice of appeal was attributable to the need to identify a colorable claim of error in the case. In the absence of opposition from the state filed within 14 days after filing of the combined notice of appeal and motion for delayed appeal, the motion shall be deemed to have been granted by the court.

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Rule 2.45
SUMMARY DETERMINATION OF AUTHORITY
TO DECIDE ACTION AGAINST PUBLIC BODY

(1) Referral to Court of Appeals of Question of Authority to Decide Case

(a) This subsection applies to an action or other proceeding against a public body when a circuit court or other tribunal refers the question of its legal authority to decide the case pursuant to ORS 14.165.

(b) The court or other tribunal shall:

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(ii) Transmit the referral order and the record to the Court of Appeals through the State Court Administrator, and send a copy of the referral order to each party.

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(2) Court of Appeals Determination that it is the Correct Forum

On referral of a question to the Court of Appeals under ORS 14.165(1)(b) or (3), if the Court of Appeals decides that it is the appropriate court to decide a case referred to it:

(a) The State Court Administrator will assign the case a regular appellate case number.

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(3) Transfer of Case to the Court of Appeals

(a) If the circuit court determines pursuant to ORS 14.165(1)(a) that the Court of Appeals is the court authorized by law to hear an action or proceeding against a public body and transfers the case to the Court of Appeals, the person who filed the action or proceeding must comply with ORS 14.165(8).

(b) When the person who filed the action or proceeding files a copy of the transfer order with the State Court Administrator, the Administrator will assign a case number to the case. For the purpose of determining the next event in the appellate process, the case will be deemed to have been filed in the Court of Appeals on the day of filing of a copy of the circuit court's transfer order.*

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* Regardless of the date that the case is deemed filed in the Court of Appeals for the purpose of determining the next event in the appellate process, see ORS 14.165(6) and (7) regarding determining the timeliness of the filing of the action or proceeding.

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Rule 3.07
INSPECTION OF CONFIDENTIAL AND SEALED MATERIALS,
INCLUDING PRESENTENCE REPORTS IN CRIMINAL APPEALS

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(8) The provisions of this rule apply to the extent practicable and to the extent authorized by law to any material submitted to an appellate court in the first instance when the appellate court determines that such material is not subject to inspection by a party, a party's attorney, or the public. The appellate court may designate material as not subject to inspection by a party, a party's attorney, or the public on its own motion or in response to a motion filed by any party.


Rule 3.33
PERSONS RESPONSIBLE FOR
PREPARING TRANSCRIPT

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(2) (a) When a party has designated as part of the record on appeal a transcript of oral proceedings reported by:

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(d) If the transcript coordinator has not notifed forwarded the notice of appeal to the court reporter(s) or has not forwarded the notice of appeal and a certified copy of the audio or video tape recording assigned the case to a transcriptionist before the transcript due date, the transcript coordinator shall notify the appellate court of that fact.


Rule 3.35
FORM OF TRANSCRIPT

(1) A transcript shall meet these specifications:

(a) It shall be typewritten or printed. It shall be prepared using either uniformly spaced type (such as produced by typewriters) or proportionally spaced type (such as produced by commercial printers and many computer printers). Uniformly spaced type shall not exceed 10 characters per inch (cpi). If proportionally spaced type is used, it shall not be smaller than 12 point type. Type shall be standard pica or equivalent size or, if word processing equipment is used, 12 point print, no fewer than 9 or 10 characters to the typed inch, first impression, and clear and legible. The font size shall be uniform and not vary from line to line or within the same line. Uppercase and lowercase letters shall be used according to rules of grammar; a transcript shall not be prepared using all uppercase letters.

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(2) When a transcript in excess of one volume is prepared by reducing the pages of the original transcript in such a manner as to fit up to four pages of transcript onto a single standard 8-1/2 inch x 11 inch page, the print font size and style for the original transcript shall be 14 point condensed transcript shall be substantially similar to the print font size and style in Appendix 3.35.2


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2 See ORAP 3.33(5) regarding when a transcript may be prepared in the four pages of transcript per one standard page format.


Rule 3.40
ADDITION TO OR
CORRECTION OF TRANSCRIPT

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(5) (a) If no motion to correct or add to the transcript is filed, the transcript shall be deemed settled 15 days after it is filed,3 and the period for filing the appellant's brief shall begin the next day.

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(c) If a motion to correct or add to the transcript is filed and denied, the period for filing the appellant's opening brief shall begin the day after entry of the order by the trial court administrator of the order settling the transcript.


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3 Under ORS 19.395 and ORAP 3.30(1), the appellate court, not the trial court, has the authority to grant any extension of time for the filing of transcripts or other parts of the record.


4. JUDICIAL REVIEW OF
ADMINISTRATIVE AGENCY PROCEEDINGS

A. GENERALLY

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B. JUDICIAL REVIEW OF FINAL ORDERS
OF THE LAND USE BOARD OF APPEALS (LUBA)

CERTAIN LAND USE DECISIONS


Rule 4.60
LUBA LAND USE CASES IN GENERAL

(1) As used in ORAP 4.60 to 4.74:

(a) "Agency" means the Land Use of Board of Appeals (LUBA), the Land Conservation and Development Commission (LCDC), or the Columbia River Gorge Commission (CRGC), as appropriate.

(b) "Land use case" means a final order of LUBA, an order of the LCDC concerning designation of urban reserves under ORS 195.145(1)(b) or rural reserves under ORS 195.141, or final action or order of the CRGC that is subject to expedited judicial review as provided in ORS 196.115(2)(a), as appropriate.1

(1) (2) Insofar as practicable, and except where some other procedure is provided by statute or these rules, the procedure for judicial review of final orders of the Land Use Board of Appeals (LUBA) a decision in a land use case shall be the same as for judicial review of administrative proceedings, including that the form, content, and service of the petition shall be as prescribed in ORAP 4.15.

(3) The case caption of any petition, motion, brief, or other paper filed with the court shall include the words "EXPEDITED PROCEEDING UNDER ORS _____" and identifying the statute authorizing the expedited judicial review.2

(2) (4) In a LUBA case, tThe petitioner shall establish in the petition for judicial review, by reference to the record of the local proceeding before LUBA or by petitioner's affidavit accompanying the petition, that the petitioner has constitutional statutory standing to invoke the jurisdiction of the court.1 The petitioner also shall state in the petition the basis of the petitioner's statutory standing.3


1See Just v. City of Lebanon, 193 Or App 132, 147-48, 88 P3d 312 (2004) rev allowed, 337 Or 247 (2004) (a petitioner lacks standing if the petitioner has not demonstrated that a decision of the court will have a practical effect on the petitioner's interest); see also Utsey v. Coos County, 176 Or App 524, 539-40, 32 P3d 933 (2001), rev dismissed, 335 Or 217 (2003) (a person invoking the jurisdiction of the court must establish standing by showing that a decision would have some practical effect on the person).

1 Judicial review of CRGC approval of county land use ordinances pursuant to section seven of the Columbia River Gorge National Scenic Area Act, PL 99-663, is not expedited. ORS 196.115(5).

2 E.g., ORS 197.850, ORS 197.855 (judicial review of LUBA decisions); ORS 197.651 (judicial review of LCDC orders concerning designation of urban reserves under ORS 195.145(1)(b) or rural reserves under ORS 195.141); ORS 196.115(2)-(4) (judicial review of certain CRGC final actions or orders).

3See ORS 197.850.


Rule 4.64
RECORD ON REVIEW

(1) The Land Use Board of Appeals (LUBA) agency shall transmit to the Court of Appeals the record, or the agreed portion thereof if the parties have stipulated to shorten the record, pursuant to ORS 197.850(5), in the manner and within the seven days allowed by ORS 197.850(5). as provided in subsections (a), (b), or (c) of this section, as appropriate. The record shall be accompanied by proof of service of copies of the record, except exhibits, on all other parties of record in the proceeding and on any other person required by law to be served.

(a) LUBA shall transmit the record in the manner and within the seven days allowed by ORS 197.850(5).

(b) The LCDC shall transmit the record in the manner and within the 21 days allowed by ORS 197.651(6).

(c) The CRGC shall transmit the record in the manner and within the 21 days allowed by ORS 196.115(3)(b)(A).

(2) The record shall be transmitted in a suitable cover or folder bearing on the outside the title and LUBA agency number of the case and clearly identifying it as a LUBA, LCDC, or CRGC case, as appropriate. Whenever feasible, the original record shall be transmitted. The record shall be prepared in the manner required by ORAP 3.20.

(3) After the court has issued the appellate judgment, the record will be returned to LUBA the agency, unless the court otherwise directs.


Rule 4.66
TIME FOR FILING BRIEFS

(1) On judicial review of a LUBA decision or an LCDC decision:

(a) Notwithstanding ORAP 5.80, the petitioner's opening brief and excerpt of record shall be served and filed not later than 21 days after the filing of the petition for judicial review. Failure to file the opening brief within the time allowed by this rule will result in automatic dismissal of the petition.

(2) (b) The respondent's brief shall be served and filed within 21 days after the filing of petitioner's opening brief. If the respondent fails to file a brief within the time allowed by this rule, the cause will be submitted on petitioner's brief and oral argument, and the respondent will not be allowed to argue the case.

(3) (c) No reply brief shall be permitted.

(2) On judicial review of a CRGC decision, briefing shall be completed according to the deadlines set out in ORAP 5.80.


Rule 4.67
LOCAL GOVERNMENT AND CRGC DOCUMENTS

The petitioner shall include copies of all provisions of local government documents (e.g., ordinances, plans) and CRGC documents (e.g., management plans), as applicable, pertinent to its arguments on judicial review in the excerpt of record if the provisions are part of the record or in an appendix to the petitioner's opening brief if the provisions are not part of the record.1


1 To determine whether material properly belongs in the excerpt of record or in an appendix, see ORAP 5.50 and ORAP 5.52.


Rule 4.68
CROSS-PETITIONS

(1) On judicial review of a LUBA decision or an LCDC decision:

(a) A cross-petition for judicial review, if any, shall be served and filed within seven days after the filing of the petition for judicial review.

(2) (b) A cross-petitioner's brief and excerpt of record shall be served and filed within 14 days after the filing of petitioner's opening brief and may, if appropriate, be combined with the respondent's brief. If combined with the respondent's brief, a cross-petitioner's brief shall be served and filed within 21 days after the filing of the petitioner's brief.

(3) (c) A petitioner's answering brief on cross-petition for judicial review shall be served and filed within seven days after the filing of the cross-petitioner's brief. A cross-respondent's answering brief shall be due seven days after the filing of the cross-petitioner's brief. Notwithstanding ORAP 1.35(1)(d) and (2)(b), a cross-respondent shall file and serve the cross-respondent's answering brief in such a manner as to cause actual receipt of the brief by the Administrator and by all other parties to the judicial review no later than one business day after the brief is due. If the petitioner cross-respondent fails to file an answering brief on cross-petition within the time allowed by this rule, the cross-petition will be submitted on cross-petitioner's brief and oral argument, and petitioner cross-respondent will not be allowed to argue issues raised by the cross-petition.

(4) (d) No reply brief on cross-petition shall be permitted.

(2) On judicial review of a CRGC decision, the procedure for cross-petitions shall be the same as for judicial review of administrative proceedings, and briefing on cross-petitions shall be completed according to the deadlines set out in ORAP 5.80.


Rule 4.70
NO CONTINUANCES

(1) On judicial review of a LUBA decision or an LCDC decision, Except as prescribed in ORS 197.850(7) and ORS 197.860, in the Court of Appeals, no continuance or extension shall be granted as to the time specified by statute for transmission of the record, the time specified by these rules for filing the cross-petition and the briefs, or the time set for oral argument, except as prescribed in ORS 197.850(7) and ORS 197.860 in a LUBA case or in ORS 197.651(8) in an LCDC case.

(2) On judicial review of a CRGC decision, in the Court of Appeals, no continuance or extension shall be granted as to the time specified by statute for the transmission of the record.


Rule 4.72
MOTION NOT TOLLING TIME

(1) On judicial review of a LUBA decision or an LCDC decision, a motion made before oral argument will not toll the time for transmission of the record, filing of briefs, or hearing argument.

(2) On judicial review of a CRGC decision, a motion made before oral argument will not toll the time for transmission of the record.


Rule 5.05
SPECIFICATIONS FOR BRIEFS

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(4) All briefs shall conform to these requirements:

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(f) Briefs shall be legible and capable of being read without difficulty. Briefs may be prepared using either uniformly spaced type (such as produced by typewriters) or proportionally spaced type (such as produced by commercial printers and many computer printers). Uniformly spaced type shall not exceed 10 characters per inch (cpi) for both the text of the brief and footnotes. If proportionally spaced type is used, it shall not be smaller than 13 point for both the text of the brief and footnotes the style shall be either Arial or Times New Roman and the size shall be not smaller than 13 point for both the text of the brief and footnotes. Reducing or condensing the typeface in a manner that would increase the number of words in a brief is not permitted. Briefs printed entirely or substantially in uppercase are not acceptable. All briefs shall be double-spaced with double space above and below each paragraph of quotation.

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Rule 5.10
NUMBER OF COPIES OF BRIEFS;
PROOF OF SERVICE

(1) Any party filing a brief on appeal or on judicial review in the Court of Appeals shall file with the Administrator* one brief, marked as the original, and 20 13 copies, except as provided in paragraphs (1)(a) and (1)(b) of this rule. Any party who filed a brief or briefs in the Court of Appeals shall file seven additional copies of the brief or briefs within 14 days after the date of notice from the Administrator that the Supreme Court has allowed a petition for review in the case.

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*See ORAP 1.35(1)(a) for the filing address of the Administrator.


Rule 5.20
REFERENCE TO EVIDENCE
AND EXHIBITS; CITATION OF AUTHORITIES

(1) Briefs, in referring to evidence the record, shall make appropriate reference to pages and volumes of the transcript or narrative statement, or in the case of an audio record, to the tape number and official cue or numerical counter number or, in the case of an exhibit, to its identification number or letter.

* * * * *

(3) The following abbreviations may be used:

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"AR Tape No ___, Cue No ___" for audio record;

"PAR" for pretrial audio record;

"TCF" for trial court file;

"Rec" for record in judicial review proceedings only;

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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:

(1) A statement, without argument, of tThe nature of the action or proceeding, the relief sought and, in criminal cases, the indictment or information, including citation of the applicable statute.

(2) A statement, without argument, of tThe nature of the judgment sought to be reviewed and, if trial was held, whether it was before the court or a jury.

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Rule 5.45
ASSIGNMENTS OF ERROR AND ARGUMENT

(1) A question or issue to be decided on appeal shall be raised in the form of an assignment of error, as prescribed in this rule. Assignments of error are required in all opening briefs of appellants and cross-appellants. No matter claimed as error will be considered on appeal unless the claimed of error was preserved in the lower court and is assigned as error in the opening brief in accordance with this rule, provided that the appellate court may consider an error of law apparent on the face of the record.

* * * * *

(6) Each assignment of error shall be followed by the argument. If several assignments of error present essentially the same legal question, the argument in support of them may be combined so far as practicable. The argument in support of a claimed error apparent on the face of the record shall demonstrate that the error is of the kind that may be addressed by the court without the claim of error having been preserved in the record.


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Rule 5.92
SUPPLEMENTAL PRO SE BRIEFS

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(2) The client shall attempt to prepare a supplemental pro se brief as nearly as practicable in proper appellate brief form. The brief shall identify questions or issues to be decided on appeal as assignments of error identifying precisely the legal, procedural, factual, or other ruling that is being challenged.1 The last page of the brief shall contain the name and signature of the client. Unless the court orders otherwise, the statement of the case, including the statement of facts, and the argument together shall be limited to five pages.

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1 See ORAP 5.45, which describes requirements for assignments of error and argument.


Rule 5.95
BRIEFS CONTAINING CONFIDENTIAL MATERIAL

(1) Except as provided in subsection (6) of this rule, iIf a brief contains matter that is, by statute or court order, confidential or exempt from disclosure,1 the party submitting the brief shall file two original briefs:

* * * * *

(6) Briefs in the following categories of cases are exempt from the requirements of subsections (1) to (5) this rule: adoption, juvenile dependency (including termination of parental rights), juvenile delinquency, and commitment of mentally ill and mentally deficient persons. Parties filing in the Court of Appeals briefs in those categories of cases must comply with ORAP 5.10(1) and (3) regarding the original and number of copies to be filed and served on other parties to the case.


1 See, e.g., ORS 36.222(5) regarding confidential mediation communications and agreements; ORS 135.139, ORS 433.045(3), and ORS 433.055 regarding records revealing HIV testing information; ORS 137.077 regarding presentence investigation reports; ORS 179.495 and ORS 179.505 regarding medical records maintained by state institutions; ORS 418.135 and ORS 419B.035 regarding abuse investigation records; ORS 426.160 and ORS 426.370 regarding records in mental commitment cases; and ORS 430.399(5) regarding alcohol and drug abuse records.

* * * * *


Rule 7.10
PREPARATION, FILING,
AND SERVICE OF MOTIONS

(1) A motion or a response to a motion, including a supporting memorandum, shall be on 8-1/2 x 11 inch white paper, printed or typewritten, double-spaced, and securely fastened in the upper left-hand corner with a single staple. A motion or response may be prepared using either uniformly spaced type (such as produced by typewriters) or proportionally spaced type (such as produced by commercial printers and many computer printers). Uniformly spaced type shall not exceed 10 characters per inch (cpi) for both the text of the brief and footnotes. If proportionally spaced type is used, it shall not be smaller than 13 point for both the text of the motion or response and footnotes. The motion or response shall note the names, bar numbers, addresses, and telephone numbers of counsel for all parties or names, addresses, and telephone numbers of parties appearing without counsel, either on the first page of the motion or response, on the signature page, or on the proof of service. The first page of the motion or response shall contain the following information:

* * * * *

(3) Except as otherwise provided in this rule, a (a) A moving or responding party shall file with the Administrator the original motion or response with proof of service and nine copies, if in the Supreme Court, or one copy, if in the Court of Appeals. Parties need not file copies of motions for extension of time, consolidation, permission to file reply briefs or extended briefs, appellant's motions to dismiss, or stipulated motions to dismiss. and the number of copies specified in paragraph (3)(b) of this rule.

(b) (i) Except as provided in subparagraph (3)(b)(iii) of this rule, nine copies of a motion or response shall be filed in the Supreme Court;

(ii) Except as provided in subparagraph (3)(b)(iii) of this rule, one copy of a motion or response shall be filed in the Court of Appeals;

(iii) Parties need not file copies of motions for extension of time, consolidation, permission to file reply briefs or extended briefs, appellant's motions to dismiss, or stipulated motions to dismiss.

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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, except that such notice need not be given to a person confined in a state institution and not represented by counsel; 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.

* * * * *


Rule 7.45
APPELLANT'S MOTION TO DISMISS OWN APPEAL
MOTIONS ARISING FROM SETTLEMENT, MEDIATION, OR ARBITRATION

(1) If a party moves files a motion to dismiss an appeal filed by that party, the motion shall state whether the dismissal is the result of a negotiated settlement or compromise of the matter.

(2) If a party files a motion to dismiss or to determine jurisdiction arising from an arbitration or mediation required or offered by a court, or files a response to such a motion, the caption of the motion shall so state.


Rule 8.15
AMICUS CURIAE

* * * * *

(6) If a party obtains an extension of time to file a petition for review, the amicus curiae application shall be filed within 14 days of the new deadline for the petition for review. If a party obtains an extension of time to file a response to a petition for review or a brief on the merits and if an amicus curiae brief was due on the same date as the petition, response or brief on the merits, the time for filing the amicus curiae brief is automatically extended to the same date.

* * * * *


Rule 8.28
MODIFIED, AMENDED,
CORRECTED, SUPPLEMENTAL, 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 corrected or supplemental 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 corrected or supplemental judgment on motion of a party or on its own motion, a party wishing to appeal the modified, corrected, or amended corrected or supplemental judgment shall file an amended 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. The amended notice of appeal shall state when the party received notice of entry of the corrected or supplemental judgment.

(b) If the trial court enters a modified, corrected or amended corrected or supplemental judgment and the appellant does not wish to appeal the judgment no longer wishes to pursue the original appeal, the appellant shall file a motion to dismiss the appeal.

(c) If the trial court denies a motion to modify, correct, or amend a for entry of a corrected or supplemental 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 corrected or supplemental 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, e.g., a motion in the trial court under ORS 138.083(1) for entry of a modified corrected 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 supplemental judgment specifying the amount of restitution to be paid by the defendant; and a motion for entry of a modified corrected judgment under ORS 137.754.


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

* * * * *

(3) Form and Service of Petition for Review

(a) The petition shall be in the form of a brief, prepared in conformity with ORAP 5.05, except that the petition shall not exceed 15 pages in length, and ORAP 5.35. The cover of the petition shall:

* * * * *

(vii) Comply with the requirements in ORAP 5.95 governing briefs containing confidential material.

* * * * *


Rule 9.10
RESPONSE TO PETITION FOR REVIEW

(1) A party to an appeal or judicial review in the Court of Appeals may, but need not, file a response to a petition for review. The response may include the party's contingent request for review of any question properly before the Court of Appeals in the event that the court grants the petition for review. In the absence of a response, the party's brief in the Court of Appeals will be considered as the response.

* * * * *


Rule 9.17
BRIEFS ON THE MERITS ON REVIEW

* * * * *

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

* * * * *

(c) The brief on the merits of the petitioner on review shall conform to ORAP 5.05, ORAP 5.35, ORAP 5.95, and ORAP 9.05(2), except that the cover of the brief shall be white.

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

* * * * *

(c) The brief on the merits of respondent on review shall conform to ORAP 5.05, ORAP 5.95, and ORAP 5.35, except that the cover of a brief shall be tan.

* * * * *

(5) Any party filing a brief on the merits, including any intervenor and any person who has been granted permission to appear amicus curiae, shall submit a copy of the brief on review in electronic form in addition to complying with the filing and service requirements in subsection (4).1 A person confined in a state institution and not represented by counsel who is filing a brief on the merits is exempt from the requirements of this subsection. Any party who lacks the technological capability to comply with this subsection may file a motion to be relieved from the requirements of this subsection at the same time that the party files its brief on the merits.

(a) The filing party shall submit the electronic form of the brief on the merits in Portable Document Format (PDF) configured at a resolution of 300 dpi and attach the electronic form of the brief to an e-mail sent to briefs@ojd.state.or.us. The subject line of the e-mail shall contain the case title and Supreme Court case number as assigned by the Administrator in substantially the following format: "Doe v. Smith, SC ______." The e-mail address is to be used for the purpose of submitting an electronic brief on the merits only. The Administrator will not respond to any e-mail sent to this address. Submission of any document by e-mail to this address will not constitute compliance with any other filing, service, or submission requirement of these rules.

(b) The electronic form of the brief on the merits shall be identical in content and format to the printed form of the brief. The filing party shall include in the electronic form of the brief on the merits the excerpt of record and appendices to the brief unless the filing party lacks the technological capability to convert the excerpt of record or appendices into electronic form. A party who submits an electronic version of a brief on the merits without the excerpt of record or appendices shall inform the court in the body of the transmittal e-mail that the party lacks the technological capability to convert the excerpt of record or appendices into electronic form.

(c) Except as provided in ORAP 5.95(6), if a brief on the merits contains material that is, by statute, rule, or court order, confidential or exempt from disclosure, the filing party shall provide both a redacted version and an unredacted version in separate attachments.2 The filing party should name the attachments so as to allow easy identification of each version.

(d) The filing party shall submit the electronic form of the brief on the merits via e-mail on the same day that the filing party mails or delivers the brief to the Administrator.

(e) The filing party shall certify that the e-mail attachment containing the electronic form of the brief on the merits has been scanned for viruses and that it is virus-free.


1 As needed, the court will post additional information regarding this subsection on the Judicial Department's website, www.ojd.state.or.us. In the menu bar, select "COURTS." On the Oregon Courts page, select "Supreme Court." On the Supreme Court page, select "E-mail Copies of Merits Briefs."

2 See ORAP 5.95.


Rule 9.25
RECONSIDERATION IN SUPREME COURT

(1) A party seeking reconsideration of a decision of the Supreme Court shall file a petition for reconsideration within 14 days from the date of the decision. The petition shall be in the form of a brief, prepared in conformity with ORAP 5.05 and ORAP 5.95, insofar as it is they are applicable. The petition shall include a copy of the court's decision. A petitioner shall identify on the cover which party is the petitioner, the date of the decision, and, if there is an opinion or if there are opinions, the judges who joined therein.

* * * * *


Rule 9.30
AUTHORITY OF COURT OF APPEALS
TO DECIDE ANCILLARY MATTERS
AFTER PETITION FOR REVIEW FILED

AUTHORITY OVER MATTERS, INCLUDING
MOTIONS, WHEN CASE IS PENDING
IN THE SUPREME COURT

(1) Except as provided in subsection (2) of this rule, the Court of Appeals retains jurisdiction over an appeal filed in that court until the appellate judgment issues.1

(2) If a petition for review of a decision of the Court of Appeals is filed, the Court of Appeals shall retain jurisdiction over the case until the later of these two events occurs: The time for filing a petition for reconsideration pursuant to ORAP 6.25 expires or, if a timely petition for reconsideration is filed, the Court of Appeals disposes of the petition for reconsideration. Thereafter, the case is considered pending in the Supreme Court until it finally disposes of any petition for review. In the event a dispute arises concerning which court should rule on a motion filed after a petition for review is filed, the Chief Justice of the Supreme Court and the Chief Judge of the Court of Appeals may confer and decide which court will rule on the motion.

(3) The Court of Appeals shall retain jurisdiction to decide claims for attorney fees, costs and disbursements, and damages2 in a case, notwithstanding that the case is pending in the Supreme Court.

(4) If a party petitions for review of any action of the Court of Appeals other than a decision that disposes of an appeal, in its discretion the Court of Appeals may proceed with the case.

(1) The Supreme Court has authority to decide matters, including motions, if the case is pending in that court. For purposes of this rule, a case is pending in the Supreme Court in the following circumstances:

(a) If a petition for review is filed, until the Supreme Court finally disposes of the review proceeding;

(b) If a motion for an extension of time to file a petition for review is filed, until the Supreme Court denies the motion or, if the Supreme Court allows the motion, until the time for filing the petition for review expires;

(c) If a motion to hold a case in abeyance pending disposition of another case in the Supreme Court is filed, until the Supreme Court denies the motion or, if the Supreme Court grants the motion, until the abeyance period expires.

(2) The Court of Appeals has authority to decide matters, including motions, in an appeal that was filed in that court in the following circumstances:

(a) If the case is not pending in the Supreme Court, until the appellate judgment issues.1

(b) If the case is pending in the Supreme Court, until the later of these two events occurs: (1) the time for filing a petition for reconsideration pursuant to ORAP 6.25 expires or (2) if a timely petition for reconsideration is filed, the date the Court of Appeals disposes of the petition for reconsideration.

(c) In connection with claims for attorney fees, costs and disbursements, and damages2 in connection with the proceedings in the Court of Appeals, until the appellate judgment issues, notwithstanding that the case is pending in the Supreme Court.

(d) If a case is pending in the Supreme Court as to any action of the Court of Appeals that does not dispose of an appeal, until the appellate judgment issues. In these circumstances, the Court of Appeals, in its discretion, may proceed with the case or await disposition by the Supreme Court.

(3) Motions should not be filed simultaneously in both the Supreme Court and Court of Appeals. If either the Supreme Court or Court of Appeals receives a motion that it determines should have been filed in the other court, it shall transfer the motion to the other court. In the event a dispute arises concerning which court should rule on a motion, the Chief Justice of the Supreme Court and the Chief Judge of the Court of Appeals may confer and decide which court will rule on the motion.


1 See ORS 19.270, ORS 19.450, and ORAP 14.05.

2 See, e.g., ORS 19.445 and ORS 20.105.


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

* * * * *

(6) To accept a certification, a majority of the judges of the Supreme Court considering the certification must vote in favor of acceptance. The court shall file an order accepting or denying the certification within 20 days after the date of receiving the certification, except that the court, by order entered within that 20-day period, may extend by not more than 20 10 days the time for acceptance or denial of the certified appeal. If the court does not file an order accepting or denying the certification within that time, the certification is deemed denied. If the court accepts or denies a certification by written order, the Administrator shall send a copy of the order to the parties and to the Court of Appeals.

* * * * *


Rule 10.15
JUVENILE DEPENDENCY AND ADOPTION CASES

* * * * *

(3) (a) Within seven days after filing the notice of appeal or appointment of counsel on appeal, whichever is later, appellant shall make arrangements for preparation of the transcript. If appellant is indigent, appellant shall make arrangements for preparation of the transcript by causing an order for preparation of the transcript at state expense to be served on the transcript coordinator.

* * * * *

(c) In a disposition proceeding pursuant to ORS 419B.325, a dispositional review proceeding pursuant to ORS 419B.449, a permanency proceeding pursuant to ORS 419B.470 to 419B.476, or a termination of parental rights proceeding, respecting the record of oral proceedings in the trial court, the appellant shall designate as part of the record on appeal only the transcripts of the permanency or termination of parental rights proceedings of the proceedings and exhibits in the proceeding. The appellant or respondent may move to include as part of the record on appeal a transcript of a hearing that preceded the permanency or termination of parental rights proceeding an earlier proceeding or exhibits in an earlier proceeding based only only based on a showing that the trial judge took judicial notice of or otherwise considered the record of the earlier hearing proceeding in the course of deciding the disposition, dispositional review, permanency, or termination of parental rights proceeding.

* * * * *

Rule 10.25

EXPEDITED APPEAL OF CERTAIN PRETRIAL
ORDERS IN CRIMINAL CASES

(1) On appeal by the state under ORS 138.060(2) from an order made before trial in a criminal case dismissing or setting aside the accusatory instrument or suppressing evidence:

(a) The case caption of any brief, motion, petition, or other paper filed with the court shall include the words "EXPEDITED APPEAL UNDER ORS _____" and identifying the statute authorizing the expedited appeal.

(b) Appellant's brief shall be due 35 days after the transcript settles. Failure to file the opening brief within the prescribed time will result in automatic dismissal of the appeal.

(c) Respondent's brief shall be due 35 days after appellant's brief is served and filed. If respondent fails to file a brief within the prescribed time, the appeal will be submitted on appellant's brief and oral argument, and respondent will not be allowed to argue the case.

(2) In all cases subject to this rule:

(a) Absent extraordinary circumstances, the court will not grant an extension of time or reschedule oral argument.

(b) A motion made before oral argument will not toll the time for transmitting the record, filing briefs, or hearing oral argument.


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.

(2) Except as otherwise provided in this rule, a petition for writ of mandamus shall comply as to form with ORAP 5.05(4)(c) through (h). The petition shall also include, in addition to any matters required by law:

(a) A title page including 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.

(i) 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.1

(b) (ii) In any other mandamus proceeding,2 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

(b) On the title page, relator shall include the name, bar number, mailing address, and telephone number of the attorney for the relator, as well as the same information for all adverse parties or defendants. If any party is not represented by an attorney, the title page shall include the party's name, mailing address, and telephone number.

(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" or "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."4

(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 an administrative agency, the title page also shall contain the name, bar number, mailing address, and telephone number of the attorney for the adverse party in the matter below.

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

(4) (c) A statement in support of the petition, containing In addition to any matters required by law, the petition shall contain:

(a) (i) A concise but complete statement of facts material to a determination of the question or questions presented and the relief sought;

(b) (ii) A statement why the petition is timely.54

(c) (iii) A statement why application was not made to the circuit court for relief; and

(d) (iv) 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.65

(d) Proof of service as follows:

(7) (a) (i) 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) (ii) 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.

(c) (iii) If the state, a state officer, or a state agency is a party to the case, proceeding, or controversy from which the mandamus proceeding arises, the relator shall include proof of service on the Attorney General.76

(8) (e) If the relator seeks a stay in the proceedings from which the mandamus proceeding arises, the caption shall indicate "STAY REQUESTED," and the relator shall show, in the statement in support of the petition, that the relator requested a stay from the court, judge, or administrative agency or official whose order or 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. If the relator seeks to have the Supreme Court stay the proceedings from which the mandamus proceeding arises, the relator shall file a motion pursuant to chapter 7 of the Oregon Rules of Appellate Procedure.

(f) If the mandamus proceeding challenges a written order or decision, a copy of the order or decision shall be attached to the petition.

(5) (3) 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.

(c) (a) With a A memorandum of law with supporting arguments and citations. The form of the memorandum shall comply with ORAP 7.10(1) and (2).

(b) If the mandamus proceeding arises from a matter in which a record has been made, relator shall assemble an excerpt of record, prepared in compliance with ORAP 5.50(6)(a), (b), and (c), containing such portions An excerpt of such parts 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.

(d) (c) In a mandamus proceeding that challenges the action of the Court of Appeals, the Tax Court, or a judge in a particular case in the circuit court, the relator need not accompany the petition with a proposed form of writ of mandamus; in any other mandamus proceeding, the relator shall do so.

(4) (a) 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."7

(b) If no record was made below, the petition, memorandum, and other supporting material may be submitted as a single document.

(c) If a record was made in the matter from which the mandamus proceeding has arisen, relator shall assemble and submit the petition, the memorandum in support of the petition, and the excerpt of record as separate documents.

(d) The original and nine copies of the petition and accompanying documents shall be filed with the Administrator. If the excerpt of record is more than 50 pages, relator need file only two copies of the excerpt of record.

(6) The form of a petition shall comply with ORAP 5.05(4)(c) through (h). Relator shall assemble and submit the petition, the record (if a record was made in the matter from which the mandamus proceeding has arisen), and the memorandum in support of the petition as separate documents, and file the original and nine copies with the Administrator. The excerpt of record shall be prepared in compliance with ORAP 5.50(6)(a), (b), and (c). If the excerpt of record is more than 50 pages, relator need file only two copies of the record.


1 See Illustration 1a in Appendix 11.05.

2 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.

3 See Illustrations 2 and 3 in Appendix 11.05.

4 See Illustration 1b in Appendix 11.05.

54 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.

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

76 See footnote 1 to ORAP 1.35 for the service address of the Attorney General.

7 See Illustration 1b in Appendix 11.05.

* * * * *


Rule 11.15
MANDAMUS:
BRIEFS AND ORAL ARGUMENT

* * * * *

(4) All briefs shall be prepared in substantial conformity with ORAP 5.35 through 5.50. An original brief, plus 15 copies, shall be filed with the Administrator with proof of service showing that two copies were served on each party. Parties shall also submit briefs in electronic form as outlined in ORAP 9.17(5).

* * * * *


Rule 11.25
BAR ADMISSION, REINSTATEMENT,
AND DISCIPLINARY PROCEEDINGS

* * * * *

(2) (a) A petition concerning a disciplinary proceeding, a bar applicant's contested admission or a former member's contested reinstatement shall be filed with the Administrator, together with an opening brief, with proof of service on all parties, within 28 days after written notice to the Bar's Disciplinary Counsel and the parties of the court's receipt of the record of the proceedings before the trial panel under Oregon State Bar Rule of Procedure (BR) 10.5(a) or the Board of Bar Examiners under Rule for Admission 9.60(1). An answering brief shall be due 28 days after filing of the opening brief. A reply brief, if any, shall be due 14 days after filing of the answering brief.

(b) A brief in any of the proceedings named in this rule shall conform to ORAP 5.05, ORAP 5.10, and ORAP 5.35, and ORAP 9.17(5), except that no excerpt of record is required, and shall show proof of service on all parties to that proceeding. The Bar shall be served by service on the Bar's Disciplinary Counsel.

* * * * *


Rule 11.35
REAPPORTIONMENT REVIEW

* * * * *

(9) Any brief in support of or in opposition to a petition, insofar as practicable, shall be filed in form and in numbers of copies as a brief on appeal in a civil action under these rules. Parties shall also submit briefs in electronic form as outlined in ORAP 9.17(5).

* * * * *


Rule 12.05
DIRECT APPEAL OR JUDICIAL

REVIEW IN THE SUPREME COURT

(1) Where a statute authorizes a direct appeal from a court of law to the Supreme Court,1 except as otherwise provided by statute or by rule of appellate procedure, the appeal shall be taken in the manner prescribed in the rules of appellate procedure relating to appeals generally, including submission of briefs in electronic form as outlined in ORAP 9.17(5).

* * * * *


1 See, e.g., ORS 305.445 (tax court judgments and orders), ORS 662.120 (injunctions in labor dispute cases), and ORS 138.060(2) (certain pretrial orders in murder and aggravated murder cases).

* * * * *


Rule 12.10
AUTOMATIC REVIEW IN
DEATH SENTENCE CASES

* * * * *

(5) (a) Service of a copy of the packet on the transcript coordinator shall be deemed to be authorization for the transcript coordinator to arrange for preparation of a transcript of all parts of the criminal proceeding, including all pretrial hearings but excluding and selection of the jury.

(b) 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.

(c) (b) A transcript shall meet the specifications of ORAP 3.35

(d) (c) A transcript shall be filed within 60 days of the date the packet is served on the transcript coordinator. 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.

(e) (d) Transcripts shall be settled in the same manner as on an appeal pursuant to ORS 138.185 and ORS 19.370, except that a first extension of time of 30 days to file a motion to correct the transcript or add to the record will be deemed granted if, within 15 days after the transcript is filed, a party files a notice of need for additional time to file such a motion.


Rule 12.20
CERTIFICATION OF QUESTION OF LAW TO
SUPREME COURT BY FEDERAL COURTS
AND OTHER STATE COURTS

* * * * *

(5) (a) If the court accepts certification of a question of law, the parties to the certified question shall attempt to agree on a designation of the part of the record of the certifying court necessary to a determination of the question. If the parties are unable to agree on a designation of record, each party may file a separate designation of record.

* * * * *

(c) On receipt of a stipulated designation or separate designations of record, the Administrator shall request from the trial court administrator of the certifying court the part or parts of the record as designated, and any parts of the record that the Supreme Court determines may be necessary in answering the certified question(s). The Administrator and shall serve a copy of the request on the parties.

(6) (a) Unless otherwise ordered by the Supreme Court, the certified question of law shall be briefed by the parties. The proponent of the question certified to the court shall file the opening brief and any other party may file an answering brief. If the nature of the question is such that no party is the proponent of the question, the plaintiff or appellant shall file the opening brief and the defendant, respondent, or appellee shall file the answering brief.

* * * * *

(c) As nearly as practicable, briefs shall be prepared as provided in ORAP 5.05 through 5.50, except that in lieu of assignments of error, the brief shall address each certified question accepted by the court, and only the original and 15 copies of the brief need be filed. Parties shall also submit briefs in electronic form as outlined in ORAP 9.17(5).

* * * * *


Rule 14.05
APPELLATE JUDGMENT

* * * * *

(4) (a) The money judgment award part of an appellate judgment for costs, attorney fees, or both, in favor of a party other than the Judicial Department that has been entered in the judgment docket of a circuit court may be satisfied in the circuit court in the manner prescribed in ORS 18.225 to 18.238, or other applicable law.

(b) The money judgment award part of an appellate judgment for an unpaid filing fee or other costs in favor of the Judicial Department shall be satisfied as follows. Upon presentation to the Administrator of sufficient evidence that the amount of the money judgment has been paid:

(i) The Administrator shall note the fact of payment in the appellate court case register; and

(ii) If requested by the party and upon payment of the certification fee, the Administrator shall issue a certificate showing the fact of satisfaction of the money judgment award. As requested by the party, the Administrator shall issue a certificate to the party, to the court or administrative agency to which a copy of the appellate judgment was sent, or to both.


* * * * *


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 of the appellate judgment pending the filing of and on an appeal or petition for a writ of certiorari to the Supreme Court of the United States:

* * * * *

(2) The motion shall be addressed to and acted upon by the Oregon Supreme Court when the decision of that court decides a case, including when the Supreme Court has allowed the petition and vacated and remanded for further proceedings. and when the Supreme Court has denied review but granted a stay pending a decision on a petition for review.


* * * * *


Rule 15.05
APPELLATE SETTLEMENT
CONFERENCE PROGRAM

(1) Cases Subject

(a) The procedures in this rule apply to cases filed in the Court of Appeals. The Chief Judge or the Chief Judge's designee shall determine the individual cases or categories of cases that may be included or excluded from the appellate settlement conference program (program). Upon the court's own motion, at any time, a panel of the Court of Appeals may refer a case to the program.

(b) (i) A settlement conference shall be held for any case assigned to the program the program director or the court cancels the conference or removes the case from the program. A party or person with actual authority to settle the case must be present at the program settlement conference unless that person's absence or appearance by telephone is approved prior to the conference by the program director. If the absence is approved, a person with authority to recommend settlement must be present.

* * * * *

(4) Abeyance of Appeal

(a) (i) On assignment of a case to the program, the court will hold preparation of the transcript (including correcting it or adding to it), and preparation of the record, and briefing in abeyance for a period of 120 days from the date of the notice of assignment of the case to the program. 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 Oregon Rules of Appellate Procedure must file an appropriate motion with the court.1

* * * * *


1 See ORAP 3.40 regarding the due date of a motion to correct a transcript filed while an appeal is being held in abeyance pending mediation under this rule.


APPENDIX 2.05
Illustration for ORAP 2.05


IN THE COURT OF APPEALS OF THE
STATE OF OREGON


_____________________________,
Plaintiff-Appellant,
(or Plaintiff-Respondent)

v.

______________________________,
Defendant-Respondent.
(or Defendant-Appellant)
  )  
  )  
  )  
  )  
  )  
  )  
  )  
  )  
  )  
________ County Circuit
Court No. ______________




NOTICE OF APPEAL

* * * * *

10.

CERTIFICATE OF FILING

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

State Appellate Court Administrator
Appellate Court Records Section
1163 State Street
Salem, Oregon 97301-2563

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 3.33
Illustration for ORAP 3.33 and ORS 19.370(1)


IN THE COURT OF APPEALS OF THE
STATE OF OREGON


_______________________,
Plaintiff-Appellant,
(or Plaintiff-Respondent)

v.

_______________________________,
Defendant-Respondent.
(or Defendant-Appellant)
  )  
  )  
  )  
  )  
  )  
  )  
  )  
  )  
  )  
________ County Circuit
Court No. _________________


CA A ____________________

CERTIFICATE OF PREPARATION, FILING, AND SERVICE

I certify that I prepared:

All of the transcript designated as part of the record for this appeal. [or]

These portions of the transcript designated as part of the record for this appeal: ____________________________.

Other portions of the record were reported by _______________________.

I certify that the original of the transcript or portion thereof prepared by me, consisting of _____ volumes, and a copy of this Certificate were filed with the trial court administrator on      [date]     .

I certify that the original of this Certificate was mailed to the State Appellate Court Administrator on      [date]     .

I certify that on      [date]      a copy of the transcript or portion thereof prepared by me and a copy of this Certificate were served by (U.S. mail/personal service) on:

[name and address of each person served]

Material served by mail was deposited in the U.S. Postal Service facility at ___________________________ in a sealed envelope, addressed as shown above, with postage fully prepaid thereon.

     [date]     

_______________________
Court Reporter



APPENDIX 3.35 - PDF format

Appendix 3.35


APPENDIX 4.15-1
Illustration for ORAP 4.15
(Other than Workers' Compensation Case)


IN THE COURT OF APPEALS OF THE
STATE OF OREGON


[The title should be set up,
to the extent possible, as
it was before the agency,
showing the parties
with their appropriate
appellate disignations]
  )  
  )  
  )  
  )  
  )  
  )  
  )  
  )  
  )  
     Agency Name     

No. _________________





CA A ____________________

PETITION FOR JUDICIAL REVIEW

* * * * *

CERTIFICATE OF FILING

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

State Appellate Court Administrator
Appellate Court Records Section
1163 State Street
Salem, Oregon 97301-2563

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 petitioner or attorney]

_____________________________________
[Typed or printed name of petitioner or attorney]


APPENDIX 4.15-2
Illustration for ORAP 4.15
(Workers' Compensation Case)


IN THE COURT OF APPEALS OF THE
STATE OF OREGON


In the Matter of
the Compensation of
__________________, Claimant.

__________________________,
Petitioner,

v.

__________________________,
Respondent.
  )  
  )  
  )  
  )  
  )  
  )  
  )  
  )  
  )  


WCB Case No. _____________



CA A ____________________

PETITION FOR JUDICIAL
REVIEW OF ORDER OF THE
WORKERS' COMPENSATION BOARD

* * * * *

CERTIFICATE OF FILING

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

Appellate State Court Administrator
Appellate Court Records Section
1163 State Street
Salem, Oregon 97301-2563

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 petitioner or attorney]

_____________________________________
[Typed or printed name of petitioner or attorney]


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