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
  )  
  )  
  )  
Chief Justice Order 10-032
Chief Judge Order 10-03

ORDER ADOPTING TEMPORARY AMENDMENTS
TO THE OREGON RULES OF APPELLATE PROCEDURE

Pursuant to Oregon Rule of Appellate Procedure 1.10(2), the Supreme Court and Court of Appeals may, from time to time, adopt temporary rules and temporary amendments to the Oregon Rules of Appellate Procedure.  The Supreme Court and Court of Appeals by this order adopt temporary amendments to Oregon Rules of Appellate Procedure 5.05, 9.05, 9.10, and 12.10 and adopt temporary new Appendix 5.05-2.  The amendments are set out below with additions indicated in boldface and deletions indicated in strikeout.  The new appendix is set out below in boldface.  The amendments and appendix adopted by this order are effective July 1, 2010, and apply to all cases filed on or after July 1, 2010.  The amendments adopted by this order shall expire on December 31, 2010, if not previously adopted as permanent amendments.

Please note:  Proposed permanent amendments to Oregon Rules of Appellate Procedure 9.05 and 9.10 would make petitions for review and responses to them subject to word count limitations similar to those contained in the present temporary amendment to Oregon Rule of Appellate Procedure 5.05.  Those proposed amendments, if adopted, will become effective on January 1, 2011.


Rule 5.05
SPECIFICATIONS FOR BRIEFS

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(2) (a) No opening, answering, or combined brief shall exceed 50 pages.1 That limitation does not include the index, excerpt of record, or appendix. Except as provided in paragraph (2)(c) of this subsection, an opening, answering, combined, or reply brief shall comply with the word-count limitation in paragraph (2)(b) of this subsection.1  Headings, footnotes, and quoted material count toward the word-count limitation.  The index of contents and appendices, index of authorities referred to, excerpt of record, appendices, certificate of service, and any other certificates do not count toward the word-count limitation. 

(b) (i) In the Supreme Court, no opening, answering, or combined brief shall exceed 14,000 words and no reply brief shall exceed 4,000 words.

(ii) In the Court of Appeals, no opening, answering, or combined brief shall exceed 10,000 words and no reply brief shall exceed 3,300 words.

(c) When a party is unable to determine if a brief complies with the word-count limitation as provided in paragraph (2)(b) of this subsection,  in the Supreme Court, an opening, answering, or combined brief is acceptable if it does not exceed 50 pages, and a reply brief is acceptable if it does not exceed 15 pages; in the Court of Appeals, an opening, answering, or combined brief is acceptable if it does not exceed 35 pages, and a reply brief is acceptable if it does not exceed 10 pages.

(d) An attorney or unrepresented party shall include at the end of each brief a certificate in the form illustrated in Appendix 5.05-2 that:

(i)  The brief complies with the word-count limitation in paragraph (2)(b) of this subsection by indicating the number of words in the brief.  The person preparing the certificate may rely on the word count of the word-processing system used to prepare the brief.  If the attorney, or an unrepresented party, does not have access to a word-processing system that provides a word count, the certificate shall indicate that the attorney, or unrepresented party, is unable to determine if the brief complies with the word-count limitation.

(ii) If proportionally spaced type is used, the size is not smaller than 14 point for both the text of the brief and footnotes.

(b) (e) A party's excerpt of record or appendix or combined excerpt of record and appendix shall not exceed 50 pages.

(c)  No reply brief shall exceed 15 pages.

(d) (f) Unless the court orders otherwise, no supplemental brief shall exceed five pages.

(3) (a) On motion of a party stating a specific reason for exceeding the prescribed limit, the court may permit the filing of a brief, an excerpt of record, an appendix, or a combined excerpt of record and appendix exceeding the limits prescribed in subsection (2) of this rule or prescribed by order of the court. A party filing a motion under this subsection shall make every reasonable effort to file the motion not less than seven days before the brief is due.  The court may deny an untimely motion under this paragraph on the ground that the party failed to make a reasonable effort to file the motion timely.

(b) If the court grants permission for a longer excerpt of record, appendix, or combined excerpt of record and appendix, the excerpt of record, appendix, or combined excerpt of record and appendix shall be printed on both sides of each page and shall be plastic spiral bound separately from the brief.2

(4) All briefs shall conform to these requirements:

* * * * *

(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, the style shall be either Arial or Times New Roman and the size shall be not smaller than 13 14 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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1 Briefs to which this restriction applies include, but are not limited to, a combined respondent's answering/cross-appellant's opening brief, a combined appellant's reply/cross-respondent's answering brief, and a brief that includes an answer to a cross-assignment of error.

2 See ORAP 5.50 regarding the excerpt of record generally.

* * * * *

See Appendix 5.05-1.


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

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(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. Notwithstanding the type size requirement of ORAP 5.05(4)(f), a 13-point or 14-point proportionally spaced type is acceptable.  If the type used is 13 point, the petition is limited to 15 pages; if the type used is 14 point, the petition is limited to 18 pages.  The petition need not include the certification otherwise required by ORAP 5.05(2)(d).  The cover of the petition shall:

(i)  Identify which party is the petitioner on review, 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.

(ii) Identify which party is the respondent on review.

(iii)  Identify the date of the decision of the Court of Appeals.

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

(A)  If by opinion, the author of the challenged opinion and the other members of the court who concurred in or dissented from the court's decision;

(B)  If by per curiam opinion, affirmance without opinion, or by order, the members of the court who decided the case.3

(v) Contain a notice whether, if review is allowed, the petitioner on review 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.4

(vi)  For a case expedited under ORAP 10.15, prominently display the words “JUVENILE DEPENDENCY CASE EXPEDITED UNDER ORAP 10.15,” “TERMINATION OF PARENTAL RIGHTS CASE EXPEDITED UNDER ORAP 10.15,” or “ADOPTION CASE EXPEDITED UNDER ORAP 10.15,” as appropriate.

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

* * * * *


Rule 9.10
RESPONSE TO PETITION FOR REVIEW

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(3) A response shall be in the form of a brief prepared in conformity with ORAP 5.05, except that the response shall not exceed 15 pages in length, and ORAP 5.35.  Notwithstanding the type size requirement of ORAP 5.05(4)(f), a 13-point or 14-point proportionally spaced type is acceptable.  If the type used is 13 point, the response is limited to 15 pages; if the type used is 14 point, the response is limited to 18 pages.  The response need not include the certification otherwise required by ORAP 5.05(2)(d).  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 12 copies, serve two copies of the response on every other party to the review, and file proof of service.


Rule 12.10
AUTOMATIC REVIEW IN DEATH SENTENCE CASES

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(6) (a) If the defendant desires to file an opening brief, the brief is due 180 days after the transcript is settled.

(b) If the state desires to file an answering brief, the brief is due:

(i)  When the defendant does not desire to file an opening brief, 180 days after the transcript is settled.

(ii) When the defendant files an opening brief, 180 days after the defendant serves and files the defendant’s opening brief.

(c) If the defendant has filed an opening brief, the defendant may file a reply brief, which shall be due 90 days after the state serves and files its answering brief.

(d) Specifications for briefs shall be those set forth in ORAP 5.05, except that the maximum length of a brief without obtaining leave of the court for a longer brief is 28,000 words or, if the certification under ORAP 5.05(2)(d) certifies that the preparer does not have access to a word processing system that provides a word count, 100 pages.

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APPENDIX 5.05-2
Illustration for ORAP 5.05(2)(d)

[a certificate in the form below shall be attached
to each opening, answering,
combined, or reply brief;
this certificate shall immediately precede or
be on the same page as the certificate of service]

CERTIFICATE OF COMPLIANCE
WITH ORAP 5.05(2)(d)

Brief length

I certify that (1) this brief complies with the word-count limitation in ORAP 5.05(2)(b) and (2) the word-count of this brief (as described in ORAP 5.05(2)(a)) is _____ words.

[OR]

I certify that (1) I do not have access to a word-processing system that provides a word count; (2) I am unable to determine if this brief complies with the word-count limitation as provided in ORAP 5.05(2)(b); (3) this brief complies with the page limitation in ORAP 5.05(2)(c); and (4) the number of pages in this brief is _____ pages. 

Type size

[exclude if brief is prepared using uniformly spaced type]

I certify that the size of the type in this brief is not smaller than 14 point for both the text of the brief and footnotes as required by ORAP 5.05(4)(f). 

________________________________________
[Signature of attorney or unrepresented party]

___________________________________________________
[Typed or printed name of attorney or unrepresented party] 



DATED this 26th day of May, 2010.
Paul J. De Muniz, Chief Justice


DATED this 27th day of May, 2010.
David V. Brewer, Chief Judge


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