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 Temporary
Amendments to Rules of Appellate
Procedure 4.35, 8.10, and 12.05, and the
Adoption of Temporary New Rules 2.22,
2.40, 2.45, 5.92, 8.12, 12.07, and 12.25.
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Chief Justice Order No. 02-014
Chief Judge Order

ORDER ADOPTING TEMPORARY
AMENDMENTS AND NEW RULES

By order dated January 29, 1990, as modified by amended order dated February 2, 2000, the Supreme Court and Court of Appeals have prescribed a procedure for adopting amendments to the Oregon Rules of Appellate Procedure. That procedure requires that proposed amendments be published in the Oregon Appellate Courts Advance Sheets and a 49-day public comment period. However, the procedure also provides that the appellate courts may adopt temporary amendments without prior publication in the Advance Sheets and without opportunity for public comment, if the Supreme Court and Court of Appeals find that special circumstances justify adopting the temporary amendments.

The Supreme Court and the Court of Appeals find that special circumstances justify adopting temporary amendments to existing Rules 4.35, 8.10, and 12.05, and adopting temporary new Rules 2.22, 2.40, 2.45, 5.92, 8.12, 12.07, and 12.25, without prior publication in the Advance Sheets and without opportunity for public comment in that the 2001 Oregon Legislative Assembly adopted legislation effective on or before January 1, 2002, that alters existing law and requires conforming or implementing changes to the Oregon Rules of Appellate Procedure.

Respecting temporary amendments to existing rules, material being deleted is bracketed and in italic and lined-out print; material being added is shown in bold print. Temporary new rules are shown entirely in bold print.


January 11, 2002
 
    Wallace P. Carson, Jr.
Chief Justice
January 11, 2002
 
    Mary J. Deits
Chief Judge



TEMPORARY NEW RULE 2.22
SPECIAL APPEALS IN JUVENILE CASES

(1) If an appeal is pending from an order or judgment of a juvenile court, the juvenile court enters a subsequent appealable order or judgment, and a party to the juvenile court cases wishes to appeal from the subsequent order or judgment :

(a) If the party who wishes to appeal is the appellant in the pending appeal, the appellant shall serve and file an amended notice of appeal from the subsequent order or judgment.

(b) If the party who wishes to appeal is the cross-appellant in the pending appeal, the cross-appellant shall serve and file an amended notice of cross-appeal from the subsequent order or judgment.

(c) If the party who wishes to appeal is any other party to the case, that party shall file a notice of appeal from the subsequent order or judgment.

(d) Any such notice of appeal, amended notice of appeal, or amended notice of cross-appeal shall contain the appellate case number of the pending appeal and shall be served and filed within 30 days after entry of the subsequent order or judgment.1

(2) This subsection applies to a motion for relief from an order or judgment filed in juvenile court under ORS 419B.923* during the pendency of an appeal.

(a) If the copy of the motion required to be served on the appellate court is not entitled "MOTION FOR RELIEF FROM ORDER OR JUDGMENT UNDER ORS 419B.923," the copy shall be accompanied by a letter of transmittal identifying the motion as a motion for relief under ORS 419B.923.*

(b) Any party to the appeal may request the appellate court to hold the appeal in abeyance pending disposition of the motion or to allow the appeal to go forward. In the absence of a request from a party, the court on its own motion will review the motion for relief from judgment and decide whether to hold the appeal in abeyance. If the court does not order the appeal to be held in abeyance, the appeal will go forward.

(c) If the appellate court holds an appeal in abeyance pending disposition of a motion for relief from order or judgment and subsequently the court receives a copy of the juvenile court's order deciding the motion, after expiration of the period within which an appeal from the order may be filed, the appellate court will decide whether to reactivate the case or take other action.

(d) A party wishing to appeal an order deciding a motion for relief from order or judgment under ORS 419B.923,* 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.


1See ORS 419A.205 (codification of Oregon Laws 2001, chapter 480, section 2).

*ORS 419B.923 is the codification of Oregon Laws 2001, chapter 622, section 33.


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

(1) This rule applies in appeals from a judgment imposing or executing a sentence in the following criminal cases:

(a) The defendant pleaded guilty or no contest to the charge or charges.

(b) The circuit court revoked the defendant's probation or sentence suspension.

(c) The defendant has been resentenced pursuant to a remand from an appellate court or pursuant to the judgment of a court granting post-conviction relief.

(2) The caption of a notice of appeal under this rule shall identify the notice as a "Notice of Appeal Pursuant to ORAP 2.40".

(3) (a) Within 90 days of the date of entry of the judgment being appealed, the appellant shall file a motion for leave to proceed based on a showing that the appeal presents a colorable claim of error.1 If a motion for leave to proceed is not filed within 90 days of the date of entry of judgment, the court may dismiss the notice of appeal without prior notice to the defendant.

(b) If the defendant files a motion for delayed appeal under ORS 138.071(4), the defendant need not file a motion under this rule.

(4) The court will not rule on a motion under this rule until the state has had an opportunity to respond to the motion as provided in Rule 7.05(3).


See generally ORS 138.050, 138.053(3), and 138.222(7).

1See State ex rel Juvenile Department of Marion County v. Balderas, 172 Or App 223, 18 P3d 434 (2001), for a description of what may constitute a "colorable claim of error."




TEMPORARY NEW RULE 2.45
SUMMARY DETERMINATION OF JURISDICTION
OF ACTION AGAINST PUBLIC BODIES

(1)(a) In an action or other proceeding against a public body, when the question arises in the circuit court or other tribunal whether a forum other than the circuit court or other tribunal has jurisdiction of the action or proceeding and the circuit court or other tribunal refers the question to the Court of Appeals pursuant to ORS 14.165(1)(b) or (3)*:

(b)(i) The circuit judge shall issue a referral order stating why the jurisdictional question has arisen and briefly summarizing the parties' contentions, and shall cause a copy of the order to be transmitted to the Court of Appeals through the State Court Administrator along with relevant portions of the record, as provided in paragraph (ii).

(ii) The circuit judge either may request counsel for one of the parties to have a copy of all relevant portions of the record prepared for transmittal to the Court of Appeals or may direct that it be done by the trial court administrator. In either event, either counsel so designated, the circuit judge, or the trial court administrator at the direction of the circuit judge shall transmit a letter to the Administrator accompanying the referral order and the record stating that the order and the record are being transmitted pursuant to ORS 14.165(1)(b) or (3),* and informing the Administrator whether the matter needs to be decided within a certain time.

(iii) As used in this paragraph, "circuit judge" includes the presiding officer of a tribunal other than a circuit court, and "trial court administrator" includes the equivalent staff person of a tribunal other than a circuit court.

(d) Any party wishing to address in the Court of Appeals the question of which court or tribunal, if any, has jurisdiction to decide the action or other proceeding may file a memorandum addressing the question. Any such memorandum shall be in the form prescribed in Rule 7.10 for motions generally, and shall be served and filed within 21 days after the circuit court transmits the order of referral and record to the Court of Appeals.

(e) The Court of Appeals will decide the question as provided in ORS 14.165(5)* summarily and as expeditiously as practicable. The Court of Appeals will issue an order communicating its decision to the parties and to the circuit court or tribunal that referred the question, and to the court or tribunal to which the court has transferred the case, if the court decides that another court or tribunal has jurisdiction to decide the case.

(f) No filing fee or first appearance fee is due for a referral and summary determination of the question of jurisdiction under ORS 14.165.*

(2)(a) If the Court of Appeals decides that it is the appropriate court to decide a case referred to it, the Administrator will assign the case a regular appellate case number and the case will be deemed to have been filed as of the date of the court's order.**

(b) The appellant or petitioner shall pay the filing fee within 14 days of the date of the court's order or such other time as may be prescribed by order of the court. Any respondent shall pay the respondent's first appearance fee on the respondent's first appearance thereafter.

(c) If the notice of appeal or petition for judicial review designated an agency record, a transcript, or other material as part of the record, and the agency record, transcript, or other material has not been filed with the court, the agency record, transcript, or other material shall be filed within 30 days of the date of the court's order.

(3)(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 case will be deemed to have been filed in the Court of Appeals on the day of receipt of a copy of the circuit court's order and the Administrator will assign a regular appellate case number to the case.**

(b) The appellant or petitioner shall pay the filing fee within 14 days of the date of the Court of Appeals' order or such other time as may be prescribed by order of the court. Any respondent shall pay the respondent's first appearance fee on the respondent's first appearance thereafter.

(c) If the notice of appeal or petition for judicial review designated an agency record, a transcript, or other material as part of the record, and the agency record, transcript, or other material has not been filed with the court, the agency record, transcript, or other material shall be filed within 30 days of the date of the court's order.


*ORS 14.165 is the codification of Oregon Laws 2001, chapter 561, section 1.

**Regardless of the date that the case is deemed filed in the Court of Appeals, see ORS 14.165(6) and (7) (Or Laws 2001, ch 561, 1(6) and (7)) regarding determining the timeliness of the filing of the action or proceeding.




TEMPORARY AMENDMENTS TO RULE 4.35
AGENCY WITHDRAWAL OF ORDERS

(1)(a) If an agency, pursuant to ORS 183.482(6), withdraws an order for the purpose of reconsideration, it shall file with the Administrator a notice of the withdrawal. The notice shall include a statement of reasons why the order is being reconsidered and the date the agency expects to submit a new order to the court after reconsideration. An order on reconsideration shall be filed within 60 days after the filing of the notice of withdrawal or within such other time as the court may allow.

(b) If an agency not subject to ORS 183.482(6) withdraws an order on judicial review for the purpose of reconsideration it shall file with the Administrator a copy of its order or other decision withdrawing that order, accompanied by a statement of reasons why the order is being withdrawn and a statement whether the agency expects to submit a new order to the court following the withdrawal and, if so, when.

(2) The filing of a notice under subsection (1) of this rule shall suspend proceedings on the petition for judicial review until an order on reconsideration is filed, or the time designated therefor expires, unless otherwise ordered by the court.

(3) Regardless whether an order first has been withdrawn for the purpose of reconsideration under subsections (1)(a) or (b), if an agency issues an order on reconsideration, the Attorney General shall file a copy of the order on reconsideration with the Administrator. The order shall be filed within 7 days after the agency issues the order on reconsideration.

(4)(a)(i) Except as provided in paragraph (ii), after the filing of an order on reconsideration, if the petitioner desires judicial review of the order on reconsideration, the petitioner shall file an amended petition for judicial review within a period equal to that allowed for filing an original petition.1 No filing fee is required for an amended petition.

(ii) If the petitioner on judicial review of an order of the Board of Parole and Post-Prison Supervision desires to continue the judicial review after the Board issues its order on reconsideration, the petitioner shall file a notice of intent to proceed with judicial review within the period equal to that allowed for filing an original petition.2

(b) A person who is dissatisfied with the order on reconsideration and who does not file under subsection (4)(a) of this rule may file a petition for judicial review of the order on reconsideration in accordance with statute and these rules.

(c) If no petition is timely filed, the judicial review proceeding in the Court of Appeals will be dismissed.

(5) If the agency has considered any material beyond the present record, the agency shall submit an amended record to the Administrator within 14 days after the filing of a petition or amended petition for judicial review. The amended record on review shall be prepared pursuant to Rule 4.20.

(6) If the petitioner filed a brief before the withdrawal of the order for reconsideration, in addition to filing an amended petition for judicial review as required by subsection (4)(a) of this rule, the petitioner may give notice to the Administrator of the petitioner's intent to proceed on the original brief. If the petitioner had not filed a brief or desires to file a supplemental brief, the petitioner's brief shall be filed 28 days after the date the amended petition for judicial review was filed or the date the agency submitted the amended record to the Administrator, whichever is later. A respondent's brief, if any, shall be filed within 28 days after the filing of the petitioner's brief or notice that the petitioner will proceed on the original brief.


1 See ORS 183.482(6).

2 See ORS 144.335(10).




TEMPORARY NEW RULE 5.92
SUPPLEMENTAL PRO SE BRIEFS

(1) When a party is represented by court-appointed counsel and the party is dissatisfied with the brief that counsel has filed, the party may move the court for leave to file a supplemental pro se brief.

(2) If the court gives a party leave to file a supplemental pro se brief, 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.

(3) At the request of the client, counsel shall assist the client with preparing and filing the supplemental pro se brief, but counsel's responsibility shall be limited to stating the client's argument as nearly as practicable in the manner that the client desires, in proper appellate brief form; serving the brief; and filing the original and appropriate number of copies of the brief.




TEMPORARY AMENDMENTS TO RULE 8.10
WITHDRAWAL, SUBSTITUTION, AND ASSOCIATION
OF ATTORNEYS GENERALLY ON APPEAL

(1) Except as [to a party represented by court-appointed counsel] provided in Rule 8.12, after the filing of a notice of appeal, an attorney may not withdraw from a case except on order of the appellate court. A motion to withdraw must be filed and served on the client and opposing parties, and is subject to ORS 9.380 and ORS 9.390.

(2) Except as [to a party represented by court-appointed counsel] provided in Rule 8.12, substitution of attorney shall be accomplished in the manner prescribed in ORS 9.380. The substitution of attorney shall be accompanied by proof of service on all parties to the appeal. Unless it appears otherwise from the record, the court will presume that good and sufficient cause exists for substitution of counsel if both attorneys sign the substitution of counsel and, on filing the substitution of counsel in proper form, the substitution shall be deemed to have been ordered by the appellate court.

(3) An attorney who associates another attorney from a different firm on appeal shall file a notice of association with the appellate court, accompanied by proof of service on all parties to the appeal.

(4) An attorney admitted to the practice of law in another jurisdiction, but not in Oregon, may appear by brief and argue the cause in a proceeding before an appellate court in the manner prescribed in UTCR 3.170.1

[(5) As to a party represented by court-appointed counsel on appeal, if the attorney wishes to withdraw from representing the party without appointment of new counsel, the motion to withdraw shall be filed in the appellate court. If the attorney wishes to withdraw and have new counsel appointed, the motion should be filed in the trial court. If the trial court appoints new counsel, the trial court clerk shall forward a copy of the order to the appellate court.]


1See ORS 9.241; see also Rule 6.10(4) concerning appearing for oral argument only.




TEMPORARY NEW RULE 8.12
APPOINTMENT, WITHDRAWAL, AND SUBSTITUTION
OF COURT-APPOINTED COUNSEL OR
LEGAL ADVISOR ON APPEAL

(1) If a court-appointed attorney wishes to withdraw from representing the party that the attorney was appointed to represent:

(a) Without appointment of new counsel, the attorney shall file the motion in the appellate court.

(b) With appointment of new counsel, the attorney should file the motion in the trial court, unless the motion to appoint new counsel is based on the client's dissatisfaction with professional services rendered by the attorney, in which case the motion shall be filed in the appellate court. If the trial court appoints new counsel, the trial court administrator shall forward a copy of the order to the appellate court.

(2)(a) If a party has a statutory or constitutional right to be represented by court-appointed counsel, the filing of any motion that would result in the party proceeding on appeal or review without counsel constitutes an attempt to waive the right to counsel.1

(b) If the court declines to accept a party's attempt to waive counsel, the court shall give the party an opportunity to file a supplemental pro se brief as provided in Rule 5.92(2) and (3).

(3) To the extent practicable, the provisions of this rule are applicable to a legal advisor appointed under ORS 135.045(1)(d).2


1See ORS 135.045(1)(c) regarding waiver of counsel in criminal cases generally and in death sentence cases. See ORS 138.504 (Or Laws 2001, ch 472, 2) regarding waiver of court-appointed counsel on appeal in criminal cases. See also Hendricks v. Zenon, 993 F2d 664, 668-671 (9th Cir 1993), regarding waiver of the right to counsel on appeal in criminal cases.

2 See ORS 135.045(1)(d) regarding appointment of a legal advisor for a defendant in a criminal case who waives the right to counsel.




TEMPORARY AMENDMENTS TO 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.

(2) Where a statute authorizes direct judicial review of an agency order or a legislative enactment by the Supreme Court,2 except as otherwise provided by statute, the judicial review shall be initiated and conducted in the manner prescribed in the rules of appellate procedure relating to judicial review of agency orders generally.

(3) The notice of appeal or petition for judicial review shall state the statutory authority under which a direct appeal or judicial review is taken to the Supreme Court. Filing fees shall be assessed as provided in ORS 21.010.

(4) When required to do so by statute, the court will expedite its disposition of the appeal or judicial review.3

(5) On motion of a party or on the court's own initiative, the court may establish a special briefing schedule for the appeal or judicial review.


1 See, e.g., ORS 305.445 (tax court judgments and orders), [and] ORS 662.120 (injunctions in labor dispute cases), and ORS138.060(2) (certain pretrial orders in murder and aggravated murder cases).

2 See, e.g., ORS 469.400(1) (nuclear facility siting certificates), and Or Laws 1985, chapter 679, section 6(2) and (3), codified at note following ORS 459.790 (metropolitan solid waste disposal site selection).

3See, e.g., ORS 138.060(3) and ORS 138.261(5) (Or Laws 2001, ch 870, 4b(5)) (requiring expedited disposition of appeals of certain pretrial orders in criminal cases).




TEMPORARY NEW RULE 12.07
EXPEDITED APPEAL OF PRE-TRIAL ORDER
IN CRIMINAL CASE

(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 28 days after the record 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 28 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) On review of a decision of the Court of Appeals, when a defendant is charged with a felony and is in custody pending appeal under ORS 138.060(1)(a) and (c) 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, petitioner, or other paper filed with the court shall include the words "EXPEDITED REVIEW UNDER ORS ________ " and identifying the statute authorizing the expedited appeal.

(b) If the petitioner on review files a notice of intent to file a brief on the merits and fails to file a brief within the time prescribed by Rule 9.17, the review will be submitted to the court on the petitioner's petition for review, the response to the petition for review (if any), the brief on the merits filed by respondent (if any), the parties' briefs in the Court of Appeals, and oral argument.

(3) Under ORS 138.255(2), if the Supreme Court accepts an appeal pending in the Court of Appeals and briefing has not been completed, the Supreme Court will establish a briefing schedule as necessary.

(4) 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 transmission of the record, filing of briefs, or hearing oral argument.




TEMPORARY NEW RULE 12.25
EXPEDITED JUDICIAL REVIEW OF ORDER OF
THE ENERGY FACILITY SITING COUNCIL

On direct judicial review of an order of the Energy Facility Siting Council under ORS 469.360:

(1) The case caption of any brief, motion, or other paper filed with the court shall include the words "EXPEDITED JUDICIAL REVIEW UNDER ORS 469.360".

(2) Within seven days of being served with a copy of the petition for judicial review, the Energy Facility Siting Council shall transmit the record to the Supreme Court. 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.

(3) (a) Petitioner's brief and excerpt of record shall be served and filed not later than 14 days after the filing of the petition for judicial review. Failure to file the opening brief within the prescribed time will result in automatic dismissal of the petition.

(b) Any respondent's brief shall be served and filed within 14 days after the filing of petitioner's brief. If any respondent fails to file a brief within the prescribed time, the judicial review will be submitted without that respondent's brief and that respondent will not be allowed to argue the case.

(c) No party shall file a reply brief.

(4) Except as prescribed in ORS 469.360(6), (7), and (8), the court shall not grant a continuance or extension for transmitting the record or filing briefs as specified in this rule, or for the time set for oral argument.

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


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