IN THE SUPREME COURT OF THE STATE OF OREGON

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


NOTICE OF PROPOSED RULEMAKING


The Supreme Court and Court of Appeals propose to:

(1) Adopt as permanent rules these temporary Rules of Appellate Procedure: 2.22, 2.40, 2.45, 5.92, 8.12, 12.07, and 12.25, with additional amendments.

(2) Adopt amendments to these Rules of Appellate Procedure: Rule 1.10, 1.15, 1.40, 2.05, 3.07, 3.35, 4.15, 4.35, 5.05, 5.10, 5.35, 5.45, 5.70, 5.90, 6.10, 6.25, 7.25, 7.27, 8.10, 9.05, 10.15, 11.05, 11.30, 11.35, 12.05, 13.10, 13.15, 14.05, 15.05, and Appendix H.

(3) Adopt new Rule of Appellate Procedure 10.25.

Amended rules are shown with material to be deleted in italic print and [bracketed] and material to be added in boldface print. Proposed new rules, including previously adopted temporary rules, are denoted by "Proposed New Rule ___," with the title and text of the new rule in regular print.

In addition, the Supreme Court and Court of Appeals propose to give the Editor of the Oregon Rules of Appellate Procedure the authority to do the following:

Interested persons shall have until the close of business on August 26, 2002, to submit written comments on the proposed rule changes. Comments shall be submitted to:

Hon. Wallace P. Carson, Jr.
Chair, Oregon Rules of Appellate Procedure Committee
Supreme Court Building
1163 State Street
Salem, Oregon 97301-2563


Rule 1.10

CITATION TO APPELLATE RULES;
APPLICABILITY OF SUPERSEDED RULES

(1) These rules shall be cited as ORAP. Any time period that has begun and the form of any thing in progress before the effective date of any amendment[1] to these rules shall be governed by the superseded rules.1

(2) Pursuant to order of the Supreme Court and Court of Appeals, from time to time, the appellate courts may adopt one or more temporary new rules or temporary amendments to existing rules. A temporary new rule or temporary amendment to an existing rule will be published in the Oregon Appellate Courts Advance Sheets and on the Judicial Department's website.2


1These rules generally were last amended effective January 1, [2001] 2003.

2The Judicial Department's website address is: http://www.ojd.state.or.us.


Rule 1.15

TERMINOLOGY

(1) Headings in these rules do not in any manner affect the scope, meaning or intent of the rules.

(2) Singular and plural shall each include the other, where appropriate.

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

(a) "Administrator'' means the State Court Administrator.

(b) "Agreed narrative statement'' means the parties' stipulated account of proceedings in lieu of a transcript or audio record.

(c) "Appeal'' includes judicial review.

(d) "Appellant'' means a party who files a notice of appeal or petition for judicial review.

(e) "Appellate court'' means the Supreme Court, Court of Appeals or both, as appropriate.

(f) "Appellate judgment" shall have the meaning set out in Rule 14.05(1)(a).

[(f)](g) "Audio record'' means an electronic tape recording of proceedings before a trial court or agency.

(h) "Business day" means Monday through Friday excluding legal holidays.

[(g)](i) "Cassette'' means the cartridge containing the audio or video recording.

[(h)](j) "Cross-appellant'' means a party, already a party to an appeal, who files an appeal against another party to the case.

[(i)](k) "Cross-respondent'' means a party who is adverse to a cross-appellant.

[(j)](l) "Decision'' shall have the meaning set forth in Rule 14.05(1)(b).

[(k)](m) "Domestic relations case'' includes but is not necessarily limited to these kinds of cases: dissolution of marriage, dissolution of domestic partnership, filiation, paternity, child support enforcement, child custody, [and] modification of judgment of dissolution of marriage or domestic partnership, and adoption.

[(l)](n) "Judgment'' includes a decree or appealable order entered by a trial court.

(o) "Legal advisor" means an attorney in a criminal case assisting a defendant who has waived counsel, as provided in ORS 138.504(2).

[(m)](p) "Notice of appeal'' includes a petition for judicial review and a notice of cross-appeal.

[(n)](q) "Original'' in reference to any thing to be served or filed shall mean the thing signed by the appropriate attorney or party and submitted for filing.

[(o)](r) "Petitioner'' means a party who files a petition.

[(p)](s) "Respondent'' means the party adverse to an appellant or a petitioner.

[(q)](t) "Transcript'' means a typewritten or printed transcription of oral proceedings before a trial court or agency.

[(r)](u) "Trial court'' means the court or agency from which an appeal or judicial review is taken.


Rule 1.40

VERIFICATION; ADOPTING ORCP 17

(1) Except as specifically required by statute,1 no thing filed with the appellate court need be verified.

(2) When a statute requires a paper filed with the appellate court to be verified, a verification shall consist of a [sworn, signed and dated] statement:

(a) that the person has read the paper and that the facts stated in the paper are true, to the best of the person's knowledge, information and belief formed after reasonable inquiry;

(b) signed and dated by the person; and

(c) sworn to before a person authorized by law to administer oaths, including, but not necessarily limited to, a notary public.

(3) 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.2


1 See, e.g., ORS 138.500(3), which requires that claims for costs, expenses and compensation of court-appointed counsel be verified; see also ORS 20.320, which requires that a statement of costs and disbursements and objections to a statement of costs and disbursements be verified.

2 See Rule 13.25 regarding the procedure for requesting sanctions under this subsection.

See generally ORS 138.090 regarding the signing of notices of appeal in criminal cases, ORS 19.029(1)(f) regarding the signing of notices of appeal in civil cases and Rule 5.05(5)(g) regarding the signing of briefs.


Rule 2.05

CONTENTS OF NOTICE OF APPEAL

The notice of appeal shall be served and filed within the time allowed by ORS 19.255, ORS 138.071 or other applicable statute, shall be substantially in the form illustrated in Appendix A, and shall contain:

(1) The complete title of the case as it appeared in the trial court, naming all parties completely, including their designations in the trial court (e.g., plaintiff, defendant, cross-plaintiff, intervenor), and designating the parties to the appeal, as appropriate (e.g., appellant, respondent, cross-appellant, cross-respondent). The title also shall include the trial court case number or numbers.

(2) The heading ``Notice of Appeal'' or ``Notice of Cross-Appeal,'' as appropriate.

(3) A statement that an appeal is taken from the judgment or some specified part of the 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 being appealed.

(4) A designation of the adverse parties on appeal.

(5) The names of the parties and the names, bar numbers, mailing addresses, and telephone numbers of the attorneys for the respective parties, identifying the party or parties that each attorney represents, and the names, mailing addresses, and telephone numbers of parties appearing pro se.

(6) A designation of those portions of the proceedings2 and exhibits3 to be included in the record in addition to the trial court file.

(7) A plain and concise statement of the points on which the appellant intends to rely; but if the appellant has designated for inclusion in the record all of the testimony and all of the instructions given and requested, no statement of points is necessary.

(8) If more than 30 days has elapsed from the date the judgment was entered, a statement as to why the appeal is nevertheless timely.

(9) If appellate jurisdiction is not free from doubt, citation to statute or case law to support jurisdiction.

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

(a) In a civil case, the notice of appeal shall contain proof of service on all other parties who appeared in the trial court[,].

(b) In a criminal case, the notice of appeal shall contain proof of service on:

(i) The defendant, in an appeal by the state.

(ii) The district attorney, in an appeal by the defendant. The notice of appeal in such appeal also shall contain proof of service of a copy of the notice of appeal on the Attorney General.4

[(b)](c) In all cases, in addition to the foregoing requirements, the notice of appeal shall contain proof of service on:

(i) The trial court administrator[,]; and

[(c)](ii) The transcript coordinator, if any portion of the record of oral proceedings in the trial court has been designated as part of the record on appeal.[4]5

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


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

2 See Rule 3.33 regarding the appellant's responsibility to make financial arrangements with either the court reporter or the transcript coordinator for preparation of a transcript of oral proceedings.

3 See Rule 3.25 regarding making arrangements for transmitting exhibits to the appellate court for use on appeal. See also UTCR 6.120(2) and (3) regarding retrieval of exhibits by trial court administrators for use on appeal.

4Service of notice of appeal on the Attorney General is for the purpose of facilitating the appeal and is not jurisdictional. The Attorney General should be served at this address: Attorney General of the State of Oregon, Office of the Solicitor General, 400 Justice Building, 1162 Court St. N.E., Salem, OR 97301.

[4]5 See Rule 1.35(3)(b).

See ORS 19.240, ORS 19.250 and ORS 138.081; see also Rule 8.20 regarding bankruptcy.

See Appendix A for a form of notice of appeal.


PROPOSED NEW RULE 2.22

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 case 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.

(3) At the request of a party to a juvenile case or on the court's own motion, the Chief Judge may refer the case to the Appellate Settlement Conference Program under Rule 15.05.


1See ORS 419A.205.

See Rule 10.15 regarding expediting dependency cases.

See Rule 10.25 regarding summary affirmance in a juvenile case.


PROPOSED NEW RULE 2.40

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

(1) In addition to the notice of appeal requirements contained in Rule 2.05, when a defendant in a criminal case appeals from a judgment following a guilty plea, no contest plea, resentencing pursuant to a remand from an appellate court, resentencing pursuant to the judgment of a court granting post-conviction relief, or from an order or judgment revoking probation or sentence suspension:

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

(b) The body of the notice of appeal shall:

(i) Identify the type of proceeding from which the appeal arises (e.g., guilty plea, no contest plea, probation revocation, etc.); and

(ii) Identify at least one colorable claim of error from the proceeding.1

(2) If the defendant has filed a motion for delayed appeal under ORS 138.071(4) in a case otherwise subject to this rule, the defendant need not comply with this rule.


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

1See State ex rel Juv. Dept. v. Balderas, 172 Or App 223, 18 P3d 434 (2001), for a description of "colorable claim of error." See Appendix ___ for illustrations of colorable claims of error.

Appendix ___

Illustrations for Rule 2.40

The trial court erred when, over objection, it categorized defendant as a criminal history category C offender.

The trial court erred when, over objection, it imposed a condition of probation that requires defendant to undergo drug evaluation and treatment.

The trial court erred when, over objection, it imposed a condition of probation that prohibits defendant from contacting defendant's children.

The trial court erred when, over objection, it imposed a disputed amount of restitution.


PROPOSED NEW 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 tribunal refers the question of its legal authority to decide the case pursuant to ORS 14.165.

(b) The court or tribunal shall:

(i) Issue a referral order entitled "REFERRAL ORDER PURSUANT TO ORS 14.165" stating the nature of the question of authority to decide the action or proceeding that has arisen, briefly summarizing the parties' contentions, and, if time is of the essence, identifying the date by which the court or tribunal requests that the matter be decided.

(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.

(c) Any party wishing to address in the Court of Appeals the question of which court or tribunal, if any, has authority to decide the action or proceeding may file a memorandum addressing the question. Any such memorandum shall be in the form prescribed in Rule 7.10 for motions generally, shall not exceed 10 pages without leave of the court, and shall be served and filed within 21 days after the date of receipt by the Court of Appeals of the referral order.

(d) The Court of Appeals will decide the question as provided in ORS 14.165(5) summarily and as expeditiously as practicable, and will endeavor to decide the question by the date, if any, identified in the referral order.

(e) The Court of Appeals will issue an order communicating its decision to the parties and to the court or tribunal that referred the question. If the Court of Appeals decides that another court or tribunal has authority to decide the case, the Court of Appeals will enter a transfer order and send a copy of the order to each party. Pursuant to ORS 14.165(8), the person who filed the action or proceeding must comply with the provisions of ORS 14.165(8) to accomplish the transfer. At the request of the court or tribunal to which the case has been transferred, the Court of Appeals will transmit the record to the court or tribunal.

(f) No filing fee or first appearance fee is due for a referral to the Court of Appeals for a summary determination under ORS 14.165 of the question of authority to decide a case.

(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.

(b) The Court of Appeals will enter an order stating its determination that it is the appropriate court to decide the case and identifying any actions that a party must take to perfect the case. On entry of the order, the case will be deemed to have been transferred to the Court of Appeals.

(c) 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 as of the date of entry of the order.*

(d) The appellant or petitioner shall pay the appellate court filing fee within 10 days of the date of entry of the Court of Appeals' order or such additional time as the court may allow. Any respondent shall pay the respondent's first appearance fee on the respondent's first appearance thereafter.

(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.*

(c) The person filing the action or proceeding shall pay the appellate filing fee at the same time as filing a copy of the transfer order or within such additional time as may be allowed by the Court of Appeals. Any respondent shall pay the respondent's first appearance fee on the respondent's first appearance thereafter.

(d) The Court of Appeals will give a party notice of any actions that the party must take to perfect the case in the Court of Appeals.


*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.

See generally ORS 14.165. See ORS 14.165(10) for a definition of "public body" and "tribunal."

With respect to cases subject to referral to the Court of Appeals under ORS 34.102(5), see Rule 4.74.


Rule 3.07

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

(1) If a trial court determines that the whole or a part of the trial court file to be transmitted to the appellate court is not subject to inspection by one or more parties, by the attorney for any party, or by the public, the trial court shall place such material in a separate, sealed, and labeled envelope:

(a) If the trial court determines that the material be subject to inspection only by the parties or their attorneys, the trial court shall mark "confidential" on the envelope.

(b) If the trial court determines that the material not be subject to inspection by anyone, including any party or any party's attorney, the trial court shall mark "sealed" on the envelope.

(2) (a) In a criminal case, the presentence report is part of the record on appeal.

(b) After the notice of appeal is filed, upon request of counsel for either defendant or the state, the trial court shall cause a copy of the presentence report to be delivered forthwith to counsel, except that, if, pursuant to ORS 137.079, the trial court has excepted from disclosure any part of the presentence report, the trial court shall forward to counsel only those parts of the presentence report not excepted from disclosure, with an indication that other matter has been excepted from disclosure.

(c) When the appellate court requests the trial court to forward the trial court record, the trial court shall include the presentence report in a separate, sealed envelope marked "confidential."

(d) Any material excepted from disclosure under ORS 137.079 shall be placed in an envelope marked "sealed."

(e) The presentence report is not a public record and is not subject to inspection or disclosure to a party, a party's attorney, or the public except as provided in subsection (3) of this rule.

(3) (a) As to material other than a presentence report, upon request of a party or an attorney for a party, the Administrator shall permit the party or counsel to inspect material marked "confidential."

(b) As to a presentence report, upon request of counsel for either the defendant or the state, the Administrator shall permit the party's attorney to inspect the presentence report or any part thereof marked "confidential."

(4) The Administrator shall not permit any person to inspect "sealed" material, except on order of the trial or appellate court or pursuant to section (5) of this rule.

(5) If the Administrator declines a person's request to permit inspection of confidential or sealed material, the person may file a motion with the court seeking leave to inspect the material. The appellate court may decide the motion itself or remand the motion to the trial court for a ruling.

(6) If the Administrator permits inspection of confidential or sealed material subject to restricted inspection under this rule, the Administrator shall note on the envelope the date of the inspection and the person who inspected the material.

(7) A judge of the appellate court, the judge's legal and administrative staff, and the court's legal and administrative staff may open and inspect any confidential or sealed material as necessary to decide a matter pending before the court. The person inspecting confidential or sealed material shall note on the envelope the person's name and the date of the inspection.

(8) The provisions of this subsection apply to the extent practicable to any material submitted to an appellate court in the first instance that the appellate court determines is not subject to inspection by a party, a party's attorney, or the public.

[(1) In criminal cases, except as provided in this rule, when a presentence report or any other written information considered by the trial court in the imposition of sentence is designated for inclusion in the record on appeal, the trial court, upon request of either counsel, shall cause a copy of the presentence report or other written information to be delivered forthwith to appellate counsel for the defendant and for the state. The trial court shall also forward a copy with the record on appeal when the record is forwarded to the appellate court. A presentence report or other written information delivered under this rule is not a public record.

(2) If the trial court, pursuant to ORS 137.079, excepts from disclosure any part of the presentence report or other written information considered in the imposition of sentence, the trial court shall forward to appellate counsel all parts of the presentence report and other written information not excepted from disclosure, with an indication that other matter has been excepted from disclosure.

(3) The trial court, as to any material excepted from disclosure, shall enclose the material not disclosed in a separate, sealed and labeled envelope and transmit it to the appellate court with the trial court file or as directed by the appellate court. The contents of any such sealed envelope shall not be subject to inspection by anyone other than the judges of the appellate court and their legal, administrative and judicial assistants, except pursuant to an order of a judge of that court.]


Rule 3.35

FORM OF TRANSCRIPT

(1) A transcript shall meet these specifications:

(a) It shall be typewritten or printed. Type shall be standard pica or equivalent size or, if word processing equipment is used, 10 or 12 pitch print, no fewer than 9 or 10 characters to the typed inch, first impression and clear and legible. 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.

(b) It shall be prepared on good quality white, opaque, unglazed paper, 8-1/2 x 11 inches in size, with numbered lines. It shall be double-spaced and each page shall contain 25 lines of text, no more and no less, except for the last page of the transcript, with margins of 1-1/2 inches on the left and -inch on the right.

(c) [(i)] Each question shall be prefaced by ''Q'' and each answer shall be prefaced by ''A.'' Each question and answer shall begin on a separate line no more than five spaces from the left margin and no more than five spaces from the ''Q'' and ''A'' to the beginning of the text. Text that carries on to the next line shall begin at the left margin.

(d) [(ii)] Colloquy, parentheticals, and exhibit markings shall begin no more than 15 spaces from the left margin. Text that carries on to the next line shall begin at the left margin.

(e) [(iii)] Quoted material shall begin no more than 15 spaces from the left margin. Text that carries on to the next line shall begin no more than 10 spaces from the left margin.

[(c)](f) Each page shall be consecutively numbered at the top right corner, and to the left thereof shall be given the name of the witness followed by a notation indicating whether the testimony is on direct, cross, redirect or recross examination, indicated by ''D,'' ''X,'' ''ReD'' or ''ReX.''

[(d)](g) Appropriate notation similarly shall be made of other proceedings, such as a motion for dismissal or a directed verdict, requested jury instructions, jury instructions, any opinion by the court and other matters of special importance.

[(e)](h) It shall be preceded by an appropriate title page followed by an index noting:

(i) the first page of the direct, cross, redirect and recross testimony of each witness;

(ii) all exhibits, with notation of the nature thereof and of the page of the record where offered and, when appropriate, where received in evidence; and

(iii) appropriate notations of other proceedings such as motions for nonsuit and directed verdict, requested jury instructions, jury instructions, opinion of the court and other matters of special importance.

[(f)](i) Pages shall be bound at the left, with spiral or plastic binding, if available; otherwise tip bound, wired, stitched, or firmly stapled, and if stapled, then at four equidistant places. Bindings shall be within 3/8 inch of the left edge.

[(g)](j) It shall have a cover sheet of clear plastic or 65-pound weight paper, front and back.

[(h)](k) If a transcript exceeds 200 pages, it shall be bound into volumes of approximately equal size of not more than 200 pages each. Volumes shall be consecutively numbered on their covers.

(2) (a) Except as provided in paragraph (b) of this subsection, a transcript in excess of one volume may be prepared by reducing the pages of the transcript in such a manner as to fit up to four pages of transcript onto a single 8-1/2 x 11 inch page.

(b) A party may specify in the party's designation of record or other request for preparation of a transcript on appeal that the transcript be prepared in the standard one page of transcript per page format. If a party not responsible for arranging for preparation of a transcript is served with a transcript containing four reduced pages of transcript on one standard page, that party may arrange with the court reporter or transcriber, at the party's own expense, for preparation of a transcript in the standard format.

(3) If a court reporter or transcriber prepares a transcript in a manner suitable for storage on computer diskette or compact disk, at the request of a party and on payment of a fee of no more than $5.00 per diskette or disk, the court reporter shall furnish the transcript, or as much of the transcript as has been requested by the party, on computer diskette or compact disk in a format convenient for the court reporter or transcriber. A transcript furnished to a party under this subsection is not in lieu of a written transcript.

(4) The court reporter or transcriber may not charge for preparing more than one original transcript and may charge only at the rate for copying a transcript for any additional transcript that may be needed for an appeal or appeals from the cases:

(a) When two or more cases are heard simultaneously in the circuit court from which one or more appeals are taken, either as consolidated cases or otherwise, or

(b) When two or more cases not heard simultaneously in the circuit court are consolidated on appeal before the transcripts are prepared.


Rule 4.15

FORM, CONTENT AND SERVICE OF PETITION
FOR JUDICIAL REVIEW

(1) A petition for judicial review shall be typewritten, double-spaced and in the form illustrated in Appendix E or Appendix F, showing bar numbers, mailing addresses, and telephone numbers of the attorneys for the respective parties and the names, mailing addresses, and telephone numbers of parties appearing pro se. Only the original need be filed.

(2) The title shall be as it was before the agency to the extent possible. The title shall include the names of the parties to the proceeding regardless of whether the title of the agency proceeding included the names of the parties. The title also shall include the agency if the agency is a party to the judicial review. The parties shall be shown on judicial review with appropriate party designations as ``petitioner'' for the party seeking judicial review and ``respondent'' for the party against whom relief is sought. A subsequent party seeking judicial review of the same agency order shall be designated as ``cross-petitioner.'' 1

(3) The petition shall state whether the petitioner is willing to stipulate that the agency record may be shortened. If the petitioner is willing to shorten the record, the petition shall designate the portion of the record to be included in the record. Under ORS 183.482(4), the court may tax the cost of preparing the whole or any part of the record, including the transcript, against any party unreasonably refusing to stipulate to limit the record.

(4) The petition shall be accompanied by a copy of the order, rule or ruling for which judicial review is sought.

(5) The petition shall show proof of service on:

(a) the agency whose order, rule or ruling is involved (unless the agency is the petitioner), even if the agency is not a party;

(b) the Attorney General, even if the agency is not a party.2 In a workers' compensation case, the petition shall show proof of service on the Attorney General only if the State Accident Insurance Fund Corporation is a party to the case;

[(c) the Workers' Compensation Board by registered or certified mail in workers' compensation cases;]

[(d)] (c) all other parties of record in the proceeding; and

[(e)] (d) any other person required by law to be served.


1 See Rule 2.25(2) regarding the authority of the Administrator to correct the case title.

2The Attorney General should be served at this address: Attorney General of the State of Oregon, Office of the Solicitor General, 400 Justice Building, 1162 Court St. N.E., Salem, OR 97301.

See ORS 183.482 concerning contents of the petition and service requirements.


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, unless the court allows additional time.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).


Rule 5.05

SPECIFICATIONS FOR BRIEFS

(1) Briefs, including petitions for review or reconsideration in the Supreme Court, shall be reproduced by any duplicating process that makes a clear, legible, black image; the Administrator will not accept carbon copies, copies on slick paper or copies darkened by the duplicating process.

(2) (a) No opening, answering, or combined brief shall exceed 50 pages.1 This limitation does not include the index, excerpt of record or appendix.

(b) 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) 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 page limits prescribed in section (2) of this rule or prescribed by order of the court. A party filing a motion under this subsection shall make every reasonable effort to file the motion not less than seven days before the brief is due. The court may deny an untimely motion under this subsection on the ground that the party failed to make a reasonable effort to file the motion timely.

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

(4) All briefs shall conform to these requirements:

(a) Front and back covers shall be paper of at least 65-pound weight. The cover of the brief shall be:

(i) For an opening brief, blue;

(ii) For an answering brief, red;

(iii) For a combined answering and cross-opening brief, violet;

(iv) For a reply or combined reply and answering brief on cross-appeal, or an answering brief to a cross-assignment of error under Rule 5.57, gray;

(v) For the brief of an intervenor, the color of the brief of the party on whose side the intervenor is appearing;

(vi) For the brief of amicus curiae, green;

(vii) For a supplemental brief, the same color as the primary brief.

(viii) For a petition for review or reconsideration in the Supreme Court, yellow;

(ix) For a response to a petition for review or reconsideration in the Supreme Court, orange;

(x) For a brief on the merits of a petitioner on review in the Supreme Court, white;

(xi) For a brief on the merits of a respondent on review in the Supreme Court, tan.

(b) The front cover shall set forth the full title of the case, the appropriate party designations as the parties appeared below and as they appear on appeal, the case number assigned below, the case number assigned in the appellate court, designation of the party on whose behalf the brief is filed, the court from which the appeal is taken, the name of the judge thereof, and the names, bar numbers, addresses, and telephone numbers of counsel for the parties and the name, address, and telephone number of a party appearing pro se. The lower right corner of the brief shall state the month and year in which the brief was filed.3

(c) Pages and covers shall be a uniform size of 8-1/2 x 11 inches.

(d) Paper for the text of the brief shall be white bond, regular finish without glaze, and at least 20-pound weight with surface suitable for both pen and pencil notation. If both sides of the paper are used for text, the paper shall be sufficiently opaque to prevent the material on one side from showing through on the other.4

(e) Printed or used area on a page shall not exceed 6-1/4 x 9-1/2 inches, exclusive of page numbers, with inside margin 1-1/4 inches, outside margin 1 inch, top and bottom margins 3/4 inch.

(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 typed shall not exceed 10 characters per inch (10 cpi). If proportionally spaced type is used [for the text of the brief], it shall not be smaller than 12 point[. Footnotes may be prepared using 10 point or greater type] 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.

(g) The last page of the brief shall contain the name and signature of the author of the brief, the name of the law firm or firms, if any, representing the party and the name of the party or parties on whose behalf the brief is filed.

(h) Pages shall be consecutively numbered at the top of the page within 3/8 inch from the top of the page. Pages of the excerpt of record shall be numbered independently of the body of the brief, and each page number shall be preceded by ``ER'': ER-1, ER-2, ER-3, et seq. Pages of appendices shall be preceded by ``App'': App-1, App-2, App-3, et seq.

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

(5) The court on its own motion may strike any brief that does not comply with this rule.


1 Briefs to which this restriction applies include, but are not limited to, a combined respondent - cross-appellant's brief, a cross-respondent's combined reply and answering brief, and a brief that includes a response to a cross-assignment of error.

2 See Rule 5.50 regarding the excerpt of record generally.

3 See Rule 5.95 regarding the title page of a brief containing confidential material.

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

See Appendix G.


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 copies, except that the original and five copies only need be filed for:

(a) A brief submitted pursuant to Rule 5.90;

(b) A respondent's brief confessing error and not opposing the relief sought in the opening brief;

(c) A brief submitted by a party who is not represented by an attorney and who has been determined to be indigent by the court or whose brief has been copied at the expense of the public institution of which the party is a resident.

(d) Briefs submitted in particular kinds of cases pursuant to general order of the Court of Appeals after completion of a pilot project now in progress testing the feasibility of the Administrator providing additional copies of briefs as needed and billing the parties for the additional copies.

(2) Any party filing a brief on appeal, judicial review or other proceeding originally heard in the Supreme Court1 shall file with the Administrator one brief, marked as the original, and 15 copies.

(3) Any party filing a brief shall serve two copies of the brief on every other party to the appeal, judicial review or proceeding.

(4) The original of each brief shall contain proof of service on all other parties to the appeal. The proof of service shall be the last page of the brief or printed on or affixed to the inside of the back cover of the brief.


1 For example, appeals from the Tax Court, judicial review of orders of the Energy Facility Siting Council relating to site certificate applications, bar admission and disciplinary proceedings and original jurisdiction cases under Article VII (Amended), section 2, of the Oregon Constitution.

See Rule 9.05(6) regarding the number of copies of a petition for review, Rule 9.10(3) regarding the number of copies of a response to a petition for review and Rule 9.25(2) regarding the number of copies of a petition for reconsideration of a Supreme Court decision.


Rule 5.35

APPELLANT'S BRIEF: INDEX

The appellant's combined brief and excerpt shall begin with:

(1) an index of the contents of the brief, including a statement of the substance of each assignment of error, without argument, with appropriate page references;

[(2) an index of the contents of the excerpt showing the page on which each instrument abstracted may be found;]

[(3)](2) an index of appendices, if any; and

[(4)](3) an index of all authorities referred to, classified by cases (alphabetically arranged and with complete citations), constitutional and statutory provisions, texts, treatises and other authorities, and indicating the pages of the brief where the authorities are cited. Citations are to be in the form prescribed by the Oregon Appellate Courts' Style Manual. Reference to ''passim'' or "et seq.'' in the index of authorities is discouraged.


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 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.

(2) Each assignment of error shall be separately stated under a numbered heading. The arrangement and form of assignments of error, together with reference to pages of the record, should conform to the illustrations in Appendix H.

(3) Each assignment of error shall identify precisely the legal, procedural, factual, or other ruling that is being challenged.

(4) (a) Each assignment of error shall demonstrate that the question or issue presented by the assignment of error timely and properly was raised and preserved in the lower court. Under the subheading ``Preservation of Error'':

(i) Each assignment of error, as appropriate, must specify the stage in the proceedings when the question or issue presented by the assignment of error was raised in the lower court, the method or manner of raising it, and the way in which it was resolved or passed on by the lower court.

(ii) Each assignment of error must set out pertinent quotations of the record where the question or issue was raised and the challenged ruling was made, together with reference to the pages of the transcript or other portions of the record quoted or to the excerpt of record if the material quoted is set out in the excerpt of record. When the portions of the record relied on under this paragraph are lengthy, they shall be included in the excerpt of record instead of the body of the brief.

(b) An assignment of error for a claimed error apparent on the face of the record shall comply with the requirements for assignments of error generally by identifying the precise ruling, specifying the state of the proceedings when the ruling was made, and setting forth pertinent quotations of the record where the challenged ruling was made.1

(c) The court may decline to consider any assignment of error that requires the court to search the record to find the error or to determine if the error properly was raised and preserved.

(5) Under the subheading ``Standard of Review,'' each assignment of error shall identify the applicable standard or standards of review, supported by citation to the statute, case law, or other legal authority for each standard of review.2

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


1 See State v. Brown, 310 Or 347, 355-56, 800 P2d 259 (1990).

2 Standards of review include but are not limited to de novo review and substantial evidence for factual issues, errors of law and abuse of discretion for legal issues, and special statutory standards of review such as those found in the Administrative Procedures Act, ORS 183.400(4) and ORS 183.482(7) and (8).


Rule 5.70

REPLY BRIEF

(1) (a) Except as provided in subsection (3) of this rule, a party may file a reply brief to a respondent's brief or an answering brief of a cross-respondent.

(b) A reply brief shall be confined to matters raised in the respondent's brief or the answering brief of a cross-respondent; reply briefs that merely restate arguments made in the opening brief are discouraged.

(c) The court encourages a party who decides not to file a reply brief, as soon as practicable thereafter, to notify the court in writing to that effect.

(2) The form of a reply brief shall be similar to a respondent's brief. A reply brief shall have an index and shall contain a summary of argument.

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

(i) traffic, boating, wildlife and other violations.

(ii) criminal, probation revocation, habeas corpus and post-conviction relief;

(iii) juvenile court;

[(iii)](iv) mental commitment;

[(iv)](v) forcible entry and detainer; and

[(v)](vi) judicial review of orders of the Land Use Board of Appeals, as provided in Rule 4.66(3).

(b) A motion for leave to file a reply brief shall be submitted, without copies, within 14 days after the filing of the brief to which permission to reply is sought.


Rule 5.90

"BALFOUR'' BRIEFS FILED
BY COURT-APPOINTED COUNSEL

(1) If counsel appointed by the court to represent an indigent defendant in a criminal case on direct appeal has thoroughly reviewed the record, has discussed the case with trial counsel and the client, and has determined that the case does not raise any arguably meritorious issues, counsel shall file a brief with two sections:

(a) Section A of the brief shall contain:

(i) A statement of the case, including a statement of the facts of the case. If the brief contains a Section B with one or more claims of error asserted by the client, the statement of facts shall include facts sufficient to put the claim or claims of error in context.

(ii) A description of any demurrer or significant motion filed in the case, including, but not limited to, a motion to dismiss, a motion to suppress and a motion in limine, and the trial court's disposition of the demurrer or motion.

(iii) A statement that the case is being submitted pursuant to this rule, that counsel has thoroughly reviewed the record and discussed the case with trial counsel and the client, and that counsel has not identified any arguably meritorious issue on appeal. If the brief does not contain a Section B, counsel also shall state that counsel contacted the client, gave the client reasonable opportunity to identify a claim or claims of error, and that the client did not identify any claim of error for inclusion in the brief.

(iv) Counsel's signature.

(b) (i) Section B of the brief [shall] is the client's product and may contain any claim of error [requested by] that the client [and shall be signed by the client] wishes to assert. [Section B shall attempt to] The client shall attempt to state the claim and any argument in support of the claim as nearly as practicable in [the manner that the client seeks, in] proper appellate brief form. The last page of Section B of the brief shall contain the name and signature of the client.

(ii) Counsel's obligation shall be limited to correcting obvious typographical errors, preparing copies of the brief, serving the appropriate parties, and filing the original brief and the appropriate number of copies with the court.

(2) A case in which appellant's brief is prepared and filed under this rule shall be submitted without oral argument, unless otherwise ordered by the court.

(3) On reviewing the record and the briefs filed by the parties, if the court identifies one or more arguably meritorious issues in the case, the court shall notify appellant's counsel of the issue or issues so identified. Appellant's counsel shall have 28 days from the date of the court's notice to file a supplemental opening brief addressing those issues. In addition to addressing the issue or issues identified by the court, counsel may address any other arguably meritorious issue counsel has identified. Respondent shall have 28 days after appellant files a supplemental opening brief to file a response or supplemental response brief addressing the issues raised in the supplemental opening brief.

(4) In a case other than a criminal case on direct appeal, court-appointed counsel who determines that there are no meritorious issues on appeal may submit a brief under this rule, in which case the matter will be submitted without oral argument, unless otherwise ordered by the court.

(5) In any case in which the appellant is represented by court-appointed counsel on appeal and counsel filed a brief in the Court of Appeals under subsection (1) of this rule, counsel may submit a petition for review that contains a Section A that complies with Rule 9.05(2), (5), and (7)(g), and a Section B that complies with paragraph (1)(b) of this rule.


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


PROPOSED NEW RULE 5.92
SUPPLEMENTAL PRO SE BRIEFS

(1) When a client is represented by court-appointed counsel and the client is dissatisfied with the brief that counsel has filed, either the client or counsel may move the court for leave to file a supplemental pro se brief. If the client files the motion, in addition to serving all other parties to the case, the client shall serve counsel with a copy of the motion. If counsel files the motion, in addition to serving all other parties to the case, counsel shall serve the client with a copy of the motion.

(2) If the court gives a client leave to file a supplemental pro se brief, the client shall attempt to prepare the brief as nearly as practicable in proper appellate brief form. 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.

(3) A supplemental pro se brief is the client's product; therefore, if the client requests assistance in preparing the brief, counsel's obligation shall be limited to correcting obvious typographical errors, preparing copies of the brief, serving the appropriate parties, and filing the original brief and the appropriate number of copies with the court. If the client prepares and files the brief without the assistance of counsel, in addition to serving all other parties to the appeal, the client shall serve a copy of the brief on counsel.


Rule 6.10

WHO MAY ARGUE;
FAILURE TO APPEAR AT ARGUMENT

(1) A party may present oral argument only if the party has filed a brief.

(2) An amicus curiae may present oral argument only if permitted by the court on motion or on its own motion.

(3) An attorney who was a witness for a party, except as to merely formal matters such as attestation or custody of an instrument, shall not argue the cause without leave of the court.

(4) Only active members of the Oregon State Bar shall argue unless the court, on motion filed not less than 21 days before the date for argument orders otherwise. If the court has allowed a lawyer from another jurisdiction to appear on appeal pro hac vice (for a particular case) under Rule 8.10(4), the lawyer does not need leave of the court to participate in oral argument of the case.

(5) (a) After the Administrator has given notice of the date of oral argument, any party who decides to waive oral argument or cannot attend oral argument shall give the court and all other parties participating in oral argument at least 48 hours' notice that the party will not be appearing for oral argument.

(b) If [counsel for] a party fails to appear at oral argument, the court may deem the cause submitted without oral argument as to that party. A party's failure to appear shall not preclude oral argument by [the] any other party.

(c) The respondent shall be entitled to recover from counsel for appellant costs and attorney fees related to preparation for and attendance at oral argument, if counsel for appellant fails to appear without having provided at least 48 hours' notice to respondent, unless good cause is shown for such failure.


Rule 6.25

RECONSIDERATION BY COURT OF APPEALS

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

(a) A claim of factual error in the decision;

(b) A claim of error in the procedural disposition of the appeal requiring correction or clarification to make the disposition consistent with the holding or rationale of the decision or the posture of the case below;

(c) A claim of error in the designation of the prevailing party or award of costs;

(d) A claim that there has been a change in the statutes or case law since the Court of Appeals' decision; or

(e) A claim that the Court of Appeals erred in construing or applying the law. Claims addressing legal issues already argued in the parties' briefs and addressed by the Court of Appeals are disfavored.

(2) A petition for reconsideration shall be filed within 14 days of the Court of Appeals' decision. The petition shall have attached to it a copy of the decision for which reconsideration is sought. The form of the petition and the manner in which it is served and filed shall be the same as for motions generally, except that:

(a) The petition shall be accompanied by four copies, if the case was decided by a department of the court, or by 10 copies, if the case was decided by the full court, and

(b) The petition shall have a title page printed on plain white paper and containing the following information:

(i) The full case caption, including appropriate party designations for the parties as they appeared in the court from which the appeal was taken and as they appear on appeal, and the trial and appellate court case numbers;

(ii) A title designating the party filing the petition, such as ``Appellant's Petition for Reconsideration'' or ``Respondent's Petition for Reconsideration''; and

(iii) The names, bar numbers, addresses, and telephone numbers of counsel for the parties, and the names, addresses, and telephone numbers of parties appearing without an attorney.

(3) The filing of a petition for reconsideration is not necessary to exhaust remedies or as a prerequisite to filing a petition for review.

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

[(5) If a petition for review is filed during the time in which a petition for reconsideration may be filed or after the filing of a timely petition for reconsideration, the petition for review will not be submitted to the Supreme Court until the time for filing a petition for reconsideration expires or, if a timely petition for reconsideration is filed, until the petition for reconsideration is decided.]

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

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


* See Rule 9.05(3) regarding the effect of a petition for reconsideration by the Court of Appeals on the due date and consideration of a petition for review by the Supreme Court.


Rule 7.25

MOTION FOR EXTENSION OF TIME

(1) Only the appellate court may grant an extension of time for the performance of any act pertaining to an appeal.

(2) A motion for an extension of time shall contain:

(a) the date the notice of appeal was filed (or in the case of a petition for review;

(b) the date of the decision of the Court of Appeals for which review is being sought);

(c) the date the brief or other action is due;

(d) the date to which the extension is requested;

(e) whether it is the first or other request;

(f) the specific circumstances which caused the act not to be completed in the allotted time; and

(g) in a criminal case, whether the defendant is incarcerated.

(3) A statement whether opposing counsel objects to, concurs in or has no position regarding the extension of time requested is required for any motion other than a first motion for 28 days or less to file a brief.

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

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

(6) A motion for an extension of time generally will be decided within a few days after it is filed. An objection to a motion for an extension of time filed after the court has granted the extension will be treated as a motion for reconsideration of the ruling. On reconsideration, if the court modifies the extension of time, the parties to the appeal will be notified; otherwise, the objection will be noted and placed in the appellate file.

(7) Requests for extensions of time for preparation of transcripts shall be made in accordance with Rule 3.30.


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


Rule 7.27

ORAL REQUEST FOR EXTENSION OF
TIME TO FILE BRIEF

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

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

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


Rule 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.


PROPOSED NEW RULE 8.12

APPOINTMENT, WITHDRAWAL, AND SUBSTITUTION
OF COURT-APPOINTED COUNSEL OR
LEGAL ADVISOR ON APPEAL

(1) (a) When a court-appointed attorney wishes to withdraw:

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

(ii) With appointment of new counsel, the attorney shall file the motion to withdraw and appoint substitute counsel in the trial court. If the trial court appoints new counsel, the trial court administrator shall forward a copy of the order to the appellate court.

(b) If either the client, or the attorney at the request of the client, moves to appoint new counsel based on the client's dissatisfaction with professional services rendered by the attorney, the motion shall be filed in the appellate court. Counsel shall have no obligation to file a motion under this paragraph unless counsel determines that the motion is well-taken.

(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 regarding waiver of court-appointed counsel on appeal in criminal cases. See also Hendricks v. Zenon, 993 F2d 664, 668-71 (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.


Rule 9.05

PETITION FOR SUPREME COURT REVIEW OF
COURT OF APPEALS DECISION

Reviewable Decisions

(1) As used in this rule, "decision" means an opinion, per curiam opinion, or memorandum opinion of the Court of Appeals, including a decision affirming from the bench or affirming without opinion, and an order ruling on a motion, own motion matter, petition for attorney fees, or statement of costs and disbursements.

Time for Filing and for Submitting Petition for Review

[(1)](2) Any party seeking to obtain review of a decision of the Court of Appeals shall file a petition for review in the Supreme Court within 35 days from the date of the Court of Appeals' decision. The Supreme Court may grant an extension of time to file a petition for review.1

(3) (a) If a timely petition for reconsideration of a decision of the Court of Appeals is filed by any party, the time for filing a petition for review concerning that decision for all parties shall not begin to run until the Court of Appeals issues its order deciding the petition for reconsideration.

(b) If a petition for review is filed during the time in which a petition for reconsideration in the Court of Appeals may be filed, the petition for review will not be submitted to the Supreme Court until the time for filing a petition for reconsideration expires.

(c) If a petition for review is filed after the filing of a timely petition for reconsideration, the petition for review will not be submitted to the Supreme Court until the Court of Appeals issues its order deciding the petition for reconsideration.2

(4) (a) If the Administrator has issued the appellate judgment based on the Court of Appeals' disposition of a case, within a reasonable time thereafter, a party may move to reinstate the appeal for the purpose of seeking review. The party shall file in the Supreme Court a motion to recall the appellate judgment and to establish a new due date for the petition for review.

(b) If the party requests immediate recall of the appellate judgment, the motion should identify the circumstances justifying that relief. Otherwise, the court may postpone the decision whether to recall the appellate judgment until the court decides whether to allow review.

(c) A party filing a motion to recall the appellate judgment in a criminal case, in addition to serving all other parties to the appeal, shall serve a copy of the motion on the district attorney.

Form and Service of Petition for Review

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

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

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

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

(i) 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;

(ii) If without opinion (affirmed from the bench, affirmed without opinion or per curiam), the members of the court who decided the case.[1]3

(d) Contain a notice whether, if review is allowed, the petitioner intends to file a brief on the merits or to rely on the petition for review and brief or briefs filed in the Court of Appeals.[2]4

(6) Any party filing a petition for review shall serve two copies of the petition on every other party to the appeal or judicial review, and file with the Administrator an original petition, marked as such, and 12 copies, together with proof of service.

Contents of Petition For Review

[(3)](7) The petition shall contain in order:

(a) A prayer for review.

(b) Concise statements of the legal question or questions presented on review and of the rule of law that petitioner proposes be established, if review is allowed.

(c) A concise statement of each reason asserted for reversal or modification of the decision of the Court of Appeals, including appropriate authorities.

(d) A short statement of facts relevant to the appeal, but facts correctly stated in the opinion of the Court of Appeals should not be restated.

(e) A brief argument related to each reason asserted for review, if desired.

(f) A statement of specific reasons why the issues presented have importance beyond the particular case and require decision by the Supreme Court.

(g) A copy of the decision of the Court of Appeals, including the court's opinion and any concurring and dissenting opinions.

[(4)](8) An assertion of the grounds on which the decision of the Court of Appeals is claimed to be wrong, without more, does not constitute compliance with paragraph 3(e) and (f) of this rule.[3]5

[(5) Any party filing a petition for review shall serve two copies of the petition on every other party to the appeal or judicial review, and file with the Administrator an original petition, marked as such, and 12 copies, together with proof of service.]


1 See generally ORS 2.520. See Rule 7.25(2) regarding information that must be included in a motion for extension of time to file a petition for review.

2Subsection (3) does not apply to a motion for reconsideration filed under Rule 6.25(5).

[1]3 See Appendix M.

[2]4 See Rule 9.17 regarding briefs on the merits.

[3]5 See Rule 9.07 regarding the criteria considered by the Supreme Court when deciding whether to grant discretionary review.

[See generally ORS 2.520; See Rule 7.25(2) regarding moving for an extension of time to file a petition for review.]

See Rule 5.90(5) regarding filing a petition for review where a "Balfour" brief was filed on behalf of the appellant in the Court of Appeals.


Rule 10.15

JUVENILE DEPENDENCY, TERMINATION OF
PARENTAL RIGHTS, AND ADOPTION CASES

(1) On motion of a party or on the court's own motion, the court may expedite a juvenile dependency case under ORS 419B.100.

[(1)](2) [Except as provided in this rule, the procedures on appeal in a termination of parental rights case under ORS chapter 419B shall be the same as on appeal from circuit court.] Sections (3) through (11) of this rule apply to:

(a) A juvenile dependency case under ORS 419B.100, if the Court of Appeals has directed that the case be expedited under section (1) of this rule;

(b) A termination of parental rights case under ORS chapter 419B; and

(c) An adoption case.

[(2)](3) The caption of the notice of appeal, notice of cross-appeal, motion or any other thing filed shall 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.1

[(3)](4) (a) In a juvenile dependency case, if the transcript has not already been filed, within seven days after the date of the order directing that the case be expedited, appellant shall make arrangements for preparation of the transcript. In a termination of parental rights case, 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[ or,]. If appellant is indigent, appellant shall [cause] 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.

(b) In an adoption case, within seven days after filing the notice of appeal, appellant shall make arrangements for preparation of the transcript.

[(4)](5) (a) The court shall not extend the time for filing the transcript under Rule 3.30 or for filing of an agreed narrative statement under Rule 3.45 for more than 14 days.2

(b) Except on a showing of exceptional circumstances, the court shall not grant an extension of time to request correction of the transcript.3

(6) The trial court administrator shall file the trial court record within 14 days of the date of the State Court Administrator's request for the record.

[(5)](7) (a) Appellant's opening brief and [abstract] excerpt of record shall be served and filed within 28 days of the events specified in Rule 5.80(1).

(b) Respondent's brief shall be served and filed within 28 days after the filing of the appellant's brief.

(c) No reply brief may be filed.

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

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

[(7)](9) Notwithstanding Rule 7.30, a motion made before oral argument shall not toll the time for transmission of the record, filing of briefs or hearing argument.

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

(11) (a) Notwithstanding any provision to the contrary in Rule 14.05(3):

(i) The Administrator forthwith shall issue the appellate judgment based on a decision of the Court of Appeals on expiration of the 35-day period to file a petition for review, unless there is pending in the case a motion or petition for reconsideration on the merits, or a petition for review on the merits, or a party has been granted an extension of time to file a motion or petition for reconsideration on the merits or a petition for review on the merits. If any party has filed a petition for review on the merits and the Supreme Court denies review, the Administrator forthwith shall issue the appellate judgment.

(ii) The Administrator shall issue the appellate judgment based on a decision of the Supreme Court on the merits as soon as practicable after the decision is rendered and without regard to the opportunity of any party to file a petition for reconsideration.

(b) If an appellate judgment has been issued on an expedited basis under paragraph (a) of this subsection, the Administrator may recall the appellate judgment or issue an amended appellate judgment as justice may require for the purpose of making effective a decision of the Supreme Court or the Court of Appeals made after issuance of the appellate judgment, including but not necessarily limited to a decision on costs on appeal or review.


1 See Appendix N.

2 See ORS 19.370(1).

3 See ORS 19.370(3).


PROPOSED NEW RULE 10.25

SUMMARY AFFIRMANCE IN CERTAIN CASES
INVOLVING COURT-APPOINTED COUNSEL

Except as may be provided otherwise by statute,1 in any case in which one of the parties is represented by court-appointed counsel,2 the court on motion of the respondent may summarily affirm the judgment if the court concludes, after submission of the appellant's brief and without submission of the respondent's brief, that the appeal does not present a substantial question of law. The Chief Judge may deny a motion for summary affirmance and may grant an unopposed motion for summary affirmance. Only the court may grant, in the manner provided by ORS 2.570, a contested motion for summary affirmance to which the appellant has filed written opposition. A summary affirmance under this section constitutes a decision on the merits of the appeal.


1See, e.g., ORS 138.225 (relating to appeals in criminal cases), ORS 138.660 (relating to appeals in post-conviction relief cases), and ORS 34.712 (relating to appeals in habeas corpus cases).

2For example, appeals in mental commitment cases under ORS chapters 426 or 427 and appeals arising from juvenile court under ORS 419A.200.


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) (a) In a mandamus proceeding that challenges the action of a judge in a particular case in the circuit court, the Tax Court, or the Court of Appeals, the case title of the proceeding shall be the same as the case title in the lower court, except that the party seeking relief shall be designated as the ``relator'' in addition to that party's designation in the trial court and the adverse real party in interest shall be designated as the ``adverse party'' in addition to that party's designation in the trial court. The judge or court shall not be named as a defendant in the mandamus proceeding.1

(b) 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

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

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

(b) a statement why the petition is timely.5

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

(d) a statement why appeal or any other applicable potential remedy is not a plain, speedy and adequate remedy in the ordinary course of law, precluding issuance of the writ.6

(5) The relator shall accompany the petition with:

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

(b) A copy of such portions of the record relating to the matter as is necessary for a determination of the question or questions presented and the relief sought, if the mandamus proceeding arises from a matter in which a record has been made.

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

(6) The form of a petition shall comply with Rule 5.05(4)(c) through (h). Relator shall assemble and submit the petition, the record (if any), and the memorandum in support of the petition as separate documents, and file the original and nine copies with the Administrator. If the record is more than 50 pages, relator need file only two copies of the record.

(7) (a) In a mandamus proceeding that challenges the action of a judge in a particular case in the circuit court, the Tax Court, or the Court of Appeals, the relator shall accompany the petition with proof of service on the adverse party, any other party (if any) to the proceeding in the lower court, and the judge or court whose action is challenged in the mandamus proceeding.

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

(c) 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.7

(8) If the relator seeks a stay in the proceedings from which the mandamus proceeding arises, the relator shall show that the relator requested a stay from the court, judge, or administrative agency or official whose 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.


1 See Illustration 1a in Appendix O.

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 O.

4 See Illustration 1b in Appendix O.

5 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.

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

7The Attorney General should be served at this address: Attorney General of the State of Oregon, Office of the Solicitor General, 400 Justice Building, 1162 Court St. N.E., Salem, OR 97301.

See ORS 34.105 et seq. regarding mandamus proceedings generally; see ORS 34.120(2) regarding the Supreme Court's original mandamus jurisdiction; and see ORS 34.250 regarding procedure in Supreme Court mandamus proceedings.

See ORS 21.040 regarding filing fees.


Rule 11.30

BALLOT TITLE REVIEW

The practice and procedure governing a petition to the Supreme Court to review a ballot title shall be:

(1) Any elector dissatisfied with a ballot title provided by the Attorney General under ORS 250.067 or ORS 250.075(2), or by the Legislative Assembly under ORS 250.075(1), may file with the Administrator a petition to review ballot title.

(2) The petition must be filed within 10 business days after the day upon which the Attorney General certifies the ballot title to the Secretary of State, or the Legislative Assembly files the ballot title with the Secretary of State. If a petition is mailed to the Administrator in compliance with Rule 1.35(1)(b), then the petition is deemed filed when mailed; otherwise, a petition is deemed filed when actually received by the Administrator.

(3) The form of the petition shall comply with Rule 7.10 governing motions. The petition shall have a title page containing:

(a) A case title in which the party petitioning for review is designated as the petitioner and the Attorney General is designated as the respondent.

(b) The title ``Petition to Review Ballot Title Certified by the Attorney General'' or ``Petition to Review Ballot Title Certified by the Legislative Assembly,'' as the case may be.

(c) The date the ballot title was certified.

(d) The chief petitioner or petitioners referred to in ORS 250.045.

(4) The body of the petition shall be no longer than 10 pages and:

(a) Shall state the petitioner's interest in the matter, whether the petitioner is an elector, and whether the petitioner timely submitted written comments on the draft ballot title.

(b) Shall include the reason the ballot title does not substantially comply with the requirements of ORS 250.035, [a proposed ballot title that the petitioner believes would substantially comply] and a request that the Supreme Court certify to the Secretary of State [the proposed] a ballot title that complies with the requirements of ORS 250.035 in lieu of the ballot title challenged by petitioner or refer the ballot title to the Attorney General for modification.

(c) May include under the heading "Arguments and Authorities" legal arguments and citation of legal authorities...

(5) (a) The petition shall have attached to it a copy of the ballot title as certified to or filed with the Secretary of State and containing the full text of the ballot title and a photocopy of the text of the measure as submitted to the Secretary of State.

(b) The petition shall show proof of service on the Secretary of State and the Attorney General, and the chief petitioner or petitioners.

(c) The original and nine copies of the petition shall be filed. The petition shall be accompanied by the filing fee required for an original proceeding in the Supreme Court.

(6) The respondent or respondents shall be allowed [seven calendar] five business days after the filing of the petition, unless a lesser time is ordered by the court, within which to file an answering memorandum. Any answering memorandum shall be in the form prescribed by Rule 7.10 for answers to motions and shall not be longer than 10 pages. The original and nine copies of the answering memorandum shall be filed, with proof of service on counsel for the petitioner.

(7) The Attorney General may submit a letter waiving appearance in lieu of filing an answering memorandum. In either event, the Attorney General shall include the draft ballot title, the certified ballot title, the Attorney General's letter of transmittal to the Secretary of State and, if not overly lengthy, written comments received by the Secretary of State concerning the draft ballot title. In addition, the Attorney General may provide the court with the text of the certified ballot title, and any subsequent modified ballot title, by electronic mail. If the Attorney General claims that text as contained in the petition is in error, the Attorney General shall file an answering memorandum pointing out the discrepancy. The answering memorandum may set forth concisely the reasons why the Attorney General believes the ballot title filed with the Secretary of State substantially complies with the requirements of ORS 250.035 or, alternatively, may suggest alterations that in the Attorney General's judgment would make the ballot title substantially comply. The answer may also contain under separate heading legal arguments and citation to legal authorities.

(8) Additional persons, including the chief proponent or proponents of a measure, interested in a ballot title that is the subject of a petition may file a motion in the form prescribed by Rule 7.10, asking leave of the Supreme Court to intervene and respond to the petition or the Attorney General's answering memorandum, or both. If the Supreme Court allows the motion to intervene, the intervenor's memorandum shall be due within [seven calendar] five business days after the filing of the petition or within [seven calendar] five business days after the filing of the Attorney General's answering memorandum, whichever is applicable. Further, the court's order will state whether the intervenor will be allowed to argue orally to the court. No intervenor may assert an alleged defect in the Attorney General's certified ballot title not asserted by any petitioner.

(9) After the filing of all memoranda permitted, the Supreme Court will consider the matter without the filing of briefs or presentation of oral argument unless otherwise ordered by the court, either on its own motion or on request of the petitioner, respondent or intervenor. If the court orders oral argument, the petitioner shall argue first.

(10) For proceedings in which the Attorney General has filed a modified ballot title after referral from the Supreme Court, any party to the ballot title review proceeding may file an objection to the modified ballot title within five business days from the date of filing of the modified ballot title. The objection must be filed with and actually received by the Administrator within five business days from the date of filing of the modified ballot title and may be filed by telephonic facsimile communication as provided by Rule 7.35(3).* No other party may respond to the objection unless the court requests a response; provided that the court will not sustain an objection to a modified ballot title unless the court has given the Attorney General and any other party to the case the opportunity to respond. If the court requests a response, the response shall be due within five business days of the date of the request, unless the court otherwise directs. If no party files a timely objection, then the court shall certify the modified ballot title, and the Administrator shall issue the appellate judgment on the next business day after the time for filing an objection expires. [Notwithstanding Rule 9.25(1) and Rule 14.05, the court's decision will become effective when the appellate judgment issues. The administrator shall issue the appellate judgment 10 calendar days after the filing date of the decision unless]

(11) A party to a ballot title review proceeding may seek reconsideration of the court's decision as follows:

(a) For proceedings on review in which the court (1) certifies the Attorney General's certified ballot title either with or without modification, or (2) certifies the Attorney General's modified ballot title either with or without modification, [a] the petition for reconsideration [is] must be filed with and actually received by the Administrator within [seven calendar] five business days after the filing date of the decision. A timely petition for reconsideration will toll issuance of the appellate judgment until the court acts on all timely petitions for reconsideration. If the court denies reconsideration, the Administrator shall issue the appellate judgment the next [judicial] business day after the denial of all timely petitions for reconsideration. If no party files a timely petition for reconsideration, then the Administrator shall issue the appellate judgment seven business days after the filing date of the decision.

(b) For proceedings on review in which the court (1) refers the Attorney General's certified ballot title to the Attorney General for modification, or (2) refers the Attorney General's modified ballot title to the Attorney General for further modification, the petition for reconsideration must be filed with and actually received by the Administrator within 10 business days after the filing date of the decision. A timely petition for reconsideration will toll issuance of the appellate judgment until the court acts on all timely petitions for reconsideration. If the court denies reconsideration, and no party has filed an objection to the Attorney General's modified ballot title, then the Administrator shall issue the appellate judgment on the next business day after the denial of all timely petitions for reconsideration.

(c) The court's decision shall become effective in accordance with Rule 14.05(2)(c).


* The facsimile transmission number is (503) 986-5560.


Rule 11.35

REAPPORTIONMENT REVIEW

The practice and procedure for review of reapportionment under Article IV, section 6, of the Oregon Constitution, shall be as follows:

(1) Any qualified elector of the state seeking review of reapportionment shall file a petition on or before August 1 of the year in which the Legislative Assembly enacts the reapportionment [, or, if the Legislative Assembly fails to enact a reapportionment and the Secretary of State makes a reapportionment, on or before September 15 of that year].1

(2) The petition shall be prepared in compliance with Rule 7.10, governing motions, and shall contain:

(a) A title page containing a caption identifying the person or persons seeking review of reapportionment as the petitioner or petitioners, and the Legislative Assembly [or the Secretary of State] as the respondent[, as appropriate,] and the name, address, and telephone number of each petitioner, or the name, bar number, address, and telephone number of each petitioner's attorney if the petitioner is represented by counsel.

(b) A statement showing that the petitioner is a qualified elector of the state.

[(c) A succinct statement of the particulars of why the petitioner believes the reapportionment is invalid.]

[(d)](c) A prayer for specific relief.

[(e)](d) The signature of the petitioner or the petitioner's attorney.

[(f) A copy of the reapportionment plan sought to be reviewed, as an appendix to the petition.]

(3) The petition shall be accompanied by two copies of such portion of the reapportionment as is necessary for a determination of the question presented and the relief sought.

[(3)](4) The petitioner shall file with the Administrator the original petition and nine copies, together with proof of service of a copy of the petition on the Secretary of the Senate, the Chief Clerk of the House, the Secretary of State and the Attorney General.2 The petition shall be accompanied by the filing fee prescribed in ORS 21.040.

[(4)](5) A petitioner shall serve and file a brief in support of the petition on the same date that petitioner serves and files the petition. [no later than August 7 of the year of reapportionment, if the petition seeks review of a reapportionment enacted by the Legislative Assembly, or September 30, if the petition seeks review of a reapportionment plan made by the Secretary of State. The petitioner shall be accompanied by the filing fee prescribed in ORS 21.040.]

[(5)](6)(a) The Legislative Assembly, the Secretary of State or any other person who desires to oppose a petition shall, no later than [August 14 of the year of reapportionment] 10 business days after the date the petitioner's brief is due, file with the Administrator an original and nine copies of a brief in opposition and, if not exempt from payment of filing fees, pay the respondent's first appearance fee prescribed in ORS 21.040. Any party who files a brief in opposition shall be known in the review proceeding as a "respondent."

(b) A respondent shall serve the response on the petitioner, and proof of service shall be endorsed on or attached to the brief in opposition. If the brief in opposition responds to a petition by more than one petitioner, service of the brief in opposition need only be made on the petitioner whose name is first identified in the caption as a petitioner or on the attorney for the petitioners.

(7) Reply briefs are discouraged, but if a petitioner chooses to file a reply brief, the petitioner shall file the reply brief within five business days after the date that a respondent's brief is due.

(8) Amicus curiae briefs are discouraged, but if a person applies for leave to file an amicus curiae brief, the person shall file the application, accompanied by the brief tendered for filing, on the date that a respondent's brief is due.

[(6)](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.

(10) Except for a petition for review of a reapportionment filed in the manner provided by ORS 19.260(1), a party may not rely on the date of mailing as the date of filing or service. A brief or other thing required or permitted to be filed under this rule must be physically filed by the prescribed day and must be physically served no later than one calendar day after the brief is filed.

[(7)](11) The Supreme Court may invite oral argument from any petitioner or respondent. However, Rule 6.10 governs who will be allowed to argue.

(12) The Administrator shall not accept for filing, and the court will not consider, a petition for reconsideration tendered for filing after a reapportionment has become operative under Article IV, section 6, of the Oregon Constitution.

[(8)](13) Review of a [plan of] reapportionment made by the Secretary of State under Article IV, section 6, subsection (3), of the Oregon Constitution, shall be the same as for a [plan of] reapportionment enacted by the Legislative Assembly except that:

(a) The caption of the petition shall identify the Secretary of State as the respondent; and

(b) The petition and brief shall be filed and served on or before September 15 of the year of reapportionment[;].

[(c) Petitioner's brief shall be served and filed by September 21 of the year of reapportionment; and]

[(d) Any respondent's brief shall be served and filed [by September 28 of the year of reapportionment]


1If the deadline for filing a petition is a Saturday or Sunday, the Oregon Constitution may prohibit extending the deadline to the next business day. See Hartung v. Bradbury, 332 Or 570, 595 n 23, 22 P3d 972 (2001).


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 ORS 138.060(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, ch 679, 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) (requiring expedited disposition of appeals of certain pretrial orders in criminal cases).


PROPOSED 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.


PROPOSED 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 469.403:

(1) The case caption of any brief, motion, or other paper filed with the court shall include the words "EXPEDITED JUDICIAL REVIEW UNDER ORS 469.403."

(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 469.403(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.


Rule 13.10

PETITION FOR ATTORNEY FEES

(1) This rule governs the procedure for petitioning for attorney fees in all cases except the recovery of compensation and expenses of court-appointed counsel under ORS 138.500(3).1

(2) A petition for attorney fees shall be served and filed within 21 days after the date of decision. The filing of a petition for review or a petition for reconsideration does not suspend the time for filing the petition for attorney fees.

(3) When a party prevails on appeal or on review and the case is remanded for further proceedings in which the party who ultimately will prevail remains to be determined, the prevailing party on appeal or review may petition the appellate court for attorney fees within the time and in the manner provided in this rule.2 If the appellate court determines an amount of attorney fees under this subsection, it may condition the actual award of attorney fees on the ultimate outcome of the case. In that circumstance, an award of attorney fees shall not be included in the appellate judgment, but shall be awarded by the court or tribunal on remand in favor of the prevailing party on appeal or review, if that party also prevails on remand, and shall be awarded against the party designated on appeal or review as the party liable for attorney fees.

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

(5) (a) A petition shall state the total amount of attorney fees claimed and the authority relied on for claiming the fees. The petition shall be supported by a statement of facts showing the total amount of attorney time involved, the amount of time devoted to each task, the reasonableness of the amount of time claimed, the hourly rate at which time is claimed and the reasonableness of the hourly rate.

(b) If a petition requests attorney fees pursuant to a statute, the petition shall address any factors, including, as relevant, those factors identified in ORS 20.075(1) and (2) or ORS 20.105(1), that the court may consider in determining whether and to what extent to award attorney fees.3

(6) Objections to a petition shall be served and filed within 14 days after the date when the petition is filed. A reply, if any, shall be served and filed within 14 days after the date of service of the objections.

(7) A party to a proceeding under this rule may request findings regarding the facts and legal criteria that relate to any claim or objection concerning attorney fees. A party requesting findings must state in the caption of the petition, objection, or reply that the party is requesting findings pursuant to this rule.4 A party's failure to request findings in a petition, objection or reply in the form specified in this rule constitutes a waiver of any objection to the absence of findings to support the court's decision.

(8) The original of any petition, objections or reply shall be filed with the Administrator, accompanied by five copies if filed in the Court of Appeals and eight copies if filed in the Supreme Court, together with proof of service on all other parties to the appeal, judicial review or proceeding.

(9) In the absence of timely filed objections to a petition under this rule, the Supreme Court and the Court of Appeals, respectively, will allow attorney fees in the amount sought in the petition, except in cases in which:

(a) the entity from whom fees are sought was not a party to the proceeding; or

(b) the Supreme Court or the Court of Appeals is without authority to award fees.


1 With respect to the recovery of compensation and expenses of court-appointed counsel under ORS 138.500(4), see Rule 13.15.

See Appendix P.

2 This subsection does not create a substantive right to attorney fees, but merely prescribes the procedure for claiming and determining attorney fees under the circumstances described in this subsection.

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

4 For example: "Appellant's Petition for Attorney Fees and Request for Findings Under ORAP 13.10(7)" or "Respondent's Objection to Petition for Attorney Fees and Request for Findings Under ORAP 13.10(7)."


Rule 13.15

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

(1) This rule governs the procedure for the recovery of compensation, costs and expenses [of] by a court-appointed [counsel] attorney or legal advisor under ORS 138.500(4). As used in this rule, "court-appointed counsel" or "counsel" means an attorney or a legal advisor appointed under ORS 135.045(1)(d) or ORS 138.500(2).

(2) [A party] Court-appointed counsel seeking compensation, costs or expenses [of counsel] shall file a request for certification in the form prescribed in Appendix Q. The request for certification must have attached to it a brief statement of the tasks involved and the time devoted to each task:

(a) In the Court of Appeals:

(i) Preliminary Tasks

(A) Obtaining appointment as counsel on appeal;

(B) Reviewing the trial file and exhibits;

(C) Preparing and filing the notice of appeal;

(D) Obtaining the transcript or audio or video record;

(ii) Research and Writing

(A) Consulting with the client, including travel time if the client is incarcerated;

(B) Consulting with the trial attorney, if counsel on appeal did not represent the indigent person in the trial court;

(C) Reading the transcript, listening to the audio record or reviewing the video record, and annotating it;

(D) Conducting legal research and writing the brief, including editing and final preparation of the brief.

(iii) Attending Oral Argument

(A) Preparing for oral argument;

(B) Traveling to and from oral argument;

(C) Attending oral argument.

(iv) Post-Argument/Post-Submission Tasks

(A) Reviewing the decision and communicating the decision to the client;

(B) Preparing a petition or motion for reconsideration or response thereto;

(C) Preparing a request for certification of court-appointed attorney compensation, costs and expenses.

(v) Other Tasks

Performing miscellaneous tasks such as making telephone calls and preparing correspondence and motions.

(b) In the Supreme Court:

(i) Preparing a petition for review or response to a petition for review;

(ii) Preparing for and attending oral argument;

(iii) Reviewing the decision;

(iv) Preparing a petition for reconsideration;

(v) Preparing a request for certification of court-appointed attorney compensation, costs and expenses.

(3) (a) The request for certification may be filed any time after the date of oral argument or the date of submission without oral argument, but shall be filed no later than 21 days after the date of the decision or such further time as may be allowed by the court.

(b) Filing a petition for review or a motion or petition for reconsideration does not suspend the time for filing the request for certification of compensation, costs and expenses.

(c) The court may extend the time for filing the request for certification or grant relief for failure timely to file a request for certification, for good cause shown. If a request for certification is filed after issuance of the appellate judgment, extraordinary circumstances excusing the filing of the late request for certification must be shown.

(4) Reimbursable costs and expenses are those specified in the State Court Administrator's Indigent Defense Payment Policies and Procedures (``Policies and Procedures''), except:

(a) Reimbursable postage includes mailing the notice of appeal by registered or certified mail and mailing copies of the brief to the client, opposing counsel and the client's trial attorney. If the total amount of postage exceeds $25.00, postage shall be itemized.

(b) Reimbursable expenses incurred in connection with the record on appeal include:

(i) A copy of every audio tape, when the record of oral proceedings in the trial court is an audio record, and

(ii) Preparation of a transcript of the audio record when the record of oral proceedings in the trial court is a transcript. Reimbursement shall be limited to $2.50 per page for the original transcript, if the transcript is prepared by an official court reporter, or $10.00 per hour, whichever is less.

(c) Reimbursable copying expenses include printing the original brief and copying of the number of copies prequired to be filed or actually filed, whichever is less, plus two copies for each party served and four copies for each party on whose behalf the brief is filed. Copying expenses for briefs stricken by the court are not reimbursable. A receipt showing payment of the copying expenses need not be attached to the request for certification but shall be retained by counsel and submitted to the court on request. If the total copying expense exceeds $75.00, the claim for reimbursement shall show the number of pages of each brief for which reimbursement is sought or, if a receipt for copying expenses shows the number of pages copied, a copy of the receipt may be appended.

(d) Counsel's travel expenses, including parking, for oral argument and for essential visits with an incarcerated client is reimbursable irrespective of the distance from counsel's office.

(e) Law clerk, legal assistant and paralegal time need not be preauthorized; however, reimbursement at a rate in excess of $10.00 per hour must be preauthorized.

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

(6) If a request for reconsideration, i.e., a motion or petition for reconsideration in the Supreme Court or a petition for reconsideration in the Court of Appeals, is filed and court-appointed counsel provides services in connection with the request for reconsideration, counsel may submit a second request for certification of compensation, costs and expenses, which request shall be filed in the court in which reconsideration was sought and within 21 days after the court's decision on the request for reconsideration.

(7) In a criminal case, if the court-appointed trial attorney assists the attorney representing the defendant on appeal, other than the [State Public Defender] Office of Public Defense Services, the trial attorney may file in the Court of Appeals a request for certification of compensation, costs and expenses for that assistance.1 The request for certification may be filed at any time after completion of the trial attorney's services in connection with the appeal but no later than 21 days after the Court of Appeals' decision. The request for certification shall state that it is being submitted under this subsection. If the request for certification is submitted before the court's decision, the court may act on the request at that time or may hold the request in abeyance until court-appointed counsel on appeal files a request for certification of compensation, costs and expenses.

(8) (a) If the court approves the amount of compensation, costs and expenses requested, the court shall certify that amount for payment. If the court approves less than the amount requested, the court will issue a notice of disallowance of compensation, costs or expenses in the form prescribed in Appendix R and showing where the request was reduced and by how much.

(b) Within 14 days after the date of mailing the notice of disallowance of costs and expenses or compensation, the petitioner may move for reconsideration. The motion may be accompanied by affidavits and other documentation supporting the request.

(c) The court will review the motion for reconsideration and issue a final certification. The final certification shall either deny the motion or allow it in whole or in part.

(d) On reconsideration, if the court modifies the amount of compensation, costs and expenses approved, the final certification shall show the amounts approved and certify to the Administrator the total amount approved for payment.

(e) A final certification by the Court of Appeals is subject to a petition for review under Rule 9.05.


1 See State ex rel Acocella v. Allen, 288 Or 175, 604 P2d 791 (1979) regarding trial counsel's duty to assist appellate counsel. See also ORS 138.490 regarding compensation of court-appointed counsel assisting the [State Public Defender] Office of Public Defense Services on appeal.


Rule 14.05

APPELLATE JUDGMENT

(1) As used in this rule,

(a) "Appellate judgment'' means a decision of the Court of Appeals or Supreme Court together with a final order and the seal of the court. [As applied to appeals from circuit court, the appellate judgment is the appellate court decision referred to in ORS 19.450.]

(b) "Decision'' means a designation of prevailing party and allowance of costs together with,

(i) in an appeal from circuit or tax court, or on judicial review of an agency proceeding, the order dismissing the appeal or judicial review, or affirming without opinion; or with respect to a per curiam opinion, a memorandum opinion or an opinion indicating the author, the title page of the opinion containing the court's [judgment] disposition of the appeal or judicial review.

(ii) in a case of original jurisdiction in the appellate court, in addition to the documents specified in clause (i) above, an order denying, dismissing or allowing without opinion the petition or other document invoking the court's jurisdiction. An order allowing a petition for an alternative writ of mandamus or writ of habeas corpus is not a decision within the meaning of this rule.

(c) "Designation of prevailing party and allowance of costs'' means that portion of a decision indicating, when relevant, which party prevailed before the appellate court, whether costs are allowed and, if so, which party or parties are responsible for costs.

(d) "Final order'' means that portion of the appellate judgment ordering payment of costs or attorney fees in a sum certain by specified parties or directing entry of judgment in favor of the Judicial Department for unpaid appellate court filing fees, or both.

(2) The decision of the Supreme Court or Court of Appeals is effective:

(a) with respect to appeals from circuit or Tax Court, on the date that the Administrator sends a copy of the appellate judgment to the court below.

(b) with respect to judicial review of administrative agency proceedings, on the date that the Administrator sends a copy of the appellate judgment to the administrative agency.

(c) with respect to original jurisdiction proceedings, within the time or on the date specified in the court's decision or, if no time period or date is specified, on the date of entry of the appellate judgment. When the effective date is specified in the court's decision, the decision is effective on that date notwithstanding the date the appellate judgment issues [under subsection (3) of this rule].

(3) The Administrator shall prepare the appellate judgment, enter the appellate judgment in the register, send a copy of the appellate judgment with the court's seal affixed thereto to the court or administrative agency from which the appeal or judicial review was taken, and send a copy of the appellate judgment to each of the parties.

(a) With respect to a decision of the Court of Appeals, the Administrator will not issue the appellate judgment for a period of 35 days after the decision to allow time for a petition for review pursuant to ORS 2.520 and Rule 9.05. If a petition for review is filed, the appellate judgment will not issue until the petition is resolved.

(b) With respect to an order of the Supreme Court denying review or a decision of the Supreme Court, the Administrator will not issue the appellate judgment for a period of 21 days after the order or decision to allow time for a petition for reconsideration under Rule 9.25, or a petition for attorney fees or submission of a statement of costs and disbursements under Rules 13.05 and 13.10.

(c) If one or more statements of costs and disbursements, petitions for attorney fees or motions or petitions for reconsideration are filed, the Administrator will not issue the appellate judgment until all statements of costs and disbursements, petitions for attorney fees, or petitions for reconsideration are determined by order of the court.

(d) Notwithstanding paragraphs (a), (b), and (c) of this subsection, a party may request immediate issuance of the appellate judgment based on a showing that no party intends to file a petition for review, petition for attorney fees or any other thing requiring a judicial ruling.

(4) (a) The money judgment portion of an appellate judgment for costs, attorney fees, or both, in favor of a party other than the Oregon Judicial Department that has been entered in the judgment docket of a circuit court may be satisfied in the circuit court in the manner prescribed in ORS 18.400, ORS 18.410, or other applicable law.

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

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

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


See generally ORS 19.450 regarding appellate judgments in appeals from circuit court and tax court.

A party considering petitioning the United States Supreme Court for a writ of certiorari with respect to an Oregon appellate court decision should review carefully 28 USC 2101(c) and the United States Supreme Court Rules, currently Rule 13, to determine the event that triggers the running of the time period within which to file the petition. See also International Brotherhood v. Oregon Steel Mills, Inc., 180 Or App 265, 44 P3d 600 (2002) (majority, concurring, and dissenting opinions).


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. A person with 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 Director. If the absence is approved, a person with authority to recommend settlement must be present.

(ii) After the first settlement conference is held, any party may withdraw from the program, except that the Director may require the parties to attend one or more additional conferences as reasonable and necessary to facilitate a settlement. If the Director requires the parties to attend one or more additional conferences, the neutral's fee for any additional conference will be paid by the program and not by the parties.

(2) Supervising Judge and Program Director

(a) The Chief Judge shall have overall responsibility for the program but may appoint a supervising judge and a program director for the program.

(b) If a supervising judge is appointed, the supervising judge shall have the powers needed to administer the program. The Chief Judge, and the supervising judge if one is appointed, may delegate authority to the program director.

(c) If the Chief Judge, or the supervising judge if one is appointed, serves as a judge or judge pro tempore of the Court of Appeals, the Chief Judge or supervising judge may not participate in the consideration of any case in which the judge is aware of confidential information concerning the case obtained from the program.

(d) If a judge or judge pro tempore of the Court of Appeals serves as the neutral in a case and the case does not settle and proceeds in the Court of Appeals, that judge shall not thereafter participate in any way in the case. Further, such judge shall take steps as necessary to insure that the judge does not disclose to other judges or to court staff any communication from the settlement conference.

(3) Neutrals

(a) The Chief Judge shall determine the responsibilities and qualifications of neutrals to be provided by the program and shall approve the neutrals selected for the program. The supervising judge, if one is appointed, or program director will assign neutrals for individual cases.

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

(4) Abeyance of Appeal

(a) On assignment of a case to the program, the court will hold preparation of the transcript and the record, and briefing, in abeyance for a period of 120 days from the date of [filing of the notice of appeal] 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 Rules of Appellate Procedure must file an appropriate motion with the court.1

(b) If a respondent files a motion to dismiss the appeal when the case is being held in abeyance, in addition to serving a copy of the motion on all parties to the appeal, the respondent shall serve a copy of the motion on the program director accompanied by a letter of transmittal stating whether respondent prefers that the motion to dismiss be decided before the case proceeds in the program. The director may direct that the case proceed in the program or may terminate the referral. If the director terminates the referral and if the court denies the motion to dismiss, the case will be re-referred to the program.

[(b)](c) The Chief Judge may reactivate a case held in abeyance at any time:

(i) At the request of the program director pursuant to the request of a party or on the director's own motion, or

(ii) On motion of a party showing good cause for reactivating the appeal. In addition to serving a copy of the motion on all other parties to the appeal, a party filing a motion to reactivate shall serve a copy of the motion on the program director.

(5) Submission of Information

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

(6) Confidentiality

(a) Program settlement conferences are subject to ORS 36.210 to ORS 36.238.

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

(c) The supervising judge or program director may request the parties or the neutral or both to provide oral and written evaluations of the case settlement process. The materials referred to in paragraph (6)(b), and oral and written evaluations of the case settlement process, may be used to evaluate the program. Any evaluation of the program, whether disseminated to the appellate courts or to the public, shall not disclose specific case identifying information.

(7) Neutral's Fees

(a) There shall be a fee for the neutral's services in conducting a settlement conference. The amount of the fee shall be $300 for workers' compensation cases and $500 for all other cases for up to six hours of the neutral's actual mediation time. The parties to the appeal shall share the cost of the neutral's fee equally and shall pay the fee directly to the neutral or, if instructed by the Director, to the Judicial Department no later than the first settlement conference.

(b) If a settlement conference involves a total of more than six hours of actual mediation time and the parties agree to extend the settlement conference, the parties will compensate the neutral for additional time at the rate of $125 per hour.

(c) The Chief Judge or the Chief Judge's designee may waive or defer payment of the neutral's fee on motion of a party based on a showing that the party is financially unable to pay the fee without substantial economic hardship in providing basic economic necessities to the party or the party's dependent family. If liability for payment of a party's share of the neutral fee is waived or deferred, that party's portion of the neutral fee shall be paid by the program from funds appropriated to the program for that purpose.

(d) When a settlement conference is conducted by a neutral, an administrative law judge, ``Plan B'' retired judge, or other person who does not accept a fee for the services, the parties shall pay a settlement conference fee equal to the amount of the neutral's fee under this subsection. The parties shall pay the fee directly to the Judicial Department to be disposed of as provided by law.

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

(8) Actions Are Not Reviewable

Except as necessary to decide a motion for sanctions under subsection (9) of this rule, the actions of a neutral, a director or a supervising judge shall not be reviewed by the Court of Appeals or by the Supreme Court.

(9) Sanctions

At the request of the Director, the court may impose sanctions against a party, or counsel for a party, or both, for the failure of the party, or counsel, or both to perform any act required by this rule or by the written policies of the Appellate Settlement Conference Program. Sanctions include but are not necessarily limited to monetary assessments and dismissal of the appeal.


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

See ORS 2.560(3)


APPENDIX H

Illustrations for Rule 5.45

Model Complete Assignment of Error;
Other Partial Assignments of Error

Illustration 1
(Model Complete Assignment of Error)

FIRST ASSIGNMENT OF ERROR

The trial court erred in declining to give defendant's requested menacing instruction on the ground that menacing is not a lesser-included offense of robbery in the first and second degrees.

A. Preservation of Error

At the close of the evidence, defendant submitted a requested instruction on menacing. (ER-__). By way of memorandum in support of the requested instruction, defendant argued to the trial court that menacing is necessarily included in the statutory definition of robbery in the first degree (the crime with which defendant was charged) and that the record contained evidence from which a jury could find defendant guilty of the lesser charge and not guilty of the greater charge. (ER-__). The trial court declined to give the instruction, stating:

"I'm not going to give the requested instruction on menacing. Menacing is not expressly included in the charging instrument and, in my view, is not a statutorily lesser-included offense of the crime of robbery because it does not share all of the same elements as robbery. The prosecutor could have charged defendant with menacing, but didn't. And without a match on the elements of the two offenses, a lesser-included instruction isn't proper."

(Tr 142).

B. Standard of Review

The court reviews the trial court's decision either to give or to decline to give a requested jury instruction pursuant to a combination of standards of review. Regarding review of the record to support such an instruction, the court "review[s] the evidence in the light most favorable to the establishment of facts that would require those instructions." State v. Boyce, 120 Or App 299, 302, 852 P2d 276 (1993). Whether the language of the statute defining the lesser offense is necessarily included in the greater offense is a pure question of law, one that the court decides without any particular deference to its resolution below. See State v. Cunningham, 320 Or 47, 57, 880 P2d 43 (1994); State v. Moses, 165 Or App 317, 319, 997 P2d 251 (2000).

ARGUMENT

(Other Partial Forms for Assignments of Error)

Illustration 2

The court erred in denying (or allowing) the following motion:
[Show that the error was preserved, including setting forth verbatim the motion and the ruling of the court.]

Illustration 3

The court on examination of witness __________________ erred in sustaining (or failing to sustain) objection to the following question:
[Show that the error was preserved, including setting forth verbatim the question, the objection made, the answer given, if any, offer of proof, if any, and the ruling of the court.]

Illustration 4

The court erred in denying (or sustaining) the motion for dismissal or direct verdict:
[Show that the error was preserved, including setting forth verbatim the motion and the ruling of the court.]

Illustration 5

The court erred in giving the following instruction:
[Show that the error was preserved, including setting forth verbatim the instruction (or citing to the excerpt of record, if the instruction is set forth verbatim in the excerpt of record), and the exception made to the instruction.]

Illustration 6

The court erred in holding ORS _________ (or Oregon Laws 19___, chapter ___, section ___) unconstitutional (or constitutional).
[Show that the error was preserved, including setting forth verbatim the statutory provision and the manner in which constitutionality was challenged.]


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