NOTICE SEEKING PUBLIC COMMENT ON
PROPOSED UTCR CHANGES FOR 2003



I. INTRODUCTION

At its fall meeting on October 11, 2002, the Uniform Trial Court Rules (UTCR) Committee made preliminary recommendations on proposed changes to the UTCR. The explanations set out below are abstracted by the Reporter from committee discussions, but have not been submitted to the committee for review.

This committee is authorized to make recommendations to the Chief Justice of the Oregon Supreme Court on proposed changes to the UTCR. Before the committee makes its final recommendations to the Chief Justice, its preliminary recommendations are published in the Oregon Appellate Courts Advance Sheets for public comment pursuant to UTCR 1.020(3).

The purpose of this notice is to solicit public comment on both the proposals and the committee's recommendations. WRITTEN COMMENTS SHOULD BE SUBMITTED TO:

UTCR Reporter
Supreme Court Building
1163 State Street
Salem, Oregon 97301-2563

or e-mailed to:

utcr@ojd.state.or.us

Additional information on this committee and the UTCR process may be found at: http://www.ojd.state.or.us/programs/utcr/index.htm.

In order to be considered by the committee, public comment must be received by the UTCR Reporter before the start of the committee's spring meeting scheduled for March 21, 2003, 9:00 a.m. The committee encourages you to submit comments on the proposals, the recommendations (whether for approval or disapproval), and any other action taken by the committee.

At its spring meeting, the committee may consider amendments to proposals, may reconsider proposals entirely, may reconsider its recommendations for approval or disapproval, and may reconsider other actions taken by the committee. The committee will review timely public comment on these actions before it makes its final recommendations to the Chief Justice.

Any of the committee's recommendations that are adopted by the Chief Justice will take effect August 1, 2003, and will be published in the Oregon Appellate Courts Advance Sheets in May or June of 2003 (No. 11 or 12).



II. FUTURE MEETINGS

The current meeting schedule for the committee is:

SPRING MEETING: March 21, 2003, at the Office of the Oregon State Court Administrator, Salem. The committee will review public comment on the proposals and recommendations explained in this notice and will make final recommendations to the Chief Justice on changes to the UTCR to take effect August 1, 2003.

FALL MEETING: October 17 and 18, 2003, at the Office of the Oregon State Court Administrator, Salem. The committee will review existing and proposed Supplemental Local Rules (SLR) and make recommendations to the Chief Justice on disapproval of SLR pursuant to UTCR 1.050. This meeting is the only one in the 2003-2004 cycle at which the committee intends to accept proposals for changes to the UTCR to take effect August 1, 2004. Committee meeting dates for the following year will be scheduled at this meeting.



III. SYNOPSIS OF FALL 2002 ACTIONS

A.   RECOMMENDATIONS OF APPROVAL. These are brief descriptions of proposals preliminarily recommended by the committee for approval (more detailed explanations are contained in Section IV.A.):

1.   UTCR 1.090(2) - Amend to clarify against whom the court may assessmonetary sanctions and to restructure rule.

2.   UTCR 3.120 - Amend to allow limited contact with jurors after discharge from service.

3.   UTCR 7.060 - Amend to change the time limit for requesting ADA special accommodations and to change the information the request must include.

4.   UTCR 7.070 - Amend to change the time limit for requesting an interpreter and to require certain information in the request.

5.   CHAPTER 7 - Create a new rule requiring parties to provide certain information upon a request by the interpreter.

6.   UTCR 8.010(4) - Amend to establish a standardized joint personal property list.

7.   CHAPTER 15 - Create a new chapter and rule for standardized forms pertaining to small claims.

B.   RECOMMENDATIONS OF DISAPPROVAL. These are brief descriptions of proposals preliminarily recommended by the committee for disapproval (more detailed explanations are contained in Section IV.B.):

1.   UTCR 1.050(3) - Repeal.

2.   UTCR 1.090 - Adopt a commentary.

3.   UTCR 2.010 - Amend to require that all pleadings must be presented in black ink only.

4.   UTCR 2.070 - Repeal.

5.   UTCR 4.060(4) - Amend to require district attorneys to file a written response to motions to suppress evidence.

6.   UTCR - Create a new rule limiting secrecy provisions in settlement agreements.



C.   OTHER ACTIONS. These are brief descriptions of other actions (more detailed explanations are contained in Section IV.C.):

1.   Report from the subcommittee on electronic filings.

2.   Discussion on whether to study and reconcile real and apparent differences between the UTCR and the Oregon Rules of Civil Procedure (ORCP).

3.   Out-of-cycle adoption of UTCR 17.010 on electronic filing of parking complaints.



IV.   DESCRIPTION OF FALL 2002 ACTIONS

FORMAT OF CHANGES:   Wording proposed to be taken out of existing UTCR sections is in [brackets and italics]. Proposed new wording is underlined and in bold. Repealed UTCR are not set out. In some cases, no draft wording was submitted to the committee and so none is set out in the explanation.

A.   RECOMMENDATIONS OF APPROVAL. These proposals are published to solicit public comment (see Section I. Introduction).

1.   UTCR 1.090(2) - Amend to clarify against whom the court may assess monetary sanctions and to restructure rule.

ACTION TAKEN
Preliminarily recommended for approval.
Motion 78, to recommend approval, passed 10-0.

REASON
This amendment was proposed by the subcommittee on sanctions to clarify against whom monetary sanctions may be awarded. In particular, the amendment makes clear that the court may assess monetary sanctions against a party's attorney. This was part of a broader discussion on sanctions conducted by the committee over the last four committee meetings. In that broader discussion, the committee was particularly interested in the large number of sanctions in the SLR, their utility, and whether they were consistent with UTCR 1.090.

PROPOSED AMENDMENT

1.090   SANCTIONS

(1)   For failure to file a pleading or other document in the manner, the form or the time required by these rules or SLR, the court may strike the pleading or document.

(2)   For willful and prejudicial resistance or refusal to comply with UTCR or SLR, the court, on its own motion or that of a party after opportunity for a hearing, may [award reasonable costs, expenses and attorneys fees incurred by a party, attorney or the court as a result of that failure, strike the offending pleading or other document, or treat as established an allegation or claim] do any of the following:

(a)   Assess against the noncompliant party or attorney or both reasonable costs, expenses and attorneys fees incurred by a party, attorney or the court as a result of that failure.

(b)   Otherwise award reasonable costs, expenses and attorneys fees incurred by a party, attorney or the court as a result of that failure.

(c)   Strike the offending pleading or other document.

(d)   Treat as established an allegation or claim.



2.   UTCR 3.120 - Amend to allow limited contact with jurors after they are discharged from service.

ACTION TAKEN
Preliminarily recommended for approval.
Motion 83, to recommend approval, passed by consensus.

REASON
The Honorable Edward J. Jones proposed this amendment. Judge Jones' concern is that the current rule may prevent him from allowing attorneys to talk with jurors, no matter how well controlled the contact may be. A benefit would be to improve attorneys' skills by allowing them to obtain from jurors a critique of their performance during trial. Another benefit would be to satisfy the desire of many jurors to discuss a case when it is completed. Concern was expressed about protection of juror privacy and maintenance of juror safety.

PROPOSED AMENDMENT

3.120   COMMUNICATION WITH JURORS

(1)   Except as necessary during trial, and except as provided in subsections (2), (3), and (4), parties, witnesses or court employees must not initiate contact with any juror concerning any case which that juror was sworn to try.

(2)   After a sufficient showing to the court and on order of the court, a party may have contact with a juror in the presence of the court and opposing parties when:

(a)   there is a reasonable ground to believe that there has been a mistake in the announcing or recording of a verdict; or

(b)   there is a reasonable ground to believe that a juror or the jury has been guilty of fraud or misconduct sufficient to justify setting aside or modifying the verdict or judgment.

(3)   The court may allow a party's attorney to have contact with jurors upon discharge of the jury, provided:

(a)   each juror is given the opportunity to decline such contact and to leave the premises before contact with other jurors begins;

(b)   all parties' attorneys are given the opportunity to participate in the contact; and

(c)   the contact occurs only in the presence of the court.

(4)   Nothing in this rule is intended to limit the court's authority to debrief jurors outside the presence of the parties.



3.   UTCR 7.060 - Amend to change the time limit for requesting special accommodations under the Americans with Disabilities Act (ADA) and to change the information the request must include.

ACTION TAKEN
Preliminarily recommended for approval.
Motions 63 and 64, to recommend approval, passed 11-0.

REASON
These amendments were proposed by Cathy Rhodes, Interpreter Coordinator for the Office of the State Court Administrator. The courts are experiencing an increasing number of requests for accommodations under the ADA. Often, such accommodations cannot be arranged within two days of a proceeding (current time frame for a request). This change would require that such requests for an accommodation must be made at least four judicial days before the proceeding. The list of information that must be provided with the request is also expanded to make it easier for the court to prepare the proper accommodation.

PROPOSED AMENDMENT

7.060   AMERICANS WITH DISABILITIES ACT (ADA) ACCOMMODATION

(1)   If special accommodation under the ADA is needed for an individual in a court proceeding, the party needing accommodation for the individual must notify the court in the manner required by the court as soon as possible, but no later than [two] four judicial days in advance of the proceeding. For good cause shown, the court may waive the [two] four-day advance notice.

(2)   Notification to the court must provide:

(a)   the name of the person needing accommodation;

(b)   the case number;

(c)   charges (if applicable);

(d)   the nature of the proceeding;

[(b)] (e)   the person's status in the proceeding;

(f)   the time, date, and estimated length of the proceeding;

[(c)] (g)   the type of disability needing accommodation; and

[(d)] (h)   the type of accommodation, [aural] interpreter, or auxiliary aid needed or preferred.



4.   UTCR 7.070 - Amend to change the time limit for requesting a foreign language interpreter and to require certain information in the request.

ACTION TAKEN
Preliminarily recommended for approval.
Motions 63 and 64, to recommend approval, passed 11-0.

REASON
These amendments were proposed by Cathy Rhodes, Interpreter Coordinator for the Office of the State Court Administrator. The courts are experiencing an increasing number of requests for interpreters of unusual languages, making it difficult to find qualified interpreters. Often, such interpreters cannot be found within two days of a proceeding (current time frame for a request). This change would require that requests for a foreign language interpreter must be made at least four judicial days before the proceeding. This proposal would also add a requirement that the request contain certain information to help in scheduling an interpreter.

PROPOSED AMENDMENT

7.070 FOREIGN LANGUAGE INTERPRETERS

(1)   If a foreign language interpreter is needed for a court proceeding, the party in need of an interpreter must notify the court in the manner required by the court as soon as possible, but no later than [two] four judicial days in advance of the proceeding. For good cause shown, the court may waive the [two] four-day advance notice.

(2)   Notification to the court must include:

(a)   the name of the person needing an interpreter;

(b)   the case number;

(c)   charges (if applicable);

(d)   the nature of the proceeding;

(e)   the person's status in the proceeding;

(f)   the time, date, and estimated length of the proceeding; and

(g)   the language to be interpreted.



5.   CHAPTER 7 - Create a new rule requiring parties to provide certain information upon a request by the interpreter.

ACTION TAKEN
Preliminarily recommended for approval.
Motion 62, to recommend approval, passed 10-1.

REASON
This rule was proposed by Cathy Rhodes, Interpreter Coordinator for the Office of the State Court Administrator. The purpose of this rule is to give interpreters an opportunity to obtain information that will help them prepare for the proceeding. They are able to interpret more efficiently if they can review beforehand special terminology, numbers, and names. The benefits of this process include more accurate interpretation and quicker testimony (the interpreter does not need to interrupt as often for clarifications).

PROPOSED RULE

7.080   INTERPRETERS' REQUESTS FOR INFORMATION

Upon request, neutral court interpreters shall be afforded by the parties in civil and criminal cases information on the vocabulary which will occur in the proceeding in which the interpreter shall be providing services so that the interpreter may interpret accurately and completely. The information shall be provided to the interpreter allowing sufficient time to prepare.



6.   UTCR 8.010(4) - Amend to establish a standardized joint personal property list.

ACTION TAKEN
Preliminarily recommended for approval.
Motion 35, to recommend approval, passed by consensus.

REASON
This form is adapted from Lane County's proposed SLR for 2003. The committee felt this was a good form to standardize for statewide use in those courts where joint personal property forms are permitted or mandated. Please note that this form applies to personal property.

PROPOSED AMENDMENT

8.010   ACTIONS FOR DISSOLUTION OF MARRIAGE, SEPARATE MAINTENANCE AND ANNULMENT, AND CHILD SUPPORT

(1)   * * *

* * * * *

(4)   In any contested dissolution of marriage, separate maintenance or annulment action, each party must file with the trial court administrator and serve on the other party a statement listing all marital and other assets and liabilities, the claimed value for each asset and liability and the proposed distribution of the assets and liabilities. In the alternative, the parties may elect to file with the trial court administrator a joint statement containing this information. Parties electing or required to file a joint personal property list must file in the form specified in Form 8.010.4 in the UTCR Appendix of Forms.

(5)   * * *

* * * * *

Click here to view Form 8.010.4 -- Joint Personal Property List



7.   CHAPTER 15 - Create a new chapter and rule for standardized forms pertaining to small claims.

ACTION TAKEN
Preliminarily recommended for approval.
Motion 20, to recommend approval, passed by consensus.

REASON
This proposal was presented by Jim Markee and Rob Robertson on behalf of the Oregon Collectors Association. Their purpose was to establish standard small claims forms that could be filed in all of the judicial districts. Currently, there is great variety in the format of forms that are acceptable county by county. This proposal would simplify the small claims process for those businesses that use the process in multiple judicial districts. One of the Association's concerns was many of the forms currently accepted by the circuit courts do not give essential information to the debtor in a conspicuous manner. They also felt that more businesses would use the small claims option if standardized forms were accepted by the courts. This proposal does not affect Justice Court rules on what forms may be acceptable in those courts.

CAVEAT
These proposed forms were provided by the Oregon Collectors Association. The Reporter has not altered the forms to make them comply with UTCR Chapter 2 requirements for pleadings, motions, and other documents. If adopted in this form, these forms will be considered as created by the Oregon Judicial Department and not subject to those requirements, pursuant to UTCR 2.010(15), in order to create administrative convenience for courts and parties.

PROPOSED CHAPTER AND RULE

CHAPTER 15--Small Claims

15.010   SMALL CLAIMS FORMS

(1)   The following small claims documents shall be accepted, when the proper fee is tendered, by all judicial districts that accept small claims filings:

(a)   Claim and Notice of Claim substantially in the form specified in Form 15.010.1a in the UTCR Appendix of Forms, to commence a small claims action pursuant to ORS 46.425 and 46.445.

(b)   Request for Default Judgment, Nonmilitary/Nonminor Affidavit, and Default Judgment substantially in the form specified in Form 15.010.1b in the UTCR Appendix of Forms, to obtain a default judgment pursuant to ORS 46.475(2).

(c)   Affidavit of Noncompliance and Money Judgment, substantially in the form specified in Form 15.010.1c in the UTCR Appendix of Forms, to obtain a judgment for failure to comply with a mediation agreement.

(2)   Forms in these formats may be made mandatory by SLR. SLR 15.011 is reserved for making such formats mandatory in the judicial district.

Click here to view Form 15.010.1a -- Claim and Notice of Claim -- UTCR 15.010(1)(a)

Click here to view Form 15.010.1b -- Request for Default Judgment; Nonmilitary and Nonminor Affidavit; and Default Judgment -- UTCR 15.010(1)(b)

Click here to view Form 15.010.1c -- Affidavit of Noncompliance and Money Judgment -- UTCR 15.010(1)(c)



B.   RECOMMENDATIONS OF DISAPPROVAL. These proposals are published to solicit public comment (see Section I. Introduction).

1.   UTCR 1.050(3) - Repeal.

ACTION TAKEN
None.
No motion was made, rendering the proposal preliminarily disapproved.

REASON
This proposal was presented for discussion by the subcommittee on sanctions. This was part of a broader discussion on sanctions conducted by the committee over the last four committee meetings. In that broader discussion, the committee was particularly interested in the large number of sanctions in the SLR, their utility, and whether they were consistent with UTCR 1.090. In this instance, the committee chose to address sanctions issues through amendment of UTCR 1.090(2) rather than repeal of 1.050(3). Please see IV.A.1. above.



2.   UTCR 1.090 - Adopt a commentary.

ACTION TAKEN
The commentary, as originally drafted, was amended to delete the last sentence. Motion to approve amended commentary failed rendering the proposal preliminarily disapproved.
Motion 81, to delete the last sentence of the proposed commentary, passed 6-4.
Motion 80, to recommend approval of the amended commentary, failed 5-6.

REASON
This proposal was presented for discussion by the subcommittee on sanctions. This was part of a broader discussion on sanctions conducted by the committee over the last four committee meetings. In that broader discussion, the committee was particularly interested in the large number of sanctions in the SLR, their utility, and whether they were consistent with UTCR 1.090. In this instance, the committee held discussions on a court's power to create sanctions and on local control. The intent of the commentary, in its original form, was to alert courts to limitations on their power to sanction.

PROPOSED COMMENTARY (as amended by Motion 81).

2002 Commentary:

This rule is not intended to limit a trial court's authority to impose sanctions such as contempt under ORS 33.015 to 33.155, dismissal for failure to prosecute under ORCP 54B(1), or to otherwise limit the inherent authority of the trial court as to parties and attorneys appearing in the trial court.

PROPOSED COMMENTARY (as originally presented).

2002 Commentary:

This rule is not intended to limit a trial court's authority to impose sanctions such as contempt under ORS 33.015 to 33.155, dismissal for failure to prosecute under ORCP 54B(1), or to otherwise limit the inherent authority of the trial court as to parties and attorneys appearing in the trial court. Notwithstanding that intent, separate statements of sanctions in SLRs are duplicative of the sanctions stated in this rule and are therefore inappropriate under UTCR 1.050(1)(b).



3.   UTCR 2.010 - Amend to require that all pleadings must be prepared and presented in black ink only.

ACTION TAKEN
None.
No motion was made, rendering the proposal preliminarily disapproved.

REASON
Nancy Lamvik, committee member and Lincoln County Trial Court Administrator, received a request from an attorney to make black ink mandatory. The attorney had received a pleading in green ink which was difficult to read and to copy. The committee was concerned such an amendment would result in constitutional problems concerning access to the judicial system.

PROPOSED AMENDMENT
No draft language for this amendment was submitted.



4.   UTCR 2.070 - Repeal.

ACTION TAKEN
None.
No motion was made, rendering the proposal preliminarily disapproved.

REASON
This issue was originally raised by Steve Larson, committee member and Portland attorney, at the fall 2001 meeting when the committee was considering other changes to the rules on arbitration. The committee concluded that this rule provides a useful reference to another rule; therefore, no action was taken on the proposal.



5.   UTCR 4.060(4) - Amend to require district attorneys to file a written response to motions to suppress evidence.

ACTION TAKEN
Preliminarily recommended for disapproval.
Motion 22, to recommend disapproval, passed 9-2.

REASON
This proposal was sent to the committee by Roger H. Reid, Albany attorney. The committee felt that in more serious cases the district attorneys do file written opposition, but that in the bulk of suppression hearings such paper is not necessary as the issues and case law are standard and straightforward. They were also concerned that there could be no viable enforcement mechanism.

PROPOSED AMENDMENT
No draft language for this amendment was submitted.



6.   UTCR - Create a new rule limiting secrecy provisions in settlement agreements.

ACTION TAKEN
None.
No motion was made, rendering the proposal preliminarily disapproved.

REASON
The Honorable Edward J. Jones proposed this amendment. The committee concluded that this was an important public policy issue better suited for discussion in the legislature than in this committee.

PROPOSED RULE

UTCR ____ SECRECY PROVISIONS IN SETTLEMENT AGREEMENTS FORBIDDEN

No court shall approve or enforce a provision in a settlement agreement that limits a party's ability to speak about the terms of the agreement or the circumstances which gave rise to the litigation.



C.   OTHER ACTIONS. These items are published to inform the public and to solicit public comment (see Section I. Introduction).

1.   Report from the subcommittee on electronic filings.

ACTION TAKEN
The UTCR Reporter was directed to obtain feedback from all presiding judges and trial court administrators on electronic filing issues.
Motion 78, to seek feedback from courts, passed by consensus.

REASON
The subcommittee reported their conclusion that they need to focus on electronic filing rather than fax filing, which is, or soon will be, an outdated technology. They have spent some time looking at rules from the East Coast on electronic filing. The committee wants to hear from the judicial districts on their interest in, and concerns over, electronic filing.



2.   Discussion on whether to study and reconcile any real and apparent differences between the UTCR and the Oregon Rules of Civil Procedure (ORCP).

ACTION TAKEN
The UTCR Reporter was directed to obtain from the proponent a written summary of examples of rules that need to be consolidated or reconciled, and to place this issue on the spring agenda for possible formation of a subcommittee to explore the issue.
Motion 82, to obtain examples and place on spring agenda, passed by consensus.

REASON
This proposal was presented to the committee by Stephan D. Finlayson, an attorney from Burns. The committee wanted specific examples of rules that need to be consolidated or reconciled before deciding whether and how to further explore this issue.



3.   Out-of-cycle adoption of UTCR 17.010 on electronic filing of parking complaints.

ACTION TAKEN
This rule was adopted out of cycle through CJO No. 02-099 signed by the Chief Justice of the Oregon Supreme Court on November 19, 2002. It became effective on December 1, 2002.

REASON
This rule was adopted at the request of Multnomah Circuit Court so they could process electronic parking citations.

PROPOSED RULE

UTCR 17.010   ELECTRONIC FILING OF PARKING COMPLAINTS

(1)   A law enforcement officer or a person authorized to enforce parking ordinance violations, following procedures established by statute and this rule, may file a complaint with the circuit court by electronic means, without an actual signature of the officer, in lieu of using a written complaint, provided:

A.   The process of issuing citations and electronically filing the complaint meets the requirements of ORS 221.333, 810.425, and 153.770 for the issuing of a citation and the filing of a parking complaint by electronic means; and

B.   The equipment used by the enforcement agency has the capacity to transmit electronically to the circuit court the data required to be filed, and the transmitted data must meet the file format specifications for parking citation data established by the circuit court.

(2)   The electronic complaint shall be deemed filed when the digital information for the citation is entered in the register of the circuit court, and the date of filing shall be the date of entry.

(3)   The printed register shall constitute the electronically filed complaint for all purposes where a physical copy of a filed complaint is required in proceedings before the circuit court for the adjudication of the parking offense.


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