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


In the Matter of the Adoption of
Amendments to the Oregon Rules
of Appellate Procedure
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  )  
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Chief Justice Order No. 04-046
Chief Judge Order
ORDER ADOPTING AMENDMENTS

The Supreme Court and Court of Appeals:

(1) Adopt amendments to these Rules of Appellate Procedure: Rule 1.10, 1.15, 1.25, 2.30, 2.40, 2.45, 3.07, 3.30, 3.33, 3.35, 3.40, 3.45, 3.55, 4.20, 4.22, 4.60, 5.05, 5.10, 5.12, 5.45, 5.50, 5.55, 5.80, 5.85, 5.90, 5.92, 6.15, 6.20, 6.25, 8.05, 8.12, 8.15, 9.05, 9.10, 9.25, 10.15, 10.25 (and renumbers the rule as Rule 7.50), 11.05, 11.30, 12.10, 12.12, 13.05, 13.10, 13.15, 14.05, and 15.05, and

(2) Adopt new Rule of Appellate Procedure 8.50.

Format of Rule Amendments

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

Authority Delegated to Editor of the Oregon Rules of Appellate Procedure

The Supreme Court and Court of Appeals give the Editor of the Oregon Rules of Appellate Procedure the authority to do the following:

  • Include the current address of the Supreme Court, Court of Appeals, or State Court Administrator in a footnote to any rule requiring or authorizing filing with or service on the Supreme Court, Court of Appeals, or State Court Administrator.

  • Arrange appendices in the Appendix in the order of the first reference to each appendix made in the Oregon Rules of Appellate Procedure. Whenever a new rule or an amendment to an existing rule refers to an appendix that changes the chronological reference to the appendices in the Appendix, the Editor is authorized to substitute references to appendices in the text or footnotes of the rules and in the Appendix itself to maintain the appropriate chronological order of the appendices.

  • Substitute references to "subsection," "paragraph," and "clause" consistent with the following convention, if the existing Oregon Rules of Appellate Procedure or a new rule or an amendment to an existing rule should fail to follow the convention: The subpart of a rule should be referred to as "subsection;" the subpart of a subsection should be referred to as "paragraph;" and the subpart of a paragraph should be referred to as "clause."

    DATED this 17th day of November, 2004

    Wallace P. Carson, Jr., Chief Justice
    David V. Brewer, Chief Judge


    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 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


    1 Except for any temporary new rule or temporary amendment to an existing rule adopted pursuant to subsection (2) of this rule, these rules [generally] were last amended effective January 1, [2003] 2005.

    2 The Judicial Department's website address is: http://www.publications.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] ORAP 14.05(1)(a).

    (g) "Audio record" means [an electronic tape recording of] the record of oral proceedings before a trial court or agency made by electronic means and stored or reproduced on audiotape or compact disc.

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

    (i) "Cassette" means the cartridge containing the audio or video recording.

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

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

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

    (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, modification of judgment of dissolution of marriage or domestic partnership, and adoption.

    (n) "Judgment" [includes a decree or an appealable order entered by a trial court] means any judgment document or order that is appealable under ORS 19.205, ORS chapter 138, or other provision of law.

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

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

    (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.

    (r) "Petitioner" means a party who files a petition.

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

    (t) "Transcript" means a typewritten or printed transcription of oral proceedings before a trial court or agency.

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

    (v) "Video record" means the audio and visual record of proceedings before a trial court or agency made by electronic means and stored or reproduced on videotape or compact disc.


    Rule 1.25
    COMPUTATION OF TIME

    (1) In computing any period of time prescribed or allowed by these rules or order of the court, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless that day is a Saturday, [or] a legal holiday[,] (including Sunday), or a day or part of a day on which the court is closed for the purpose of filing documents, closed to the extent ordered by the Chief Justice, or closed before the end of normal working hours during which documents may be filed. In [which event] any of those events, the period runs until the end of the next day [which is not a Saturday or a legal holiday, including Sunday] the court is open.

    (2) When the period of time prescribed or allowed relates to serving a public officer or filing a document at a public office, and if the last day falls on a day when that particular office is closed before the end of or for all of the normal work day, the last day shall be excluded in computing the period of time within which service is to be made or the document is to be filed, in which event the period runs until the close of office hours on the next day the office is open for business.

    (3) When a party intends to file by mail a brief or other thing, other than a notice of appeal or other document subject to ORS 19.260, and the brief or other thing is due on a date that all local United States Postal Service facilities unexpectedly are closed in whole or in part, the party filing the brief or other thing shall have until the next day that United States Postal Service facilities are open to file the brief or other thing.

    [(3)](4) Except for an oral extension of time under [Rule] ORAP 7.27, when the period of time prescribed or allowed is less than seven days, intermediate Saturdays and legal holidays, including Sundays, shall be excluded in the computation.

    [(4)](5) As used in this rule, "legal holiday" means legal holiday as defined in ORS 187.010 and ORS 187.020.

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


    See ORS 174.120 and ORCP 10 A.


    Rule 2.30
    CONSOLIDATION

    The appellate court, on motion of a party or on its own motion, may consolidate cases for purposes of appeal. Any party may [oppose] file an objection to another party's motion for consolidation within 14 days after the filing of the motion. The appellate court, on motion of a party or on its own motion, may consolidate cases for oral argument, whether or not the cases have been consolidated for appeal.


    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] ORAP 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, or 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:

    (a) If the defendant has filed a motion for delayed appeal under ORS 138.071(4) in a case otherwise subject to this rule; or

    (b) If the appeal is from a conditional guilty plea or no contest plea under ORS 135.335(3).


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

    1 See 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 C for illustrations of colorable claims of error.


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

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

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

    (b) The court or other tribunal shall:

    (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 other 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 other 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] ORAP 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 other tribunal that referred the question. If the Court of Appeals decides that another court or other 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 other tribunal to which the case has been transferred, the Court of Appeals will transmit the record to the court or other 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 referred to in paragraph (2)(b) of this subsection.*

    (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] ORAP 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 labeled as follows:

    (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 appellate 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 appellate 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] section apply to the extent practicable to any material submitted to an appellate court in the first instance [that] when the appellate court determines that such material is not subject to inspection by a party, a party's attorney, or the public.


    Rule 3.30
    EXTENSION OF TIME FOR
    PREPARATION OF TRANSCRIPT

    (1) Except as provided in [Rule] ORAP 3.40(3), only the appellate court may grant an extension of time for the preparation of a transcript.

    (2) A request for an extension of time to prepare a transcript may be filed by the party responsible for causing the transcript to be prepared or by the court reporter or transcriptionist (in audio and video record cases) responsible for preparing the transcript.

    (3) A request for an extension of time shall include the amount of time sought, the number of previous extensions obtained and the reason for the extension of time.

    (4) If all or part of the need for an extension of time is the failure to make satisfactory arrangements for payment of the transcript, the request shall so state. If a party makes a request for an extension of time under this subsection, the party shall show why appropriate arrangements have not been made. The court in its discretion may deny the extension of time and direct that the appeal proceed without the transcript.

    (5) A court reporter's or transcriptionist's request for an extension of time shall include the date on which the transcript was ordered, the number of days of proceedings designated on appeal, the approximate number of pages of transcript to be prepared, and information about other transcripts due on appeal. The [court reporter's] request shall be substantially in the form illustrated in Appendix D and shall show proof of service on the parties and, for the second or any subsequent request for extension of time, on the trial judge.


    See generally ORS 19.395. See also ORS 19.370(1), which provides that the transcript shall be filed [by the reporter] with the trial court administrator within 30 days after the filing of the notice of appeal [or within 30 days after the entry of an order granting a transcript at state expense under ORS 138.500(3)].


    Rule 3.33
    PERSONS RESPONSIBLE FOR
    PREPARING TRANSCRIPT

    (1) On being served with a copy of a notice of appeal, the transcript coordinator shall examine the notice of appeal and determine:

    (a) Whether the party has designated a record of oral proceedings as part of the record on appeal;

    (b) Whether preparation of a transcript of the designated proceedings is required by law or these rules; and

    (c) Whether the proceedings were reported by a court reporter or recorded by audio or video recording equipment, or both.

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

    (a) The transcript coordinator shall forward a copy of the notice of appeal to the court reporter or reporters who reported the proceedings designated as part of the record on appeal and inform the reporter or reporters of the due date of the transcript.

    (b) Except as provided in paragraph (c) of this subsection, the party shall make financial arrangements with the court reporter or reporters for preparation of the transcript.

    (c) If the trial court has issued an order authorizing preparation of a transcript at state expense, the transcript coordinator shall forward a copy of the order to the court reporter(s) or [transcriber(s)] transcriptionist(s) responsible for preparation of all or a part of the transcript.

    (3) When a party has designated as part of the record on appeal a transcript of oral proceedings reported by audio or video recording:

    (a) The party shall make financial arrangements with the transcript coordinator for preparation of the transcript; and

    (b) The transcript coordinator shall identify one or more qualified [transcribers] transcriptionists, forward a copy of the notice of appeal to the [transcriber(s)] transcriptionist(s) along with a certified copy of the audio or video tape recording, and notify the [transcriber(s)] transcriptionist(s) of the due date of the transcript.

    (4) After making arrangements with the court reporter(s) or [transcriber(s)] transcriptionist(s) as provided in subsections (2) and (3) of this rule, the transcript coordinator shall notify the appellate court and the parties to the appeal of the name, address and telephone number of each court reporter or [transcriber] transcriptionist, or both, as appropriate, who will be preparing all or a portion of the transcript.

    (5) It shall be the responsibility of each court reporter or [transcriber] transcriptionist with whom arrangements have been made to prepare a transcript to:

    (a) Cause the transcript to be prepared in conformity with [Rule] ORAP 3.35, and

    (b) Serve and file1 the transcript within the time provided in ORS 19.370 and, if the transcript is not served and filed within that time, to move for an extension of time.

    (6) The court reporter or transcriptionist preparing a transcript that otherwise would exceed one volume may prepare the transcript 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. However, 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 one-page-of-transcript-per-one-standard-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 transcriptionst, at the party's own expense, for preparation of a transcript in the one-page-of-transcript-per-one-standard-page-format.2

    (7) The court reporter or transcriptionist 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:

     (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.


    1 See Appendix E for form of certificate of preparation, filing, and service of a transcript.

    2 See ORAP 3.35(2) regarding the form of a transcript prepared in the four-pages-of-transcript-per-one-standard-page format.


    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, 12 point print, no fewer than 9 or 10 characters to the typed inch, first impression, and clear and legible. The font size shall be uniform and not vary from line to line or within the same line. Uppercase and lowercase letters shall be used according to rules of grammar; a transcript shall not be prepared using all uppercase letters.

    (b) It shall be prepared on good quality white, opaque, unglazed paper, 8-1/2 x 11 inches in size, with numbered lines, and printed on both sides of each page.1 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 1/2 inch on the right]. The margins of each page shall be one inch on each side, at the top, and at the bottom.

    (c) 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) 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) 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.

    (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."

    (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.

    (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.

    (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.] Each transcript volume shall be bound in a manner that allows the pages of the transcript to lie flat when the transcript is open, as provided in this paragraph. The transcript volume shall be bound with a plastic comb binding, with the binding within 3/8 inch of the left edge of the transcript. A transcript volume may be bound by stapling if the transcript does not exceed 20 pages (10 pieces of paper), excluding the cover. A transcript volume bound by stapling shall be secured by a single staple placed as close to the upper left-hand corner as is consistent with securely binding the transcript.

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

    (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. The font size for a transcript printed in the format allowed by this subsection shall be at least 14 point.] When a transcript in excess of one volume is prepared by reducing the pages of the original transcript in such a manner as to fit up to four pages of transcript onto a single standard 8-1/2 inch x 11 inch page, the print font size for the original transcript shall be 14 point.2

    [(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] transcriptionist 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] transcriptionist. 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:

    (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.]


    1 See ORAP 4.20 regarding use of previously prepared single-sided transcripts in judicial review cases.

    2 See ORAP 3.33(6) regarding when a transcript may be prepared in the four-pages-of-transcript-per-one-standard-page format.


    Rule 3.40
    ADDITION TO OR
    CORRECTION OF TRANSCRIPT

    (1) A party desiring to correct or add to the transcript shall file a motion in the trial court within 15 days after the filing of the transcript and mail a copy of the motion to the Administrator and to the transcript coordinator.1 When multiple portions of the oral record have been designated as part of the record on appeal or if more than one court reporter or transcriptionist is preparing the transcript, the transcript is not deemed filed until the last portion of the transcript due on appeal is filed.

    (2) The Administrator will hold the appeal in abeyance pending the trial court's disposition of the motion and the occurrence of one of the events specified in paragraphs (5)(b) or (c) of this rule.

    (3) After the filing of a timely motion to correct or add to the transcript, the trial court shall have the authority to grant an extension of time for making the corrections or additions to the transcript.

    (4) (a) If the trial court allows a motion to correct the transcript, after the filing of the corrected transcript, the moving party shall request that the trial court enter an order settling the transcript. The appeal will remain in abeyance until receipt by the Administrator of a copy of the order settling the transcript as provided in paragraph (5)(b) of this rule.

    (b) If the trial court allows a motion to add to the transcript, the appeal will remain in abeyance for a period of 15 days after the filing of the additional transcript. If a motion to correct the additional transcript is filed timely, the appeal will continue in abeyance pending disposition of the motion to correct and receipt of an order settling the transcript as provided in paragraph (5)(b) of this rule.

    (c) If the trial court denies the motion, the appeal will be reactivated as provided in paragraph (5)(c) of this rule.2

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

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

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


    1 Under ORS 19.395, the appellate court, not the trial court, has the authority to extend the time in which to file a motion to correct or add to the transcript.

    2 See [Rule] ORAP 8.40 regarding appellate court review of a trial court order disposing of a motion to correct or add to the transcript.

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

    See generally ORS 19.370(3) and (4). See also [Rule] ORAP 3.10(1) regarding the trial court administrator's duty to send to the Administrator a copy of the order settling the transcript.


    Rule 3.45
    AGREED NARRATIVE STATEMENT

    If the parties agree to a narrative statement in lieu of or in addition to a transcript and the parties are able to reconstruct the statements and testimony of the judge, parties, counsel, witnesses, and others present at the proceeding, the narrative statement shall follow as nearly as practicable the form prescribed for transcripts in [Rule] ORAP 3.35; otherwise, the statement may be in narrative form. [and] The appellant shall [be filed] file the agreed narrative statement in the trial court for transmittal to the Administrator. When the narrative statement is delivered for filing with the trial court, the appellant shall give notice thereof to the Administrator, showing the date of filing.


    See ORS 19.380.


    Rule 3.55
    WITHDRAWAL OF PAPERS OR EXHIBITS

    No one shall remove from the office of the Administrator or from the court any thing on file with the appellate court except [on order of the court or one of its judges.]:

    (1) A judge or justice may do so for official business.

    (2) An administrative or legal staff person may do so for official business:

    (a) Respecting a matter in the Supreme Court, with the authorization of the Chief Justice or a justice authorized by the Supreme Court to decide motions;

    (b) Respecting a matter in the Court of Appeals, with the authorization of the Chief Judge or a judge authorized by the Court of Appeals to decide motions.

    (3) Any[one] party or member of the public seeking to withdraw any thing shall file a motion stating the reason for the request and specifying the thing desired. If the court grants the motion, the [applicant] person allowed to withdraw the thing shall furnish the Administrator a receipt for the thing withdrawn.


    Rule 4.20
    RECORD ON REVIEW

    (1) The agency shall transmit to the appellate court the record, including a transcription of the proceedings or the stipulated portion thereof if the parties have stipulated to shorten the record pursuant to ORS 183.482(4).

    (2) The record shall be filed within the 30 days or such further time allowed by the court as provided in ORS 183.482(4) or other controlling statute. The record shall be accompanied by proof of service of copies of the record, except exhibits, on all other parties of record in the agency proceeding and on any other person required by law to be served.

    (3) The record shall be prepared in the manner provided by [Rule] ORAP 3.20 and transmitted in a suitable cover or folder bearing on the outside the title and agency number of the case and the name of the agency from which the review is taken. Whenever feasible, the original record shall be transmitted. Notwithstanding ORAP 3.35(1)(b), any transcript of oral proceedings prepared for use by the administrative agency or tribunal and printed on only one side of each page is acceptable on judicial review.

    (4) After the court has issued its appellate judgment,1 the record will be returned to the agency unless the court otherwise directs.

    (5) The record on judicial review in workers' compensation cases shall be prepared and filed in the manner prescribed in ORS 656.298(6).


    1 See [Rule] ORAP 14.05.


    Rule 4.22
    CORRECTING THE
    RECORD ON JUDICIAL REVIEW

    Unless a statute prescribes a different procedure in particular cases, the record on direct judicial review of an agency order shall be corrected or added to as follows:

    (1) Within 15 days after the agency files the record of agency proceedings, or such further time as may be allowed by the court, any party may file with the agency a motion:

    (a) To correct any errors appearing in the transcript or to have additional parts of the proceedings transcribed, if the record includes a transcript.

    (b) To correct the record, other than the transcript, by removing material appearing in the agency record as filed that was not made part of the record before the agency, or by adding material that was made part of the record before the agency but was omitted from the record as filed. This paragraph does not authorize supplementing the record on judicial review with evidence that never was part of the record before the agency.1

    (2) The party shall serve the court with a copy of the motion.

    (3) [(a)] The agency shall file with the court a copy of its order disposing of the motion to correct the record or to correct or add to the transcript. If the agency grants the motion in whole or in part [a motion to correct the record or to correct or add to the transcript], the agency shall serve on the adverse party or parties and file with the court a corrected record, a corrected transcript, or an additional transcript, as appropriate. When the agency files a corrected record or transcript, in the discretion of the agency, the agency may serve and file only those pages as have been corrected.

    [(b) If the agency denies in whole or in part a motion to correct the record or to correct or add to the transcript, the agency shall file with the court the agency's order disposing of the motion. If the agency allows in part and denies in part a motion to correct the record or to correct or add to the transcript, the court shall file its order along with the record or transcript as corrected.]

    (4) When the agency has filed [the corrected record or transcript or] its order [denying] disposing of a motion to correct the record or the transcript and, if the agency granted the motion in whole or in part, the corrected record or transcript, the record shall be deemed settled and the time for filing petitioner's opening brief shall begin.

    (5) Any party aggrieved by the agency's disposition of a motion to correct the record or to correct or add to the transcript, may request, by motion filed within 14 days of the date of filing of the agency's disposition, that the court review the agency's disposition.


    1 See ORS 183.482(5) regarding an application for leave to present additional evidence that was never part of the record before the agency in the proceeding.

    See ORS 183.482(4) regarding correcting the record on judicial review of orders in contested cases: "* * * The court may require or permit subsequent corrections or additions to the record when deemed desirable. * * *"


    Rule 4.60
    LUBA CASES IN GENERAL

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

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


    See ORS 197.850.

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


    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 That 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 type shall not exceed 10 characters per inch (cpi). If proportionally spaced type is used, it shall not be smaller than 12 point for both the text of the brief and footnotes. Reducing or condensing the typeface in a manner that would increase the number of words in a brief is not permitted. Briefs printed entirely or substantially in uppercase are not acceptable. All briefs shall be double-spaced with double space above and below each paragraph of quotation.

    (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," e.g., ER-1, ER-2, ER-3[, et seq]. Pages of appendices shall be preceded by "App," e.g., 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.] A brief shall be bound in a manner that allows the pages of the brief to lie flat when the brief is open, as provided in this paragraph. Regardless of whether a brief is prepared with text on one or both sides of the pages, the brief may be bound with a plastic comb binding, with the binding to be within 3/8 inch of the left edge of the brief. A brief also may be bound by stapling if the brief is prepared with text only on one side of each page or if the brief is prepared with text on both sides of the pages and does not exceed 20 pages (10 pieces of paper), excluding the cover but including the index, the excerpt of record and any appendix. A brief bound by stapling shall be secured by a single staple placed as close to the upper left-hand corner as is consistent with securely binding the brief.

    (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] ORAP 5.50 regarding the excerpt of record generally.

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

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

    See Appendix H.


    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] ORAP 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] ORAP 1.35(1)(a) for the service address of the Administrator.

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


    Rule 5.12
    BRIEFS OR PETITIONS FOR REVIEW
    CHALLENGING CONSTITUTIONALITY OF
    STATUTES OR CONSTITUTION

    A party filing a brief, petition for review, or petition invoking the court's original jurisdiction that challenges the constitutionality of an Oregon statute or an Oregon constitutional provision shall, at the time the brief or petition is filed, provide the Attorney General* with a copy of the brief or petition. The cover of the brief or petition shall state that the brief or petition includes a challenge to the constitutionality of a statute or constitutional provision and shall identify the statute or constitutional provision being challenged.


    * See footnote 1 in [Rule] ORAP 1.35 for the service address of the Attorney General.


    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 J.

    (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 subparagraph are lengthy, they shall be included in the excerpt of record instead of the body of the brief.

    (iii) If an assignment of error challenges an evidentiary ruling, the assignment of error shall quote or summarize the evidence that appellant believes was erroneously admitted or excluded. If an assignment of error challenges the exclusion of evidence, appellant also shall identify in the record where the trial court excluded the evidence and where the offer of proof was made; if an assignment of error challenges the admission of evidence, appellant also shall identify where in the record the evidence was admitted.

    (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 5.50
    THE EXCERPT OF RECORD

    (1) After the conclusion of the substance of the brief, the appellant shall set forth an excerpt of record.*

    (2) When preparing an excerpt of record, the appellant shall be guided by the following considerations[.]:

    (a) The excerpt of record shall include the pleadings relevant to the issue or issues raised on appeal, any written opinion or findings of fact issued by the trial judge addressing a ruling to which error is assigned, any order disposing of the claim to which an assignment of error relates, and the judgment document or order being appealed.

    (b) The [appellant shall include, in the] excerpt of record[,] shall include any other document[s] and portion[s] of a document[s] that either [are] is essential to or significantly helpful in understanding the arguments developed in the brief, particularly for purposes of assisting the court in advance of oral argument. The issues on appeal and the procedural posture of the case should determine the contents of the excerpt of record. The full record is available to and used by the court after submission of a case; therefore, the appellant should [avoid unnecessary length and] exercise judgment regarding the content of the excerpt of record, rather than merely duplicate the entire trial court file. [The full record is available to and used by the court after oral argument or submission of the case.1]

    [(3)](c) It generally is not necessary to include in the excerpt of record memoranda of law filed in the trial court, unless the fact that a particular argument was or was not made in a memorandum has independent significance (e.g., a dispute over preservation of an issue).1

    [(4) The respondent shall prepare a supplemental excerpt of record if the appellant either has failed to do so or has failed to include materials that the respondent deems essential to or significantly helpful in the court's preparation for oral argument. The respondent shall set forth the supplemental excerpt of record after the conclusion of the substance of the respondent's brief.*]

    [(5)](3) In criminal, civil commitment and juvenile cases, the excerpt of record shall contain the judgment document or order being appealed, and such other portions of the record as are appropriate to include.

    [(6)](4) In agency review cases, including workers' compensation and the Land Use Board of Appeals cases, the excerpt of record shall include the order of the administrative law judge, the agency, and other administrative tribunal, if part of the lower tribunal's record, together with such other portions of the record as are appropriate to include.

    (5) If the appellant has failed to prepare an excerpt of record, the respondent may move the court to require appellant to do so. If the excerpt of record prepared by the appellant does not include materials that the respondent believes to be essential to or significantly helpful in the court's preparation for oral argument, the respondent may prepare a supplemental excerpt of record. The respondent shall set forth the supplemental excerpt of record after the conclusion of the substance of the respondent's brief.*

    [(7)](6) The excerpt of record shall be in the following form:

    (a) All documents or portions of documents shall be copies of documents included in the record, rather than summarized or paraphrased. Omissions, if not apparent, shall be noted. No matter shall be omitted if to do so would change the meaning of the matter included.

    (b) Contents shall be set forth in chronological order. The excerpt shall be consecutively paginated, with the first page being page ER-1. The excerpt shall begin with an index organized chronologically, describing each item and identifying where the item may be found in the trial court or agency record, and the page where the item may be found in the excerpt.

    (c) The materials included shall be reproduced on 8-1/2 x 11 inch white paper by any duplicating or copying process that produces a clear, black, legible image.

    (d) The excerpt of record shall comply with the applicable requirements, including page limitations, of [Rule] ORAP 5.05.


    *But see [Rule] ORAP 5.05(3)(b) relating to separately binding an excerpt of record in excess of the page limit prescribed in [Rule] ORAP 5.05(2)(b).

    1 See Appendix K, which sets forth examples of documents that a party should consider including in the excerpt of record depending on the nature of the issues raised in the briefs.


    Rule 5.55
    RESPONDENT'S BRIEF

    (1) The respondent's brief shall follow the form prescribed for the appellant's opening brief, omitting repetition of the verbatim parts of the record in appellant's assignments of error. It shall contain a concise answer to each of the appellant's assignments of error preceding respondent's own argument as to each.

    (2) Under the heading "Statement of the Case," the respondent specifically shall accept the appellant's statement of the case, or shall identify any alleged omissions or inaccuracies, and may state additional relevant facts or other matters of record as may apply to the appeal, including any significant motion filed on appeal and the disposition of the motion. The additional statement shall refer to the pages of the transcript, narrative statement, audio record, record, or excerpt in support thereof but without unnecessary repetition of the appellant's statement.

    (3) If a cross-appeal is abandoned, the respondent shall immediately notify the appellate court in writing and, if notice has not been given previously, the respondent shall notify the court of the abandonment when the respondent's brief is filed, in writing and separately from the brief.

    (4) If the court gives an appellant leave to file a supplemental brief after the respondent's brief has been filed, the respondent may file a supplemental respondent's brief [answering] addressing those issues raised in the appellant's supplemental brief.


    Rule 5.80
    TIME FOR FILING BRIEFS

    (1) Unless otherwise provided by statute or these rules, the appellant's opening brief and excerpt of record shall be served and filed within 49 days after:

    (a) the entry of the trial court order settling the transcript; or

    (b) the filing of an agreed narrative statement with the trial court; or

    (c) the transcript is deemed settled under ORS 19.370(4) or [Rule] ORAP 3.40(5); or

    (d) the appellate court enters an order waiving a transcript under [Rule] ORAP 3.05(2); or

    (e) if a transcript or narrative statement is not designated, the filing of the notice of appeal; or

    (f) in a judicial review case, the agency record has been settled.

    (2) The respondent's brief shall be served and filed within 49 days after the filing of the appellant's brief. If the court has given an appellant leave to file a supplemental brief after the respondent's brief has been filed, the respondent's supplemental brief shall be served and filed within 21 days after the filing of the appellant's supplemental brief.

    (3) A reply brief, if any, shall be served and filed within 21 days after the filing of the respondent's brief or after a motion to file a reply brief is allowed, unless otherwise provided in the order allowing the motion.

    (4) An appellant's answering brief on cross-appeal shall be served and filed within 21 days after the filing of the brief on cross-appeal.

    (5) When a party other than an appellant is made a cross-respondent, that party shall have 21 days after the filing of the brief on cross-appeal to serve and file an answering brief on cross-appeal.

    (6) A cross-appellant shall have 21 days from the date of the filing of an answering brief on cross-appeal in which to serve and file a reply brief, if permitted to do so by these rules or by order of the court.

    (7) In cases in which the appellant is represented in the Court of Appeals by the Legal Services Division of the Office of Public Defense Services, the appellant's brief shall be served within a period of time established by the Chief Judge in consultation with the [Office of Public Defense Services] Legal Services Division.

    [(8) In the Supreme Court on automatic review in death sentence cases, the court will establish a briefing schedule in each case.]


    Rule 5.85
    ADDITIONAL AUTHORITIES

    [(1) A memorandum of additional authorities submitted after the filing of the party's brief but before oral argument shall be served on opposing counsel. The memorandum, with proof of service, shall be filed with the Administrator.* If it is filed in the Supreme Court, the original and nine copies shall be submitted; if in the Court of Appeals, the original and five copies shall be submitted. The adverse party may then serve a memorandum of authorities in response and shall file with the Administrator, with proof of service, the original and the same number of copies.]

    [(2) A memorandum of additional authorities and a response, if any, shall include citations to relevant cases and statutes and shall identify the issue that has been previously briefed to which the new citations apply, but shall not exceed two pages without leave of the court.]

    [(3) A memorandum of additional authorities after oral argument may be submitted only by leave of the appellate court and in the manner provided in subsections (1) and (2) of this rule and instructions of the court.]

    (1) Any party filing a memorandum of additional authorities or a response memorandum shall submit the memorandum in the manner provided in this rule, subject to any instructions of the court. A party may submit a memorandum of additional authorities after the filing of the party's brief but before oral argument without leave of the court. After oral argument, a party may submit a memorandum of additional authorities only with leave of the court.

    (2) A memorandum of additional authorities and a response, if any:

    (a) Shall include citations to relevant cases and statutes and shall identify the issue that has been previously briefed to which the new citations apply;

    (b) Shall not exceed two pages, without leave of the court;

    (c) Shall be filed with the Administrator together with nine copies, if filed in the Supreme Court, and five copies, if filed in the Court of Appeals.*

    (3) If a party files or is given leave to file a memorandum of additional authorities, any other party to the case who has filed a brief may file a response. Unless the court directs otherwise, a response is due 14 days after the date of filing of the memorandum of additional authority to which the party is responding.


    *See [Rule] ORAP 1.35(1)(a) for the [service] address of the Administrator.


    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 is the client's product and may contain any claim of error that the client wishes to assert. The client shall attempt to state the claim and any argument in support of the claim as nearly as practicable in proper appellate brief form. Section B of the brief shall not exceed 48 pages in length. The last page of Section B of the brief shall contain the name and signature of the client.

    (ii) Counsel's obligation with respect to Section B of the brief 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] ORAP 9.05 [(2), (5), and (7)(g)] (3)(a) 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).


    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, within 28 days after the filing of the brief, 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. Whoever files the motion may tender the proposed supplemental pro se brief along with the motion.

    (2) [If the court gives a client leave to file a supplemental pro se brief,] The client shall attempt to prepare [the] a supplemental pro se 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 6.15
    PROCEDURE AT ORAL ARGUMENT

    (1) In all cases in the Court of Appeals and Supreme Court, except as provided in subsection (2) of this rule:

    (a) The appellant, petitioner, or petitioner on review shall have not more than 30 minutes to argue; and the respondent or respondent on review shall have not more than 30 minutes to argue.

    (b) The appellant, petitioner, or petitioner on review shall argue first and may reserve not more than 10 minutes of the time allowed for argument in which to reply.

    (c) If there are two or more parties on one side, they shall divide their allotted time among themselves, unless the court orders otherwise.

    (2) (a) Unless the court otherwise orders, on oral argument in the Court of Appeals in the following cases the appellant or petitioner shall have not more than 15 minutes and the respondent shall have not more than 15 minutes to argue:

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

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

    (iii) mental commitment;

    (iv) domestic relations, juvenile, and adoption;

    (v) judicial review of administrative agency action;1

    (vi) appeals from circuit court review of any agency action under the Administrative Procedures Act (ORS chapter 183) or ORS 813.450(3) (relating to suspension of driver licenses); and

    (vii) forcible entry and detainer.

    (b) The appellant or petitioner may reserve not more than five minutes of the time allowed for argument in which to reply.

    (3) A motion for additional time for argument shall be filed at least seven days before the time set for argument.

    (4) No point raised by a party's brief shall be deemed waived by the party's failure to present that point in oral argument.

    (5) For the purpose of this rule, a cross-appellant shall be deemed a respondent.

    (6) It is the general policy of Oregon appellate courts to prohibit reference at oral argument to any authority not cited either in a brief or in a preargument memorandum of additional authorities.2 If a party intends to refer in oral argument to an authority not previously cited, counsel shall inform the court at the time of argument and shall make a good faith effort to inform opposing counsel of the authority at the earliest practicable time. The court may, in its discretion, permit reference at argument to that authority and may give other parties leave to file a post-argument memorandum of additional authorities or a memorandum in response.

    (7) The Court of Appeals encourages any party who is aware of another case pending under advisement in the Court of Appeals raising the same or a similar issue as the case being argued to bring that fact to the attention of the court at oral argument, or in writing after oral argument or after submission without oral argument.

    (8) If counsel desires to have present at oral argument an exhibit that has been retained by the trial court, it is counsel's responsibility to arrange to have the exhibit transmitted to the appellate court.3


    1 Agencies subject to this provision include but are not limited to the Workers' Compensation Board, the Land Use Board of Appeals, and the Board of Parole and Post-Prison Supervision.

    2 See [Rule] ORAP 5.85 regarding memoranda of additional authorities.

    3 See [Rule] ORAP 3.25 regarding arranging to have exhibits transmitted to the appellate court.


    Rule 6.20
    ARGUMENT IN [PENDLETON FOR CERTAIN
     COUNTIES] SALEM AND OTHER LOCATIONS

    [(1) The Court of Appeals may set civil cases arising in the following counties for oral argument in Pendleton: Baker, Harney, Malheur, Morrow, Umatilla, Union, Wallowa, Gilliam, Grant, and Wheeler. A party to a civil case arising in one of the aforementioned counties may move to set the case for oral argument in Pendleton. The party shall file such motion within 49 days after the appellant's opening brief is filed.

    (2) All criminal and agency review cases, including workers' compensation cases, from the counties listed in subsection (1) will be set for oral argument in Salem, unless the court orders otherwise or on stipulation or motion to the contrary, filed within 49 days after the appellant's opening brief is filed.

    (3) In both instances, if a motion is filed, the adverse party will have 14 days to respond. The filing of the original of a stipulation, motion, or response to a motion under this rule is sufficient, but all other rules for motions shall apply.]

    The Court of Appeals will set most cases for oral argument in Salem, but, pursuant to Chief Justice Order 98-007, dated January 12, 1998, the court may set cases for oral argument in other locations throughout the state.


    See ORS 2.560(1) and ORS 1.085(2).


    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] affirmance 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 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.*

    (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] ORAP 7.05 regarding motions in general.


    *See [Rule] ORAP 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 8.05
    SUBSTITUTION OF PARTIES
    IN CIVIL CASES;
    EFFECT OF DEATH OF DEFENDANT
    IN CRIMINAL CASES

    (1) Oregon Rule of Civil Procedure (ORCP) 34, relating to substitution of parties in civil cases, is adopted.

    (2) On the death of a defendant in a criminal case pending on appeal, either party may move for dismissal of the appeal. If the appeal is from a judgment of conviction and the defendant dies before the Court of Appeals issues its decision or while the Court of Appeals decision is pending on petition for review or reconsideration, the appellate court before which the case is pending shall order that the conviction be vacated and dismiss the appeal. If the defendant dies after issuance of the appellate court decision affirming the conviction and after all right to petition for review has expired, the court shall dismiss the appeal but shall not vacate the conviction.

    (3) If a defendant in a criminal case, a petitioner in a post-conviction relief proceeding, a plaintiff in a habeas corpus proceeding, a petitioner in a parole review proceeding, or a petitioner in a prison disciplinary case, on appeal of an adverse decision, escapes or absconds from custody or supervision, the respondent on appeal may move for dismissal of the appeal. If the appellant has not surrendered at the time the motion is decided by the court, the court [shall allow the motion and] may dismiss the appeal or judicial review.


    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.]

    (1) (a) During the pendency of an appeal, when a court-appointed attorney moves to withdraw or to substitute counsel, the attorney shall file the motion to withdraw in the appellate court. The court shall decide a motion for substitution of court-appointed counsel in accordance with the policies, procedures, standards, and guidelines of the Public Defense Services Commission.1

    (b) A court-appointed attorney shall have no obligation to move to withdraw or substitute counsel at the client's request unless the attorney has a good faith basis for the motion.

    (2) (a) If the client of a court-appointed attorney moves to appoint new counsel based on the client's dissatisfaction with professional services rendered by the attorney, the client shall file the motion in the appellate court.

    (b) 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]2

    [(b)](c) 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] ORAP 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]3


    1 See ORS 138.500(2)(d) regarding substitution of counsel pursuant to the policies and procedures of the Public Defense Services Commission; see Public Defense Services Commission Policy 1.7 (Substitution of Appointed Counsel).

    [1]2 See 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]3 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 8.15
    AMICUS CURIAE

    (1) A person1 may appear as amicus curiae in any case pending before the appellate court only by permission of the appellate court on written application setting forth the interest of the person in the case. The application shall state whether the applicant intends to present a private interest of its own or to present a position as to the correct rule of law that does not affect a private interest of its own. The application shall not contain argument on the resolution of the case.

    (2) The application shall be submitted by an active member of the Oregon State Bar. A filing fee is not required. The form of the application shall comply with [Rule] ORAP 7.10(1) and (2) and the applicant shall file the original and one copy of the application. A copy of the application shall be served on all parties to the proceeding.

    (3) In the Court of Appeals, the application to appear amicus curiae may, but need not, be accompanied by the brief the applicant would file if permitted to appear. In the Supreme Court, the application shall be accompanied by the brief sought to be filed. The form of an amicus brief and the number of copies of the brief shall be subject to the same rules as those governing briefs of parties.2

    (4) In the Court of Appeals, unless the court grants leave otherwise for good cause shown, an amicus brief shall be due [on] seven days after the date the brief is due of the party with whom amicus curiae is aligned or, if amicus curiae is not aligned with any party, [on] seven days after the date the opening brief is due.

    (5) With respect to review in the Supreme Court:

    (a) A person wishing to appear amicus curiae may seek to appear in support of or in opposition to a petition for review, on the merits of the case on review, or both.

    (b) Unless the court grants leave otherwise for good cause shown, an application to appear amicus curiae in support of or in opposition to a petition for review shall be filed within 21 days after the filing of a petition for review.

    (c) Unless the court grants leave otherwise for good cause shown, an application to appear amicus curiae on the merits of a case on review shall be filed:

    (i) On the date the brief is due of the party on review with whom amicus curiae is aligned,

    (ii) On the date the brief of petitioner on review is due, if amicus curiae is not aligned with any party on review,3 or

    (iii) Within 28 days after review is allowed, if petitioner on review has filed a notice that petitioner does not intend to file a brief on the merits or has filed no notice, regardless of the alignment of amicus curiae.

    (d) If a person filing an application to appear amicus curiae wishes to file one brief in support of or in opposition to a petition for review and on the merits of the case, the application and brief shall be filed within the same time that an application to appear in support of or in opposition to a petition for review would be filed. If a person has been granted permission to appear amicus curiae in support of or in opposition to a petition for review and the Supreme Court allows review, the person may file an amicus curiae brief on the merits without further leave of the court.

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

    (7) Amicus curiae may file a memorandum of additional authorities under the same circumstances that a party could file a memorandum of additional authorities under [Rule] ORAP 5.85.

    (8) Amicus curiae shall not be allowed to orally argue the case, unless the court specifically authorizes or directs oral argument.4

    (9) The State of Oregon may appear as amicus curiae in any case in the Supreme Court and Court of Appeals without permission of the court. The state shall comply with all the requirements for appearing amicus curiae, including the time within which to appear under subsections (4) and (5), of this rule. If the state is not aligned with any party, the state's amicus curiae brief shall be due on the same date as the respondent's brief.


    1 As used in this rule, "person" includes an organization.

    2 See [Rule] ORAP 5.05 [et seq.] to 5.30, 5.25, 5.77, and 5.95 concerning requirements for briefs.

    3 See [Rule] ORAP 9.17 concerning the due dates of briefs on review.

    4 See [Rule] ORAP 6.10 concerning oral argument.


    Proposed New Rule 8.50
    SEGREGATION OF
    PROTECTED PERSONAL INFORMATION

    (1) For purposes of this rule, "protected personal information" is information that:

    (a) Identifies a person beyond that person's name (e.g., Social Security number, maiden name, driver license number, birth date and location) or identifies a person's financial activities (e.g., credit card number, credit report, bank account number or location); and

    (b) The appellate court is permitted to maintain as confidential and not subject to public inspection.

    (2) A person or entity required to file a document in the appellate court that contains protected personal information may submit that information on a separate document together with a motion describing the information and requesting that the appellate court keep the separate document segregated from the appellate court file. The moving party shall serve a copy of the motion on all other parties to the appeal, review, or other proceeding. During the pendency of the motion, the separate document will not be available for public inspection.

    (3) If the court grants the motion, then the court will segregate the separate document from the appellate court file. The motion will remain in the appellate court file. Any request for public inspection of a separate document must be made in writing, filed with the appellate court, and served on all other parties to the appeal, review, or other proceeding.


    See Oregon Laws 2003, chapter 380, adopting ORS 187.840 and amending other statutes and protecting the confidentiality of Social Security numbers.


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

    (1) Reviewable Decisions

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

    (2) Time for Filing and for Submitting Petition for Review

    (a) 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

    (b) (i) 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] written disposition of the petition for reconsideration. If a party obtains an extension of time to file a petition for reconsideration and does not file a petition for reconsideration within the time allowed, the time for filing a petition for review shall begin to run on expiration of the extension of time.

    (ii) 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.

    (iii) 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] written disposition of the petition for reconsideration.2

    (c) (i) 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 requesting relief from default, to reinstate the appeal, to recall the appellate judgment, and to establish a new due date for the petition for review.

    [(ii) 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.]

    [(iii)](ii) 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.

    (3) Form and Service of Petition for Review

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

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

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

    [(ii)] (iii) Identify the date of the decision of the Court of Appeals;

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

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

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

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

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

    (b) 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.

    (4) Contents of Petition For Review

    [(a)] The petition shall contain in order:

    [(i) A prayer for review.] (a) A short statement of the historical and procedural facts relevant to the review, but facts correctly stated in the decision of the Court of Appeals should not be restated.

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

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

    [(iv) 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.]

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

    [(vi)](c) A statement of specific reasons why the [issues] legal question or questions presented on review have importance beyond the particular case and require decision by the Supreme Court.5

    (d) If desired, and space permitting, a brief argument concerning the legal question or questions presented on review.

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

    [(b) 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 subparagraphs 4(a)(v) and (vi) of this rule.5]


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

    2 Paragraph (2)(b) does not apply to a motion for reconsideration filed under [Rule] ORAP 6.25(5).

    3 See Appendix N.

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

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

    See [Rule] ORAP 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 9.10
    RESPONSE TO PETITION FOR REVIEW

    (1) A party to an appeal or judicial review in the Court of Appeals may, but need not, file a response to a petition for review. In the absence of a response, the party's brief in the Court of Appeals will be considered as the response.

    (2) [A party seeking to respond to] A response to a petition for review [may file a response] is due within [21] 14 days after the petition for review [has been] is filed.

    (3) A response shall conform to [Rules] ORAP 5.05, except that the response shall not exceed 15 pages in length, and ORAP 5.35. The cover of a response shall be orange. Any party filing a response shall file with the Administrator one response, marked as the original, and 12 copies, serve two copies of the response on every other party to the review, and file proof of service.


    Rule 9.25
    RECONSIDERATION IN SUPREME COURT

    (1) A party seeking reconsideration of a decision of the Supreme Court shall file a petition for reconsideration within [21] 14 days from the date of the decision. The petition shall be in the form of a brief, prepared in conformity with [Rule] ORAP 5.05, insofar as it is applicable. The petition shall include a copy of the court's decision. A petitioner shall identify on the cover which party is the petitioner, the date of the decision, and, if there is an opinion or if there are opinions, the judges who joined therein.

    (2) The petitioner shall file the original and 12 copies of the petition with the Administrator. The original shall show proof of service of two copies on every other party to the appeal or review.

    (3) No other party shall respond unless the court so requests.

    (4) The court shall either deny or allow reconsideration. If the court allows reconsideration, the court may reconsider with or without further briefing or oral argument. Reconsideration shall result in affirmance, modification, or reversal of the decision that has been reconsidered.


    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.

    (2)] Subsections [(3)](2) through [(11)](10) 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 subsection (1) of this rule] unless, on motion of a party or on the court's own motion, the Court of Appeals directs otherwise;

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

    (c) An adoption case.

    [(3)](2) The caption of the notice of appeal, notice of cross-appeal, motion, or any other thing filed either in the Court of Appeals or the Supreme Court 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

    [(4)](3) (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. If appellant is indigent, appellant shall make arrangements for preparation of the transcript by causing an order for preparation of the transcript at state expense to be served on the transcript coordinator.

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

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

    [(5)](4) (a) The court shall not extend the time for filing the transcript under [Rule] ORAP 3.30 or for filing of an agreed narrative statement under [Rule] ORAP 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)](5) 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.

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

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

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

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

    [(11)](10)(a) Notwithstanding any provision to the contrary in [Rule] ORAP 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 partyhas 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 O.

    2 See ORS 19.370(1).

    3 See ORS 19.370(3).


    Rule [10.25] 7.50
    MOTION FOR SUMMARY AFFIRMANCE IN
    [CERTAIN CASES INVOLVING]
    COURT-APPOINTED COUNSEL CASES

    (1) Except as 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 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.

    (2) If a motion for summary affirmance is filed under ORS 138.225, ORS 138.660, or ORS 34.712, or subsection (1) of this rule and counsel has filed a Balfour brief under ORAP 5.90 with a Section B or, with leave of the court, counsel's client has filed a supplemental pro se brief, counsel forthwith shall forward a copy of the motion for summary affirmance to the client. The client shall have 35 days from the date the motion for summary affirmance was filed to file an answer to the motion.


    1 See, 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).

    2 For 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] ORAP 7.10(1) and (2).

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

    (6) The form of a petition shall comply with [Rule] ORAP 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 P.

    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 P.

    4 See Illustration 1b in Appendix P.

    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).

    7 See footnote 1 of [Rule] ORAP 1.35 for the service address of the Attorney General.

    See ORS 34.105 to 34.250 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] ORAP 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] ORAP 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, and a request that the Supreme Court certify to the Secretary of State 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 five business days after the filing of the petition, unless a [lesser] shorter time is ordered by the court, [within which] to file an answering memorandum. Any answering memorandum shall be in the form prescribed by [Rule] ORAP 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 five business days after the filing of the petition or within 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.] Intervention of other persons in ballot title review proceedings is not permitted. Any person who is interested in a ballot title that is the subject of a petition, including the chief proponent or proponents of a measure, may instead file a motion in the form prescribed by ORAP 7.10, asking leave of the Supreme Court to submit a memorandum as an amicus curiae. The motion, together with the memorandum that the proposed amicus curiae intends to submit, shall be filed on or before the date that the answering memorandum is due. Unless otherwise ordered by the court, an amicus curiae may not participate in oral argument.

    (9) The petitioner or petitioners shall be allowed five business days after the filing of the answering memorandum, unless a shorter time is ordered by the court, to file a reply memorandum. Any reply memorandum shall be in the form prescribed by ORAP 7.10 for answers to motions and shall not be longer than five pages. The original and nine copies of the answering memorandum shall be filed, with proof of service on counsel for the petitioner.

    [(9)](10) 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[,] or respondent [or intervenor]. If the court orders oral argument, the petitioner shall argue first.

    [(10)](11) For proceedings in which the Attorney General has filed a modified ballot title after referral from the Supreme Court, [any party to] the petitioner in 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] ORAP 7.35(3).** [No other party may] The Attorney General may not 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] the petitioner does not file a timely objection, then the court shall certify the modified ballot title, and the Administrator shall issue the appellate judgment on the next [business] judicial day after the time for filing an objection expires.

    [(11)](12) 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, the petition for reconsideration must be filed with and actually received by the Administrator within five business days after the filing 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 [business] judicial day after the denial of all timely petitions for reconsideration. If [no party files] the petitioner does not file a timely petition for reconsideration, then the Administrator shall issue the appellate judgment seven [business] judicial 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 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] ORAP 14.05(2)(c).


    *See footnote 1 of [Rule] ORAP 1.35 for the service address of the Attorney General.

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


    Rule 12.10
    AUTOMATIC REVIEW IN
    DEATH SENTENCE CASES

    (1) Whenever a defendant is sentenced to death, the judgment of conviction and sentence of death are subject to automatic and direct review by the Supreme Court without the defendant filing a notice of appeal.

    (2) If, in addition to a conviction for aggravated murder forming the basis for the death sentence, a defendant is convicted of one or more charges arising from the same charging instrument, the Supreme Court shall have jurisdiction to review any such conviction without the filing of a notice of appeal.

    (3) Immediately after entry of the judgment of conviction and sentence of death, the trial court administrator shall prepare a packet consisting of the following:

    (a) A copy of the judgment of conviction.

    (b) A copy of the order of sentence of death unless that sentence is contained in the judgment of conviction.

    (c) A certificate by the trial court administrator stating:

    (i) the date of entry of each writing described above.

    (ii) the names, mailing addresses, and telephone numbers of the attorneys of record for the state and for the defendant at the date of entry of each writing described above.

    [(iii) the name, mailing address, and telephone number of each court reporter who reported any portion of a criminal proceeding, as defined in ORS 131.005(7), in the criminal action, as defined in ORS 131.005(6), in which the judgment of conviction and sentence of death were entered.]

    (d) A cover sheet captioned "In the Supreme Court of the State of Oregon" and showing the court in which the judgment of conviction and sentence of death were made, the title of the case, the trial court case number, the name of the judge who imposed the sentence of death and the caption: "Automatic Death Sentence Review."

    (4) The trial court administrator shall serve a true copy of the packet on the defendant and on each attorney and [court reporter as described above] the transcript coordinator. The trial court administrator shall endorse proof of service on the original of the packet and send the original to the Administrator, who shall immediately notify the Chief Justice of receipt thereof.

    (5) (a) Service of a copy of the packet on [a court reporter] the transcript coordinator shall be deemed to be [an order by the trial court that the court reporter immediately prepare] authorization for the transcript coordinator to arrange for preparation of a transcript of all portions of the criminal proceeding [reported by that reporter], including all pretrial hearings but excluding selection of the jury.

    (b) If either the state or the defendant desires that the report of the jury selection proceedings be transcribed, that party must apply to the Supreme Court for an appropriate order, which will be made only upon a showing of good cause for preparation of that transcript.

    (c) A transcript shall meet the specifications of [Rule] ORAP 3.35.

    (d) A transcript shall be filed within 60 days of the date the packet is served on the [court reporter] transcript coordinator. If the court has allowed preparation of a transcript of jury selection, the transcript shall be due 30 days after the date of the order allowing the transcript.

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

    (6) (a) If the defendant desires to file a brief on review, [the briefing schedule for both the defendant and the state shall be established by the court after a representative of the court confers with the parties within seven days] the brief is due 180 days after the transcript is settled. [Specifications for briefs shall be those set forth in Rule 5.05, except that the maximum length of a brief without obtaining leave of the court for a longer brief is 100 pages.]

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

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

    (ii) When the defendant files a brief, 180 days after the defendant serves and files the defendant's brief.

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

    (d) Specifications for briefs shall be those set forth in ORAP 5.05, except that the maximum length of a brief without obtaining leave of the court for a longer brief is 100 pages.

    (7) The trial court administrator shall send the trial court file and exhibits to the Administrator at the request of the Administrator.

    (8) Preparation, service, and sending of the packet, the trial court file and exhibits offered, preparation of transcripts, preparation of briefs, and review by the Supreme Court shall be accorded priority over all other cases by all persons concerned.


    Rule 12.12
    APPOINTMENT OF COUNSEL IN
    DEATH SENTENCE CASES

    [(1) On receipt of notice of a conviction of aggravated murder and sentence of death as provided in Rule 12.10, the Administrator shall:

    (a) Contact the Office of Public Defense Services to determine whether there is any reason that would preclude the Office of Public Defense Services from accepting an appointment in that case.

    (b) Send a letter to the defendant acknowledging receipt of the notice of conviction and sentence of death, and notifying the defendant of the court's automatic and direct review of the conviction and sentence. The letter shall inform the defendant of the right to be represented by counsel and the procedure for notifying the court if the defendant has retained counsel or for requesting appointed counsel. The letter shall be accompanied by a form motion for appointment of counsel and an affidavit of indigency. The letter shall be copied to the defendant's trial attorney, the Solicitor General of the Department of Justice, the court reporter, the Indigent Defense Services Division, and the Office of Public Defense Services.

    (2) (a) If the defendant or the defendant's attorney gives the Administrator notice that the defendant is represented by retained counsel on appeal, the retained attorney shall be shown as the attorney of record for the defendant.

    (b) If the defendant requests appointment of an attorney and establishes eligibility for appointed counsel, and the Office of Public Defense Services is not precluded from representing the defendant, the court shall appoint the Office of Public Defense Services. If the defendant does not respond within 28 days to the letter informing the defendant of the right to be represented by counsel and it appears from the record that the defendant is indigent, the court will appoint suitable counsel.

    (c) If there is some indication in the appellate file that the defendant may object to appointment of the Office of Public Defense Services, the court shall issue an order appointing the Office of Public Defense Services, accompanied by a letter of transmittal informing the defendant of the right to submit a statement of objections to the appointment of the Office of Public Defense Services.

    (3) The defendant shall file the statement of objections to appointment of the Office of Public Defense Services with the court and serve a copy on the Office of Public Defense Services. The Office of Public Defense Services shall have 14 days after being served with a defendant's statement of objections to file a response.

    (4) The court shall appoint counsel other than the Office of Public Defense Services for an eligible defendant only if:

    (a) The Office of Public Defense Services does not have the capacity to undertake the representation within its budgetary or other constraints; or

    (b) The Office of Public Defense Services or any deputy public defender has a conflict of interest in representing the defendant; or

    (c) The court finds that there is a reasonable and objective basis for believing that the Office of Public Defense Services cannot provide the defendant with adequate representation.

    (5) If the court decides to appoint counsel other than the Office of Public Defense Services to represent an eligible defendant:

    (a) The court shall confer with the Indigent Defense Services Division to identify suitable counsel to represent the defendant.

    (b) The court may appoint more experienced counsel to assist a less-experienced attorney in a death sentence case. The rate of compensation for each attorney shall be as provided in the Indigent Defense Services Division Payment Policy, unless the attorney requests, the court recommends, and the State Court Administrator approves a different rate. The court may limit the number of compensable hours each attorney may expend on the case without further review by the court.]

    (1) On receipt of notice of a conviction of aggravated murder and sentence of death as provided in ORAP 12.10, the Administrator shall send a letter to the defendant acknowledging receipt of the notice of conviction and sentence of death, and notifying the defendant of the court's automatic and direct review of the conviction and sentence. The letter shall inform the defendant of the right to be represented by counsel and the procedure for notifying the court if the defendant has retained counsel or for requesting court-appointed counsel. The letter shall be copied to the defendant's trial attorney, the Solicitor General of the Department of Justice, the Office of Public Defense Services, and the transcript coordinator.

    (2) If the defendant or the defendant's attorney gives notice to the Administrator that the defendant is represented by retained counsel on appeal, the retained attorney shall be shown as the attorney of record.

    (3) If the defendant requests appointment of counsel and establishes eligibility for appointed counsel, the court shall appoint the Office of Public Defense Services. If the defendant does not respond within 28 days to the letter informing the defendant of the right to be represented by counsel and it appears from the record that the defendant is indigent, the court shall appoint the Office of Public Defense Services.

    (4) (a) Should defendant object at any time to particular court-appointed counsel, a motion for substitution of counsel or appointment of legal advisor shall be made in accordance with ORAP 8.12.

    (b) If the court allows the motion for substitution of court-appointed counsel or appointment of legal advisor, the court shall notify the Office of Public Defense Services.1


    1 See ORS 138.500(2)(d) regarding substitution of counsel pursuant to the policies and procedures of the Public Defense Services Commission; Public Defense Payment Policies and Procedures 1.7 (Substitution of Appointed Counsel).


    Rule 13.05
    COSTS AND DISBURSEMENTS

    (1) As used in this rule, "costs" includes costs and disbursements. "Allowance" of costs refers to the determination by the court that a party is entitled to claim costs. "Award" of costs is the determination by the court of the amount that a party who has been allowed costs is entitled to recover.1

    (2) The court will designate a prevailing party and determine whether the prevailing party is allowed costs at the time that the court issues its decision.[1]

    (3) When an allowance of costs is dependent on identification of a party as a prevailing party, the appellant or petitioner (or cross-appellant or cross-petitioner, as appropriate) is the prevailing party only if the court reverses or substantially modifies the judgment or order from which the appeal or judicial review was taken. Otherwise, the respondent (or cross-respondent, as appropriate) is the prevailing party.[2]

    (4) 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 court may allow costs to abide the outcome of the case. If the court allows costs to abide the outcome of the case, the prevailing party shall claim its costs within the time and in the manner prescribed in this rule. The appellate court may determine the amount of costs under this subsection, and may condition the actual award of costs on the ultimate outcome of the case. In that circumstance, the award of costs 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 costs.

    (5) (a) A party seeking to recover costs shall file a statement of costs and disbursements within 21 days after the date of the decision. The filing of a petition for review or a petition for reconsideration does not suspend the time for filing the statement of costs and disbursements.

    (b) A party need only file the original statement of costs and disbursements, without copies, but accompanied by proof of service showing that a copy of the statement was served on every other party to the appeal.

    (c) A party objecting to a statement of costs and disbursements shall file objections within 14 days after the date of service of the statement. A reply, if any, shall be filed within 14 days after the date of service of the objections. The original objection or reply shall be filed with proof of service and eight copies in the Supreme Court, or the original and five copies in the Court of Appeals.

    [(d) A statement of costs and disbursements or objections or a reply shall be verified only if required by statute.3]

    (6) (a) Whether a brief is printed or reproduced by other methods, the party allowed costs is entitled to recover 10 cents per page for the number of briefs required to be filed or actually filed, whichever is less, plus two copies for each party served and two copies for each party on whose behalf the brief was filed.

    (b) If the prevailing party who has been allowed costs has paid for copies of audio or video tapes in lieu of a transcript or incident to preparing a transcript, the party is entitled to recover the cost of the audio or video tapes.

    (c) (i) For the purposes of awarding the prevailing party fee under ORS 20.190(1)(a), an appeal to the Court of Appeals and review by the Supreme Court shall be considered as one continuous appeal process and only one prevailing party fee per party, or parties appearing jointly, shall be awarded.

    (ii) The prevailing party fee will be awarded only to a party who has appeared on the appeal or review.

    (iii) A prevailing party is not entitled to claim more than one prevailing party fee, nor may the court award more than one prevailing party fee against a nonprevailing party, regardless of the number of parties in the action.[4]2

    (d) If a prevailing party who has been allowed costs timely files a statement of costs and disbursements and no objections are filed, the court will award costs in the amount claimed, except when the entity from whom costs are sought is not a party to the proceeding or when the court is without authority to award particular costs claimed.

    (e) If a prevailing party who has been allowed costs untimely files a statement of costs and disbursements, that party is entitled to recover the party's filing or first appearance fee and the prevailing party fee under ORS 20.190(1).

    (f) If a prevailing party who has been allowed costs does not file a statement of costs and disbursements, the court shall award that party's filing or first appearance fee and the prevailing party fee under ORS 20.190(1) as part of the appellate judgment.

    (7) Parties liable for payment of costs and disbursements shall be jointly [and severally] liable.


    [1 But see Rule 13.15 regarding recovery of costs and expenses by court-appointed counsel under ORS 138.500(4).]

    1See generally ORS 20.310 to 20.330 generally concerning costs and disbursements on appeal and in cases of original jurisdiction.

    [2 See ORS 20.015.]

    [3 See ORS 20.320 regarding verification of statements of costs and disbursements and objections thereto; see Rule 1.40(2) regarding verification.]

    [4] 2 See ORS 20.190(4).

    [See ORS 20.310 to 20.330 generally concerning costs and disbursements on appeal and in cases of original jurisdiction.]


    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) payable from the Public Defense Services Account.[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]1 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]2

    (6) Objections to a petition shall be served and filed within 14 days after the date 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]3 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 Q.

    [2] 1 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] 2 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), adhered to on recons, 327 Or 185, 957 P2d 1207 (1998), with respect to ORS 20.075.

    [4]3 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] APPEAL OF PUBLIC DEFENSE
    SERVICES COMMISSON DECISION REGARDING
    COURT-APPOINTED COUNSEL COMPENSATION,
    COSTS, AND EXPENSES

    (1) [This rule governs the procedure for the recovery of compensation, costs, and expenses by a court-appointed 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).] This rule governs the procedure under ORS 138.500(6) for an appeal from the Public Defense Services Commission executive director's disposition of a payment request.

    (2) The person who submitted the payment request shall take an appeal by filing a motion for review of the executive director's decision in the court in which all or a majority of compensation and expenses were incurred. The person shall accompany the motion with a copy of the request for payment as submitted to the Public Defense Services Commission and a copy of the executive director's disposition of the request.

    [(2) Court-appointed counsel seeking compensation, costs, or expenses shall file a request for certification in the form prescribed in Appendix R. 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 required 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 are 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 motion or 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 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.2 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 S 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.]

    [1See 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 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.

    (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, an 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 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 subparagraph (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 court 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.

    (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] ORAP 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] ORAP 9.25 or a petition for attorney fees or submission of a statement of costs and disbursements under [Rules] ORAP 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 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 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 ;st 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] program 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] program director may require the parties to attend one or more additional conferences as the program director deems reasonable and necessary to facilitate a settlement. If the [Director] program 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) (i) 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 the notice of assignment of the case to the program. During that time, a party to the appeal may file an amended designation of record. A party wishing to hold in abeyance any other aspect of the appeal or seeking an extension of time to complete any other task required by law or by the Oregon Rules of Appellate Procedure must file an appropriate motion with the court.1

    (ii) At the end of the 120-day abeyance period, if the parties have engaged in settlement negotiations and need more time to reduce the settlement to writing or to implement a settlement, the parties may request the program director to order, and the program director may order, an extension of the abeyance period for up to 60 days. After the extension granted by the program director, if the parties need more to time to complete or implement the settlement, the parties may move the court for an extension of time.

    (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 program director may direct that the case proceed in the program or may terminate the referral. If the program director terminates the referral and if the court denies the motion to dismiss, the case will be re-referred to the program.

    (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 program 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] program director 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] Appellate Settlement Conference Program 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.]

    (a) Except as provided in paragraphs (c) and (d) of this subsection, each party to the appeal who participates in the program shall pay the program fee prescribed in this subsection. Each party shall pay the program fee directly to the neutral or, if instructed by the program director, to the Judicial Department Appellate Settlement Conference Program Account.2 Except as provided in paragraph (f) of this subsection, each party shall pay the program fee no later than the date of the first settlement conference. In workers' compensation cases, each party shall pay a fee of $150; in all other cases, each party shall pay a fee of $250.

    [(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.]

    (b) The program fee shall cover an initial settlement conference of up to six hours in duration. If the parties agree to extend the settlement conference beyond the initial six hours, the parties shall compensate the neutral for any additional time that is expended and recorded by the neutral at the rate of $125 per hour. The total cost of such additional time shall be shared equally by the parties.

    (c) For the purposes of paragraphs (a) and (b) of this subsection, multiple parties who are represented by the same attorney or attorneys shall be deemed to be a single party.

    [(c)](d) The Chief Judge or the Chief Judge's designee may waive or defer payment of the [neutral's] program 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's] program fee is waived or deferred, that party's portion of the [neutral's] program fee shall be paid by the program from funds appropriated [to the program] for that purpose.

    [(d)](e) 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] make the program fee payable [directly to the Judicial Department to be disposed of as provided by law] to the Judicial Department Appellant Settlement Conference Program Account and mail it to: Appellate Settlement Conference Program, Supreme Court Building, 1163 State Street, Salem, OR 97301.

    [(e)](f) A party whose [share of the neutral's] program 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] program fee has been paid by the [Administrator] program and the party thereafter pays the fee, the fee shall be paid to the [Administrator] program as provided in paragraph (e) of this subsection.

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

    2 Whenever the program fee is payable directly to the program, the check should be made payable to "A.S.C.P., Or. Judicial Dept." and mailed or delivered to: Appellate Settlement Conference Program, Supreme Court Building, 1163 State Street, Salem, OR 97301.

    See ORS 2.560(3).


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