OREGON RULES OF
APPELLATE PROCEDURE
SUPREME COURT
and
COURT OF APPEALS
Permanent Amendments Effective
January 1, 2019
Also includes:
CJO 18-057 / CJO 18-05 and CJO 18-083 / CJO 18-08,
Orders Adopting Temporary Amendments
effective January 1, 2019, through December 31, 2020;
CJO 19-016 / CJO 19-02, Order Adopting Temporary Amendment to ORAP 4.20
effective April 15, 2019, through December 31, 2020;
CJO 19-052 / CJO 19-05, Order Adopting Temporary Amendments effective October 7, 2019,
through December 31, 2020.
OJD Publications Section
1163 State Street
Salem, Oregon 97301-2563
Effective October 7, 2019
This document has no copyright and may be reproduced.
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TABLE OF CONTENTS
Oregon Rules of Appellate Procedure
FEES
Filing Fees ………………………………………………………………………. xiii
1. GENERAL RULES
1.05 Scope of Rules ………………………………………………………….. 1
1.10 Citation to Appellate Rules; Effect Date;
Temporary Amendments and Rules …………………………………….. 1
1.15 Terminology …………………………………………………………….. 1
1.20 Administrative Authority to Refuse Filings;
Sanctions for Failing to Comply with Rules;
Waiver of Rules ………………………………………………………… 4
1.25 Computation of Time …………………………………………………… 4
1.30 Litigant Contact Information …………………………………………… 5
1.32 Out-of-State Attorney and Self-Represented Party
Contact Information; Changes in Contact Information
for Attorney, Out-of-State Attorney, and Self-Represented
Party ……………………………………………………………………... 5
1.35 Filing and Service ………………………………………………………. 6
1.40 Verification; Declarations; Adopting ORCP 17 ………………………… 11
1.45 Form Requirements ……………………………………………………… 11
2. NOTICE OF APPEAL
2.05 Contents of Notice of Appeal …………………………………………… 13
2.10 Separate Notices of Appeal ……………………………………………… 15
2.15 Filing Fees in Civil Cases ………………………………………………… 16
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2.20 Appeal from Supplemental Judgments on Costs
and Attorney Fees After Notice of Appeal Filed ……………………….… 17
2.22 Appeals in Juvenile Cases ………………………………………………… 18
2.25 Case Titles; Changes to Case Titles ………………………………………. 19
2.30 Consolidation ……………………………………………………………... 21
2.35 Summary Determination of Appealability
and Expedited Supreme Court Review …………………………………… 22
2.40 Notice of Appeal in Guilty or No Contest Plea,
Probation or Sentence Suspension Revocation,
and Resentencing Cases …………………………………………………... 22
2.45 Summary Determinations of Authority to
Decide Action Against Public Body ……………………………………… 24
3. RECORD ON APPEAL
3.05 Trial Court Record on Appeal;
Supplementing the Record ………………………………………………... 27
3.07 Inspection of Confidential and Sealed Materials,
Including Presentence Reports in Criminal Appeals .………….…………. 27
3.10 Duties of Trial Court Administrator Regarding
Judgments and Orders Entered After Notice of Appeal ……………...…... 29
3.15 Preparation and Filing of the Record on Appeal …………………………. 30
3.20 Trial Court File …………………………………………………………… 30
3.25 Exhibits …………………………………………………………………… 31
3.30 Extension of Time for Preparation of Transcript ………………………….. 32
3.33 Preparation, Service, and Filing of Transcript ……………………………. 32
3.35 Form of Transcript ………………………………………………………... 36
3.40 Addition to or Correction of Transcript …………………………………... 38
3.45 Agreed Narrative Statement ……………………………………………… 40
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3.50 Return of Records and Exhibits …………………………………………... 40
3.55 Withdrawal of Papers or Exhibits ………………………………………… 40
3.63 Use of Audio or Video Record on Appeal ……………………………….. 41
4. JUDICIAL REVIEW OF
ADMINISTRATIVE AGENCY PROCEEDINGS
A. Generally
4.05 Procedure to Conform to Civil Cases …………………………………….. 43
4.10 Review of Orders of Board of Parole …………………………………….. 43
4.15 Form, Content, and Service of Petition for Judicial Review .…………….. 43
4.20 Record on Judicial Review ……………………………………………….. 45
4.22 Correcting the Record on Judicial Review ……………………………….. 50
4.25 Additional Evidence ……………………………………………………… 51
4.30 Review of Agency Denial of Motion to Stay …………………………….. 52
4.35 Agency Withdrawal of Orders ……………………………………………. 52
4.40 Appearance by Agency Not a Party ………………………………………. 54
B. Judicial Review of Certain
Land Use Decisions
4.60 Land Use Cases in General ……………………………………………….. 56
4.64 Record on Judicial Review ……………………………………………….. 57
4.66 Time for Filing Briefs …………………………………………………….. 57
4.67 Local Government and CRGC Documents ………………………………. 58
4.68 Cross-Petitions ……………………………………………………………. 58
4.70 No Continuances ………………………………………………………….. 59
4.72 Motion Not Tolling Time ………………………………………………… 59
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4.74 Summary Determination of LUBA
Jurisdiction by Court of Appeals …………………………………………. 59
5. PREPARATION AND FILING OF BRIEFS
5.05 Specifications for Briefs ………………………………………………….. 62
5.12 Briefs or Petitions for Review Challenging
Constitutionality of Statutes or Constitution ……………………………... 65
5.15 Designation of Parties in Briefs …………………………………………... 66
5.20 Reference to Evidence and Exhibits;
Citation of Authorities ……………………………………………………. 66
5.30 Ordinances, Charters, Statutes, and Other
Written Provisions to Be Set Out ………………………………………… 67
5.35 Appellant's Opening Brief: Index ………………………………………... 68
5.40 Appellant's Opening Brief: Statement of the Case ………………………. 68
5.45 Assignments of Error and Argument ……………………………………... 65
5.50 The Excerpt of Record ……………………………………………………. 70
5.52 Appendix …………………………………………………………………. 74
5.55 Respondent's Answering Brief …………………………………………… 74
5.57 Respondent's Answering Brief: Cross-Assignments of Error …………… 75
5.60 Failure of Respondent to File Brief ………………………………………. 76
5.65 Cross-Appellant's Opening Brief …………………………………………. 76
5.70 Reply Brief ……………………………………………………………….. 76
5.75 Answering Brief on Cross-Appeal ……………………………………….. 77
5.77 Joint and Adopted Briefs …………………………………………………. 77
5.80 Time for Filing Briefs …………………………………………………….. 78
Brief Time Chart 1 ……………………………………………………….. 80
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Brief Time Chart 2 ………………………………………………………... 81
5.85 Additional Authorities ……………………………………………………. 82
5.90 "Balfour" Briefs Filed by Court-Appointed Counsel ……………………... 83
5.92 Supplemental Pro Se Briefs ………………………………………………. 84
5.95 Briefs Containing Confidential Material …………………………………. 85
6. SUBMISSION OF CASES AND ORAL ARGUMENT;
RECONSIDERATION IN COURT OF APPEALS
6.05 Request for Oral Argument;
Submission Without Argument …………………………………………... 88
6.10 Who May Argue; Failure to Appear at Argument ……………………...… 89
6.15 Procedure at Oral Argument ……………………………………………… 89
6.20 Argument in Salem and Other Locations ………………………………… 90
6.25 Reconsideration by Court of Appeals …………………………………….. 91
7. MOTIONS
7.05 Motions in General ……………………………………………………….. 94
7.10 Preparation, Filing, and Service of Motions ……………………………… 95
7.15 Decisions on Motions …………………………………………………….. 97
7.25 Motion for Extension of Time ……………………………………………. 97
7.27 Oral Request for Extension of Time to File Brief ………………………. 98
7.30 Motions That Toll Time ………………………………………………….. 99
7.35 Motions Seeking Emergency Relief ……………………………………… 99
7.40 Dismissal of Appeal for Lack of an Undertaking
for Costs on Appeal ……………………………………………………... 100
7.45 Motions Arising From Settlement, Mediation,
or Arbitration ……………………………………………………………. 101
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7.50 Motion for Summary Affirmance in
Court-Appointed Counsel Cases ………………………...………………... 101
7.55 Court of Appeals Appellate Commissioner ………………………………. 102
8. MISCELLANEOUS RULES
8.05 Substitution of Parties in Civil Cases; Effect of
Death or Absconding of Defendant in Criminal Cases .............…………... 104
8.10 Withdrawal, Substitution, and Association
of Attorneys on Appeal ……………………………………….…………… 105
8.12 Appointment, Withdrawal, and Substitution
of Court-Appointed Counsel or Legal Advisor
on Appeal ……………………………………………………….……….... 105
8.15 Amicus Curiae ……………………………………………………………. 107
8.20 Effect of Bankruptcy Petition ……………………………………….......... 109
8.25 Motion Under ORCP 71 for Relief From Judgment ……………………… 110
8.27 Modification of Judgment of Dissolution of
Marriage During Pendency of Appeal ……………………………………. 111
8.28 Corrected, Supplemental, or New Judgments
in Criminal Cases After Notice of Appeal Filed …………………………. 111
8.30 Disqualifications of Judge ………………………………………………... 112
8.35 Media Coverage of Appellate Court Proceedings ………………………... 113
8.40 Review of Trial Court Rulings Affecting Appeal ………………………… 114
8.45 Duty to Serve Notice or File Motion on
Occurrence of Event Rendering Appeal Moot …………………………… 115
8.47 Notification of Related Cases ……………………………………………. 115
8.50 Segregation of Protected Personal Information …………………………... 116
8.52 Confidential and Sealed Attachments …………………………………… 117
8.55 Criminal Conviction Set Asides;
Delinquency Adjudication Expungements ……………………………….. 117
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9. PETITION FOR REVIEW AND
RECONSIDERATION IN SUPREME COURT
9.05 Petition for Supreme Court Review of
Court of Appeals Decision ……………………………………………….. 120
9.07 Criteria for Granting Discretionary Review ……………………………… 123
9.10 Response to Petition for Review …………………………………………. 124
9.17 Briefs on the Merits on Review …………………………………………... 125
9.20 Allowance of Review by Supreme Court ………………………………… 126
9.25 Reconsideration by Supreme Court ………………………………………. 127
9.30 Authority Over Matters, Including Motions,
When Case is Pending in the Supreme Court …………………………….. 127
10. SPECIAL COURT OF APPEALS RULES
10.05 Application for Interlocutory Appeal in Class Action ……………………. 130
10.10 Certification of Appeal to Supreme Court
by Court of Appeals ………………………………………………………. 131
10.15 Juvenile Dependency and Adoption Cases ……………………………….. 132
10.20 Arbitration of Disputes Over Provision of
Public Services for Prison Sites …………………………………………... 134
10.25 Expedited Appeal of Certain Pretrial
Orders in Criminal Cases …………………………………………………. 135
10.35 Joint Motions for Resolution by Unpublished Order …………………….. 136
11. ORIGINAL PROCEEDINGS IN THE SUPREME COURT
11.05 Mandamus: Initiating a Mandamus Proceeding …………………………. 138
11.10 Mandamus: Response by Adverse Party and
Consideration by the Court ……………………………………………….. 141
11.15 Mandamus: Briefs and Oral Argument …………………………………... 142
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11.17 Mandamus: Issuance of Combined Peremptory
Writ of Mandamus and Appellate Judgment ……………………………... 143
11.20 Habeas Corpus and Quo Warranto Proceedings ………………………….. 143
11.22 Lengthy Memoranda ……………………………………………………… 144
11.25 Bar Admission, Reinstatement, and
Disciplinary Proceedings …………………………………………………. 144
11.27 Judicial Disability and Disciplinary Proceedings ………………………… 146
11.30 Ballot Title Review ……………………………………………………….. 150
11.32 Voters' Pamphlet Explanatory Statement Review ……………………….. 154
11.34 Estimate of Financial Impact Review …………………………………….. 155
11.35 Reapportionment Review ………………………………………………… 156
12. SPECIAL SUPREME COURT RULES
12.05 Direct Appeal or Judicial Review in
the Supreme Court ………………………………………………………... 158
12.07 Expedited Appeal of Certain Pretrial Orders
in Criminal Cases ………………………………………………………… 158
12.08 Interlocutory Appeal of Order Concerning
Crime Victim's Rights ……………………………………………………. 159
12.09 Petitions for Supreme Court Review of Orders
Concerning Crime Victim's Rights ……………………………………….. 161
12.10 Automatic Review in Death Sentence Cases ……………………………... 163
12.12 Appointment of Counsel in Death Sentence Cases ………………………. 164
12.15 Coordination of Class Actions in Trial Courts …………………………… 165
12.20 Certification of Question of Law to Supreme Court
by Federal Court and Other State Courts …………………………………. 167
12.25 Expedited Judicial Review of Order of
the Energy Facility Siting Council ……………………………………….. 168
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13. COSTS AND DISBURSEMENTS,
ATTORNEY FEES, AND DAMAGES
13.05 Costs and Disbursements …………………………………………………. 170
13.10 Petition for Attorney Fees ………………………………………………… 172
13.15 Appeal of Public Defense Services Commission
Decision Regarding Court-Appointed Counsel
Compensation, Costs, and Expenses ……………………………………… 174
13.25 Petitions and Motions for Damages and Sanctions ………………………. 174
13.30 Requests for Judgment Against Sureties …………………………………. 174
14. APPELLATE JUDGMENT
14.05 Appellate Judgment ………………………………………………………. 176
14.10 Stay Pending Action by the Supreme Court
of the United States ……………………………………………………….. 178
15. APPELLATE SETTLEMENT
CONFERENCE PROGRAM
15.05 Appellate Settlement Conference Program ………………………………. 179
15.10 Appellate Settlement Conference Program
in the Supreme Court ……………………………………………………... 183
16. FILING AND SERVICE BY ELECTRONIC MEANS
16.03 Applicability ……………………………………………………………… 185
16.05 Definitions ………………………………………………………………… 185
16.10 eFilers …………………………………………………………………….. 186
16.15 Format of Documents to be Filed Electronically …………………………. 187
16.20 Filing Fees and eFiling Charges ………………………………………….. 189
16.25 Electronic Filing and Electronic Filing Deadlines ……………………….. 189
16.30 Conventional Filing Requirements ……..………………………………… 191
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16.40 Electronic Signatures ……………………………………………………... 192
16.45 Electronic Service ………………………………………………………… 193
16.50 Hyperlinks and Bookmarks in eFiled Briefs ……………………………… 194
16.55 Retention of Documents by eFilers and Certification of
Original Signatures ……………………………………………………… 194
16. 60 Mandatory Electronic Filing ……………………………………………… 195
APPENDICES
Appendix 2.05 Illustration for ORAP 2.05 -- Notice of Appeal ……………….. 198
Appendix 2.25 Illustration for ORAP 2.25 -- Case Titles ……………………… 202
Appendix 2.40 Illustration for ORAP 2.40 --
Colorable Claims of Error ……………………………….... 203
Appendix 3.30 Illustration for ORAP 3.30 --
Reporter's Request for Time Extension
for Preparation of Transcript …………………………………… 204
Appendix 3.33-1 Illustration for ORAP 3.33(4)(b)
and ORS 19.370 -- Certificate of
Preparation and Service of Transcript ……………………......... 206
Appendix 3.33-2 Illustration for ORAP 3.33(4)(c) --
Certificate of Filing of Transcript ……………………………… 207
Appendix 3.35 Illustration for ORAP 3.35(2)(b) --
Filing Naming Conventions for
Electronic Transcripts ………………………………………….. 208
Appendix 4.15-1 Illustration for ORAP 4.15 --
Petition for Judicial Review
(Other Than Workers' Compensation Cases) …………………... 209
Appendix 4.15-2 Illustration for ORAP 4.15 --
Petition for Review of Order of the
Workers' Compensation Board ………………………………… 212
Appendix 5.05-1 Illustration for ORAP 5.05 --
Appellant's Opening Brief and
Excerpt of Record ………………………………………………. 215
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Appendix 5.05-2 Illustration for ORAP5.05(2)(d) --
Certificate of Compliance with Brief
Length and Type Size Requirements …………………………… 217
Appendix 5.45 Illustration for ORAP 5.45 --
Model Complete Assignment of Error;
Other Partial Assignments of Error …………………………….. 219
Appendix 5.50 Illustration for ORAP 5.50 --
Excerpt of Record ………………………………………………. 221
Appendix 5.95 Illustration for ORAP 5.95 --
Briefs Containing Confidential Material …………………......... 222
Appendix 6.05 Illustration for ORAP 6.05 --
Request for Oral Argument …………………………………….. 223
Appendix 7.10-1 List of Commonly Used Motion Titles
for ORAP 7.10(1)(b) and (c) ……………………………........... 224
Appendix 7.10-2 Illustration for ORAP 7.10(1)(b) -- Motions …………………….228
Appendix 7.10-3 Illustration for ORAP 7.10(1)(c) and
ORAP 7.25 -- Motion for Extension of Time ………………….. 230
Appendix 9.05 Illustration for ORAP 9.05 -- Petition for Review …………… 232
Appendix 10.15 Illustration for ORAP 10.15 --
Termination of Parental Rights Notice of Appeal ……………… 234
Appendix 11.05 Illustration for ORAP 11.05 --Sample Case
Titles for Mandamus Proceedings ……………………………… 235
Appendix 12.08 Illustration for ORAP 12.08 --
Notice of Interlocutory Appeal …………………………............ 237
Appendix 13.10 Illustration for ORAP 13.10 --
Petition for Attorney Fees ………………………………............ 240
Appendix 16.05-1 Initiating Documents ……………………………………....... 241
Appendix 16.05-2 Supporting Documents ……………………………………… 242
Appendix 16.05-3 Associated Documents ……………………………………… 242
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Appendix 16.50 Illustration for ORAP 16.50
Hyperlinks and Bookmarks in eFiled Briefs …………………… 243
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FILING FEES
in the
Supreme Court and Court of Appeals
of the State of Oregon
FILING FEES
The Oregon Legislature may modify filing fees between publication dates of the Oregon Rules of
Appellate Procedure. Confirm current filing fees on the Judicial Department's website, currently
the following page:
<https://www.courts.oregon.gov/courts/appellate/rules/Pages/cases.aspx>
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1. GENERAL RULES
Rule 1.05
SCOPE OF RULES
These rules apply to all proceedings in the Supreme Court and Court of Appeals.
Rule 1.10
CITATION TO APPELLATE RULES;
EFFECTIVE DATE;
TEMPORARY AMENDMENTS AND RULES
(1) These rules shall be cited as ORAP.
(2) The effective date of any amendment to or new rule of the Oregon Rules of
Appellate Procedure shall be January 1 of the year following the adoption of the amendment or
new rule. The rules as amended shall apply to any thing filed or time period commenced in the
appellate courts on or after the effective date of the amendment or new rule. The superseded
rules shall apply to any thing filed or time period commenced in the appellate courts before the
effective date of any amendment or new rule.
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(3) Notwithstanding subsection (2) of this rule, the appellate courts may adopt one or
more temporary rules or temporary amendments to existing rules. Unless otherwise indicated in
the order adopting the temporary rule or temporary amendment, the effective date of the rule or
amendment shall be the date of the order, and the rule or amendment shall expire on the effective
date of the next regularly adopted amendments to the Oregon Rules of Appellate Procedure.
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1
These rules were last regularly amended effective January 1, 2019.
2
A temporary new rule or temporary amendment to an existing rule will be published in the
Oregon Appellate Courts Advance Sheets and on the Oregon Rules of Appellate Procedure page
on the Judicial Department's website:
<https://www.courts.oregon.gov/courts/appellate/rules/Pages/orap.aspx>
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
2
otherwise requires:
(a) "Administrator" means the Appellate Court Administrator or, as
appropriate, the Appellate Court Administrator's designee.
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(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) "Appearing jointly" refers to two or more parties who together file single
documents.
(e) "Appellant" means a party who files a notice of appeal or petition for
judicial review.
(f) "Appellate court" means the Supreme Court, Court of Appeals, or both, as
appropriate.
(g) "Appellate judgment" shall have the meaning set out in ORAP
14.05(1)(a).
(h) "Audio record" means the record of oral proceedings before a trial court or
agency made by electronic means and stored or reproduced on audiotape or compact disc.
(i) "Business day" means Monday through Friday excluding legal holidays.
(j) "Cassette" means the cartridge containing the audio or video recording.
(k) (i) "Conventional filing" means the delivery of a paper document to
the Administrator for filing via the United States Postal Service, commercial
delivery service, or personal delivery.
(ii) "Conventional service" means the delivery of a copy of a
document on another person via the United States Postal Service, commercial
delivery service, or personal delivery.
(l) "Cross-appellant" means a party, already a party to an appeal, who files an
appeal against another party to the case.
(m) "Cross-respondent" means a party who is adverse to a cross-appellant.
(n) "Decision" shall have the meaning set forth in ORAP 14.05(1)(b).
(o) "Domestic relations case" includes but is not necessarily limited to these
kinds of cases: dissolution of marriage, dissolution of domestic partnership, filiation,
3
paternity, child support enforcement, child custody, modification of judgment of
dissolution of marriage or domestic partnership, and adoption.
(p) "Judgment" means any judgment document or order that is appealable
under ORS 19.205, ORS chapter 138, or other provision of law.
(q) "Legal advisor" means an attorney in a criminal case assisting a defendant
who has waived counsel, as provided in ORS 138.504(2).
(r) "Notice of appeal" includes a petition for judicial review and a notice of
cross-appeal.
(s) "Optical disk" means compact disk (CD), digital versatile disk (DVD), or
comparable medium approved by the Administrator for use in filing an electronic version
of a transcript or other part of a trial court or agency record.
(t) "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.
(u) "Out-of-state attorney" means an attorney admitted to the practice of law
in another jurisdiction, but not in Oregon, who appears by brief or argues the cause under
ORAP 6.10(4) or ORAP 8.10(4).
(v) "Petitioner" means a party who files a petition.
(w) "Respondent" means the party adverse to an appellant or a petitioner.
(x) "Transcript" means a typewritten, printed, or electronic transcription of
oral proceedings before a trial court or agency.
(y) "Trial court" means the court or agency from which an appeal or judicial
review is taken.
(z) "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.
________
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See ORS 8.120 regarding duties of the State Court Administrator to act as court administrator
for the Supreme Court and Court of Appeals, and authority of the State Court Administrator to
delegate powers, by written designation, to officers and employees of the Oregon Judicial
Department. Effective January 11, 2018, the State Court Administrator delegated, by written
designation, to the current Appellate Court Administrator the duties to act as court administrator
for the Supreme Court and Court of Appeals.
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Rule 1.20
ADMINISTRATIVE AUTHORITY TO REFUSE FILINGS;
SANCTIONS FOR FAILING TO COMPLY WITH RULES;
WAIVER OF RULES
(1) The Administrator may refuse to file any thing delivered for filing that does not
comply with these rules or applicable statutes.
(2) The court on its own motion or on motion of a party may strike, with or without
leave to refile, any brief, excerpt of record, motion or other thing that does not conform to
applicable statutes or these rules.
(3) If a party responsible for causing a transcript to be prepared and filed fails to do
so, after notice and opportunity to cure the default, the court may direct that the appeal proceed
without the transcript. If the court directs that the appeal proceed without the transcript and the
party is the appellant, the appellant shall file a statement of points relied on.
1
(4) The court on its own motion or on motion of a party may dismiss an appeal for
want of prosecution if:
(a) the appellant has failed to comply with applicable statutes or these rules;
(b) fourteen days' notice of the noncompliance has been given to each
attorney of record and to parties not represented by counsel; and
(c) the court has not received a satisfactory response to the notice.
(5) For good cause, the court on its own motion or on motion of any party may waive
any rule.
_________
1
See ORS 19.250(1)(e).
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, 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 any of
those events, the period runs until the end of the next day the court is open.
(2) When the period of time prescribed or allowed relates to serving a public officer
5
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.
(4) As used in this rule, "legal holiday" means legal holiday as defined in ORS
187.010 and ORS 187.020.
(5) The normal work day of the Appellate Court Records Section is 8:00 a.m. to 5:00
p.m.
_________
See ORS 174.120 and ORCP 10 A.
Rule 1.30
LITIGANT CONTACT INFORMATION
(1) In these rules, "litigant contact information" means the name, bar number,
address, telephone number, and email address of the attorney(s) for each party, identifying the
party or parties appearing jointly that each attorney represents, and the name, mailing address,
and telephone number of each self-represented party.
(2) If, pursuant to law or order of the court, a party's address or telephone number, or
both, are not subject to public disclosure, the party submitting a document for filing must provide
alternative contact information that the Administrator may make available for public inspection
and for purpose of service under ORAP 1.35(2). The Administrator will not make the party's
actual telephone number or address available for public inspection.
Rule 1.32
OUT-OF-STATE ATTORNEY AND SELF-REPRESENTED PARTY
CONTACT INFORMATION; CHANGES IN CONTACT INFORMATION FOR
ATTORNEY, OUT-OF-STATE ATTORNEY, AND SELF-REPRESENTED PARTY
(1) An out-of-state attorney who appears by brief or argues the cause under ORAP
6.10(4) or ORAP 8.10(4) and any self-represented party must provide the court with the address
for that attorney or party.
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(a) An out-of-state attorney also may consent to receive court notifications by
email by providing an email address to the court.
(b) A self-represented party who consents to receive court notifications by
email must provide the court with an email address and
(i) include a statement of consent to receive electronic notifications
from the court in the party's initial filing in the cause; or
(ii) file a notice of consent to receive electronic notifications from the
court.
(c) A self-represented party who has consented to receive electronic
notifications from the court under paragraph (b) of this subsection may revoke that
consent by notifying the court that the party's email address should no longer be used and
that all court notifications should be sent to the party by conventional mail.
(d) An out-of-state attorney or self-represented party who provides the court
with an address or email address under subsection (1) of this rule must notify the court of
a change of address or email address.
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(2) If an attorney for a party files a change of address with the Oregon State Bar or if
an out-of-state attorney or a self-represented party notifies the court of a change of mailing or
email address in writing or otherwise, the attorney or party must inform all other parties to the
cause of the change or mailing or email address within seven calendar days.
_____________
1
See also ORAP 16.10(2)(a)(v), regarding updated email address for an Oregon State Bar
member who is a registered user of the appellate electronic filing system.
Rule 1.35
FILING AND SERVICE
(1) Filing
(a) Filing Defined: Delivery, Receipt, and Acceptance
(i) A person intending to file a document in the appellate court must
cause the document to be delivered to the Appellate Court Administrator.
(ii) Delivery may be made as follows and otherwise as provided under
subsection (2) of this rule:
(A) Unless an exception applies under ORAP 16.30 or ORAP
16.60(2), an active member of the Oregon State Bar must deliver any
7
document for filing using the appellate courts' eFiling system.
1
(B) Any other person must file any document in conventional
form, by delivering the document via U.S. Postal Service or commercial
delivery service to the Appellate Court Administrator, Appellate Court
Records Section, 1163 State Street, Salem, Oregon 97301-2563 or in
person to the Appellate Court Administrator, Appellate Court Records
Section, 2850 Broadway St NE, Salem, Oregon 97303-6500.
(iii) The Administrator or the Administrator's designee must endorse
upon any document delivered for filing the day and month, and the year the
Administrator received the document.
(iv) Filing is complete when the Administrator has accepted the
document. Except as otherwise provided by law or these rules, when the
Administrator has accepted a document for filing, the filing date relates back to
the date the Administrator received the document for filing.
(v) A correction to a previously filed document must be made by filing
the entire corrected or amended document with the court. The caption of a
corrected or amended document must prominently display the word
"CORRECTED" or "AMENDED," as applicable.
(b) Manner of Filing
(i) "Initiating document" means any document that initiates a case,
including but not limited to a notice of appeal; a petition for judicial review; a
petition for a writ of mandamus, habeas corpus or quo warranto; and a
recommendation for discipline from the Oregon State Bar or the Commission on
Judicial Fitness and Disability. As used in this rule, "initiating document" does
not include a petition for review under ORAP 9.05
2
or a motion for extension of
the time to file a petition for review under ORAP 9.05.
(ii) Using Appellate Courts' eFiling System
Delivery for filing using the eFiling system is subject to Chapter
16 of these rules.
(iii) Using United States Postal Service or Commercial Delivery
Service
(A) A person may deliver an initiating document for filing via
the U.S. Postal Service, and delivery is complete on the date of mailing if
mailed or dispatched for delivery in accordance with ORS 19.260(1)(a). If
the Administrator receives the initiating document within the time
prescribed by law, the person need not submit proof of the date of mailing.
8
If the Administrator does not receive the document within the time
prescribed law and the person must rely on the date of mailing as the date
of delivery, the person must file with the Administrator acceptable proof
from the U.S. Postal Service of the date of mailing. Acceptable proof from
the U.S. Postal Service of the date of mailing must be a receipt for
certified or registered mail or other class of service for delivery within
three calendar days, with the mail number on the envelope or on the item
being mailed, and the date of mailing either stamped by the U.S. Postal
Service on the receipt or shown by a U.S. Postal Service postage validated
imprint on the envelope received by the Administrator or the U.S. Postal
Service's online tracking system.
(B) A person may deliver an initiating document for filing via
commercial delivery service, and the delivery is complete on the date of
dispatch for delivery by the delivery service if dispatched for delivery in
accordance with ORS 19.260(1)(a). If the Administrator receives the
initiating document within the time prescribed by law, the person need not
submit proof of the date of delivery for dispatch. If the Administrator does
not receive the document within the time prescribed by law and if the
person must rely on the date of delivery for dispatch, the person must file
with the Administrator proof from the commercial delivery service of the
date of delivery for dispatch, which may include the commercial delivery
service's online tracking service.
(C) A person involuntarily confined in a state or local
government facility may deliver an initiating document for filing via the
U.S. Postal Service and the date of filing relates back to the date of
delivery for mailing if the person complies with ORS 19.260(3). If the
person relies on the date of delivery for mailing, the person must certify
the date of delivery to the person or place designated by the facility for
handling outgoing mail.
(D) Filing of any other document required to be filed within a
prescribed time, including any brief, petition for attorney fees, statement
of costs and disbursements, motion, or petition for review, is complete if
mailed via the U.S. Postal Service or dispatched via commercial delivery
service on or before the due date if the class of mail or delivery is
calculated to result in the Administrator receiving the document within
three calendar days.
(iv) Conventional Filing Not Using U.S. Postal Service or Commercial
Delivery Service
If a person does not deliver a document for filing via the eFiling
system, the U.S. Postal Service, or commercial delivery service as
provided in this paragraph, then the document is not deemed filed until the
9
document is actually received by the Administrator.
(v) Delivery by email is not permitted unless specifically authorized
elsewhere in these rules.
(2) Service
(a) (i) Except as provided in clause (2)(a)(ii) of this subsection, a party
filing a document with the court must serve a true copy of the document on each
other party or attorney for a party to the case.
3
(ii) A party filing a motion for waiver or deferral of court fees and
costs under ORS 21.682 need not serve on any other party to the case a copy of
the motion or any accompanying documentation of financial eligibility.
4
After the
court has ruled on the motion, if another party to the case requests a copy of the
motion or documentation of financial eligibility for the purpose of challenging the
court's ruling, the filing party must comply with the request but may redact
protected personal information as described in ORAP 8.50(1). As used in this
clause, "documentation of financial eligibility" means a document showing
eligibility for a government benefit based on financial need or an affidavit or
declaration showing the income, assets, and financial obligations of a party and
the party's household.
(b) Except as otherwise provided by law,
5
a party may serve a document on
another person as provided in ORCP 9 or by commercial delivery service.
(i) If a party serves a copy of a document by the U.S. Postal Service
or commercial delivery service, the class of service must be calculated to result in
the person receiving the document within three calendar days.
(ii) Electronic service via the eFiling system is permitted only on
attorneys who are authorized users of the eFiling system and only as provided in
ORAP 16.45.
(iii) Service by email or facsimile communication is permitted only as
provided in ORCP 9 F or G.
(c) Each service copy must include a certificate showing the date that the
party delivered the document for filing.
(d) Any document filed with the Administrator must contain either an
acknowledgment of service by the person served or proof of service in the form of a
statement of the date and manner of service, and the names and addresses of the persons
served, certified by the person who made service, except that:
(i) If a person was served by the appellate courts' eFiling system, the
10
certificate must state that service was accomplished at the person's email address
as recorded on the date of service in the appellate eFiling system, and need not
include the person's email address or mailing address.
(ii) If a person was served by email or by facsimile communication,
the proof of service must state the email address or telephone number used to
serve the person, as applicable, and need not include the person's mailing address.
(e) Service on Trial Court Administrators and Transcript Coordinators
(i) When a copy of a notice of appeal is required to be served on the
trial court administrator, service is sufficient if it is mailed or delivered to the
person serving in the capacity of trial court administrator for the county in which
the judgment or appealable order is entered.
(ii) When a copy of a notice of appeal is required to be served on the
transcript coordinator, service is sufficient if it is mailed or delivered to the office
of the trial court administrator, addressed to "transcript coordinator."
(iii) An authorized user of the trial court electronic filing system may
serve a copy of a notice of appeal on the trial court administrator and the
transcript coordinator by using the "Courtesy Copies" email function of that
system. The email address for each judicial district's trial court administrator and
transcript coordinator are available on the judicial district's website.
_________
1
At this time, only an active member of the Oregon State Bar may become an authorized user of
the appellate courts' eFiling system. Therefore, self-represented litigants and attorneys who are
not active members of the Oregon State Bar may not file a document with the appellate court
using the eFiling System.
2
ORAP 1.35 defines "initiating document" for purposes of conventional filing. For those
purposes, the term does not include a petition for review under ORAP 9.05. ORAP 16.05
defines "initiating document" for purposes of eFiling and eService. For those purposes, the term
does include a petition for review under ORAP 9.05. ORAP 16.05(8).
3
Whenever these rules authorize or require service of a copy of any document on the Attorney
General, the copy must be served at this address: Attorney General of the State of Oregon,
Office of the Solicitor General, 400 Justice Building, 1162 Court Street, NE, Salem, Oregon
97301-4096.
4
See Chief Justice Order No. 07-056 (order adopted pursuant to ORS 21.682(4) prescribing
standards and practices for waiver or deferral of court fees and costs).
5
See, e.g., ORS 183.482(2), relating to cases arising under the Administrative Procedures Act,
which requires service of petitions for judicial review by registered or certified mail, and ORS
197.850(4), relating to judicial review of Land Use Board of Appeals orders, which requires
11
service of petitions for judicial review by first class, registered, or certified mail.
Rule 1.40
VERIFICATION; DECLARATIONS; ADOPTING ORCP 17
(1) Except if specifically require by statute, no thing filed with the appellate court
need be verified.
(2) When a statute requires a paper filed with the appellate court to be verified, a
verification shall consist of a statement:
(a) that the person has read the paper and that the facts stated in the paper are
true, to the best of the person's knowledge, information and belief formed after
reasonable inquiry;
(b) signed and dated by the person; and
(c) sworn to or affirmed before a person authorized by law to administer oaths
or affirmations, including, but not necessarily limited to, a notary public.
(3) A declaration under penalty of perjury may be used in lieu of any affidavit
required or allowed by these rules. A declaration under penalty of perjury may be made without
notice to adverse parties, must be signed by the declarant, and must include the substance of the
following sentence in prominent letters immediately above the signature of the declarant: "I
hereby declare that the above statement is true to the best of my knowledge and belief, and that I
understand it is made for use as evidence in court and is subject to penalty for perjury." As used
in these rules, "declaration" means a declaration under penalty of perjury.
(4) Oregon Rule of Civil Procedure (ORCP) 17 is hereby adopted as a rule of
appellate procedure applicable to the Supreme Court and Court of Appeals.
1
_________
1
See ORAP 13.25 regarding the procedure for requesting sanctions under this subsection.
See generally ORS 138.090 regarding the signing of notices of appeal in criminal cases, ORS
19.250(1)(g) regarding the signing of notices of appeal in civil cases, and ORAP 5.05(3)(e)
regarding the signing of briefs.
Rule 1.45
FORM REQUIREMENTS
(1) Any document intended for filing with an appellate court must be legible and
include:
(a) A caption containing the name of the court; the case number of the action,
if one has been assigned; the title of the document; and the names of the parties displayed
12
on the front of the document.
(b) The name, address, and telephone number of the party or the attorney for
the party, if the party is represented.
(2) As provided in ORAP 1.35(1)(a)(v), the caption of a corrected or amended filing
must prominently display the word "CORRECTED" or "AMENDED," as applicable, and the
entire corrected or amended document must be filed with the court.
(3) Except as otherwise provided in ORAP 5.05, parties may prepare any document
to be filed in the appellate court 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 must not exceed 10 characters per inch (cpi) for both
the text of the thing filed and footnotes. If proportionally spaced type is used, it must not be
smaller than 13 point for both the text of the thing filed and footnotes. This subsection does not
apply to the record on appeal or review.
(4) Parties conventionally filing any document in the appellate courts are:
(a) Encouraged to print on both sides of each sheet of paper of the document
being filed.
(b) Required to use recycled paper if recycled paper is readily available at a
reasonable price in the party's community. Further, parties are encouraged to use paper
containing the highest available content of post-consumer waste, as defined in ORS
459A.500(3), that is recyclable in the office paper recycling program in the party's
community. The court will not decline to accept any filing on the ground that the filing
does not comply with paragraph (a) or (b) of this subsection.
1
(c) Prohibited from using color highlighting on any part of the text.
_________
1
See ORS 7.250.
13 Chapter 2
2. NOTICE OF APPEAL
Rule 2.05
CONTENTS OF NOTICE OF APPEAL
The notice of appeal shall be served and filed within the time allowed by ORS 19.255,
ORS 138.071, or other applicable statute. Only the original need be filed. The notice of appeal
shall be substantially in the form illustrated in Appendix 2.05 and shall contain:
(1) The complete title of the case as it appeared in the trial court, naming all parties
completely, including their designations in the trial court (e.g., plaintiff, defendant, cross-
plaintiff, intervenor), and designating the parties to the appeal, as appropriate (e.g., appellant,
respondent, cross-appellant, cross-respondent). The title also shall include the trial court case
number or numbers.
(2) The heading "Notice of Appeal" or "Notice of Cross-Appeal," as appropriate.
(3) A statement that an appeal is taken from the judgment or some specified part of
the judgment,
1
the name of the court and county from which the appeal is taken, and the name of
the trial judge or judges who signed the judgment being appealed.
(4) A designation of the adverse parties on appeal.
(5) The litigant contact information required by ORAP 1.30.
(6) A designation of those parts of the proceedings to be transcribed
2
and exhibits
3
to
be included in the record in addition to the trial court file. If the record includes an audio or
video recording played in the trial court, the designation of record should identify the date of the
hearing at which the recording was played and, if the appellant wants the transcript to include a
transcript of the recording, a statement to that effect.
(7) A plain and concise statement of the points on which the appellant intends to rely;
but if the appellant has designated for inclusion in the record all of the testimony and all of the
instructions given and requested, no statement of points is necessary.
(8) If more than 30 days has elapsed after the date the judgment was entered, a
statement as to why the appeal is nevertheless timely.
(9) If appellate jurisdiction is not free from doubt, citation to statute or case law to
support jurisdiction.
(10) Proof of service, specifying the date of service.
(a) In a civil case, the notice of appeal shall contain proof of service on all
other parties who appeared in the trial court.
14 Chapter 2
(b) In any civil case in which the adverse party is a governmental unit and an
attorney did not appear, either in writing or in person, on behalf of the governmental unit
in the proceedings giving rise to the judgment or order being appealed (for instance, in
the prosecution of a violation, a contempt proceeding, or a civil commitment proceeding);
(i) The notice of appeal shall contain proof of service on the attorney
for the governmental unit (for instance, the city attorney as to a municipality, the
district attorney as to a county or the state); and
(ii) If the governmental unit is the state or a county, the notice of
appeal shall also contain proof of service on the Attorney General.
4
(c) In a criminal case, the notice of appeal shall contain proof of service on:
(i) The defendant, in an appeal by the state. The notice of appeal in
such an appeal also shall contain proof of service of a copy of the notice of appeal
on the Office of Public Defense Services when the defendant was represented by
court-appointed counsel.
5
(ii) The district attorney, in an appeal by the defendant. The notice of
appeal in such an appeal also shall contain proof of service of a copy of the notice
of appeal on the Attorney General.
6
(d) In a juvenile dependency case, including a case involving the termination
of parental rights, the notice of appeal shall contain proof of service on the Office of
Public Defense Services when a parent was represented by court-appointed counsel.
7
(e) In all cases, in addition to the foregoing requirements, the notice of appeal
shall contain proof of service on:
(i) The trial court administrator; and
(ii) The transcript coordinator, if any part of the record of oral
proceedings in the trial court has been designated as part of the record on appeal.
8
(11) A certificate of filing, specifying the date the notice of appeal was filed with the
Administrator.
(12) A copy of the judgment, decree or order appealed from and of any other orders
pertinent to appellate jurisdiction.
_________
1
See ORAP 2.10 regarding filing separate notices of appeal when there are multiple judgments
entered in a case, including multiple judgments in consolidated cases.
2
See ORAP 3.33 regarding the appellant's responsibility to make financial arrangements with
15 Chapter 2
either the court reporter or the transcript coordinator for preparation of a transcript of oral
proceedings.
3
See ORAP 3.25 regarding making arrangements for transmitting exhibits to the appellate court
for use on appeal. See also Uniform Trial Court Rule (UTCR) 6.120(2) and (3) regarding
retrieval of exhibits by trial court administrators for use on appeal.
4
Service of the notice of appeal on the Attorney General is for the purpose of facilitating the
appeal and is not jurisdictional. See footnote 2 to ORAP 1.35 for the service address of the
Attorney General.
5
Service of the notice of appeal on the Office of Public Defense Services is for the purpose of
facilitating the appeal and is not jurisdictional. The service address of the Office of Public
Defense Services is 1175 Court Street, NE, Salem, Oregon 97301-4030.
6
See footnote 5 to subparagraph (10)(b)(ii) of this rule.
7
See footnote 6 to subparagraph (10)(c)(i) of this rule.
8
See footnote 5 to subparagraph (10)(b)(ii) of this rule.
See ORS 19.240(3) and ORS 19.250; see also ORAP 8.20 regarding bankruptcy. In a criminal
case, if a defendant appeals a judgment of conviction based only on a plea of guilty or no contest,
see ORS 138.085.
See Appendix 2.05 for a form of notice of appeal.
Rule 2.10
SEPARATE NOTICES OF APPEAL
(1) If the trial court consolidated two or more cases, a party must file a separate
notice of appeal in each case in which the party seeks to appeal the judgment. The Administrator
will decide whether to place the notices of appeal in the same appellate file, but the appellant
may state in each notice of appeal a preference that the Administrator place them in the same
appellate file or assign them separate appellate case numbers. If the Administrator assigns
separate appellate case numbers to each notice of appeal, any party to either appeal may move to
consolidate the appellate cases.
(2) After a party has filed a notice of appeal from a decision in a trial court case, if
another party files a notice of appeal from a decision in the same trial court case, the
Administrator may place the subsequent notice of appeal in the same appellate file as the first
notice of appeal or may assign a new appellate case number to the subsequent notice of appeal,
subject to the following:
(a) When the Administrator has placed a subsequent notice of appeal in the
16 Chapter 2
same appellate case file, any party may move the court to sever the case and for
assignment of a new appellate case number to the subsequent notice of appeal.
(b) When the Administrator has assigned a new appellate case number to a
subsequent notice of appeal, any party to either appeal may move to consolidate the
appellate cases.
(3) With respect to violation or infraction cases initiated by citations and heard by the
trial court at the same time, one notice of appeal identifying the judgment or judgments being
appealed is sufficient.
Rule 2.15
FILING FEES IN CIVIL CASES
(1) This rule:
(a) does not apply to appeals or petitions for judicial review in criminal,
habeas corpus, post-conviction relief, juvenile court, civil commitment of persons with
mental illness (as defined in ORS 426.005) or persons with an intellectual or
developmental disability (as those terms are defined in ORS 427.005), Psychiatric
Security Review Board, and State Board of Parole cases;
1
(b) does apply to appeals and petitions for judicial review in all other civil
proceedings.
2
(2) One filing fee is required for each appellant appearing separately or for two or
more appellants appearing jointly. When two or more notices of appeal are filed under ORAP
2.10(1), a filing fee is required for each notice of appeal. When a notice of appeal has been filed
and a notice of appeal subsequently is filed in circumstances resulting in the creation of a new
appellate court case,
3
the appellant is required to pay a filing fee at the time of the subsequent
notice of appeal.
(3) Except as provided in subsection (4) of this rule, a respondent's appearance fee is
required for each respondent appearing separately or for two or more respondents appearing
jointly. When a notice of appeal has been filed and a notice of appeal subsequently is filed in
circumstances resulting in the creation of a new appellate court case, the respondent shall pay an
appearance fee at the time of the appearance in the subsequent appeal.
(4) (a) If two or more respondents appearing jointly submit a single brief or other
first appearance, only one appearance fee is required.
(b) If a respondent concurs in a brief but does not join in submitting it, no
appearance fee is required from the concurring respondent but the concurring respondent
is deemed to have waived appearance and oral argument.
17 Chapter 2
(c) After a brief is filed, if a stipulation is filed allowing a second respondent
to join in the brief, the second respondent is deemed to have appeared, and an appearance
fee is required from that party.
(5) If a party fails to pay the appearance fee, the court will not consider any thing
filed by that party, and that party will not be allowed to argue the appeal.
_________
1
See ORS 21.010(2).
2
See generally ORS 21.010(1). See ORS 21.010(3) regarding filing fees in an appeal from an
appeal to a circuit court from a justice or municipal court involving a state violation or infraction
or involving violation of a city charter or ordinance. See ORS 21.010(4) regarding filing fees in
contempt cases.
3
For example, appeals taken from judgments entered under ORCP 67 B at significantly different
times.
Rule 2.20
APPEAL FROM SUPPLEMENTAL JUDGMENTS ON COSTS
AND ATTORNEY FEES AFTER NOTICE OF APPEAL FILED
(1) If the trial court enters a supplemental judgment awarding attorney fees or costs
and disbursements under ORCP 68 C(5)(b) after the notice of appeal has been filed, and if the
appellant intends to challenge the supplemental judgment on appeal, the appellant, within 30
days after entry of the supplemental judgment, shall serve and file an amended notice of appeal
from the supplemental judgment.
(2) If the trial court enters a supplemental judgment disallowing, in whole or in part,
any request for attorney fees or costs and disbursements after the notice of appeal has been
served, and if a respondent intends to challenge the supplemental judgment on appeal:
(a) If that respondent has, before entry of the supplemental judgment, timely
filed notice of cross-appeal, that respondent, within 30 days after entry of the
supplemental judgment, shall serve and file an amended notice of cross-appeal from the
supplemental judgment.
(b) If that respondent has not, before entry of the supplemental judgment,
timely filed notice of cross-appeal, that respondent, within 30 days after entry of the
supplemental judgment, shall serve and file a notice of cross-appeal.
_________
See generally ORS 19.270(1)(a) and ORS 20.220.
18 Chapter 2
Rule 2.22
APPEALS IN JUVENILE CASES
(1) For any eFiled document in any juvenile dependency case that must be served on
the parties to the appeal under ORAP 1.35:
(a) The party filing the document must use the "notification information"
function of the appellate courts' eFiling system to notify the attorney for any person who
was a party under ORS 419B.875(1)(a)(A)-(C), (H), or ORS 419B.875(1)(b) to the case
in the juvenile court from which the appeal was taken, when
(i) that person was not designated in the notice of appeal as a party to
the appeal; and
(ii) that person has not filed a notice of intent to participate on appeal
under ORAP 2.25(3).
(b) The notification sent to an attorney under subsection (a) will notify that
attorney that the document has been eFiled, but will not permit the attorney to view the
document, due to security that applies to juvenile cases in the eFiling system. The
notification does not operate as service.
1
The attorney may access the document through
the appellate courts' remote electronic access system, if the attorney has juvenile case
permissions in that system.
(c) The certificate of service for a document eFiled must contain proof of the
notification required by this subsection.
(2) If an appeal is pending from an order or judgment of a juvenile court, the juvenile
court enters a subsequent appealable order or judgment, and a party to the juvenile court case
wishes to appeal from the subsequent order or judgment:
(a) If the party who wishes to appeal is the appellant in the pending appeal,
the appellant shall serve and file an amended notice of appeal from the subsequent order
or judgment.
(b) If the party who wishes to appeal is the cross-appellant in the pending
appeal, the cross-appellant shall serve and filed an amended notice of cross-appeal from
the subsequent order or judgment.
(c) If the party who wishes to appeal is any other party to the case, that party
shall file a notice of appeal from the subsequent order or judgment.
(d) Any such notice of appeal, amended notice of appeal, or amended notice
of cross-appeal shall contain the appellate case number of the pending appeal and shall be
served and filed within 30 days after entry of the subsequent order or judgment.
2
19 Chapter 2
(3) This subsection applies to a motion for relief from an order or judgment filed in
juvenile court under ORS 419B.923 during the pendency of an appeal.
(a) If the copy of the motion required to be served on the appellate court is not
entitled "MOTION FOR RELIEF FROM ORDER OR JUDGMENT UNDER ORS
419B.923," the copy shall be accompanied by a letter of transmittal identifying the
motion as a motion for relief under ORS 419B.923.
(b) Any party to the appeal may request the appellate court to hold the appeal
in abeyance pending disposition of the motion or allow the appeal to go forward. In the
absence of a request from a party, the court on its own motion will review the motion for
relief from judgment and decide whether to hold the appeal in abeyance. If the court
does not order the appeal to be held in abeyance, the appeal will go forward.
(c) If the appellate court holds an appeal in abeyance pending disposition of a
motion for relief from order or judgment and subsequently the court receives a copy of
the juvenile court's order deciding the motion, after expiration of the period within which
an appeal from the order may be filed, the appellate court will decide whether to
reactivate the case or take other action.
(d) A party wishing to appeal an order deciding a motion for relief from order
or judgment under ORS 419B.923 during the pendency of an appeal shall file a notice of
appeal within the time and in the manner prescribed in ORS chapter 19. The notice of
appeal as filed shall bear the same appellate case number assigned to the original notice
of appeal.
(4) At the request of a party to a juvenile case or on the court's own motion, the Chief
Judge may refer the case to the Appellate Settlement Conference Program under ORAP 15.05.
_________
1
See ORAP 16.45.
2
See ORS 419A.205.
See ORAP 10.15 regarding expediting dependency cases.
See ORAP 7.50 regarding summary affirmance in juvenile cases.
Rule 2.25
CASE TITLES;
CHANGES TO CASE TITLES
(1) With respect to appeals from courts:
(a) The case title shall include all parties or entities ever named in the case,
20 Chapter 2
including parties or entities dismissed from the case, notwithstanding that the title of the
judgment being appealed may not refer to all parties in the case.
(b) All parties should be named completely and should be identified by their
designations in the trial court (e.g., plaintiff, defendant, cross-plaintiff, intervenor) and on
appeal, as appropriate (e.g., appellant, respondent, cross-appellant, cross-respondent). A
party to the case who is not a party on appeal should be designated only by that party's
designation in the trial court.
(c) Parties to a cross-claim, third-party claim or counterclaim should be set
forth in a separate case title under the original case title.
(d) Where the trial court has used an "In Re" or other similar case title that
does not identify the adverse parties to the proceeding, such as in probate and juvenile
court cases, the contesting parties should be set forth in a separate case title under the
original case title.
(e) The title shall include the trial court case number or numbers.
1
(2) The Administrator may correct the title of the case on appeal or judicial review to
include all persons who were parties to the proceeding below and to designate properly the
parties according to their status on appeal or judicial review. If the Administrator corrects the
title, the Administrator shall give notice and opportunity to respond to all parties to the appeal or
judicial review.
(3) (a) A person who was a party to the case in the tribunal from which the appeal
was taken but who was not designated in the notice of appeal as a party to the appeal may
appear as of right as a party to the appeal by filing a notice of intent to participate as a
party.
(b) If the notice of appeal in a juvenile court, guardianship, conservatorship or
other similar proceeding does not identify the juvenile or protected person as a party to
the appeal, the juvenile or protected person may appear as of right as a party to the appeal
by filing a notice of intent to participate as a party.
(c) A notice of intent to participate on appeal under paragraph (a) or (b) of
this subsection shall be filed within 21 days after the date of filing of the notice of appeal,
or within such further time as may be allowed by the court, and shall be served on all
other parties to the appeal and on the court reporter or transcriber, if any, preparing the
transcript.
(d) A party who appears on appeal under paragraph (a) or (b) of this
subsection may recover costs and attorney fees, if any, and is liable for costs and attorney
fees, if any, the same as any party to an appeal.
(4) (a) In an adoption, juvenile court, or civil commitment case, when the notice
21 Chapter 2
of appeal is filed, the court will modify the case title on appeal for the purpose of
avoiding public disclosure of the identity of natural persons who are parties to the case.
2
For the same purpose, in all other cases, on motion of a party or on its own motion, and
for good cause shown, the court may modify the case title or the version of the court's
opinion published on the Judicial Department's website.
3
(b) In all cases, notwithstanding paragraph (a) of this subsection, the appellate
judgment will contain the full case title.
_________
1
See ORAP 4.15(2) regarding case titles on judicial review of agency orders.
2
See ORS 109.319 (adoption cases); ORS 419A.255 and ORS 419A.256 (juvenile court cases,
including termination of parental rights cases); ORS 426.160 and ORS 427.293 (civil
commitment cases).
3
See Chief Justice Order 10-060 / Chief Judge Order 10-06 published on the Judicial
Department's website at
<https://www.courts.oregon.gov/publications/other/MiscellaneousNotifications/RULE177.pdf>
for a nonexclusive list of factors that the court may consider in determining whether a party has
shown good cause for modifying a case title or body of the court's opinion for the purpose of
avoiding public disclosure of the identity of a party to the case. Regarding requests by persons in
all cases, including adoption, juvenile court, and civil commitment, whose names may appear in
published opinions but who are not parties to cases, see Chief Justice Order 10-060/ Chief Judge
Order 10-06 published on the Judicial Department's website at
<https://www.courts.oregon.gov/publications/other/MiscellaneousNotifications/RULE177.pdf>.
Appellate court opinions also are published in the softbound Oregon Appellate Courts
Advance Sheets and thereafter in the hardbound Oregon Reports. The version of an opinion in
those publications cannot be modified after publication. Appellate court opinions also are
collected and published, in book form or electronically or both, by various persons and entities,
including private legal research entities. The court has no control over whether those persons
and entities will honor the court's post-publication modification of an opinion.
See Appendix 2.25.
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 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.
22 Chapter 2
Rule 2.35
SUMMARY DETERMINATION OF APPEALABILITY AND
EXPEDITED SUPREME COURT REVIEW
(1) As used in this rule, "decision" means any oral or written ruling of a circuit court
or the Tax Court.
(2) The Supreme Court in a direct appeal of a decision to that court and the Court of
Appeals in an appeal of a decision to that court may make a summary determination of whether
the decision is appealable.
(3) (a) If the court makes a summary determination of appealability, the order or
opinion expressing the court's determination shall expressly state that the determination is
a summary determination under ORS 19.235(3). The order or opinion also shall contain
a notice informing the parties that the order or opinion is a summary determination of
appealability under ORS 19.235(3), that the determination is subject to review or
reconsideration by the Supreme Court, that the petition for review shall be filed within 14
days after the order or opinion or such shorter time as may be ordered by either court and
that the Supreme Court will expedite its consideration of the petition.
(b) If an appellate determination of appealability does not expressly state that
it is a summary determination of appealability under ORS 19.235(3), then the
determination is not subject to ORS 19.235(3) or this rule.
(4) Unless a shorter period of time is ordered by the Court of Appeals or the Supreme
Court, a petition for review of a summary determination by the Court of Appeals or a petition for
reconsideration of a summary determination by the Supreme Court shall be filed within 14 days
after the date of the appellate court's determination. The caption of the petition shall prominently
display the words "Expedited Summary Determination of Appealability Pursuant to ORAP
2.35(4)." The Supreme Court shall expedite its consideration of a petition for review or
reconsideration of a summary determination of appealability.
(5) If the appellate court has determined that the decision is not appealable and has
dismissed the appeal, and the opportunity for review or reconsideration of that determination as
provided in this rule has been exhausted or has expired, the Administrator shall immediately
issue the appellate judgment.
_________
See generally ORS 19.235.
Rule 2.40
NOTICE OF APPEAL IN GUILTY OR NO CONTEST PLEA,
PROBATION OR SENTENCE SUSPENSION REVOCATION,
AND RESENTENCING CASES
(1) Except as provided in subsections (2) and (3) of this rule, in addition to the notice
of appeal requirements contained in ORAP 2.05, when a defendant in a criminal case appeals
23 Chapter 2
from a judgment following
a guilty plea
a no contest plea
resentencing pursuant to a remand from an appellate court
resentencing pursuant to the judgment of a court granting post-conviction relief
or from an order or judgment
revoking probation or sentence suspension
extending a period of probation
imposing a new condition of probation
modifying an existing condition of probation:
(a) The caption of the notice of appeal shall identify the notice as a "Notice of
Appeal Pursuant to ORS 138.085."
(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
reviewable under ORS 138.105 or state that the defendant has reserved an
issue for appeal under ORS 135.335.
1
(2) (a) Except as provided in paragraph (b) of this subsection, if, concurrently
with filing a notice of appeal in a case subject to subsection (1) of this rule, the defendant
has filed a motion for delayed appeal under ORS 138.071(5), the defendant may refer to a
colorable claim of error identified in the notice of appeal.
(b) Where the defendant is unable timely to file a notice of appeal because of
the need to identify a colorable claim of error in the case, the defendant requesting leave
to file a delayed appeal under ORS 138.071(5) may do so by filing a combined notice of
appeal and motion for late appeal. The document shall be entitled "Notice of Appeal;
Motion -- File Late Appeal" and shall contain a statement, if true in the case, to the effect
that the delay in filing the notice of appeal was attributable to the need to identify a
colorable claim of error in the case. In the absence of opposition from the state filed
within 14 days after filing of the combined notice of appeal and motion for delayed
appeal, the motion shall be deemed to have been granted by the court.
_________
1
See ORS 138.005(3) defining "colorable claim of error." See Appendix 2.40 for illustrations of
colorable claims of error.
24 Chapter 2
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 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 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
25 Chapter 2
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 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 rule.*
(d) The appellant or petitioner shall pay the appellate court filing fee within
10 days after the date of entry of the order of the Court of Appeals 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 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."
26 Chapter 2
With respect to cases subject to referral to the Court of Appeals under ORS 34.102(5), see ORAP
4.74.
27 Chapter 3
3. RECORD ON APPEAL
Rule 3.05
TRIAL COURT RECORD ON APPEAL;
SUPPLEMENTING THE RECORD
(1) In any appeal from a trial court, the trial court record on appeal shall consist of the
trial court file, exhibits, and as much of the record of oral proceedings as has been designated in
the notice or notices of appeal filed by the parties.
(2) (a) Except as provided in this subsection, the record of oral proceedings shall
be a transcript
(b) When the oral proceedings were recorded by audio or video recording
equipment, on motion of a party showing good cause, the appellate court may waive
preparation of a transcript and order that the appeal proceed on the audio or video record
alone.
(c) When an audio or video recording is played in court, the recording is part
of the record, but arrangements may be made for preparation of a transcript of the
recording as provided in ORAP 3.33.
(d) The parties may file an agreed narrative statement in lieu of or in addition
to a transcript, as provided in ORS 19.380 and ORAP 3.45.
(3) The appellate court, on motion of a party or on its own motion, may order that any
thing in the record in the trial court whether or not designated as part of the record in the notice
of appeal, be transmitted to it or that parts of the oral proceedings be copied or transcribed,
certified and transmitted to it.
1
_________
1
See ORS 19.365(4) regarding supplementation and correction of the record; see also ORAP
3.40 regarding correction of transcripts.
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 or exhibits
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, and if the trial court is delivering the trial court file in
paper form, the trial court shall place such material in a separate, sealed envelope labeled as
follows:
(a) If the trial court determines that the material be subject to inspection only
28 Chapter 3
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 subsection (7) 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.
29 Chapter 3
(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 process or decide a matter pending before the court. If the material is
contained in an envelope, 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 rule apply to the extent practicable and to the extent
authorized by law to any material submitted to an appellate court when the appellate court
determines that such material is not subject to inspection by a party, a party's attorney, or the
public. The appellate court may designate material as not subject to inspection by a party, a
party's attorney, or the public on its own motion or in response to a motion filed by any party.
Rule 3.10
DUTIES OF TRIAL COURT ADMINISTRATOR
REGARDING JUDGMENTS AND ORDERS
ENTERED AFTER NOTICE OF APPEAL
(1) The trial court administrator shall promptly send to the Administrator and to each
party to the appeal a copy of any order denying a motion to correct or add to the transcript and
settling the transcript.
1
If the date of entry in the register is not apparent from the order, the trial
court administrator shall state on the order the date of entry.
(2) In criminal and other cases in which the trial court appoints an attorney to
represent a party or authorizes preparation of a transcript at state expense, the trial court
administrator shall promptly send to the Administrator and provide to the transcript coordinator a
copy of any order appointing an attorney on appeal or authorizing preparation of a transcript at
state expense.
(3) In a criminal case, after a notice of appeal is filed, if the trial court, on motion of a
party or on its own motion, enters a judgment or a modified, corrected or amended judgment, the
trial court administrator promptly shall send a copy of the judgment to the Administrator, to the
defendant or to the attorney for the defendant if the defendant is represented by counsel, to the
district attorney, and to the Solicitor General of the Department of Justice.
2
(4) If a case is transferred to another circuit court after a notice of appeal is filed, the
trial court administrator in the originating circuit court shall promptly notify the Administrator of
the date of the transfer and the circuit court to which the case has been transferred.
_________
1
See ORS 19.370(6)(b) and ORAP 3.40(5)(c).
2
See, for instance, a modified judgment to correct arithmetic or clerical errors or to delete or
modify any erroneous term in the judgment under ORS 137.172; an amended judgment
specifying the amount of restitution to be paid by the defendant under ORS 137.105; a modified
judgment under ORS 137.754; and a judgment or new or amended judgment under ORS
30 Chapter 3
19.270(4).
Rule 3.15
PREPARATION AND FILING OF
THE RECORD ON APPEAL
(1) The trial court administrator shall prepare and file the record in the same manner
in all appeals.
(2) The trial court administrator shall identify separately by certificate and promptly
forward on request of the appellate court:
(a) the trial court file, or part thereof designated by the parties if less than the
entire file has been designated;
(b) the exhibits specified in the designation of record;
(c) if applicable, the audio or video record specified in the designation of
record, or agreed narrative statement;
1
and
(d) any part of the trial court record ordered by the appellate court pursuant to
ORAP 3.05(3).
(3) If the record of oral proceedings is an audio record and the appellate court has
directed that the appeal proceed on the audio record without a transcript, the trial court
administrator shall place the original audio record and the official log and reporter's certificate in
an envelope or other suitable container, clearly identified as containing the audio record and
official log, and forward the envelope or other container to the Administrator along with the trial
court file.
_________
1
If the record of oral proceedings is a transcript, the transcript shall be transmitted to the
appellate court as provided in ORAP 3.33.
See ORS 19.005, ORS 19.365, and ORS 138.015.
See ORAP 3.63 regarding the trial court record in proceedings recorded by videotape equipment.
Rule 3.20
TRIAL COURT FILE
(1) The trial court administrator shall prepare an index of the contents of the trial
court file and shall securely fasten the index and file in a suitable cover or folder showing on the
outside the title and trial court number of the case and the court and county from which the
31 Chapter 3
appeal is taken. The index may consist of a printout of the computer case register showing next
to each entry the page in the trial court file at which each item will be found.
(2) Pages shall be consecutively numbered at the bottom of the page, commencing
with the bottom page of the trial court file. Each document shall be separately indexed, in
chronological order, with the last filed document on the top.
_________
See ORS 19.005(7) and ORS 19.365(2).
Rule 3.25
EXHIBITS
(1) Exhibits designated as part of the record on appeal shall not be transmitted to the
appellate court unless requested by the Administrator. The Administrator will request transmittal
of documentary exhibits when it requests transmittal of the trial court file under ORAP 3.15(2),
or sooner if requested by a party. The Administrator will request transmittal of a
nondocumentary exhibit only if requested to do so by a party to the appeal or at the direction of
the court. A party wishing to have one or more nondocumentary exhibits transmitted to the
appellate court shall notify the Administrator by letter specifying the exhibit or exhibits to be
transmitted. The letter shall be submitted to the Administrator no later than the date of filing of
that party's brief and shall be copied to all other parties to the appeal.
(2) When the appellate court requests transmittal of documentary exhibits, the trial
court administrator promptly shall transmit the documentary exhibits to the appellate court in a
single envelope, so far as practicable, and shall note thereon or, if no envelope is used, on a
separate list, the number and description of all exhibits being transmitted, with notations
indicating those received and those not received in evidence.
(3) Notwithstanding a party's request for nondocumentary exhibits pursuant to
subsection (1) of this rule, the trial court administrator need not transmit exhibits which are
bulky, dangerous or difficult to transmit or store, such as machinery, firearms, clothing,
narcotics, chemicals, money, or jewelry, unless a party in its request to the Administrator
identifies the exhibit with particularity and requests that the Administrator arrange to have the
exhibit transmitted to the appellate court. The trial court administrator shall make appropriate
notation of retained exhibits on the exhibit list.
(4) If a party fails to comply with UTCR 6.120(2) requiring return of documentary
exhibits within 21 days after receipt of the trial court's request, following the filing of a notice of
appeal by any party, the appellate court may order that the appeal proceed without consideration
of that party's exhibits.
(5) For purposes of this rule, "documentary exhibits" include text documents,
photographs and maps, if not oversized, and audio and video recordings. An oversized document
is one larger than standard letter size or legal size.
32 Chapter 3
Rule 3.30
EXTENSION OF TIME FOR PREPARATION OF TRANSCRIPT
(1) Except as provided in 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 transcriber (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 rule, 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 transcriber'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 request shall be substantially in the form illustrated in
Appendix 3.30 and shall show proof of service on the parties and, for the second or any
subsequent request for extension of time, on the trial court administrator.
(6) Any party may file an objection to a court reporter's or transcriber's request for an
extension of time within 14 days after the request is filed. The objection must be served on all
other parties, the court reporter or transcriber, and the trial court administrator. An objection
received after the court has granted the request will be treated as a motion for reconsideration of
the ruling. On reconsideration, if the court modifies the extension of time, the court reporter or
transcriber and the parties will be notified; otherwise, the objection will be noted and placed in
the file.
_________
See generally ORS 19.395.
Rule 3.33
PREPARATION, SERVICE,
AND FILING OF TRANSCRIPT
(1) On being served with a copy of a notice of appeal, the transcript coordinator shall
examine the notice of appeal and determine:
33 Chapter 3
(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;
(c) Whether the proceedings were reported by a court reporter or recorded by
audio or video recording equipment, or both; and
(d) Whether the party has designated an audio or video recording played in
the court as part of the record on appeal and, if so, whether the party has requested
preparation of a transcript of the recording.
(2) (a) When a party has designated as part of the record on appeal a transcript of
oral proceedings reported by:
(i) A court reporter, 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(s)
of the due date of the transcript.
(ii) Audio or video recording, the transcript coordinator shall identify
one or more qualified transcribers, forward a copy of the notice of appeal to the
transcriber(s) along with a certified copy of the audio or video tape recording, and
inform the transcriber(s) 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(s) or transcriber(s) for preparation of
the transcript.
(c) When the appellant is eligible for court-appointed counsel on appeal,
authorization for the preparation of the transcript at state expense is governed by the
policies and procedures of the Office of Public Defense Services.
1
(d) If the transcript coordinator has not forwarded the notice of appeal to the
court reporter(s) or has not forwarded the notice of appeal and a certified copy of the
audio or video tape recording to a transcriber before the transcript due date, the transcript
coordinator shall notify the appellate court of that fact.
(3) After making arrangements with the court reporter(s) or transcriber(s) as provided
in subsection (2) of this rule, the transcript coordinator shall notify the appellate court and the
parties to the appeal of the name, address, telephone number, and email address of each court
reporter or transcriber, or both, as appropriate, who will be preparing all or a part of the
transcript.
34 Chapter 3
(4) It shall be the responsibility of each court reporter or transcriber with whom
arrangements have been made to prepare a transcript to:
(a) Cause the transcript to be prepared in conformity with ORAP 3.35.
(b) Include in the transcript a transcript of any audio or video recording
played in the trial court, if the designation of record in a notice of appeal requests a
transcript of the recording.
(i) If the court reporter who reported a proceeding did not make a
verbatim record of the audio part of any recording played in the proceeding or if
the recording is not audible from the audio or video record provided the transcript
coordinator, the court reporter or transcriber must request the transcript
coordinator to provide a copy of the recording in an appropriate format. Upon
receipt of the court reporter's or transcriber's request, the transcript coordinator
must request, and the party that offered the audio or video recording as evidence
must provide, a copy of the recording in an appropriate format. "Appropriate
format" means a format that a reasonable transcriber using equipment customary
in the industry can use to prepare a transcript of the recording.
(ii) If the party offering the recording as evidence is unable to make a
copy of the recording in an appropriate format, with the consent of the adverse
party, the party offering the recording may prepare a transcript of the recording in
the format required by ORAP 3.35. The adverse party must not unreasonably
withhold consent.
(c) Serve a copy of the transcript on each party required by ORS 19.370 and
file with the Administrator and serve on each party, the trial court administrator, and the
transcript coordinator a certificate of preparation and service of transcript
2
within the time
provided in ORS 19.370. The certificate of preparation and service of the transcript must
list the dates of all proceedings transcribed, the volume numbers of the transcript(s), and
the page numbers specific to each transcript. In a criminal case, the state's copy of the
transcript shall be served on the Attorney General.
3
If the transcript is not served and the
certificate is not served and filed within that time, the court reporter or transcriber shall
move for an extension of time.
(d) Upon notice from the Administrator of the settlement of the transcript, file
with the Administrator an electronic version of the transcript in the form required by
ORAP 3.35(2) and, at the same time, file with the Administrator and serve on each party
a certificate of filing of transcript.
4
The certificate of filing must be a separate document
and may not be included as part of the electronic version of the transcript. Filing an
electronic version of the transcript with the Administrator is in lieu of filing a paper
transcript and shall be in the form provided in ORAP 3.35(2).
(5) (a) The court reporter or transcriber shall serve the appellant and the
respondent each with a copy of the transcript as follows:
35 Chapter 3
(i) If a party is represented by an attorney, unless the attorney has
made other arrangements with the court reporter or transcriber, the court reporter
or transcriber shall serve the transcript in electronic form on the attorney at the
email address identified in the notice of appeal as required by ORAP 2.05(5). If a
party is not represented by an attorney, unless the party has made other
arrangements with the court reporter or transcriber, the court reporter or
transcriber shall serve a paper copy of the transcript on the party. In addition to or
in lieu of service by email or by paper copy, an attorney or party may make
arrangements with the court reporter or transcriber to provide a copy of the
transcript to that attorney or party on an optical disk or USB drive, or in other
comparable medium.
(ii) If two or more respondents not represented by attorneys must be
served by paper copy as provided in clause (5)(a)(i) of this rule, the court reporter
or transcriber shall provide one copy of the transcript to the trial court
administrator for use by all such respondents. The copy of the transcript provided
to the trial court administrator under this clause shall be in the medium (e.g.,
paper or optical disk) requested by the trial court.
(b) If a party or attorney negotiates with a court reporter or transcriber to
provide the transcript in a medium, other than paper or email, provided by the court
reporter or transcriber, the court reporter or transcriber may request payment of no more
than $5.00 per optical disk, USB drive, or other comparable medium.
(c) A party may specify in the party's designation of record or other request
for preparation of a transcript on appeal that the version of the transcript to be provided to
that party 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 or 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
transcriber, at the party's own expense, for preparation of a transcript in the one page of
transcript per one standard page format.
5
(6) 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.
36 Chapter 3
_________
1
See ORS 138.500(3).
2
See Appendix 3.33-1 for form of certificate of preparation and service of a transcript.
3
See footnote 2 to ORAP 1.35 for the service address of the Attorney General.
4
See Appendix 3.33-2 for form of certificate of filing of a transcript.
5
See ORAP 3.35(2)(d) regarding prohibition of the four pages of transcript per one standard
page format in version of transcript filed with the court.
Rule 3.35
FORM OF TRANSCRIPT
(1) A transcript shall meet these specifications:
(a) It shall be prepared using proportionally spaced 12-point type (such as
produced by commercial printers and many computer printers). 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. 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
37 Chapter 3
"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, audio or video recording played in court,
requested jury instructions, jury instructions, any opinion by the court, and other matters
of special importance. If possible, the voice or voices on an audio or video recording
played in court must be identified by name or by role (such as "police officer," "suspect,"
"interviewer," "child").
(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
involuntary dismissal and directed verdict, audio or video recording played in
court, requested jury instructions, jury instructions, opinion of the court and other
matters of special importance.
(i) 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 from 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) The electronic version of the transcript filed with the Administrator as required by
ORAP 3.33(4)(c) shall be in the following form:
(a) The electronic transcript shall be in Portable Document Format (PDF) that
allows text searching, and copying and pasting into another document. The pagination
of the transcript served on the parties shall correspond to the pagination of the electronic
transcript filed with the court.
38 Chapter 3
(b) If the transcript exceeds 200 pages, the electronic transcript shall be
broken into separate PDF files of approximately equal length not to exceed 200 pages.
Regardless of whether a transcript consists of one or more PDF files, each file shall be
named in accordance with the file naming conventions set out in Appendix 3.35. If a
PDF file contains more than one proceeding date, the beginning of each proceeding shall
be bookmarked.
(c) If the transcript is in two volumes or less, it may be filed by attaching the
electronic transcript to an email directed to [email protected]. If the
Administrator determines that an electronic transcript must be rejected for security
reasons (e.g., virus or malware), the court reporter or transcriber shall resubmit the
transcript as directed by the Administrator. If the transcript is more than two volumes, it
shall be filed by optical disk.
(d) The electronic transcript shall comply with ORAP 3.35(1)(a), (c), (d), (e),
(f), (g), and (h). The electronic transcript also shall comply with ORAP 3.35(1)(b), except
that it will not be printed. Notwithstanding ORAP 3.33(5)(c), the electronic transcript
filed with the court shall be prepared in the one page of transcript per one standard page
format.
_________
1
See ORAP 4.20 regarding use of previously prepared single-sided transcripts in judicial review
cases.
Rule 3.40
ADDITION TO OR CORRECTION OF TRANSCRIPT
(1) (a) When multiple parts of the oral record have been designated as part of the
record on appeal or if more than one court reporter or transcriber is preparing the
transcript, the transcript is not deemed prepared until the last part of the transcript due on
appeal is prepared.
(b) A party desiring to correct or add to the transcript shall file a motion in the
trial court within 15 days after either the date that the certificate of preparation of the
transcript is filed with the Administrator or the date that any order holding the appeal in
abeyance for the appellate settlement program expires.
1
The party must serve a copy of
the motion on the Administrator, the transcript coordinator, and the court reporter or
transcriber. An authorized user of the trial court electronic filing system may serve a copy
of the motion on the transcript coordinator by using the "Courtesy Copies" email function
of that system. The email address for each judicial district's transcript coordinator is
available on the Oregon Judicial Department's website.
(c) The party must submit a proposed order relating to the motion to correct or
add to the transcript that includes:
(i) If the motion is granted, a date by which the corrected or additional
transcript must be prepared.
39 Chapter 3
(ii) If the motion is denied, a statement that the transcript is settled.
(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 appeal will remain in abeyance until the Administrator gives
notice to the parties that the transcript has been settled 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 notice by the Administrator
that the transcript has been settled 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 the certificate of preparation of the transcript is served,
3
and the period for filing the appellant's opening brief shall begin the next day.
(b) If a motion to correct or add to the transcript is filed and granted, the
period for filing the appellant's opening brief shall begin the day after the Administrator
gives notice that the transcript has been settled.
(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 by the trial court
administrator of the order settling the transcript.
_________
See generally ORS 19.370(5) to (7).
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 ORAP 8.40 regarding appellate court review of a trial court ruling affecting appeal,
including an order disposing of a motion to correct or add to the transcript.
3
Under ORS 19.395 and ORAP 3.30(1), the appellate court, not the trial court, has the authority
40 Chapter 3
to grant any extension of time for the filing of transcripts or other parts of the record.
See ORS 19.370(6)(b) and ORAP 3.10(1) regarding the trial court administrator's duty to
transmit to the Administrator a copy of the order denying a motion to correct or add to the
transcript and 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 ORAP 3.35; otherwise, the statement may be in
narrative form. The appellant shall 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 3.50
RETURN OF RECORDS AND EXHIBITS
(1) When the appellate judgment issues, the Administrator shall return the trial court
or agency record, file, and exhibits to the trial court or agency, except the Administrator may
retain the transcript on appeal from a trial court.
(2) Jurisdiction over exhibits not forwarded to the appellate court and, after issuance
of the appellate judgment, over those returned to the trial court or agency by the appellate court
rests exclusively with the trial court or agency.
_________
See ORS 19.365(6); see also ORAP 3.55.
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:
(1) A judge or justice may do so for official business.
(2) An administrative or legal staff person may do so for official business:
41 Chapter 3
(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 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 person allowed to withdraw the thing shall furnish the Administrator a receipt for the
thing withdrawn.
Rule 3.63
USE OF AUDIO OR VIDEO RECORD ON APPEAL
(1) Where the appeal will proceed on the audio or video record without a transcript,
on payment of the prescribed fee,
1
the trial court administrator shall:
(a) Arrange for duplication of the audio or video record and the official log of
the audio or video record. Any duplicate copy of an audio or video record prepared for
appeal shall contain the caption and trial court number of the proceeding and the number
of tapes used in the proceeding (e.g., 1 of 5).
(b) Cause the copy of the audio or video record and official log to be served
on the party requesting it and to have a certificate of duplication and proof of service
prepared.
(c) Cause to be placed in the trial court file the original of the audio or video
record, official log and certificate of duplication and proof of service, where they shall
remain until the appellate court requests that the trial court record be forwarded to the
appellate court, as provided in ORAP 3.15.
(2) The trial court administrator shall file and serve copies of the audio or video
record within 14 days after receiving notice that the appellate court has waived preparation of a
transcript and is allowing the appeal to be heard on the audio or video record alone.
(3) The appellate court may order the transcription of any part of an audio or video
recording not previously transcribed that the appellate court determines necessary for
deliberation. The cost of transcription under this subsection shall be paid in the first instance by
the parties to the appeal in such proportions as directed by the appellate court.
(4) (a) If the trial court administrator has previously provided a copy of all or part
of the audio or video record to a party, on appeal that party need not pay for and the trial
court administrator need not provide another copy of the audio or video record to that
party.
42 Chapter 3
(b) If the trial court administrator does not provide a duplicate copy of the
audio or video record to a party on appeal under paragraph (a) of this subsection, the trial
court administrator shall prepare and sign a proof of service certifying the date or dates
on which the party received a copy of the audio or video record. The trial court
administrator's certificate shall constitute proof of service of the audio or video record on
that party and shall be forwarded to the appellate court in lieu of the proof of service
required in paragraph (1)(c) of this rule.
(c) If the trial court administrator has provided a copy of all or part of an
audio or video record to a party or the attorney for a party and on appeal the party is
represented by an attorney or by a different attorney, respectively, the party or the
attorney for a party who received a certified copy of the audio or video record shall, on
request and without charge, give the audio or video record to the attorney or different
attorney representing the party on appeal. The person giving the audio or video record
may require that the person receiving the audio or video record provide a receipt therefor.
(d) If the trial court administrator has provided part but not all of the audio or
video record to a party, the provisions of paragraphs (a), (b), and (c) of this subsection
shall apply to so much of the audio or video record as has been previously provided to a
party.
(5) If a part of a recording is extracted from the official audio or video recording and
duplicated for the purpose of appeal, the trial court administrator shall attach a certificate stating
that the copy is an accurate copy of the extracted part of the original. The copy containing the
extract of the official recording shall become the official recording on appeal in lieu of the copy
referred to in subsection (1) of this rule. The trial court administrator shall make copies of the
extracted copy of the recording for service on the parties to the appeal, and prepare a certified
copy of the relevant part or parts of the official log, to be served and filed as part of the record on
appeal.
_________
1
With respect to video records, Chief Justice Order No. 89-13, issued February 28, 1989, and
amended March 8, 1989, prescribes a fee of $20.00 per cassette.
43 Chapter 4
4. JUDICIAL REVIEW OF
ADMINISTRATIVE AGENCY PROCEEDINGS
A. GENERALLY
Rule 4.05
PROCEDURE TO CONFORM
TO CIVIL CASES
Insofar as practicable, and except where some other procedure is provided by statute or
these rules, the procedure for judicial review of an order in a contested case, judicial review of a
rule or judicial review of a ruling arising out of a declaratory ruling proceeding shall be the same
as for appeals in civil cases.
_________
See generally ORS 183.400, ORS 183.410, and ORS 183.482.
Rule 4.10
REVIEW OF ORDERS OF
BOARD OF PAROLE
Judicial review of reviewable orders of the Board of Parole and Post-Prison Supervision,
which shall be entitled "Parole Review," shall be in accordance with the rules for judicial review
of orders of state agencies in contested cases and shall show the Board of Parole and Post-Prison
Supervision as respondent.
Rule 4.15
FORM, CONTENT, AND SERVICE OF PETITION
FOR JUDICIAL REVIEW
(1) A petition for judicial review shall be typewritten, double-spaced, and
substantially in the form illustrated in Appendix 4.15-1 or Appendix 4.15-2 and must contain:
(a) The title as it was before the agency to the extent possible. The title shall
include the names of the parties to the proceeding regardless of whether the title of the
agency proceeding included the names of the parties. The title also shall include the
agency if the agency is a party to the judicial review. The title must indicate the
designations of the parties before the appellate court (e.g., petitioner, respondent, cross-
petitioner, cross-respondent). If a party from the agency proceeding is not named as a
party before the appellate court, the title shall indicate the party's agency designation, if
any, followed by "below."
1
(b) A designation of the parties in the judicial review proceeding before the
appellate court, including their positions in the appellate court proceeding (e.g.,
44 Chapter 4
petitioner, respondent).
(c) The litigant contact information required by ORAP 1.30.
(d) A self-represented party who consents to service of the agency record by
SFTP as provided in ORAP 4.20 must so state in the petition for judicial review and
provide the party's email address in the petition.
2
At any time before the agency
transmits the record to the court, a self-represented party who has consented to service of
the agency record by electronic means may revoke that consent by notifying the court and
the agency. A self-represented party who has provided the court and the state agency
with an email address under this paragraph must notify the court and the agency of a
change of email address.
(e) A statement whether the petitioner is willing to stipulate that the agency
record may be shortened. If the petitioner is willing to shorten the record, the petition
shall designate the part of the record to be included in the record. Under ORS 183.482(4),
the court may tax the cost of preparing the whole or any part of the record, including the
transcript, against any party unreasonably refusing to stipulate to limit the record.
(2) Only the original need be filed. The petition shall be accompanied by a copy of
the order, rule, or ruling for which judicial review is sought.
(3) The petition shall show proof of service on:
(a) the agency whose order, rule, or ruling is involved (unless the agency is
the petitioner), even if the agency is not a party;
(b) the Attorney General, even if the agency is not a party.
3
In a workers'
compensation case, only if the State Accident Insurance Fund is a party to the case and is
representing a state agency, the petition shall show proof of service on the Attorney
General;
(c) all other parties of record in the proceeding; and
(d) any other person required by law to be served.
4
(4) The petition shall include a certificate of filing specifying the date the petition for
judicial review was filed with the Administrator.
_________
1
See ORAP 2.25(2) regarding the authority of the Administrator to correct the case title.
2
See ORAP 4.20 regarding transmitting and serving the agency by Secure File Transfer
Protocol (SFTP).
3
See footnote 2 to ORAP 1.35 for the service address of the Attorney General.
45 Chapter 4
4
Nothing in ORAP 4.15(3) shall be construed to require service of briefs on an agency or the
Attorney General. For requirements governing the service of briefs, see ORAP 5.05(5) and
ORAP 5.12.
See ORS 183.482 for additional requirements respecting the contents of a petition for judicial
review and service requirements; ORS 656.298 (same for workers' compensation cases).
Rule 4.20
RECORD ON JUDICIAL REVIEW
(1) As used in this rule:
(a) "Agency" means any state agency whose decision is the subject of a
petition for judicial review filed in the Supreme Court or Court of Appeals; or the Oregon
State Bar or Board of Bar Examiners in a proceeding under ORAP 11.25, when the
proceeding below included an evidentiary hearing.
(b) "Agency record" means the record before the agency, including the agency
file, exhibits offered and received (or the subject of an offer of proof), and the transcript
of oral proceedings, or the shortened part of the record if the parties have so stipulated
pursuant to ORS 183.482(4), regardless of whether the agency actually conducted a
hearing.
(c) "Each party" may mean multiple parties if two or more parties are
represented by the same attorney or law firm.
(d) "Electronic means" means optical disk
1
or Secure File Transfer Protocol,
or other similar electronic medium if approved by the Administrator.
(e) "Instructions" means the instructions, located on the Oregon Judicial
Department website, for filing and serving the agency record via Secure File Transfer
Protocol by electronic means.
2
(f) "SFTP" means Secure File Transfer Protocol.
(2) Transmitting Agency Record to Appellate Court. The agency may transmit the
agency record to the Administrator conventionally in paper form, by optical disk, or by Secure
File Transfer Protocol (SFTP), as provided in this rule.
(3) Preparation of the Record Generally
(a) (i) If a state agency has its own process for preparing the record,
including any transcript, for use by the agency or tribunal and the form of the
record substantially complies with this rule, the agency may submit the record in
46 Chapter 4
that form, subject to this rule.
(ii) As provided in ORS 656.298(6), the record on judicial review in a
workers' compensation case includes the transcript prepared under ORS 656.295,
all exhibits, and all decisions and orders entered during the hearing and review
process.
(b) Agency file. The agency may prepare the agency file either with the first
filed document on top (or in front) or the last filed document on top (or in front). If the
agency is submitting the record in paper form, the pages of the agency file and the
exhibits must be consecutively numbered at the bottom of each page.
(c) Exhibits.
(i) Except as provided in this paragraph, the agency must transmit all
exhibits offered and received, including any exhibit that is the subject of an offer
of proof. If the agency is transmitting the exhibits by electronic means, the
agency must identify each disk or electronic file containing exhibits as provided
in the Instructions.
(ii) Except as provided in clause (iii) of this paragraph, if the exhibits
include any nondocumentary exhibit, the agency must conventionally transmit the
exhibit.
(iii) If the exhibits include an audio or video recording on an optical
disk, the agency must transmit the disk as part of the exhibits. If the exhibits
include one or more audio or video tape recordings, unless a party objects, the
agency may copy the recording to an optical disk and transmit the optical disk in
lieu of the tape recording. A party may move the court to supplement the record
on judicial review with a transcript of any audio or video recording, to be
prepared at the party’s expense.
(d) Transcript. If the agency is submitting the record in paper form, the
transcript must be prepared as provided in ORAP 3.35(1). If the agency is submitting the
record by electronic means, the agency must comply with ORAP 3.35(2)(a), (b), and (d).
(e) Indexing. The record must be indexed. The index for the record must
identify each document in the agency file, each volume of transcript, and each exhibit. If
the agency is transmitting the record by electronic means, each document identified in an
index must be electronically linked to the document. If the agency is transmitting the
record by optical disk and the record requires more than one disk, the second and any
subsequent disk must have a subindex of the documents on that disk, with electronic links
to each document on the disk.
(f) The agency must assemble the record in this order: The agency file, the
parties’ exhibits, and any transcript.
47 Chapter 4
(g) If the agency is transmitting the record in paper form, the agency must
securely fashion the index and record in a suitable cover or folder showing on the outside
the case name and the agency name and case number. If the agency is transmitting the
record by electronic means, the agency must submit the record as provided in the
Instructions.
(4) Confidential and Sealed Documents
(a) If the record contains a confidential or sealed document* as defined in
ORAP 3.07, the agency must place the document in an envelope (if the record is being
transmitted conventionally) or in a separate electronic file as provided in the Instructions
(if the record is transmitted by electronic means). If the record includes multiple
confidential documents, the agency may place all confidential documents in the same
envelope or electronic file. If the agency record includes multiple sealed documents, the
agency must place each sealed document in a separate envelope or electronic file.
(b) An envelope containing a sealed or confidential document must indicate
on the outside of the envelope the case name, the agency name and case number, and that
it contains a sealed or confidential document. An electronic file containing a sealed or
confidential document must be labelled as provided in the Instructions.
(c) If the agency is transmitting the record by optical disk, all confidential
documents must be placed on a separate disk labelled as provided in the Instructions, and
each sealed document must be transmitted by a separate disk. If the agency is
transmitting the record by SFTP, any sealed document must be transmitted by either
optical disk or in paper form.
(5) Transmitting the Record in Paper Form. If the agency transmits and serves the
record in paper form, the record must have 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 agency must submit the original record. The agency’s transmission and
service of the record in paper form qualifies as transmission of the record within the meaning of
ORS 183.482(4).
(6) Preparing and Transmitting the Record by Electronic Means.
(a) If the agency transmits the record by electronic means, the agency must
prepare the record as provided in the Instructions.
(b) The following qualifies as transmission of the record to the Administrator
within the meaning of ORS 183.482(4):
(i) Delivery of the record in optical disk form to the Administrator for
filing as provided in the Instructions; or
48 Chapter 4
(ii) Uploading the agency record to the Judicial Department’s SFTP
site as provided in the Instructions, together with notification to the Administrator
that the upload is complete, as provided in the Instructions.
(c) The following qualifies as service of the record on a party to the judicial
review, as provided in subsection (3):
(i) Delivery of the record in conventional paper form to the party;
(ii) Delivery of the record in optical disk form to the party; or
(iii) Uploading the record to the Judicial Department’s SFTP site as
provided in the Instructions and providing notification to the other party that the
upload is complete. The record will remain on the SFTP site for 14 days to allow
a party being served by SFTP to retrieve the record and copy it to a suitable
location on the party’s computer.
(7) Service Generally
(a) On the same date the agency transmits the agency record to the
Administrator, the agency must serve a copy of the record on each other party to the
judicial review. The agency may serve the party conventionally in paper form, by optical
disk, or by Secure File Transfer Protocol (SFTP), as provided in this subsection.
(b) Service on Party Represented by Attorney. If the agency transmits the
record to the Administrator by optical disk or SFTP, the agency must serve a copy of the
record on any party represented by an attorney, including an out-of-state attorney
admitted pro hac vice, by the same means unless the attorney has made arrangements
with the agency for service by other means.
(c) Service on Self-Represented Party.
(i) The agency may serve the record on a self-represented party
conventionally in paper form or by optical disk.
(ii) The agency may serve the record on a self-represented party by
SFTP, if the party has stated the party's willingness to be served by SFTP as
provided in ORAP 4.15(1)(d) or if the agency otherwise has obtained the party’s
consent to be served by SFTP.
(iii) If the agency serves a self-represented party by optical disk or
SFTP, the agency must notify the party that, if the party is unable to access the
record, the party must notify the agency within 14 days of receipt, with contact
information for the agency.
3
If a party so notifies the agency, the agency must
serve the record on the party conventionally in paper form within seven days.
49 Chapter 4
(d) If the record includes one or more confidential documents* as defined in
ORAP 3.07, the agency must serve the parties with a copy of the confidential document.
If the record includes one or more sealed documents as defined in ORAP 3.07, the
agency must not serve a copy of the sealed document on the parties.
(e) The agency must accompany the record as transmitted to the court with
proof of service of the record on each party, stating the manner in which each party was
served.
(8) Transmitting and Serving Corrected or Additional Agency Record
(a) The agency’s initial transmission of the record to the Administrator and
service on the parties to a judicial review triggers the 15-day period under ORAP 4.22(1)
to move to correct or add to the transcript or to correct the record other than the
transcript.
(b) The record is deemed settled upon exhaustion of the opportunity to move
to correct or add to the transcript or to correct the record other than the transcript and to
obtain appellate court review of the agency’s disposition of such a motion as provided in
ORAP 4.22.
(c) If the agency or the court corrects or adds to any part of the record, the
agency must transmit to the Administrator and serve on the parties the corrected or
additional part of the record by one of the methods prescribed in this rule.
(d) The Administrator will notify the parties when the Administrator
determines that the record is settled.
(9) Modified Record After Court Grants Leave to Present Additional Evidence
If the appellate court grants a party’s motion under ORS 183.482(5) for leave to present
additional evidence, following proceedings before the agency, the agency must transmit to the
Administrator and serve on the parties any additional record by one of the methods prescribed in
this rule.
(10) Disposition of Agency Record upon Issuance of Appellate Judgment
(a) If the agency transmitted the record to the Administrator in paper form,
unless the court directs otherwise, when the Administrator issues the appellate judgment,
the Administrator will return the record to the agency.
(b) If agency transmitted the record to the Administrator by electronic means,
the Administrator issues the appellate judgment, the Administrator will not return the
agency record to the agency. The Administrator will retain the electronic record for at
least six months; thereafter, unless the court grants a party’s request to retain the agency
record longer, the Administrator may delete the record from computer storage.
50 Chapter 4
_________
1
See the definition of “optical disk” at ORAP 1.15(3)(s).
2
The Instructions are published at:
<https://www.courts.oregon.gov/courts/appellate/rules/Pages/orap.aspx>.
3
As provided in the SFTP Instructions, the agency will email notice to any party being served
with the record by SFTP when the record is ready to be downloaded. The Instructions describe
how to access the SFTP website and download the record.
* "Document" as used here means a document in the agency file, an exhibit, or any part of the
transcript of oral proceedings that the administrative law judge, agency, or court has ordered to
be treated as confidential or sealed.
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 motion shall be captioned "Before the [name of agency to which the motion
is directed]." The party shall serve the court with a copy of the motion, which shall include on
the title page the notation "Court Service Copy."
(3) 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, 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.
51 Chapter 4
(4) 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 after the date of
filing of the agency's disposition, that the court review the agency's disposition. The motion
shall be captioned "In the Court of Appeals of the State of Oregon" or "In the Supreme Court of
the State of Oregon," as appropriate, and shall be entitled "Motion for Review of Agency Order
Under ORAP 4.22."
(5) (a) If no party files a motion to correct the record or correct or add to the
transcript, the court will deem the record settled 15 days after it is filed, and the period
for filing the petitioner's opening brief shall begin the next day.
(b) If a party files a motion to correct the record or correct or add to the
transcript and the agency grants the motion in its entirety, the court will deem the agency
record settled on the agency filing its order.
(c) If a party files a motion to correct the record or correct or add to the
transcript and the agency denies the motion in whole or in part, the court will deem the
agency record settled:
(i) On expiration of the time under subsection (4) of this rule to move
for review of the agency’s order or
(ii) If the party moves for review under subsection (4), on the court’s
disposition of the motion for review.
(d) On the record settling as provided in paragraphs (b) and (c) of this
subsection, the court will notify the parties that the record is settled and that the period
for filing the petitioner’s brief has begun.
_________
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 4.25
ADDITIONAL EVIDENCE
(1) An application under ORS 183.482(5) for leave to present additional evidence on
judicial review shall be submitted as a motion. The motion shall be accompanied by an affidavit
describing the evidence sought to be presented, specifying why the evidence was not produced at
the agency hearing and stating whether an extension of time was requested for the purpose of
producing the evidence before the agency.
52 Chapter 4
(2) When the court grants an application to present additional evidence pursuant to
ORS 183.482(5), it may designate the time in which the new evidence, together with the
agency's new findings and order, or certificate that it elects to stand on its original findings and
order, shall be filed with the court.
(3) The filing by the agency of the new evidence and findings and order, or certificate
that it elects to stand on its original findings and order, shall be accompanied by proof of service
of copies of the new evidence, except exhibits unless otherwise provided by law, and the
agency's new findings and order or certificate on all parties required to be served.
(4) The granting of an application to present additional evidence shall suspend the
time for filing briefs until the filing by the agency of the findings upon the additional evidence,
unless otherwise ordered by the court.
Rule 4.30
REVIEW OF AGENCY DENIAL
OF MOTION TO STAY
A party may move for review of an agency's denial of a motion to stay. The motion shall
include all documents that the party believes to have been considered by the agency on the
party's request for a stay from the agency, the agency's written decision, if any, and any other
documents the party considers relevant. The court may lengthen or shorten the period of time in
which the agency may respond to the motion, as provided in ORAP 7.05(3).
_________
See ORS 183.482(3)(d).
Rule 4.35
AGENCY WITHDRAWAL OF ORDERS
(1) (a) If an agency, pursuant to ORS 183.482(6), withdraws an order for the
purpose of reconsideration, it shall file with the Administrator a notice of the withdrawal.
The notice shall include a statement of reasons why the order is being reconsidered and
the date the agency expects to submit a new order to the court after reconsideration. An
order on reconsideration shall be filed within 60 days after the filing of the notice of
withdrawal or within such other time as the court may allow.
(b) If an agency not subject to ORS 183.482(6) withdraws an order on judicial
review for the purpose of reconsideration it shall file with the Administrator a copy of its
order or other decision withdrawing that order, accompanied by a statement of reasons
why the order is being withdrawn and a statement whether the agency expects to submit a
new order to the court following the withdrawal and, if so, when.
53 Chapter 4
(2) The filing of a notice under subsection (1) of this rule shall suspend proceedings
on the petition for judicial review until an order on reconsideration is filed, or the time
designated therefor expires, unless otherwise ordered by the court.
(3) Regardless whether an order first has been withdrawn for the purpose of
reconsideration under paragraphs (1)(a) or (b) of this rule, if an agency issues an order on
reconsideration, the Attorney General shall file a copy of the order on reconsideration with the
Administrator. The order shall be filed within seven days after the agency issues the order on
reconsideration.
(4) (a) (i) Except as provided in subparagraph (4)(a)(ii) of this rule, after the
filing of an order on reconsideration, if the petitioner desires judicial review of the order
on reconsideration, the petitioner shall file an amended petition for judicial review or
notice of intent to proceed with judicial review within a period equal to that allowed for
filing an original petition.
1
No filing fee is required for an amended petition.
(ii) If the petitioner on judicial review of an order of the Board of
Parole and Post-Prison Supervision desires to continue the judicial review after
the Board issues its order on reconsideration, the petitioner shall file a notice of
intent to proceed with judicial review within the period equal to that allowed for
filing an original petition, unless the court allows additional time.
2
(b) A person who is dissatisfied with the order on reconsideration and who
does not file under paragraph (4)(a) of this rule may file a petition for judicial review of
the order on reconsideration in accordance with statute and these rules.
(c) If no petition or notice of intent to proceed with judicial review is timely
filed, the judicial review proceeding in the Court of Appeals will be dismissed.
(5) If the agency has considered any material beyond the present record, the agency
shall submit an amended record to the Administrator within 14 days after the filing of a petition,
amended petition for judicial review, or notice of intent to proceed with judicial review. The
amended record on review shall be prepared pursuant to ORAP 4.20.
(6) If the petitioner filed an opening brief before the withdrawal of the order for
reconsideration, in addition to filing an amended petition for judicial review or notice of intent to
proceed with judicial review as required by paragraph (4)(a) of this rule, the petitioner may give
notice to the Administrator of the petitioner's intent to proceed on the original opening brief. If
the petitioner had not filed an opening brief or desires to file a supplemental brief, the petitioner's
opening or supplemental brief shall be filed 28 days after the date the amended petition for
judicial review or notice of intent to proceed with judicial review was filed or the date the agency
submitted the amended record to the Administrator, whichever is later. A respondent's
answering brief, if any, shall be filed within 28 days after the filing of the petitioner's opening or
54 Chapter 4
supplemental brief or notice that the petitioner will proceed on the original brief.
_________
1
See ORS 183.482(6).
2
See ORS 144.335(7).
Rule 4.40
APPEARANCE BY AGENCY
NOT A PARTY
(1) If an agency whose order, rule, ruling, policy, or other action is at issue is not a
party to the proceeding, it may intervene as a party in the Court of Appeals by filing a brief. The
brief shall be due on the same date that the respondent's answering brief is due.
(2) If an agency has filed a brief in the Court of Appeals and the decision is adverse
to the agency's view of its order, rule, ruling, policy, or other action, the agency may petition for
review as provided in ORAP 9.05.
(3) If an agency has not intervened in the Court of Appeals, it may file a petition for
intervention and for reconsideration or review under ORAP 9.05 and ORAP 9.10.
(4) If the Supreme Court accepts review in a proceeding in which an agency's order,
rule, ruling, policy, or other action is at issue, the agency may intervene by filing a brief. The
brief shall be due on the same date that the respondent's brief on the merits on review is due.
(5) If an agency has intervened under this rule, it may move to argue orally before the
Supreme Court or Court of Appeals. The motion must be filed at least seven days before the
date set for argument.
(6) An agency intervening in a proceeding under this rule is a party only in the
appellate courts and the agency's party status terminates upon issuance of the appellate judgment.
55 Chapter 4
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56 Chapter 4
B. JUDICIAL REVIEW OF
CERTAIN LAND USE DECISIONS
Rule 4.60
LAND USE CASES IN GENERAL
(1) As used in ORAP 4.60 to 4.74:
(a) "Agency" means the Land Use of Board of Appeals (LUBA), the Land
Conservation and Development Commission (LCDC), the Columbia River Gorge
Commission (CRGC), or a referee appointed by a local government under ORS
197.375(2) to decide an appeal of an expedited land division matter under ORS 197.360
and ORS 197.365 or an appeal of an expedited industrial land use matter under ORS
197.722 to ORS 197.728, as appropriate.
1
(b) "Land use case" means a final order of LUBA, an order of the LCDC
concerning designation of urban reserves under ORS 195.145(1)(b) or rural reserves
under ORS 195.141, final action or order of the CRGC that is subject to expedited
judicial review as provided in ORS 196.115(2)(a), or decision of a referee under ORS
197.375(2), as appropriate.
2
(2) Insofar as practicable, and except where some other procedure is provided by
statute or these rules, the procedure for judicial review of a decision in a land case 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 ORAP 4.15.
(3) The case caption of any petition, motion, brief, or other paper filed with the court
shall include the words "EXPEDITED PROCEEDING UNDER ORS ____" and identifying the
statute authorizing the expedited judicial review.
3
(4) In a LUBA or referee case, the petitioner shall establish in the petition for judicial
review, by reference to the record of the local proceeding before LUBA or the referee or by
petitioner's affidavit accompanying the petition, that the petitioner has statutory standing to
invoke the jurisdiction of the court.
4
_________
1
ORS 197.726(2), as applicable, provides that an appeal of an application for an expedited
industrial land use permit "may be made in the manner set forth in ORS 197.375."
2
Judicial review of CRGC approval of county land use ordinances pursuant to section seven of
the Columbia River Gorge National Scenic Area Act, PL 99-663, is not expedited. ORS
196.115(5).
3
E.g., ORS 197.850, ORS 197.855 (judicial review of LUBA decisions); ORS 197.651 (judicial
review of LCDC orders concerning designation of urban reserves under ORS 195.145(1)(b) or
rural reserves under ORS 195.141); ORS 196.115(2)-(4) (judicial review of certain CRGC final
57 Chapter 4
actions or orders); ORS 197.375(8) (judicial review of referee decisions concerning expedited
land divisions); and ORS 197.726(3) (judicial review of referee decisions concerning expedited
industrial land use permits).
4
See ORS 197.850. ORS 197.375(8) and ORS 197.726(3) provide that judicial review of referee
decisions under those statutes may be taken "in the manner provided for review of final orders of
the Land Use Board of Appeals under ORS 197.850 and 197.855."
Rule 4.64
RECORD ON JUDICIAL REVIEW
(1) The agency must prepare, transmit, and serve the agency record as provided in
ORAP 4.20.
(2) The cover or folder for a record transmitted in paper form, and each disk for a
record transmitted in optical disk form, and each electronic folder transmitted by electronic
means, must be labelled to show the case title and agency number and identify it as a LUBA,
LCDC, CRGC, expedited land division, or expedited industrial land use case, as appropriate.
(3) After the Administrator issues the appellate judgment, the Administrator will
dispose of the record as provided in ORAP 4.20(10).
Rule 4.66
TIME FOR FILING BRIEFS
(1) On judicial review of a LUBA decision, an LCDC decision, or a referee decision:
(a) Notwithstanding ORAP 5.80, the petitioner's opening brief and excerpt of
record shall be served and filed not later than 21 days after the filing of the petition for
judicial review. Failure to file the opening brief within the time allowed by this rule will
result in automatic dismissal of the petition.
(b) The respondent's answering brief shall be served and filed within 21 days
after the filing of petitioner's opening brief. If the respondent fails to file a brief within
the time allowed by this rule, the cause will be submitted on petitioner's opening brief
and oral argument, and the respondent will not be allowed to argue the case.
(c) No reply brief shall be permitted.
(2) On judicial review of a CRGC decision, briefing shall be completed according to
the deadlines set out in ORAP 5.80.
58 Chapter 4
Rule 4.67
LOCAL GOVERNMENT
AND CRGC DOCUMENTS
The petitioner shall include copies of all provisions of local government documents (e.g.,
ordinances, plans) and CRGC documents (e.g., management plans), as applicable, pertinent to its
arguments on judicial review in the excerpt of record if the provisions are part of the record or in
an appendix to the petitioner's opening brief if the provisions are not part of the record.
1
_________
1
To determine whether material properly belongs in the excerpt of record or in an appendix, see
ORAP 5.50 and ORAP 5.52.
Rule 4.68
CROSS-PETITIONS
(1) On judicial review of a LUBA decision, an LCDC decision, or a referee decision:
(a) A cross-petition for judicial review, if any, shall be served and filed within
seven days after the filing of the petition for judicial review.
(b) A cross-petitioner's opening brief and excerpt of record shall be served
and filed within 14 days after the filing of petitioner's opening brief and may, if
appropriate, be combined with the respondent's answering brief. If combined with the
respondent's answering brief, a cross-petitioner's opening brief shall be served and filed
within 21 days after the filing of the petitioner's opening brief.
(c) A cross-respondent's answering brief shall be due seven days after the
filing of the cross-petitioner's opening brief. Notwithstanding ORAP 1.35(1)(d) and
(2)(b), a cross-respondent shall file and serve the cross-respondent's answering brief in
such a manner as to cause actual receipt of the brief by the Administrator and by all other
parties to the judicial review no later than one business day after the brief is due. If the
cross-respondent fails to file an answering brief on cross-petition within the time allowed
by this rule, the cross-petition will be submitted on cross-petitioner's brief and oral
argument, and cross-respondent will not be allowed to argue issues raised by the cross-
petition.
(d) No reply brief on cross-petition shall be permitted.
(2) On judicial review of a CRGC decision, the procedure for cross-petitions shall be
the same as for judicial review of administrative proceedings, and briefing on cross-petitions
shall be completed according to the deadlines set out in ORAP 5.80.
59 Chapter 4
Rule 4.70
NO CONTINUANCES
(1) On judicial review of a LUBA decision, an LCDC decision, or a referee decision,
in the Court of Appeals, no continuance or extension shall be granted as to the time specified by
statute for transmission of the record, the time specified by these rules for filing the cross-
petition and the briefs, or the time set for oral argument, except as prescribed in ORS 197.850(7)
and ORS 197.860 in a LUBA case or a referee case, or in ORS 197.651(8) in an LCDC case.
(2) On judicial review of a CRGC decision, in the Court of Appeals, no continuance
or extension shall be granted as to the time specified by statute for the transmission of the record.
Rule 4.72
MOTION NOT TOLLING TIME
(1) On judicial review of a LUBA decision, an LCDC decision, or a referee decision,
a motion made before oral argument will not toll the time for transmission of the record, filing of
briefs, or hearing argument.
(2) On judicial review of a CRGC decision, a motion made before oral argument will
not toll the time for transmission of the record.
Rule 4.74
SUMMARY DETERMINATION OF LUBA
JURISDICTION BY COURT OF APPEALS
(1) When a question arises whether authority to review a case lies in a circuit court or
in LUBA, the circuit judge or the chairperson of LUBA shall refer the question to the Court of
Appeals through the Administrator.
(2) The circuit judge or chairperson, as appropriate, shall sign an order referring the
matter to the Court of Appeals, setting forth why the question has arisen and briefly summarizing
the jurisdictional contentions.
(3) The circuit judge or chairperson, as appropriate, may either request counsel for
one of the parties to have copies of all documents in the file prepared for transmittal to the Court
of Appeals or may direct that it be done by the trial court administrator or the equivalent LUBA
staff person. In either event, either the counsel so designated or the circuit judge or chairperson
shall address a letter to the Administrator to accompany the transmittal of the file stating that the
file is being transmitted pursuant to ORS 34.102(5) and informing the Administrator whether the
matter needs to be decided within a certain time.
(4) If counsel for either party or the circuit judge or chairperson, as appropriate,
desires to set forth legal points or authorities in support of a position, a memorandum of points
60 Chapter 4
and authorities shall accompany the file and cover letter and be transmitted to the Administrator
with the file.
(5) The decision of the Court of Appeals shall be made as expeditiously as
practicable, and the decision shall be communicated in writing to the circuit judge or
chairperson, with copies to counsel for the parties.
(6) Nothing in this rule shall be construed as limiting the authority of a judge of any
court to transfer a case to another court that has jurisdiction over the matter.
_________
See ORS 34.102(5).
61 Chapter 4
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62 Chapter 5
5. PREPARATION AND FILING OF BRIEFS
Rule 5.05
SPECIFICATIONS FOR BRIEFS
(1) (a) Except as provided in paragraph (1)(c) of this subsection, an opening,
answering, combined, or reply brief must comply with the word-count limitation in
paragraph (1)(b) of this subsection.
1
Headings, footnotes, and quoted material count
toward the word-count limitation. The front cover, index of contents and appendices,
index of authorities referred to, excerpt of record, appendices, certificate of service, any
other certificates, and the signature block do not count toward the word-count limitation.
(b) (i) In the Supreme Court:
(A) An opening brief may not exceed 14,000 words.
(B) An answering brief may not exceed 14,000 words.
(C) A combined respondent's answering brief and cross-
petitioner's opening brief may not exceed 22,000 words, with the
answering brief part of the combined brief limited to 14,000 words.
(D) A combined cross-respondent's answering brief and
petitioner's reply brief may not exceed 12,000 words, with the reply brief
part of the combined brief limited to 4,000 words.
(E) A reply brief may not exceed 4,000 words.
(ii) In the Court of Appeals:
(A) An opening brief may not exceed 10,000 words.
(B) An answering brief may not exceed 10,000 words.
(C) A combined respondent's answering brief and cross-
appellant's opening brief may not exceed 16,700 words, with the
answering brief part of the combined brief limited to 10,000 words.
(D) A combined cross-respondent's answering brief and
appellant's reply brief may not exceed 10,000 words, with the reply brief
part of the combined brief limited to 3,300 words.
(E) A reply brief may not exceed 3,300 words.
(c) If a party does not have access to a word-processing system that provides
a word count, in the Supreme Court, an opening, answering, or combined brief is
63 Chapter 5
acceptable if it does not exceed 50 pages, and a reply brief is acceptable if it does not
exceed 15 pages; in the Court of Appeals, an opening, answering, or combined brief is
acceptable if it does not exceed 35 pages, and a reply brief or reply part of a combined
reply and cross-answering brief is acceptable if it does not exceed 10 pages.
(d) Except as to a supplemental brief filed by a self-represented party, an
attorney or self-represented party must include at the end of each brief a certificate in the
form illustrated in Appendix 5.05-2 that:
(i) The brief complies with the word-count limitation in paragraph
(1)(b) of this subsection by indicating the number of words in the brief. The
person preparing the certificate may rely on the word count of the word-
processing system used to prepare the brief. If the attorney, or a self-represented
party, does not have access to a word-processing system that provides a word
count, the certificate must indicate that the attorney, or self-represented party,
does not have access to such a system and that the brief complies with paragraph
(1)(c) of this subsection.
(ii) If proportionally spaced type is used, the size is not smaller than 14
point for both the text of the brief and footnotes.
(e) A party's appendix may not exceed 25 pages.
(f) Unless the court orders otherwise, no supplemental brief may exceed five
pages.
(2) (a) On motion of a party stating a specific reason for exceeding the prescribed
limit, the court may permit the filing of a brief or an appendix exceeding the limits
prescribed in subsection (1) of this rule or prescribed by order of the court. A party filing
a motion under this subsection must make every reasonable effort to file the motion not
less than seven days before the brief is due. The court may deny an untimely motion
under this paragraph on the ground that the party failed to make a reasonable effort to file
the motion timely.
(b) If the court grants permission for a longer appendix, if filed in paper form,
the appendix must be printed on both sides of each page and may be bound separately
from the brief.
3
(3) As used in this subsection, "brief" includes a petition for review or
reconsideration, or a response to a petition for review or reconsideration. All briefs must
conform to these requirements:
(a) Briefs must be prepared such that, if printed:
(i) All pages would be a uniform size of 8-1/2 x 11 inches.
64 Chapter 5
(ii) Printed or used area on a page would not exceed 6-1/4 x 9-12
inches, exclusive of page numbers, with inside margins of 1-1/4 inches, outside
margins of 1 inch, and top and bottom margins of 3/4 inches.
(b) Legibility and Readability Requirements
(i) Briefs must be legible and capable of being read without difficulty.
The print must be black, except for hyperlinks.
(ii) Briefs must be prepared using proportionally spaced type. The
style must be Arial, Times New Roman, or Century Schoolbook. The size may
not be smaller than 14 point for both the text of the brief and footnotes. Reducing
or condensing the typeface in a manner that would increase the number of words
in a brief is not permitted.
(iii) Briefs may not be prepared entirely or substantially in uppercase.
(iv) Briefs must be double-spaced, with a double-space above and
below each paragraph of quotation.
(c) Pages must be consecutively numbered at the top of the page within 3/8
inch from the top of the page. Pages of an excerpt of record included with a brief must be
numbered independently of the body of the brief, and each page number must be
preceded by "ER," e.g., ER-1, ER-2, ER-3. Pages of appendices must be preceded by
"App," e.g., App-1, App-2, App-3.
(d) The front cover must 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 litigant contact information required by ORAP 1.30.
The lower right corner of the brief must state the month and year in which the brief was
filed.
4
(e) The last page of the brief must 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.
(f) If filed in paper form:
5
(i) The paper must be white bond, regular finish without glaze, and at
least 20-pound weight.
(ii) If both sides of the paper are used for text, the paper must be
sufficiently opaque to prevent the material on one side from showing through on
the other.
65 Chapter 5
(iii) The brief must be bound either by binderclip or by staples.
Binderclips are preferred.
(4) The court on its own motion may strike any brief that does not comply with this
rule.
(5) (a) A party filing a brief in the appellate court must file one brief with the
Administrator* and serve one copy of the brief on every other party to the appeal, judicial
review, or other proceeding.
(b) The brief filed with the Administrator must contain proof of service on all
parties served with a copy of the brief. The proof of service must be the last page of the
brief or printed on or affixed to the inside of the back cover of the brief.
_________
1
Briefs to which this restriction applies include, but are not limited to, a combined respondent's
answering/cross-appellant's opening brief, a combined appellant's reply/cross-respondent's
answering brief, and a brief that includes an answer to a cross-assignment of error.
2
See ORAP 5.75 regarding setting out reply brief and cross-answering brief as separate parts of
a combined reply and cross-answering brief.
3
See ORAP 5.50 regarding the excerpt of record generally.
4
See ORAP 5.95 regarding the title page of a brief containing confidential material.
5
See ORS 7.250 and ORAP 1.45(b) regarding use of recycled paper and printing on both sides
of a page.
* See ORAP 1.35(1)(a)(ii)(B) for the filing address of the Administrator.
See Appendix 5.05-1.
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
1
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.
66 Chapter 5
_________
1
See footnote 2 to ORAP 1.35 for the service address of the Attorney General.
Rule 5.15
REFERENCES IN BRIEFS TO PARTIES
AND CRIME VICTIMS OF OFFENSES AGAINST PERSONS
(1) In the body of a brief, parties shall not be referred to as appellant and respondent,
but as they were designated in the proceedings below, except that in domestic relations
proceedings the parties shall be referred to as husband or wife, father or mother, or other
appropriate specific designation.
(2) In the body of a brief on appeal in a criminal, post-conviction, or habeas corpus
case or on judicial review of an order of the Board of Parole and Post-Prison Supervision that
includes a conviction for an offense, or attempt to commit an offense, compiled in ORS Chapter
163, any references to the victim of the offense must not include the victim's full name.
Rule 5.20
REFERENCE TO EVIDENCE
AND EXHIBITS; CITATION OF AUTHORITIES
(1) Briefs, in referring to the record, shall make appropriate reference to pages and
volumes of the transcript or narrative statement, or in the case of an audio record, to the tape
number and official cue or numerical counter number or, in the case of an exhibit, to its
identification number or letter.
(2) If the precise location on the audio record cannot be determined, it is permissible
to indicate between which cue numbers the evidence is to be found.
(3) In referring to any part of the record transmitted to the Administrator by optical
disk or by Secure File Transfer Protocol (SFTP) in Portable Document Form (PDF), the court
prefers citation to the page number of the PDF file. In any judicial review in which the agency
has served a self-represented party with the record in conventional paper form, a party citing to
the record may either:
(a) Include in the party’s brief parallel citations to the record in conventional
paper form; or
(b) On request of any self-represented party, provide in writing to that party
parallel citations to the record in conventional paper form.
(4) The following abbreviations may be used:
67 Chapter 5
"P Tr" for pretrial transcript;
"Tr" for transcript;
"Nar St" for narrative statement;
"ER" for Excerpt;
"App" for Appendix;
"AR Tape No. ___, Cue No. ___" for audio record;
"PAR" for pretrial audio record;
"PDF" for PDF of agency record filed by electronic means with the
Administrator;
"TCF" for trial court file;
"Rec" for record in judicial review proceedings only;
"Ex" for exhibit.
Other abbreviations may be used if explained.
(5) Guidelines for style and conventions in citation of authorities may be found in the
Oregon Appellate Courts Style Manual.
1
(6) Cases affirmed without opinion by the Court of Appeals should not be cited as
authority.
_________
1
Copies of the Oregon Appellate Courts Style Manual may be obtained from the Publications
Section of the Office of the State Court Administrator, 1163 State Street, Salem, Oregon 97301-
2563; (503) 986-5656; the Style Manual also is published on the Judicial Department’s website
at: <https://www.courts.oregon.gov/publications/Pages/default.aspx>.
Rule 5.30
ORDINANCES, CHARTERS,
STATUTES, AND OTHER WRITTEN
PROVISIONS TO BE SET OUT
If an appeal involves an ordinance, charter, statute, constitutional provision, regulation, or
administrative rule, so much of the provision as relevant shall be set forth verbatim with proper
citation. If lengthy, such matter should be appended or footnoted and need not be set out
verbatim if it appears in another brief in the case and is cross-referenced appropriately.
68 Chapter 5
Rule 5.35
APPELLANT'S OPENING BRIEF: INDEX
The appellant's combined opening brief and excerpt shall begin with:
(1) an index of the contents of the brief, including a statement of the substance of
each assignment of error, without argument, with appropriate page references;
(2) an index of appendices, if any; and
(3) an index of all authorities referred to, classified by cases (alphabetically arranged
and with complete citations), constitutional and statutory provisions, texts, treatises, and other
authorities, and indicating the pages of the brief where the authorities are cited. Citations are to
be in the form prescribed by the Oregon Appellate Courts Style Manual. Reference to "passim"
or "et seq." in the index of authorities is discouraged.
Rule 5.40
APPELLANT'S OPENING BRIEF:
STATEMENT OF THE CASE
The appellant's opening brief shall open with a clear and concise statement of the case,
which shall set forth in the following order under separate headings:
(1) A statement, without argument, of the nature of the action or proceeding, the
relief sought and, in criminal cases, the indictment or information, including citation of the
applicable statute.
(2) A statement, without argument, of the nature of the judgment sought to be
reviewed and, if trial was held, whether it was before the court or a jury.
(3) A statement of the statutory basis of appellate jurisdiction and, where novelty or
possible doubt makes it appropriate, other supporting authority.
(4) A statement of the date of entry of the judgment in the trial court register, the date
that the notice of appeal was served and filed, and, if more than 30 days elapsed between those
two dates, why the appeal nevertheless was timely filed; and any other information relevant to
appellate jurisdiction.
(5) In cases on judicial review from a state or local government agency, a statement
of the nature and the jurisdictional basis of the action of the agency and of the trial court, if any.
(6) A brief statement, without argument and in general terms, of questions presented
on appeal.
69 Chapter 5
(7) A concise summary of the arguments appearing in the body of the brief.
(8) (a) In those proceedings in which the Court of Appeals has discretion to try
the cause anew on the record and the appellant seeks to have the court exercise that
discretion, the appellant shall concisely state the reasons why the court should do so.
*
(b) In those proceedings in which the Court of Appeals has discretion to make
one or more factual findings anew on the record and the appellant seeks to have the court
exercise that discretion, the appellant shall identify with particularity the factual findings
that the appellant seeks to have the court find anew on the record and shall concisely state
the reasons why the court should do so.
*
(c) The Court of Appeals will exercise its discretion to try the cause anew on
the record or to make one or more factual findings anew on the record only in exceptional
cases. Consistently with that presumption against the exercise of discretion, requests
under paragraph (a) or (b) of this section are disfavored.
(d) The Court of Appeals considers the items set out below to be relevant to
the decision whether to exercise its discretion to try the cause anew on the record or make
one or more factual findings anew on the record. These considerations, which are neither
exclusive nor binding, are published to inform and assist the bar and the public.
(i) Whether the trial court made express factual findings, including
demeanor-based credibility findings.
(ii) Whether the trial court's decision comports with its express factual
findings or with uncontroverted evidence in the record.
(iii) Whether the trial court was specifically alerted to a disputed
factual matter and the importance of that disputed factual matter to the trial court's
ultimate disposition of the case or to the assignment(s) of error raised on appeal.
(iv) Whether the factual finding(s) that the appellant requests the court
find anew is important to the trial court's ruling that is at issue on appeal (i.e.,
whether an appellate determination of the facts in appellant's favor would likely
provide a basis for reversing or modifying the trial court's ruling).
(v) Whether the trial court made an erroneous legal ruling, reversal or
modification of which would substantially alter the admissible contents of the
record (e.g., a ruling on the admissibility of evidence), and determination of
factual issues on the altered record in the Court of Appeals, rather than remand to
the trial court for reconsideration, would be judicially efficient.
(9) A concise summary, without argument, of all the facts of the case material to
determination of the appeal. The summary shall be in narrative form with references to the
70 Chapter 5
places in the transcript, narrative statement, audio record, record, or excerpt where such facts
appear.
(10) In a dissolution proceeding or a proceeding involving modification of a
dissolution judgment, the summary of facts shall begin with the date of the marriage, the ages of
the parties, the ages of any minor children of the parties, the custody status of any minor
children, the amount and terms of any spousal or child support ordered, and the party required to
pay support.
(11) Any significant motion filed in the appeal and the disposition of the motion. A
party need not file an amended brief to set forth any significant motion filed after that party's
brief has been filed.
(12) Any other matters necessary to inform the court concerning the questions and
contentions raised on the appeal, insofar as such matters are a part of the record, with reference
to the parts of the record where such matters appear.
_________
*
See ORS 19.415(3)(b) regarding discretion of the Court of Appeals to try the cause de novo or
make one or more factual findings anew on appeal in some equitable proceedings; see also
ORAP 5.45(5) concerning the identification of standards of review for each assignment of error
on appeal.
Rule 5.45
ASSIGNMENTS OF ERROR AND ARGUMENT
(1) 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 claim of 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, in its discretion, consider a plain error.
1
(2) Each assignment of error must 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 5.45.
(3) Each assignment of error must identify precisely the legal, procedural, factual, or
other ruling that is being challenged.
(4) (a) Each assignment of error must demonstrate that the question or issue
presented by the assignment of error timely and properly was raised and preserved in the
lower court. 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. Under the subheading "Preservation of Error":
(i) Each assignment of error, as appropriate, must specify the stage in
71 Chapter 5
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 parts of the record
quoted or to the excerpt of record if the material quoted is set out in the excerpt of
record. When the parts of the record relied on under this clause are lengthy, they
must 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 must 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 must 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 must
identify where in the record the evidence was admitted.
(b) Where a party has requested that the court review a claimed error as plain
error, the party must identify the precise error, specify the state of the proceedings when
the error was made, and set forth pertinent quotations of the record where the challenged
error was made.
(5) Under the subheading "Standard of Review," each assignment of error must
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 must 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.
(7) The court may decline to exercise its discretion to consider plain error absent a
request explaining the reasons that the court should consider the error.
3
_________
1
For an error to be plain error, it must be an error of law, obvious and not reasonably in dispute,
and apparent on the record without requiring the court to choose among competing inferences; in
determining whether to exercise its discretion to consider an error that qualifies as a plain error,
the court takes into account a non-exclusive list of factors, including the interests of the parties,
the nature of the case, the gravity of the error, and the ends of justice in the particular case. See
State v. Vanornum, 354 Or 614, 629-30, 317 P3d 889 (2013). See also ORS 138.257(2):
"Subject to Article VII (Amended), section 3, Oregon Constitution, the appellate court shall not
reverse, modify or vacate a trial court judgment or order if there is little likelihood that any error
affected the outcome."
72 Chapter 5
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). See also ORS 19.415(1), which provides that, generally, "upon an
appeal in an action or proceeding, without regard to whether the action or proceeding was triable
to the court or a jury," the court's review "shall be as provided in section 3, Article VII
(Amended) of the Oregon Constitution"; ORS 19.415(3)(b) regarding discretion of the Court of
Appeals to try the cause de novo or make one or more factual findings anew on appeal in some
equitable proceedings; see also ORAP 5.40(8) concerning appellant's request for the court to
exercise de novo review and providing a list of nonexclusive items Court of Appeals may
consider in deciding whether to exercise its discretion.
3
See State v. Tilden, 252 Or App 581, 587-94, 288 P3d 567 (2012) (discussing cases in which
Court of Appeals declined to review for plain error absent a request from the appellant).
Rule 5.50
THE EXCERPT OF RECORD
(1) Except in the case of a self-represented party, the appellant must include in the
opening brief an excerpt of record.
1
The parties to an appeal are encouraged to confer regarding
the content of the excerpt of record, including whether to file a joint excerpt of record to be
included in the opening brief.
(2) The excerpt of record must contain:
2
(a) The judgment or order on appeal or judicial review.
(b) Any written or oral rulings by the lower tribunal or agency addressing the
issues presented by the assignments of error.
(c) Any pleading or excerpt of pleadings, particular part of the transcript,
exhibit, evidentiary submission and other filing necessary for reviewing and
understanding the assignments of error in advance of oral argument, if the parties
anticipate that the case will be orally argued.
3
(d) If preservation of error is or is likely to be disputed in the case, parts of
memoranda and the transcript pertinent to the issue of preservation presented by the case.
(e) A copy of the eCourt Case Information register of actions, if the case arose
in an Oregon circuit court.
(f) In criminal cases in which the defendant appealed after entering a
conditional plea of guilty or no contest under ORS 135.335(3), the defendant must
include in the excerpt of record the writing in which the defendant reserved for review on
appeal the trial court's adverse determination of a pretrial motion.
73 Chapter 5
(3) The excerpt of record must not contain memoranda of law filed in the trial court
unless such memoranda are pertinent to a disputed or likely to be disputed issue of preservation.
(4) A respondent may file, as part of the respondent's brief, a supplemental excerpt of
record containing those materials required by subsection (2) of this rule that were omitted from
the excerpt of record.
(5) The excerpt of record and any supplemental excerpt of record must be in the
following form:
(a) All documents or parts of documents must be copies of documents
included in the record, rather than summarized or paraphrased. Omissions, if not
apparent, must be noted. No matter may be omitted if to do so would change the
meaning of the matter included.
(b) Contents must be set forth in chronological order, except that the OECI
case register must be the last document in the excerpt of record. The excerpt must be
consecutively paginated, with the first page being page ER-1. The excerpt must 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. The index may include bookmarks as described in ORAP 16.50.
A supplemental excerpt of record must substantially conform to the same requirements,
except that a supplemental excerpt must be paginated using "SER," e.g., SER-1, SER-2,
SER-3.
(c) The materials included must 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 must comply with the applicable requirements of
ORAP 5.05.
(6) Self-represented parties are not required to file an excerpt of record or a
supplemental excerpt of record. If a self-represented party files an excerpt of record or a
supplemental excerpt of record, it must contain only those documents specified in ORAP
5.50(2)(a) and (b), must contain no other documents, and must otherwise comply with this rule.
4
(7) The appellate court may strike any excerpt of record or supplemental excerpt of
record that does not substantially comply with the requirements of this rule.
_________
1
Any brief containing an excerpt of record filed through the eFiling system that exceeds 25
megabytes must be filed in compliance with ORAP 16.15(1).
2
For other requirements for the excerpt of record in Land Use Board of Appeals cases, see
ORAP 4.67.
74 Chapter 5
3
See Appendix 5.50, 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. The
full record is available and used by the court after submission of a case; therefore, the excerpt of
record need include only those parts of the record that will be helpful to the court and the parties
in preparing for and conducting oral argument.
4
Under ORAP 6.05(2), cases in which a self-represented party files a brief are submitted without
argument by any party. For that reason, any excerpt or supplemental excerpt of record submitted
by a self-represented party shall not contain any of the documents otherwise required by ORAP
5.50(2)(c) to (f) to assist the appellate court in preparing for oral argument.
Rule 5.52
APPENDIX
The purpose of an appendix to a brief is to provide, for the convenience of the reader,
materials that would be helpful in understanding and resolving an issue raised on appeal. A party
appropriately may include in an appendix, for instance, copies of a statute or statutes at issue in
the appeal, or copies of cases that are not readily available from standard research sources. A
party should not include in the appendix materials from the record of the tribunal from which the
appeal is taken that should be in the excerpt of record.
1
_________
1
For other requirements for appendices to briefs in land use cases, see ORAP 4.67.
Rule 5.55
RESPONDENT'S ANSWERING BRIEF
(1) (a) The respondent's answering brief must 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.
(b) The brief must 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
75 Chapter 5
the court of the abandonment when the respondent's answering 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 answering brief has been filed, the respondent may file a supplemental respondent's
answering brief addressing those issues raised in the appellant's supplemental brief.
Rule 5.57
RESPONDENT'S ANSWERING BRIEF:
CROSS-ASSIGNMENTS OF ERROR
(1) A respondent must cross-assign as error any trial court ruling described in
subsection (2) of this rule in order to raise the claim of error in the appeal.
1
(2) A cross-assignment of error is appropriate:
(a) If, by challenging the trial court ruling, the respondent does not seek to
reverse or modify the judgment on appeal; and
(b) If the relief sought by the appellant were to be granted, respondent would
desire reversal or modification of an intermediate ruling of the trial court.
(3) The appellant's answer to a cross-assignment of error shall be in the form
prescribed by ORAP 5.55 for a respondent's answering brief and shall be:
(a) Contained in a separate section of the appellant's reply brief, if a reply
brief is permitted under ORAP 5.70, and designated "response to cross-assignment of
error;" or
(b) Filed within 21 days after the filing of the respondent's answering brief, if
a reply brief is not permitted under ORAP 5.70, and entitled "appellant's answer to cross-
assignment of error."
(4) A respondent may file a reply to an appellant's answer to a cross-assignment of
error only if the nature of the case is one in which a reply brief is permitted under ORAP 5.70
and ORAP 5.80(3). The reply must comply with the requirements for a reply brief prescribed by
ORAP 5.05, and it must be filed within 21 days after the filing of the appellant's answer to a
cross-assignment of error.
_________
1
This rule does not apply to a respondent who also is a cross-appellant and is assigning error as a
cross-appellant.
76 Chapter 5
Rule 5.60
FAILURE OF RESPONDENT TO FILE BRIEF
If the respondent files no brief, the cause will be submitted on the appellant's opening
brief and appellant's oral argument, and the respondent shall not be allowed to argue the case.
Rule 5.65
CROSS-APPELLANT'S OPENING BRIEF
(1) When a respondent has cross-appealed,
1
the opening brief on cross-appeal shall be
presented in a separate part of the respondent's answering brief immediately following the body
of the answering brief. The opening brief on cross-appeal shall be appropriately indexed at the
front of the answering brief. Pages of the opening brief on cross-appeal shall be numbered
consecutively following the numbering of the answering brief.
(2) A cross-appellant's opening brief shall be in the form of an appellant's opening
brief.
_________
1
See ORAP 5.55(3) regarding abandoned cross-appeals.
Rule 5.70
REPLY BRIEF
(1) (a) Except as provided in subsection (3) of this rule, a party may file a reply
brief to a respondent's answering brief or an answering brief of a cross-respondent.
(b) A reply brief shall be confined to matters raised in the respondent's
answering brief or the answering brief of a cross-respondent; reply briefs that merely
restate arguments made in the opening brief are discouraged.
(c) The court encourages a party who decides not to file a reply brief, as soon
as practicable thereafter, to notify the court in writing to that effect.
(2) The form of a reply brief shall be similar to a respondent's answering brief. A
reply brief shall have an index and shall contain a summary of argument.
(3) (a) Except on request of the appellate court or on motion of a party that
demonstrates the need for a reply brief, reply briefs shall not be submitted in the
following cases:
(i) traffic, boating, wildlife, and other violations;
(ii) criminal, probation revocation, habeas corpus, and post-conviction
77 Chapter 5
relief;
(iii) juvenile court;
(iv) civil commitment;
(v) forcible entry and detainer;
(vi) judicial review of orders of the Land Use Board of Appeals and
Land Conservation and Development Commission in land use cases, as provided
in ORAP 4.66(1)(c); and
(vii) adoption cases and certain juvenile delinquency proceedings
subject to ORAP 10.15.
(b) A motion for leave to file a reply brief shall be submitted within 14 days
after the filing of the brief to which permission to reply is sought. If a reply brief is
submitted with the motion, then:
(i) if the court grants the motion, the date of filing for the reply brief
relates backs to the date of the filing for the motion;
(ii) if the court denies the motion, the court will strike the reply brief.
Rule 5.75
ANSWERING BRIEF ON CROSS-APPEAL
When an appellant files an answering brief on cross-appeal, that party may file the brief
separately or as a separate part of a reply brief, if a reply brief is filed. The answering brief on
cross-appeal shall follow the form of a respondent's answering brief. If filed as part of a reply
brief, it shall be presented in a separate part of the reply brief and be shown in the index of the
reply brief as "Answering Brief on Cross-Appeal." An answering brief on cross-appeal and a
reply brief, whether filed as one brief or as separate briefs, shall be subject to the length
limitations prescribed in ORAP 5.05.
Rule 5.77
JOINT AND ADOPTED BRIEFS
(1) In a case involving more than one party on the same side, including cases
consolidated on appeal, the court discourages the filing of briefs that duplicate arguments made
in another brief in the same case and encourages parties to file joint briefs or to adopt to the
extent practicable a brief filed by another party in the same case.
1
(2) A party may join or adopt a brief submitted in the same case or consolidated case
but shall not join or adopt a brief in another case.
78 Chapter 5
(3) Joint Briefs
(a) If two or more parties join in a brief by signing the brief and have not
previously appeared and paid a filing fee, only one filing fee need be paid.
(b) A party who has not signed a brief filed by another may join that brief
provided that the party:
(i) Obtains the consent of the party who filed the brief;
(ii) Pays a filing or first appearance fee; and
(iii) Submits a letter to the court copied to all parties on appeal stating
that the party joins in the brief filed by another party and has the consent of the
other party.
(4) Adopted Briefs
(a) A party who concurs with all or part of a brief filed by another party and
who has no other position to assert may adopt the other party's brief by filing a brief
adopting in whole or in part the brief of another party. If a party adopts only part of the
brief of another, the brief shall identify the part of the brief of the other party being
adopted.
(b) A party who concurs with all or part of a brief submitted by another party
but who wishes to argue additional matters may submit a brief adopting by reference the
part of the other party's brief in which the party concurs.
_________
1
As used in this rule, "party" includes amicus curiae.
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(7) or ORAP 3.40(5); or
(d) the appellate court enters an order waiving a transcript under ORAP
3.05(2); or
79 Chapter 5
(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 answering brief shall be served and filed within 49 days after the
filing of the appellant's opening brief. If the court has given an appellant leave to file a
supplemental brief after the respondent's answering 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 answering 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 or, in a case in which the appellant
is permitted to file a reply brief, an appellant's combined reply brief on appeal and answering
brief on cross-appeal shall be served and filed within 49 days after the filing of the opening brief
on cross-appeal.
(5) When a party other than an appellant is made a cross-respondent, that party shall
have 49 days after the filing of the opening brief on cross-appeal to serve and file an answering
brief on cross-appeal.
(6) A cross-appellant shall have 21 days after the date of the filing of an answering
brief on cross-appeal in which to serve and file a reply brief on cross-appeal, 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
Office of Public Defense Services, the appellant's opening brief shall be served within a period
of time established by the Chief Judge in consultation with Office of Public Defense Services.
(8) In complex cases, such as cases with multiple parties, multiple appeals or cross-
appeals, or both, the parties are encouraged to confer to develop a briefing schedule that varies
from the schedule that would otherwise result under this rule but that will present the parties'
positions in an orderly manner and to file a motion seeking approval of that suggested briefing
schedule.
80 Chapter 5
BRIEF TIME CHART 1
CASE TYPE
Opening Brief
Answering and Cross
-
Opening Brief
Reply Brief
Answering Brief to Cross
-
Assignment of Error
Cross
-Respondent's
Answering Brief
Cross
-Appellant's Reply
Brief
DATE FROM WHICH SCHEDULE
IS CALCULATED
The opening brief due date is calculated
by counting from the date that any of the
following has occurred. See chart for
appropriate number of days. The
answering brief due date is calculated by
counting from the date the opponent's
brief was filed. See ORAP 1.35(1)(d)
regarding the date of filing.
Criminal
1
Probation Revocation
Violations
Habeas Corpus
Post-Conviction
Civil Commitment
Forcible Entry and
Detainer
Civil Appeal from
Circuit Court not
listed above
Tax Court
49
49
49
49
0
21*
21
21*
49*
21
Date transcript has been deemed settled.
ORS 19.370(7). [or]
Date circuit court order settling
transcript has been entered if a motion
to correct has been filed.
ORS 19.370(7). [or]
Date notice of agreed narrative
statement filed in circuit court.
ORS 19.380. [or]
Date notice of appeal filed if no
transcript has been designated.
49
49
21
21
21
21
Adoption
Juvenile
2
28
28
0
Land Use Board of
Appeals (LUBA)
Land Conservation
and Development
Commission
(LCDC)
3
21
21
0
Date petition for judicial review filed.
1
Regarding death sentence cases, see ORAP 12.10(6); regarding certain pretrial appeals when the defendant is
in pretrial custody on felony charges, see ORAP 10.25 and ORAP 12.07.
2
See ORAP 10.15.
3
Those LCDC orders specified in ORAP 4.60(1)(b).
* Can be one brief.
81 Chapter 5
BRIEF TIME CHART 2
CASE TYPE
Opening Brief
Answering and
Cross Opening Brief
Reply Brief
Answering Brief to Cross
-
Assignment of Error
Petition for Review
Response to Petition
for Re ie
Petitioner's Brief
on the Merits
Respondent's Brief
on the Merits
Reply Brief on the Merits
Petition for
Reconsideration
DATE FROM WHICH SCHEDULE IS
CALCULATED
The opening brief due date is calculated by counting
from the date that any of the following has occurred.
See chart for appropriate number of days. The
answering brief due date is calculated by counting from
the date the opponent's brief was filed. See ORAP
1.35(1)(d) regarding the date of filing.
Judicial Review of
all other Agency
Action
49
49
21
21
Date record has been deemed settled. ORAP 4.22.
Petition for Review
Response
Petitioner's
Brief on
the Merits
Respondent's Brief on
the Merits
Reply Brief on the
Merits
Petition for
Reconsideration
35
14
28
28
14
14
Date of Court of Appeals decision.
Date petition for review was filed.
Date petition for review allowed by Supreme Court.
Date petitioner's brief on the merits filed.
Date respondent's brief on the merits filed.
Date of Supreme Court decision.
Bar Discipline
Judicial Discipline and
Disability
Certified Questions of
Law
28
28
28
28
14
0
Date of acknowledgment of receipt of record.
Mandamus
Habeas Corpus
Quo Warranto
Energy Facility Siting
Council/Public
Utility Commission
Reapportionment
Review
Legislative
Secretary of State
28
14
8/
1
9/
15
28
14
10*
0
0
5*
Date that the case is at issue
Date petition for review is filed.
Legislative Assembly enacts reapportionment.
Secretary of State adopts reapportionment.
* Business days. See ORAP 1.15(3)(i).
82 Chapter 5
Rule 5.85
ADDITIONAL AUTHORITIES
(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 must file a motion for leave to file a memorandum of additional authorities. If
the party submits a memorandum of additional authorities with the motion, then:
(a) if the court grants the motion, the date of filing for the memorandum of
additional authorities relates back to the date of filing for the motion; or
(b) if the court denies the motion, the court will strike the memorandum of
additional authorities.
(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.
1
(d) If filed less than five business days before oral argument, shall include in
the caption the words "ORAL ARGUMENT SCHEDULED FOR [DATE]."
(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
(a) 14 days after the date of filing of the memorandum of additional
authorities to which the party is responding; or
(b) if the date of filing of the memorandum of additional authorities relates
back to the date of filing of the motion under paragraph (1)(a) or this rule, 14 days after
the date of entry of the order granting the motion.
_________
1
See ORAP 1.35(1)(a) for the filing address of the Administrator.
83 Chapter 5
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 an opening 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 opening 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
84 Chapter 5
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 after 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 answering 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 ORAP 9.05(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.
1
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) The client shall attempt to prepare a supplemental pro se brief as nearly as
practicable in proper appellate brief form. The brief shall identify questions or issues to be
decided on appeal as assignments of error identifying precisely the legal, procedural, factual, or
other ruling that is being challenged.
2
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) If the supplemental pro se brief includes an excerpt of record, the excerpt must
contain only the information included in ORAP 5.50(2),
3
and only if that material is not included
in the appellant's opening brief. If the supplemental pro se brief includes an appendix, it must
comply with the appendix rules in ORAP 5.52 and shall not contain any confidential material.
85 Chapter 5
(4) 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 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.
_________
1
"Pro se" means "for oneself" or "on one's own behalf." A supplemental pro se brief is the
product of the party himself or herself, and not of the attorney representing the party.
2
See ORAP 5.45, which describes requirements for assignments of error and argument.
3
See ORAP 5.50(2) (indicating that an excerpt of record must contain "[t]he judgment or order
on appeal or judicial review" and "[a]ny written or oral rulings by the lower tribunal or agency
addressing the issues presented by the assignments of error").
Rule 5.95
BRIEFS CONTAINING CONFIDENTIAL MATERIAL
(1) Except as provided in subsection (6) of this rule, if a brief contains material that
is, by statute or court order, confidential or exempt from disclosure,
1
the party submitting the
brief shall file two original briefs:
(a) One brief shall contain the material that is confidential or exempt from
disclosure. The title page of the brief shall contain in or under the case caption the words
"CONFIDENTIAL BRIEF UNDER ______" followed by the statutory citation or a
description of the court order under which confidentiality is claimed.* The original of
the brief shall be placed in a sealed envelope marked "CONFIDENTIAL BRIEF."
(b) One brief shall have the material that is confidential or exempt from
disclosure removed or marked out. The title page of the brief shall contain in or under the
case caption the words "REDACTED BRIEF UNDER ______" followed by the statutory
citation or a description of the court order under which confidentiality is claimed.*
(2) A party filing a brief under this rule shall serve two copies of the confidential
brief and two copies of the redacted brief on each other party to the case on appeal or review.
(3) The Administrator shall keep both original briefs in the appellate file for the case.
The Administrator shall make the redacted version of the brief available for public inspection
and copying.
(4) (a) On motion of a person, the court shall make available for public inspection
and copying a confidential brief based on a showing that the brief does not contain matter
that is confidential or exempt from disclosure.
86 Chapter 5
(b) On motion of a person and under such conditions as the court may deem
appropriate, the court may authorize inspection or copying of a confidential brief based
on a showing that the person is entitled as a matter of law to inspect or copy the material
that is confidential or exempt from disclosure.
(5) When the appellate judgment issues terminating a case, the Administrator shall
distribute to brief storage facilities only the redacted copies of a brief filed under paragraph
(1)(b) of this rule.
(6) Briefs in the following categories of cases are entirely confidential, and so are
exempt from the requirements of subsections (1) to (5) of this rule: adoption, juvenile
dependency (including termination of parental rights), juvenile delinquency, civil commitment of
allegedly mentally ill persons and persons with an intellectual or developmental disability (as
those terms are defined in ORS 427.005), and appeals from orders of the Psychiatric Security
Review Board and State Hospital Review Panel. Parties filing in the Court of Appeals briefs in
those categories of cases must comply with ORAP 5.05(5) regarding the original and number of
copies to be served on other parties to the case.
_________
1
See, e.g., ORS 36.222(5) regarding confidential mediation communications and agreements;
ORS 135.139, ORS 433.045(3), and ORS 433.055 regarding records revealing HIV testing
information; ORS 137.077 regarding presentence investigation reports; ORS 179.495 and ORS
179.505 regarding medical records maintained by state institutions; ORS 412.094 regarding
nonsupport investigation records; ORS 419B.035 regarding abuse investigation records; ORS
426.160 and ORS 426.370 regarding records in civil commitment cases; and ORS 430.399(6)
regarding alcohol and drug abuse records. See generally ORAP 16.15(5)(b) for procedure for
eFiling attachments that are confidential or otherwise exempt from disclosure.
* See Appendix 5.95.
87 Chapter 6
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88 Chapter 6
6. SUBMISSION OF CASES
AND ORAL ARGUMENT;
RECONSIDERATION IN COURT OF APPEALS
Rule 6.05
REQUEST FOR ORAL ARGUMENT;
SUBMISSION WITHOUT ARGUMENT
(1) This rule applies to proceedings in the Court of Appeals.
(2) (a) The Administrator will send the parties notice of the date that a case is
scheduled to be submitted to the court ("the submission date"). Parties to the case may
request oral argument by filing a "Request for Oral Argument" in the form illustrated in
Appendix 6.05 and directed to the attention of the court's calendar clerk. If a party files a
timely request for oral argument, the case will be argued on the submission date and all
parties who have filed a brief may argue. If no party files a timely request for oral
argument, the case shall be submitted on the briefs on the submission date without oral
argument, unless the court directs otherwise.
(b) A party wanting oral argument must file the request for oral argument and
serve it on every other party to the appeal within the number of days specified in this
subsection after the date the notice from the Administrator:
(i) On appeal in juvenile dependency (including termination of
parental rights) and adoption cases within the meaning of ORAP 10.15, and on
judicial review in land use cases as defined in ORAP 4.60(1)(b), 14 days after the
date of the notice;
(ii) In all other cases, 28 days after the date of the notice.
(3) Notwithstanding subsection (2) of this rule, if a self-represented party files a brief,
the case will be submitted without argument by any party. An attorney representing himself or
herself is not considered to be a self-represented party for the purpose of this rule.
(4) Notwithstanding subsection (2) of this rule, when a respondent submits an
answering brief confessing error as to all assignments of error and not objecting to the relief
sought in the opening brief, the respondent shall so inform the court by letter when the brief is
filed or at any time thereafter. On receipt of respondent's notice that a brief confesses error, the
case will be submitted without oral argument. The appellant may by letter bring to the court's
attention that a respondent's brief appears to confess error. If the court concurs, the case will be
submitted without oral argument.
89 Chapter 6
Rule 6.10
WHO MAY ARGUE;
FAILURE TO APPEAR AT ARGUMENT
(1) A party may present oral argument only if the party has filed a brief.
(2) An amicus curiae may present oral argument only if permitted by the court on
motion or on its own motion.
(3) An attorney who was a witness for a party, except as to merely formal matters
such as attestation or custody of an instrument, shall not argue the cause without leave of the
court.
(4) Only active members of the Oregon State Bar shall argue unless the court, on
motion filed not less than 21 days before the date for argument orders otherwise. If the court has
allowed a lawyer from another jurisdiction to appear on appeal for a particular case under ORAP
8.10(4), the lawyer does not need leave of the court to participate in oral argument of the case.
(5) (a) After any party has filed and served a request for oral argument pursuant
to ORAP 6.05(2), any party who decides to waive oral argument or cannot attend oral
argument shall give the court and all other parties participating in oral argument at least
48 hours' notice that the party will not be appearing for oral argument.
(b) If a party fails to appear at oral argument, the court may deem the cause
submitted without oral argument as to that party. A party's failure to appear shall not
preclude oral argument by any other party.
(c) If a party fails to give at least 48 hours' notice of nonappearance at
argument, the court may order counsel for that party to pay the costs and attorney fees
that reasonably would have been incurred but for failure to give timely notice of
nonappearance.
Rule 6.15
PROCEDURE AT ORAL ARGUMENT
(1) In all cases in the Supreme Court:
(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
90 Chapter 6
time among themselves, unless the court orders otherwise.
(2) (a) Unless the court otherwise orders, on oral argument in the Court of
Appeals in all cases the appellant or petitioner shall have not more than 15 minutes and
the respondent shall have not more than 15 minutes to argue.
(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 pre-argument memorandum of
additional authorities.
1
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) 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.
2
_________
1
See ORAP 5.85 regarding memoranda of additional authorities.
2
See ORAP 3.25 regarding arranging to have exhibits transmitted to the appellate court.
Rule 6.20
ARGUMENT IN SALEM AND OTHER LOCATIONS
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).
91 Chapter 6
Rule 6.25
RECONSIDERATION BY COURT OF APPEALS
(1) As used in this rule, "decision" means an opinion, per curiam opinion, affirmance
without opinion, and an order ruling on a motion or an own motion matter that disposes of 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
decision of the Court of Appeals; 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 after the 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 the petition shall have a title page printed on plain white paper and
containing the following information:
(a) 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; and
(b) A title designating the party filing the petition, such as "Appellant's
Petition for Reconsideration" or "Respondent's Petition for Reconsideration."
(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.
1
92 Chapter 6
(5) A request for reconsideration of any other order of the Court of Appeals ruling on
a motion or an own motion matter shall be entitled "motion for reconsideration." A motion for
reconsideration is subject to ORAP 7.05 regarding motions in general.
_________
1
See ORAP 9.05(2) 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.
93 Chapter 6
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94 Chapter 7
7. MOTIONS
Rule 7.05
MOTIONS IN GENERAL
(1) (a) Unless a statute or these rules provide another form of application, a
request for an order or other relief must be made by filing a motion in writing.
(b) A party seeking to challenge the failure of another party to comply with
any of the requirements of a statute or these rules must do so by motion.
(c) A party may raise an issue of the jurisdiction of the appellate court by
motion at any time during the appellate process.
(d) Other than a first motion for an extension of time of 28 days or less to file
a brief, a motion must contain a statement whether opposing counsel objects to, concurs
in, or has no position regarding the motion. If opposing counsel objects to the motion,
the motion must include a statement whether opposing counsel intends to file a response
to the motion. If the moving party has not been able to learn opposing counsel's position
on the motion, then the motion must so state.
(2) (a) Generally, a party seeking relief in a case pending on appeal should file
the motion in the court in which the case is pending.
1
A party seeking relief from a court
other than the court in which the case is pending must, on the first page of the motion,
separately and conspicuously state that the party is seeking relief from a court other than
the court in which the case is pending.
(b) A case is considered filed in the Supreme Court if the motion is captioned
"In the Supreme Court of the State of Oregon" and in the Court of Appeals if the motion
is captioned "In the Court of Appeals of the State of Oregon." Notwithstanding the
caption, the Administrator has the authority to file a motion in the appropriate court,
provided that the Administrator must give notice thereof to the parties.
(3) Any party may, within 14 days after the filing of a motion, file a response.
2
The
court may shorten the time for filing a response and may grant temporary relief pending the
filing of a response, as circumstances may require.
(4) The moving party may, within seven days after the filing of a response, file a
reply. The filing of a reply is discouraged; a reply should not merely restate argument made in
the motion, and should be confined to new matter raised in the response.
(5) Unless the court directs otherwise, all motions will be considered without oral
argument.
(6) Parties must be referred to by their designation in the appellate court. Hyphenated
designations are discouraged. However, in motions in domestic relations cases, parties must be
95 Chapter 7
referred to as husband or wife, mother or father, or other appropriate specific designations.
_________
1
See ORAP 9.30 to determine in which appellate court a case is pending when a petition for
review has or may be filed.
2
But see ORAP 7.25(6) regarding time for responding to a motion for an extension of time.
Rule 7.10
PREPARATION, FILING,
AND SERVICE OF MOTIONS
(1) (a) For a motion other than a motion for extension of time, a title designating
the party filing the motion and one of the motion titles listed in the "Motion Titles"
section of Appendix 7.10-1.
1
For example, the motion of a respondent on appeal to
dismiss the appeal for lack of jurisdiction should be titled "Respondent's Motion–Dismiss
- Non-Appellant/Non-Petitioner" and the motion of the state for summary affirmance
should be titled "Respondent's Motion–Summary Affirmance." If more than one motion
is contained in a single document, the title of each motion shall be listed. If none of the
motion titles listed in Appendix 7.10-1 fairly describes the motion, select the title option
of "Motion–Other" and add a title that accurately describes the motion. "Motion–Other"
should be used only in circumstances in which the party has carefully reviewed the
motion titles listed in Appendix 7.10-1 and does not find a title that describes the motion;
or
(b) (i) For a motion for extension of time (MOET), a title designating the
party filing the motion for extension of time and one of the MOET titles listed in
the "Motions for Extension of Time (MOET)" section of Appendix 7.10-1. For
example, the motion of an appellant for an extension of time to file the opening
brief should be titled "Appellant's MOET–File Opening Brief." If more than one
motion for extension of time is contained in a single document, or if a motion for
extension of time is contained in a single document with another motion, the title
of each MOET and/or motion shall be listed. If none of the MOET titles listed in
Appendix 7.10-1 fairly describes the motion for extension of time, select the title
option of "MOET–Other" and add a title that accurately describes the motion.
"MOET–Other" should be used only in circumstances in which the party has
carefully reviewed the MOET titles listed in Appendix 7.10-1 and does not find a
title that describes the motion for extension of time; or
(ii) For a response to a motion or motion for extension of time
(MOET), an indication that the filing is a response using the title of the motion or
MOET to which the filing responds. For example, the response to a respondent's
motion for summary affirmance should be titled "Response to Respondent's
Motion–Summary Affirmance" and the response to an appellant's motion for
extension of time to file the opening brief should be titled "Response to
96 Chapter 7
Appellant's MOET–File Opening Brief."
(2) A motion or response, excluding appendices or exhibits, longer than 20 pages
shall contain an index of contents, an index of appendices or exhibits, and an index of
authorities, each with page references.
2
(3) Any party filing a motion to dismiss before the transcript has been filed shall
serve a copy of the motion on the transcript coordinator and, if known to the party filing the
motion to dismiss, all court reporters and transcribers who are responsible for preparing all or
any part of the transcript on appeal.
(4) If a party files a motion for leave to file another document and submits the other
document with the motion, then:
(a) if the court grants the motion, the date of filing for the other document
relates back to the date of filing for the motion; or
(b) if the court denies the motion, the court will strike the other document.
(5) A motion or response that is confidential, filed under seal, or otherwise exempt
from disclosure
3
must include:
(a) in the caption, prominently displayed, the words "Confidential" or
"Sealed," as applicable; and
(b) in the motion or response, a statement citing the authority by which the
motion is deemed confidential, sealed, or otherwise exempt from disclosure.
(6) A motion or response that includes an attachment consisting of material that is
confidential, sealed, or otherwise exempt from disclosure
4
must comply with the requirements of
ORAP 8.52.
_________
1
A party's use of the motion titles listed in Appendix 7.10-1 assists the appellate courts in
characterizing a motion in their case management system and in displaying a case register that
more clearly indicates the filing and resolution of the motion.
2
See ORAP 5.35(3).
3
See, e.g., ORS 36.222(5) regarding confidential mediation communications and agreements;
ORS 135.139, ORS 433.045(3), and ORS 433.055 regarding records revealing HIV testing
information; ORS 137.077 regarding presentence investigation reports; ORS 179.495 and ORS
179.505 regarding medical records maintained by state institutions; ORS 412.094 regarding
nonsupport investigation records; ORS 419B.035 regarding abuse investigation records; ORS
426.160 and ORS 426.370 regarding records in civil commitment cases; and ORS 430.399(6)
regarding alcohol and drug abuse records. See generally ORAP 16.15(5)(b) for procedure for
97 Chapter 7
eFiling attachments that are confidential or otherwise exempt from disclosure.
4
See footnote 3 to subsection (5) of this rule.
See Appendix 7.10-2 for illustrations of motion title designations and Appendix 7.10-3 for
illustrations of motions for extension of time title designations.
Rule 7.15
DECISIONS ON MOTIONS
(1) The Chief Justice or the Chief Judge, except as otherwise provided in ORAP 7.55,
may determine any motion made before submission of a case to the court or after the date of the
decision or may refer the motion to any other judge or judges of the court for decision.
1
(2) Any motion filed after submission of a case, but before decision, shall be decided
by the court or, in the Court of Appeals, may be decided by the department to which the case has
been submitted.
(3) If any motion other than a challenge to the court's jurisdiction is denied before
submission of the case, the motion may not be resubmitted without leave of the court in the order
on the motion.
(4) Except for a ruling on an oral motion for extension of time under ORAP 7.27, the
court will rule on a motion by written order.
_________
1
See ORAP 7.55 regarding the authority of the appellate commissioner of the Court of Appeals
to decide motions and own motion matters in that court.
Rule 7.25
MOTION FOR EXTENSION OF TIME
(1) Only the appellate court may grant an extension of time for the performance of
any act pertaining to an appeal.
(2) A motion for an extension of time shall contain:
(a) The date the notice of appeal was filed (or in the case of a petition for
review, the date of the decision of the Court of Appeals for which review is being
sought);
(b) The date the brief or other action is due;
(c) The date to which the extension is requested;
98 Chapter 7
(d) Whether it is the first or other request;
(e) The specific circumstances which caused the act not to be completed in
the allotted time; and
(f) In a criminal case, whether the defendant is incarcerated.
(3) An objection to a motion for extension of time shall articulate specific grounds for
the objection and shall identify how an extension of time will prejudice the objector's interest.
An attorney may object on the ground that the client has instructed counsel to object to any
extension, but that alone will not be a sufficient ground to deny or reduce any extension of time.
(4) An objection to a request for an extension of time may be filed by facsimile
transmission,
1
provided that the objection does not exceed five pages. Filing shall be deemed
complete when the entirety of the objection being transmitted has been received by the
Administrator. The facsimile transmission shall have the same force and effect as filing of the
original.
(5) A motion for an extension of time generally will be decided within a few days
after it is filed. An objection to a motion for an extension of time filed after the court has granted
the extension will be treated as a motion for reconsideration of the ruling. On reconsideration, if
the court modifies the extension of time, the parties to the appeal will be notified; otherwise, the
objection will be noted and placed in the appellate file.
(6) Requests for extensions of time for preparation of transcripts shall be made in
accordance with ORAP 3.30.
_________
1
The facsimile transmission number for the Administrator is (503) 986-5560.
See ORAP 7.10(1)(c) concerning captions of motions for extension of time and Appendix 7.10-3
for illustrations of motions for extension of time.
Rule 7.27
ORAL REQUEST FOR EXTENSION OF
TIME TO FILE BRIEF
(1) For good cause shown, the Administrator may grant an oral request for an
extension of time of no more than 14 days to file an opening, answering, or reply brief, provided
that:
(a) The party making the request for an extension of time under this rule shall
give prior notice to the other parties to the appeal, except that such notice need not be
given to a person confined in a state institution and not represented by counsel; and
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(b) The party previously has not obtained written extension or extensions of
time of more than 28 days.
(2) A party may request an oral extension of time under this rule, and the
Administrator may grant or deny the motion, by telephone.
(3) The Administrator acting on an oral request for an extension of time shall enter
the grant or denial of the request in the appellate case register.
(4) The grant of an extension of time under this rule will bar any further motion for
time to file the brief unless such motion, made in writing, demonstrates extraordinary and
compelling circumstances.
Rule 7.30
MOTIONS THAT TOLL TIME
(1) Except as otherwise provided in subsection (2) of this rule or if the court
otherwise orders, any motion that must be ruled on before the next event in the appellate process
occurs, including but not necessarily limited to a motion to hold the appeal in abeyance, a motion
to amend a designation of record, to dismiss, to determine jurisdiction, for summary affirmance
under ORS 34.712, ORS 138.225, or ORS 138.660, to remand, to strike a brief, to supplement
the record, or for leave to present additional evidence under ORS 183.482(5),
1
tolls the time for
the next event in the appellate process as established in these rules, until the court disposes of the
motion. The motions listed in this rule do not toll the running of any period of time established
by statute.
(2) If the court has ordered that no further extensions of time will be granted, no
motion tolls the time for the next event in the appellate process as established in these rules. A
party may move for relief from a no-further-extensions-of-time order based on a showing of
extraordinary and compelling circumstances; any such motion must include in its title the
notation "RELIEF FROM NONTOLLING REQUESTED."
_________
1
See ORAP 4.25.
Rule 7.35
MOTIONS SEEKING EMERGENCY RELIEF
(1) If a party files a motion for substantive relief and requires relief in less than 21
days, the party shall include in the caption of the motion a statement that the motion is an
"EMERGENCY MOTION UNDER ORAP 7.35." The motion should explain in the first
paragraph the reason for the emergency and identify any deadline for action by the court.
100 Chapter 7
(2) Before filing the motion, the movant shall make a good faith effort to notify the
opposing counsel or opposing party, if the party is not represented by counsel. The motion shall
state whether the other party has been notified and served.
(3) A motion seeking emergency relief, other than a motion for an extension of time,
and any response to a motion seeking emergency relief may be served and filed by telephonic
facsimile communication device,
1
provided that the material being transmitted does not exceed
10 pages and subject to the following conditions:
(a) Filing shall not be deemed complete until the entirety of the motion or
response being transmitted has been received by the Administrator, but, as so filed, the
facsimile transmission shall have the same force and effect as filing of the original.
(b) The party or attorney being served maintains a telephonic facsimile
communication device at the party's address or at the attorney's office and the device is
operating at the time service is made. The proof of service shall contain the facsimile
number of any party or attorney served by facsimile transmission.
2
_________
1
The facsimile transmission number for the Administrator is (503) 986-5560.
2
See ORCP 9 F.
Rule 7.40
DISMISSAL OF APPEAL FOR LACK OF AN
UNDERTAKING FOR COSTS ON APPEAL
(1) A motion to dismiss an appeal for lack of an undertaking for costs on appeal shall
not be filed without at least seven days' notice to the appellant.
1
Notice may be written or oral.
The notice shall not be filed with the court.
(2) A motion to dismiss an appeal for lack of an undertaking for costs on appeal shall
state that the movant has given the notice required by subsection (1) of this rule or explain why it
has not. If written notice was given, a copy of the notice shall be attached to the motion.
(3) The filing of an undertaking in response to a motion to dismiss shall not, in and of
itself, be a sufficient response to the motion. Appellant shall file an answer to the motion
explaining whether there was good cause for the failure to comply with the notice or the statutory
deadline for filing and shall append a copy of the undertaking filed in the trial court.
(4) The movant may, but is not required to, assert that the movant has been
prejudiced by appellant's failure to file timely an undertaking for costs on appeal. If, however,
the motion is based on an assertion that appellant's failure to meet the statutory filing deadline
should result in dismissal, even though appellant complied with a later filing deadline stated in
the notice provided under subsection (1) of this rule, the movant must establish that substantial
101 Chapter 7
prejudice resulted from appellant's failure to meet the statutory filing deadline.
_________
1
See ORS 19.300 regarding filing an undertaking for costs on appeal.
Rule 7.45
MOTIONS ARISING FROM SETTLEMENT,
MEDIATION, OR ARBITRATION
(1) If a party files a motion to dismiss an appeal filed by that party, or files a response
to such a motion, and the motion is the result of a negotiated settlement or compromise, the
motion or response shall so state.
(2) If a party files a motion to dismiss or to determine jurisdiction arising from an
arbitration or mediation required or offered by a court, or files a response to such a motion, the
caption of the motion or response shall so state.
Rule 7.50
MOTION FOR SUMMARY AFFIRMANCE IN
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 opening brief and
without submission of the respondent's answering 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 rule 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,
3
counsel forthwith shall forward a copy of the motion for summary affirmance to the
client. The client shall have 35 days after 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 civil commitment cases under ORS chapters 426 or 427 and appeals
arising from juvenile court under ORS 419A.200.
102 Chapter 7
3
"Pro se" means "for oneself" or "on one's own behalf." A supplemental pro se brief is the
product of the party himself or herself, and not of the attorney representing the party.
Rule 7.55
COURT OF APPEALS
APPELLATE COMMISSIONER
(1) Except as otherwise provided in subsection (2) of this rule, the appellate
commissioner for the Court of Appeals is delegated concurrent authority to decide motions and
own motion matters that otherwise may be decided by the Chief Judge under ORS 2.570(6).
1
The appellate commissioner is delegated concurrent authority to decide any other matter that the
Court of Appeals or Chief Judge lawfully may delegate for decision.
(2) The appellate commissioner does not have authority to decide a motion that
would result in the disposition of a case on its merits, except as to:
(a) A joint or stipulated motion for a disposition on the merits, where the
relief granted is consistent with the relief sought in the motion.
(b) Except as provided in paragraph(c) of this subsection, a motion to reverse
and remand for new trial under ORS 19.420(3) due to loss or destruction of the trial court
record.
(c) A motion for summary affirmance to the same extent that the Chief Judge
could decide the motion under ORS 30.647(3), ORS 34.712, ORS 138.225, ORS
138.660, ORS 144.335(6), or any other statute authorizing summary affirmance.
(3) The appellate commissioner shall have the authority to refer any matter to the
Chief Judge or the Motions Department, as appropriate.
(4) (a) A party may seek reconsideration of a decision of the appellate
commissioner as provided by ORAP 6.25, with the exceptions that
(i) the provision of ORAP 6.25(1)(e) disfavoring claims addressing
legal issues already argued by the parties or addressed by the court shall not apply
to petitions or motions for reconsideration of a decision of the appellate
commissioner, and
(ii) only the original of the petition must be filed.
(b) If a party files a petition or motion for reconsideration of a ruling by the
appellate commissioner, the appellate commissioner may consider the matter in the first
instance. The appellate commissioner shall have the authority to grant a request for
reconsideration and modify or reverse the result. However, if the appellate commissioner
103 Chapter 7
would deny the request or grant the request and affirm the result, the commissioner shall
forward the request to the Chief Judge or the Motions Department, as appropriate, for
decision.
(c) Except as provided in paragraph (d) of this subsection, a decision of the
appellate commissioner is not subject to a petition for review in the Supreme Court, but
the decision of the Chief Judge or the Motions Department on reconsideration of a ruling
of the appellate commissioner is subject to a petition for review. ORAP 6.25(3) is not
applicable to a ruling of the appellate commissioner.
(d) When the appellate commissioner makes a determination of appealability
under ORS 19.235(3) and designates it as a summary determination as provided in ORAP
2.35(3)(a), the appellate commissioner's order is subject to a petition for review in the
Supreme Court.
(5) As used in this rule, "own motion matter" includes but is not limited to an order to
show cause why a case should not be dismissed for lack of jurisdiction or for lack of prosecution,
an order of dismissal for lack of jurisdiction or lack of prosecution where the court has raised the
ground for dismissal on its own motion, and an order for substitution of a public officer who is a
party to the case where a new person has duly assumed the public office.
(6) As used in these rules, "Motions Department" means the Court of Appeals
Motions Department.
_________
1
The Chief Judge of the Court of Appeals established the Appellate Commissioner Program by
Chief Judge Order No. 08-04, dated March 5, 2008. That and related orders may be viewed on
the Oregon Judicial Department's website at:
<https://www.courts.oregon.gov/publications/other/Pages/misc.aspx>, "Archives," "Orders
Establishing the Appellate Commission Program."
104 Chapter 8
8. MISCELLANEOUS RULES
Rule 8.05
SUBSTITUTION OF PARTIES
IN CIVIL CASES;
EFFECT OF DEATH OR ABSCONDING OF
DEFENDANT IN CRIMINAL CASES
(1) Oregon Rule of Civil Procedure (ORCP) 34, relating to substitution of parties in
civil cases, is adopted.
(2) (a) Any party who learns of the death of a defendant in a criminal case that is
pending on appeal shall notify the court and all other parties of the death within 28 days
after learning of the death. Any party may move to dismiss the appeal.
(b) If the appeal is from a judgment of conviction and sentence, the party
filing the notice also may, concurrently with filing the notice of the defendant's death, file
a memorandum addressing whether the court should dismiss the appeal or vacate the
judgment, or both. Within 28 days after the filing of the notice of the defendant's death,
any other party or interested person may file a memorandum addressing the same issues.
(c) The following are presumptive dispositions under this subsection:
(i) For a state's appeal, the court will dismiss the appeal.
(ii) For a defendant's appeal, if the defendant has made an assignment
of error that, if successful, would result in reversal of the conviction, the court
will vacate the judgment and dismiss the appeal.
(iii) For a defendant's appeal, if the defendant has assigned error only
to a part of the sentence other than a monetary provision, the court will dismiss
the appeal but will not vacate the judgment. If the defendant has assigned error to
a monetary provision of the sentence, the court will dismiss the appeal and vacate
the challenged monetary provision, but will not vacate the remainder of the
judgment.
(iv) Notwithstanding subparagraphs (ii) and (iii) of this paragraph, if
the defendant dies after issuance of a Court of Appeals decision affirming the
judgment and after all right to petition for review has expired, the court will
dismiss the appeal but will not vacate the judgment.
(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 court determines that the appellant is on escape or abscond status at the time the
105 Chapter 8
court decides the motion, the court may dismiss the appeal or judicial review. If the court has
not been advised otherwise, the court may infer that the appellant remains on escape or abscond
status when the court considers and decides the motion.
Rule 8.10
WITHDRAWAL, SUBSTITUTION, AND ASSOCIATION
OF ATTORNEYS ON APPEAL
(1) During the pendency of an appeal, an attorney may not withdraw from or
substitute new counsel in a case except on order of the appellate court. A motion to withdraw or
substitute new counsel must be filed and served on the client and every other party to the appeal,
and is subject to ORS 9.380(1)(b) and ORS 9.390.
(2) Except as provided in ORAP 8.12, unless it appears otherwise from the record,
the court will presume that good and sufficient cause exists for substitution of counsel if both
attorneys sign the motion for substitution of counsel. On filing of the motion for substitution of
counsel in proper form and bearing the signatures of both attorneys, the substitution shall be
deemed to have been ordered by the appellate court.
(3) An attorney who associates another attorney from a different firm on appeal shall
file a notice of association with the appellate court, accompanied by proof of service on every
other party to the appeal.
(4) An attorney admitted to the practice of law in another jurisdiction, but not in
Oregon, may appear by brief and argue the cause in a proceeding before an appellate court in the
manner prescribed in UTCR 3.170.
1
_________
1
See ORS 9.241; see also ORAP 6.10(4) concerning appearing for oral argument only.
Rule 8.12
APPOINTMENT, WITHDRAWAL, AND
SUBSTITUTION OF COURT-APPOINTED COUNSEL
OR LEGAL ADVISOR ON APPEAL
(1) (a) During the pendency of an appeal, withdrawal or substitution of court-
appointed counsel is subject to ORAP 8.10(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 court-appointed counsel of record wishes to substitute another court-
appointed attorney as counsel for a party, counsel of record first must consult with the
106 Chapter 8
Office of Public Defense Services regarding the need for a substitution and who should
be substituted as new counsel. Thereafter, if counsel of record files a motion for
substitution, in addition to satisfying the service requirements provided in ORAP 8.10(1),
counsel of record shall serve a copy of the motion on the Office of Public Defense
Services. Upon expiration of seven days after the date of filing the motion, unless it
appears otherwise from the record, the court will presume that good and sufficient cause
exists for substitution of counsel and the substitution shall be deemed to have been
ordered by the court if:
(i) Counsel of record has signed the substitution;
(ii) The new attorney to be substituted as counsel for a party has been
determined by the Office of Public Defense Services to be qualified for the type
of case in which the motion for substitution is filed; and
(iii) No objection is filed to the proposed substitution.
(b) If, after consultation by counsel of record with the Office of Public
Defense Services, the Office of Public Defense Services does not concur with the need
for substitution of counsel or does not approve the attorney to be substituted into the case,
counsel of record may file a motion for substitution of counsel. Any such motion must
satisfy the service requirements of subsection (1) of ORAP 8.10, must include proof of
service on the Office of Public Defense Services, and is subject to ORAP 7.05 and any
other rule relating to motions generally.
1
(3) (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 and serve the motion on the court-
appointed attorney.
(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.
2
(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
ORAP 5.92(2) and (3).
3
(4) To the extent practicable, the provisions of this rule are applicable to a legal
advisor appointed under ORS 135.045(1)(d).
4
_________
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
Procedure 1.7 (Substitution of Appointed Counsel).
107 Chapter 8
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.
3
"Pro se" means "for oneself" or "on one's own behalf." A supplemental pro se brief is the
product of the party himself or herself, and not of the attorney representing the party.
4
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 person
1
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 must:
(a) 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;
(b) identify the party with whom the amicus is aligned or state that the amicus
is unaligned;
(c) identify the deadline in the case that is relevant to the timeliness of the
amicus application (such as the date that the aligned party's brief is due); and
(d) explain why the application is timely relative to that deadline.
(e) 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 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 shall be subject to the same rules as those governing briefs of parties.
2
If,
consistently with this rule, a brief is submitted with the application, then:
(a) if the court grants the application, the date of filing for the brief relates
back to the date of filing for the application; or
108 Chapter 8
(b) if the court denies the application, the court will strike the brief.
(4) In the Court of Appeals, unless the court grants leave otherwise for good cause
shown, an amicus brief shall be due 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, seven days
after the date the opening brief is due.
(5) With respect to cases in the Supreme Court on petition for review from the Court
of Appeals:
(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 14 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 petitioner's brief on the merits 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.
(e) 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.
(6) Except as provided in ORAP 11.30(7), with respect to cases in the Supreme Court
on direct review or direct appeal, or other proceedings not subject to subsection (5), amicus
curiae briefs shall be due as provided in subsection (4) of this rule.
109 Chapter 8
(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 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), (5), and (6) 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 ORAP 5.05 to 5.30, ORAP 5.52, ORAP 5.77, ORAP 5.95, ORAP 9.05, ORAP 9.10, and
ORAP 9.17 concerning requirements for briefs.
3
See ORAP 9.17 concerning the due dates of briefs on review.
4
See ORAP 6.10 concerning oral argument.
Rule 8.20
EFFECT OF BANKRUPTCY PETITION
(1) When a matter is pending in the appellate courts and a party learns that the matter
is subject to the stay provisions of 11 USC § 362(a)(1)
1
(relating to bankruptcy proceedings), the
party shall give notice of that fact to the appellate court, together with proof of service of the
notice on all other parties to the case. The court will enter an order holding the matter in
abeyance until it is shown to the court's satisfaction that the stay has been lifted or that 11 USC
§ 362(a)(1) is not applicable to the case.
(2) If a petition in bankruptcy is filed after entry of a judgment or final order but
before a notice of appeal or petition for judicial review is filed and the adverse party desires to
appeal, the notice or petition must nonetheless be filed within the time provided by statute or
rule.
(3) If an appellant believes that a pending bankruptcy proceeding involving a party to
the judgment being appealed should stay the appeal pending disposition of the bankruptcy
proceeding, the notice of appeal or petition for judicial review shall contain, in addition to all
other requirements under a statute or these rules, a statement identifying the party that has filed a
petition in bankruptcy and a request to hold the appeal in abeyance on account of the bankruptcy
proceeding.
110 Chapter 8
(4) (a) Whether the petition in bankruptcy is filed after judgment or final order
but before a notice of appeal or petition for judicial review is filed, or after a notice or
petition is filed, the appellate court will not exercise jurisdiction as to the debtor party as
long as the stay under 11 USC § 362 remains in effect.
(b) If more than one creditor and debtor are parties to the case on appeal and
the presence of the debtor subject to the bankruptcy petition is necessary to resolve on
appeal the claims of the other parties, then the appellate court will not exercise
jurisdiction of the entire cause as long as the stay under 11 USC § 362 remains in effect.
_________
1
The filing of a petition in bankruptcy under 11 USC §§ 301, 302, or 303 operates as a stay as to
all entities, of:
"the commencement or continuation, including the issuance or employment of
process, of a judicial, administrative, or other proceeding against the debtor that
was or could have been commenced before the commencement of the case under
this title, or to recover a claim against the debtor that arose before the
commencement of the case under this title * * *."
11 USC § 362(a)(1).
Rule 8.25
MOTION UNDER ORCP 71 FOR
RELIEF FROM JUDGMENT
(1) If the copy of a motion for relief from judgment under ORCP 71 A or ORCP 71 B
required to be served on the appellate court
1
is not entitled "MOTION FOR RELIEF FROM
JUDGMENT UNDER ORCP 71," it shall be accompanied by a letter of transmittal identifying
the motion as a motion for relief under ORCP 71 A or ORCP 71 B.
(2) When a party has filed a motion for relief from judgment under ORCP 71 A or
ORCP 71 B while the judgment is on appeal, the appellate court will decide whether to hold the
appeal in abeyance pending disposition of the motion or to allow the appeal to go forward. Any
party to the appeal may move the court to hold the appeal in abeyance or to allow the appeal to
go forward. In the absence of a motion from a party, the court on its own motion will review the
motion for relief from judgment, decide whether to hold the appeal in abeyance and notify the
parties if it decides to do so. If the court does not order the appeal to be held in abeyance, the
appeal will go forward.
(3) A party wishing to appeal an order deciding a motion filed under ORCP 71 A or
ORCP 71 B during the pendency of an appeal shall file a notice of appeal within the time and in
the manner prescribed in ORS chapter 19. The notice of appeal as filed shall bear the same
appellate case number assigned to the original notice of appeal.
111 Chapter 8
(4) If the appellate court holds an appeal in abeyance pending disposition of a motion
under ORCP 71 A or ORCP 71 B and subsequently receives a copy of the trial court's order
deciding the motion, the appellate court shall decide whether to reactivate the case or take other
action after expiration of the period within which an appeal from the order may be filed.
_________
1
See ORCP 71 B(2).
Rule 8.27
MODIFICATION OF JUDGMENT OF
DISSOLUTION OF MARRIAGE DURING
PENDENCY OF APPEAL
(1) During the pendency of an appeal from a judgment of dissolution of marriage, if it
comes to the attention of the court that a party has filed a motion under ORS 19.275(1) to modify
the judgment of dissolution of marriage, including a motion to reconsider spousal or child
support provisions of a judgment pursuant to ORS 107.135, the appellate court may hold the
appeal in abeyance pending disposition of the motion or allow the appeal to go forward. Any
party to the appeal may move the court to hold the appeal in abeyance or to allow the appeal to
go forward. In the absence of a motion from a party, the court on its own motion may review the
motion filed in the trial court, decide whether to hold the appeal in abeyance and notify the
parties if it decides to do so. If the court does not order the appeal to be held in abeyance, the
appeal will go forward.
(2) A party wishing to appeal the trial court's final decision on a motion under ORS
19.275 during the pendency of an appeal shall file a notice of appeal within the time and in the
manner prescribed in ORS chapter 19. The notice of appeal as filed shall bear the same appellate
case number assigned to the original notice of appeal.
(3) If the appellate court holds an appeal in abeyance pending disposition of a motion
under ORS 19.275(1) and subsequently receives a copy of the trial court's final decision, the
appellate court shall decide whether to reactivate the appeal or take other action after expiration
of the period within which an appeal from the final decision may be filed. If a timely appeal
from the final decision on a motion under ORS 19.275 is filed, the court may direct that both
appeals be heard at the same time or may allow the appeals to proceed independently of one
another.
Rule 8.28
CORRECTED, SUPPLEMENTAL, OR NEW
JUDGMENTS IN CRIMINAL CASES AFTER
NOTICE OF APPEAL FILED
(1) After a notice of appeal is filed in a criminal case, if either the state or the
defendant files a motion in the trial court for entry of a corrected or supplemental judgment, the
112 Chapter 8
party filing the motion shall transmit a copy of the motion to the appellate court.
1
(2) (a) If the trial court enters a corrected or supplemental judgment on motion of
a party or on its own motion, a party wishing to appeal the corrected or supplemental
judgment shall file an amended notice of appeal within the time and in the manner
prescribed in ORS chapter 138 and shall use the appellate case number assigned to the
appeal from the original judgment. The amended notice of appeal shall state when the
party received notice of entry of the corrected or supplemental judgment.
(b) If the trial court enters a corrected or supplemental judgment and the
appellant no longer wishes to pursue the original appeal, the appellant shall file a motion
to dismiss the appeal.
(c) If the trial court denies a motion for entry of a corrected or supplemental
judgment subject to subsection (1) of this rule, the party who filed the motion shall notify
the Administrator in writing and within seven days after the date of entry of the trial
court's order and shall attach a copy of the order denying the motion.
(3) When a party has filed a motion subject to subsection (1) of this rule, pending a
final ruling on the motion by the trial court, the appellate court, on motion of a party or on its
own motion, may order that the appeal be held in abeyance. If an order is entered holding the
appeal in abeyance, when the court receives notice under subsection (2) of this rule that the trial
court has entered a corrected or supplemental judgment or a final order disposing of the motion,
the appellate court shall reactivate the appeal or issue such other order as may be appropriate.
_________
1
See, e.g., a motion in the trial court under ORS 137.172 for entry of a corrected judgment to
correct arithmetic or clerical errors or to delete or modify any erroneous term in the judgment; a
motion in the trial court under ORS 137.105 for entry of a supplemental judgment specifying the
amount of restitution to be paid by the defendant; and a motion for entry of a corrected judgment
under ORS 137.754.
Rule 8.30
DISQUALIFICATION OF JUDGE
(1) If a party or counsel for a party discovers that a sitting Court of Appeals or
Supreme Court judge participated in the case in the proceedings being appealed or reviewed, the
party or counsel shall notify the Administrator by letter of the judge's participation as soon as
possible after discovering the judge's participation.
(2) The duty of a party or counsel to notify the Administrator of a sitting appellate
judge's previous participation in the proceeding includes, in post-conviction relief and habeas
corpus cases, the underlying criminal proceeding.
(3) (a) In addition to the notice required by subsection (1) of this rule, a party or
113 Chapter 8
attorney for a party in a case before the Supreme Court or Court of Appeals may move to
disqualify a judge of the Supreme Court or Court of Appeals for one or more of the
grounds specified in ORS 14.210, or upon the ground that the judge's participation in the
case would violate the Oregon Code of Judicial Conduct. The motion shall be filed as
soon as practicable after the party or attorney learns of the ground for disqualification.
(b) (i) The Administrator shall forward a copy of the motion to the judge
against whom the motion is directed without waiting for an answer to the motion.
The judge may grant the motion with or without an answer having been filed. If
the judge does not believe that the motion is well taken, the judge shall refer the
motion to the presiding judge for decision. The judge's referral may be
accompanied by any written response the judge may wish to make. If the judge
accompanies the referral with written response, the judge shall provide the parties
with a copy of the written comments. The presiding judge may rule on the motion
or may refer the motion to the full court for a decision.
(ii) In the Court of Appeals, "presiding judge" means the Chief Judge,
unless the motion to disqualify is directed at the Chief Judge, in which case
"presiding judge" means the next senior judge available to rule on the motion. In
the Supreme Court, "presiding judge" means the Chief Justice, unless the motion
to disqualify is directed at the Chief Justice, in which case "presiding judge"
means the next senior judge available to rule on the motion.
Rule 8.35
MEDIA COVERAGE OF
APPELLATE COURT PROCEEDINGS
(1) As used in this rule, "judge presiding in a proceeding" means the Chief Justice of
the Supreme Court, the Chief Judge of the Court of Appeals, or the justice or judge presiding in a
public proceeding in the Supreme Court or Court of Appeals, as appropriate.
(2) The judge presiding in a proceeding shall have the authority and responsibility to
control the conduct of proceedings before the court, insure decorum and prevent distractions, and
insure the fair administration of justice in proceedings before the court. Subject to that authority
and responsibility, radio, television, and still photography coverage of public judicial
proceedings in the appellate courts shall be allowed in accordance with this rule.
(3) Where available, audio pickup for all media purposes shall be accomplished from
existing audio systems present in the courtroom, except if the audio pickup is attached to and
operated as part of a television or videotape camera. If no technically suitable audio system
exists in the courtroom, microphones and related wiring essential for media purposes shall be
unobtrusive and shall be located in places designated in advance of the proceeding by the judge
presiding in the proceeding.
(4) One still photographer, utilizing not more than two still cameras and related
114 Chapter 8
equipment, and one television or videotape camera operator shall be permitted to cover any
public proceeding in an appellate court. The judge presiding in the proceeding shall designate:
(a) Where in the courtroom the photographer or television or videotape
camera operator shall be positioned; and
(b) Where outside the courtroom videotape recording equipment that is not
part of the television or videotape camera shall be positioned.
(5) Microphones and cameras shall be placed in the courtroom before proceedings
each day or during a recess and, once positioned, shall not be moved during the proceeding.
Microphones and cameras shall be removed only after adjournment of proceedings each day or
during a recess. Broadcast media representatives shall not move about the courtroom while
proceedings are in session.
(6) (a) Audio and photographic equipment that produces distracting sound or
light shall not be used, nor shall artificial lighting device of any kind be used. Broadcast
media representatives shall eliminate all excessive noise while in the courtroom; e.g., any
equipment coverings or cassette cases should be removed or opened before being brought
into the courtroom and may not be replaced or closed inside the courtroom. Television
film magazines (as distinct from videotape) and still camera film or lenses shall not be
changed in the courtroom except during a recess.
(b) The judge presiding in the proceedings may require any media
representative intending to cover the proceeding to demonstrate adequately in advance of
the proceeding that the equipment that will be used meets the light and sound standards
of this rule.
(7) "Pooling" arrangements required by the limitations of this rule on media
equipment and personnel shall be the sole responsibility of the media without calling on the
judge presiding in the proceeding to mediate any dispute as to the appropriate representative or
equipment authorized to cover a particular proceeding. In the absence of advance media
agreement on disputed equipment or personnel issues, the judge presiding in the proceeding shall
exclude all radio, television and still photography coverage.
(8) Media representatives attending an appellate court proceeding shall be dressed so
as not to detract from the dignity of the court and may be removed from the courtroom for failure
to wear appropriate attire.
Rule 8.40
REVIEW OF TRIAL COURT RULINGS
AFFECTING APPEAL
During the pendency of an appeal, if the trial court rules on a matter affecting the appeal,
1
any party aggrieved by the trial court's ruling may request, by motion filed within 14 days after
the date of entry of the trial court's ruling, that the appellate court review the trial court's ruling
115 Chapter 8
and grant appropriate relief. The appellate court may review the ruling of the trial court on a
matter affecting an appeal as necessary to decide a matter before the court.
_________
1
See, e.g., ORS 19.235(1) and (2) (trial court summary determinations of appealability); ORS
19.370(5)-(7) (correction of, addition to, and settling of transcripts); ORS 19.375(2) (designating
party responsible for preparation of additional parts of transcript); ORS 138.500 (determinations
of indigency and preparation of a transcript at state expense and appointment of counsel on
appeal).
With respect to undertakings and stays on appeal, see ORS 19.360 (providing for
appellate review and prescribing time within which to move for appellate review of trial court
orders relating to undertakings and stays on appeal, prescribing the standard of the court's
review, and prescribing the scope of relief the appellate court may grant generally); ORS 19.300
(amount of undertaking for costs on appeal); ORS 19.305 (qualifications of sureties and
objections to sufficiency of an undertaking); ORS 19.310 (approval of stipulations dispensing
with undertaking requirements and waiver, reduction, or limitation of undertaking for good
cause); ORS 19.335 (supersedeas undertakings); ORS 19.340 (sale of perishable property); ORS
19.350 (discretionary stays); and ORS 19.355 (stays in domestic relations cases).
Rule 8.45
DUTY TO SERVE NOTICE OR
FILE MOTION ON OCCURRENCE OF EVENT
RENDERING APPEAL MOOT
Except as to facts the disclosure of which is barred by the attorney-client privilege, when
a party becomes aware of facts that probably render an appeal moot,
1
that party shall provide
notice of the facts to the court and to the other party or parties to the appeal, and may file a
motion to dismiss the appeal. If a party becomes aware of facts that probably render an appeal
moot and fails promptly to inform the other party or parties to the appeal and the court dismisses
the appeal as moot, the court, on motion of the aggrieved party, may award costs and attorney
fees incurred by the aggrieved party incurred after notice should have been given of the facts
probably rendering the appeal moot, payable by the party who had knowledge of the facts.
_________
1
For example, the death of the defendant in a criminal case, the release from custody of the
plaintiff in a habeas corpus case, or settlement of a civil case.
Rule 8.47
NOTIFICATION OF RELATED CASES
When a party files a brief in the Court of Appeals, if the party is aware of another case
pending in an appellate court that arises out of the same case or consolidated case, or that
involves the same transaction or event, the party must file a notice with the Court of Appeals
116 Chapter 8
identifying the related case by case title and appellate case number. The notice must be a
separate document from the party’s brief. A party may likewise notify the Court of Appeals if
the party is aware of another case pending in an appellate court that raises the same or a closely
related issue. A party need not notify the Court of Appeals of a related case if another party has
already done so.
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) 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
caption of the separate document must prominently display the words "Segregated
Personal Protected Information, ORAP 8.50(2)(a), Confidential." 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.
(b) A person or entity who has filed a document in the appellate court that
contains protected personal information may submit a motion to replace the document
with a document that redacts the protected personal information and requesting that the
appellate court keep the original document segregated from the appellate court file. The
caption of the motion must prominently display the words "Motion -- Redact Previously
Filed Document, ORAP 8.50(2)(b)." The moving party shall submit the proposed
redacted document with the motion. The moving party shall serve a copy of the motion
and the proposed redacted document on all other parties to the appeal, review, or other
proceeding. During the pendency of the motion, the document containing protected
personal information will not be available for public inspection.
1
(3) If the court grants the motion, then the court will segregate the document
containing protected personal information from the appellate court file. The motion will remain
in the appellate court file. Any request for public inspection of such a document containing
protected personal information must be made in writing, filed with the appellate court, and
117 Chapter 8
served on all other parties to the appeal, review, or other proceeding.
_________
1
Chief Justice Order No. 06-050, issued October 31, 2006, under authority of ORS 1.002(1)(a)
and ORS 21.020(2), and effective January 1, 2007, prescribes a fee of $25.00 per case and $1.00
per existing appellate file page replaced with redacted entries.
See Oregon Laws 2003, chapter 380, adopting ORS 107.840 and amending other statutes and
protecting the confidentiality of Social Security numbers; see also ORAP 1.35(1)(b) concerning
requirement that parties with contact information that is shielded by law or court order provide
appellate courts with alternative contact information that may be made available for public
inspection.
Rule 8.52
CONFIDENTIAL AND SEALED ATTACHMENTS
A document that includes an attachment containing material that is, by statute or court
order, confidential, sealed, or otherwise exempt from disclosure
1
must include:
(1) in the caption, prominently displayed, the words "Includes Confidential
Attachment" or "Includes Sealed Attachment," as applicable; and
(2) in the filing, a statement citing the authority by which the attachment is deemed
confidential or sealed.
_________________
1
See, e.g., ORS 36.222(5) regarding confidential mediation communications and agreements;
ORS 135.139, ORS 433.045(3), and ORS 433.055 regarding records revealing HIV testing
information; ORS 137.077 regarding presentence investigation reports; ORS 179.495 and ORS
179.505 regarding medical records maintained by state institutions; ORS 412.094 regarding
nonsupport investigation records; ORS 419B.035 regarding abuse investigation records; ORS
426.160 and ORS 426.370 regarding records in civil commitment cases; and ORS 430.399(6)
regarding alcohol and drug abuse records. See generally ORAP 16.15(5)(b) for procedure for
eFiling attachments that are confidential or otherwise exempt from disclosure.
Rule 8.55
CRIMINAL CONVICTION SET ASIDES;
DELINQUENCY ADJUDICATION EXPUNGEMENTS
If a circuit court sets aside the conviction of a party in a criminal case under ORS
137.225 or expunges the delinquency adjudication in a juvenile court case under ORS 419A.262
and the party wishes to have the appellate court record sealed, the party must provide the
Administrator with a true and complete copy of the circuit court order. After taking such steps as
appropriate to confirm the validity of the order:
118 Chapter 8
(1) If the circuit court order sets aside all convictions or expunges all delinquency
adjudications in the case, the Administrator will seal the appellate court record and modify the
version of the court's opinion published on the Judicial Department's website to avoid use of the
party's name in the case title and body of the opinion.*
(2) If a circuit court order sets aside fewer than all convictions or adjudications in a
case, the Administrator will not seal the appellate court record, but may modify the version of the
court's opinion published on the Judicial Department's website to avoid use of the party's name in
the case title and body of the opinion.*
_________
* Appellate court opinions also are published in the softbound Oregon Appellate Courts Advance
Sheets and thereafter in the hardbound Oregon Reports. The version of an opinion in those
publications cannot be modified after publication. Appellate court opinions also are collected
and published, in book form or electronically or both, by various persons and entities, including
private legal research entities. The court has no control over whether those persons and entities
will honor the court's post-publication modification of an opinion.
119 Chapter 9
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120 Chapter 9
9. PETITION FOR REVIEW AND
RECONSIDERATION IN SUPREME COURT
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 affirmance without opinion, or an order ruling on a motion,
own motion matter, petition for attorney fees, or statement of costs and disbursements, including
an order of the appellate commissioner together with the decision of the Chief Judge or Motions
Department under ORAP 7.55(4)(c) or an order of the appellate commissioner under ORAP
7.55(4)(d).
(2) Time for Filing and for Submitting Petition for Review
(a) Except as provided in ORS 19.235(3) and ORAP 2.35(4), 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 after the date of the decision of the Court of
Appeals.
1
The Supreme Court may grant an extension of time to file a petition for
review.
(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 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 written disposition of the petition for
reconsideration.
2
(c) (i) If a party files a petition for review after the appellate judgment
has issued, the party must file with the petition a motion to recall the appellate
judgment. The petition and the motion must be filed within a reasonable time
after the appellate judgment has issued. The motion to recall the appellate
121 Chapter 9
judgment must explain why the petition for review was not timely filed. The
party need not file a separate motion for relief from default.
(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
ORAP 5.05 and ORAP 5.35. For purposes of ORAP 5.05, the petition must not exceed
5,000 words or (if the certification under ORAP 5.05(2)(d) certifies that the preparer does
not have access to a word-processing system that provides a word count) 15 pages. The
cover of the petition shall:
(i) Identify which party is the petitioner on review, including the
name of the specific party or parties on whose behalf the petition is filed, if there
are multiple parties on the same side in the case.
(ii) Identify which party is the respondent on review.
(iii) Identify the date of the decision of the Court of Appeals.
(iv) Identify the means of disposition of the case by the Court of
Appeals:
(A) If by opinion, the author of the challenged opinion and the
other members of the court who concurred in or dissented from the court's
decision;
(B) If by per curiam opinion, affirmance without opinion, or by
order, the members of the court who decided the case.
3
(v) Contain a notice whether, if review is allowed, the petitioner on
review intends to file a brief on the merits or to rely on the petition for review and
brief or briefs filed in the Court of Appeals.
4
(vi) For a case expedited under ORAP 10.15, prominently display the
words "JUVENILE DEPENDENCY CASE EXPEDITED UNDER ORAP
10.15," "TERMINATION OF PARENTAL RIGHTS CASE EXPEDITED
UNDER ORAP 10.15," or "ADOPTION CASE EXPEDITED UNDER ORAP
10.15," as appropriate.
(vii) Comply with the requirements in ORAP 5.95 governing briefs
containing confidential material.
122 Chapter 9
(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 with proof of service.
(4) Contents of Petition for Review
The petition shall contain in order:
(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.
(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.
(c) A statement of specific reasons why the 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.
(e) A copy of the decision of the Court of Appeals, including the court's
opinion and any concurring and dissenting opinions.
_________
1
See generally ORS 2.520. See 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) of this rule does not apply to a motion for reconsideration filed under ORAP
6.25(5).
3
See Appendix 9.05.
4
See ORAP 9.17 regarding briefs on the merits.
5
See 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
paragraph.
See 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.
123 Chapter 9
Rule 9.07
CRITERIA FOR GRANTING
DISCRETIONARY REVIEW
The Supreme Court considers the items set out below to be relevant to the decision
whether to grant discretionary review. These criteria are published to inform and assist the bar
and the public. They are neither exclusive nor binding. The court retains the inherent authority to
allow or deny any petition for review. A petition for review may refer to those items that are
relevant to the case and need not address each listed item.
1
(1) Whether the case presents a significant issue of law. A significant issue of law
may include, for example:
(a) The interpretation of a constitutional provision,
(b) The interpretation of a statute,
(c) The constitutionality of a statute,
(d) The legality of an important governmental action,
(e) The use or effect of a rule of trial court procedure,
(f) The jurisdiction of the Court of Appeals or the trial court, or
(g) The application or proposed modification of a principle of common law.
(2) Whether the issue or a similar issue arises often.
(3) Whether many people are affected by the decision in the case. Whether the
consequence of the decision is important to the public, even if the issue may not arise often.
(4) Whether the legal issue is an issue of state law.
(5) Whether the issue is one of first impression for the Supreme Court.
(6) Whether the same or a related issue is pending before the Supreme Court.
(7) Whether the legal issue is properly preserved, and whether the case is free from
factual disputes or procedural obstacles that might prevent the Supreme Court from reaching the
legal issue.
(8) Whether the record does, in fact, present the desired issue.
(9) Whether present case law is inconsistent (among Court of Appeals cases, between
Court of Appeals cases and Supreme Court cases, or among Supreme Court cases).
124 Chapter 9
(10) Whether it appears that trial courts or administrative agencies are inconsistent or
confused in ruling on the issue that the case presents.
(11) Whether the Court of Appeals published a written opinion.
(12) Whether the Court of Appeals was divided on the case.
(13) Whether the Court of Appeals decided the case en banc.
(14) Whether the Court of Appeals decision appears to be wrong. If the decision
appears to be wrong:
(a) Whether the error results in a serious or irreversible injustice or in a
distortion or misapplication of a legal principle.
(b) Whether the error can be corrected by another branch of government, such
as by legislation or rulemaking.
(15) Whether the issues are well presented in the briefs.
(16) Whether an amicus curiae has appeared, or is available to advise the court.
_________
1
A party may include in an appendix to a petition for review materials in support of criteria
under this rule that are not otherwise part of the record on appeal, such as materials
demonstrating how the case may affect persons other than the parties to the immediate case or
how the case is important to the public.
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. The response may include the party's contingent request
for review of any question properly before the Court of Appeals in the event that the court grants
the 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 response to a petition for review is due within 14 days after the petition for
review is filed.
(3) A response shall be in the form of a brief prepared in conformity with ORAP 5.05
and ORAP 5.35. For purposes of ORAP 5.05, the response must not exceed 5,000 words or (if
the certification under ORAP 5.05(2)(d) certifies that the preparer does not have access to a
word-processing system that provides a word count) 15 pages. Any party filing a response shall
125 Chapter 9
file with the Administrator one original response, serve two copies of the response on every other
party to the review, and file proof of service.
Rule 9.17
BRIEFS ON THE MERITS ON REVIEW
(1) After the Supreme Court allows review, the parties to the case on review may file
briefs on the merits of the case, as provided in this rule. A respondent may file a brief on the
merits on review even if the petitioner on review elects not to do so.
(2) (a) If a petitioner on review has given notice of intent to file a brief on the
merits as provided in ORAP 9.05(3)(a)(v), the petitioner shall have 28 days after the date
that the Supreme Court allows review to file the brief.
(b) The petitioner's brief on the merits on review shall contain:
(i) Concise statements of the legal question or questions presented on
review and of the rule of law that petitioner proposes be established. The
questions should not be argumentative or repetitious. The phrasing of the
questions need not be identical with any statement of questions presented in the
petition for review, but the brief may not raise additional questions or change the
substance of the questions already presented.
(ii) A concise statement of:
(A) The nature of the action or proceeding, the relief sought in
the trial court, and the nature of the judgment rendered by the trial court;
and
(B) All the facts of the case material to determination of the
review, in narrative form with references to the places in the record where
the facts appear.
(iii) A summary of the argument.
(iv) The argument.
(v) A conclusion, specifying with particularity the relief which the
party seeks.
(c) The petitioner's brief on the merits on review shall conform to ORAP
5.05, ORAP 5.35, ORAP 5.95, and ORAP 9.05(3).
(3) (a) The respondent's brief on the merits on review shall be filed within these
time limits:
126 Chapter 9
(i) If petitioner files a brief on the merits on review, respondent's brief
on the merits on review is due within 28 days thereafter;
(ii) If petitioner gives notice of intent to file a brief on the merits on
review but ultimately either does not do so or does not do so within the time
allowed, respondent's brief on the merits on review is due within 28 days after the
date on which petitioner's brief on the merits on review was due;
(iii) If petitioner either has failed to give notice of intent to file a brief
on the merits on review as provided in ORAP 9.05(3)(a)(v) or has given notice of
intent not to file a brief on the merits on review, respondent's brief on the merits
on review is due within 28 days after review is allowed.
(b) Items required by paragraph (2)(b) of this rule need not be included in
respondent's brief on the merits on review unless respondent is dissatisfied with their
presentation in petitioner's brief on the merits on review.
(c) The respondent's brief on the merits on review shall conform to ORAP
5.05, ORAP 5.35, and ORAP 5.95.
(4) The petitioner on review may file an optional reply brief to the respondent's brief
on the merits. The petitioner's reply brief on the merits shall conform to ORAP 5.05, ORAP
5.35, and ORAP 5.95. The reply brief on the merits, if any, is due within 14 days of the date on
which respondent's brief on the merits on review was due.
(5) In complex cases, such as cases with multiple parties, multiple petitions, or both,
the parties may confer and suggest an alternative briefing schedule as provided in ORAP 5.80(8).
Rule 9.20
ALLOWANCE OF REVIEW
BY SUPREME COURT
(1) A petition for review of a decision of the Court of Appeals shall be allowed if one
less than a majority of the judges eligible to vote on the petition vote to allow it.
(2) If the Supreme Court allows a petition for review, the court may limit the
questions on review. If review is not so limited, the questions before the Supreme Court include
all questions properly before the Court of Appeals that the petition or the response claims were
erroneously decided by that court. The Supreme Court's opinion need not address each such
question. The court may consider other issues that were before the Court of Appeals.
(3) When the Supreme Court allows a petition for review, the court may request the
parties to address specific questions. Those specific questions should be addressed at oral
argument and may also be addressed in the parties' briefs on the merits on review or by
127 Chapter 9
additional memoranda. If addressed by additional memoranda, the original additional
memoranda shall be filed and copies served not less than seven days before argument or
submission of the case.
(4) The parties' briefs in the Court of Appeals will be considered as the main briefs in
the Supreme Court, supplemented by the petition for review and any response, brief on the
merits on review, or additional memoranda that may be filed.
1
(5) The record on review shall consist of the record before the Court of Appeals.
_________
1
See ORAP 9.10 regarding responses to petitions for review; see ORAP 9.17 regarding briefs on
the merits.
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 14 days after the date of the decision. The petition shall be in
the form of a brief, prepared in conformity with ORAP 5.05 and ORAP 5.95, insofar as they are
applicable. The petition must be no longer than a petition for review in the Supreme Court as
prescribed by ORAP 9.05(3)(a). 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) Any response to a petition for reconsideration must be filed within seven days
after the filing of the petition for reconsideration.
(3) 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 9.30
AUTHORITY OVER MATTERS, INCLUDING
MOTIONS, WHEN CASE IS PENDING
IN THE SUPREME COURT
(1) The Supreme Court has authority to decide matters, including motions, if the case
is pending in that court. For purposes of this rule, a case is pending in the Supreme Court in the
following circumstances:
(a) If a petition for review is filed, until the Supreme Court finally disposes of
the review proceeding;
128 Chapter 9
(b) If a motion for an extension of time to file a petition for review is filed,
until the Supreme Court denies the motion or, if the Supreme Court allows the motion,
until the time for filing the petition for review expires;
(c) If a motion to hold a case in abeyance pending disposition of another case
in the Supreme Court is filed, until the Supreme Court denies the motion or, if the
Supreme Court grants the motion, until the abeyance period expires.
(2) The Court of Appeals has authority to decide matters, including motions, in an
appeal that was filed in that court in the following circumstances:
(a) If the case is not pending in the Supreme Court, until the appellate
judgment issues.
1
(b) If the case is pending in the Supreme Court, until the later of these two
events occurs: (1) the time for filing a petition for reconsideration pursuant to ORAP
6.25 expires or (2) if a timely petition for reconsideration is filed, the date the Court of
Appeals disposes of the petition for reconsideration.
(c) In connection with claims for attorney fees, costs and disbursements, and
damages
2
in connection with the proceedings in the Court of Appeals, until the appellate
judgment issues, notwithstanding that the case is pending in the Supreme Court.
(d) If a case is pending in the Supreme Court as to any action of the Court of
Appeals that does not dispose of an appeal, until the appellate judgment issues. In these
circumstances, the Court of Appeals, in its discretion, may proceed with the case or await
disposition by the Supreme Court.
(3) Motions should not be filed simultaneously in both the Supreme Court and Court
of Appeals. If either the Supreme Court or Court of Appeals receives a motion that it determines
should have been filed in the other court, it shall transfer the motion to the other court. In the
event a dispute arises concerning which court should rule on a motion, the Chief Justice of the
Supreme Court and the Chief Judge of the Court of Appeals may confer and decide which court
will rule on the motion.
_________
1
See ORS 19.270, ORS 19.450, and ORAP 14.05.
2
See, e.g., ORS 19.445 and ORS 20.105
129 Chapter 9
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130 Chapter 10
10. SPECIAL COURT OF APPEALS RULES
Rule 10.05
APPLICATION FOR INTERLOCUTORY APPEAL
IN CLASS ACTION
The practice and procedure governing applications to appeal from certain court orders
involving questions of law under ORS 19.225 shall be as follows:
(1) An application to file an interlocutory appeal under ORS 19.225 shall be entitled
"Appellant's Application for Interlocutory Appeal Pursuant to ORS 19.225." The applicant shall
be entitled "Appellant" and the opposing party "Respondent." The application shall be
accompanied by the appellant's filing fee.
(2) The application shall consist of:
(a) A statement not exceeding three pages formally applying for leave to file
notice of appeal and informing the court of the nature of the cause or causes of action
involved, the specific order desired to be appealed and its effect on the litigation, and the
controlling question of law pertinent to the application.
(b) A memorandum not exceeding 10 pages explaining why the application
should be allowed, accompanied by a copy of any exhibits necessary to the explanation.
(c) A notice of appeal in the form provided in ORAP 2.05.
(3) An applicant shall file with the Administrator the original application and all
accompanying papers, together with proof of service on all other parties to the case and the trial
court judge.
(4) The opposing party shall be allowed 14 days within which to file an answer,
which shall be entitled, "Respondent's Memorandum in Response to Application for
Interlocutory Appeal Pursuant to ORS 19.225." The answering memorandum shall not exceed
10 pages and shall be accompanied only by the exhibits necessary to support the explanation
why the application should not be allowed.
(5) The respondent shall file with the Administrator the original answering
memorandum and all accompanying papers, together with proof of service on all other parties to
the case and the trial court judge. The answering memorandum shall be accompanied by the
respondent's appearance fee.
(6) If the respondent seeks to appeal from an order under ORS 19.225 independently
of the appellant, the respondent shall accompany the answering memorandum with an
application in the form required by this rule and an appellant's filing fee. If the respondent seeks
to cross-appeal from the same order that the appellant seeks to appeal only if the court allows the
131 Chapter 10
appellant's application, respondent shall tender a notice of cross-appeal but need not comply with
subsections (2), (3), and (5) of this rule.
(7) An applicant shall be allowed seven days within which to file a reply, consisting
of no more than seven pages, which shall be entitled "Appellant's Reply to Memorandum in
Response to Application for Interlocutory Appeal Pursuant to ORS 19.225." The applicant shall
file the original reply together with proof of service on all other parties to the case and the trial
court judge.
(8) If the Court of Appeals allows an application under ORS 19.225, the notice of
appeal and notice of cross-appeal are deemed filed as of the date of the order allowing the
application. The appeal shall then proceed in accordance with the statutes and rules governing
civil appeals.
Rule 10.10
CERTIFICATION OF APPEAL TO
SUPREME COURT BY COURT OF APPEALS
(1) Certification of an appeal to the Supreme Court pursuant to ORS 19.405 shall be
through the Chief Judge by a majority of the judges of the Court of Appeals not disqualified to
consider the appeal to be certified.
(2) Written notice of certification shall be given to the parties to the appeal by the
Administrator, but failure to give or receive the notice shall not affect the validity of the
certification.
(3) Certification shall have the same effect as a motion subject to ORAP 7.30, except
that the Court of Appeals may consider any motion, petition or other matter presented by a party
pending the acceptance or denial of acceptance of the certification, on a showing that the matter
presented should be considered during the pendency of the certification.
(4) If the Supreme Court denies acceptance of a certified appeal, or if the Supreme
Court fails to accept or deny acceptance of a certified appeal within the time provided by ORS
19.405, the Administrator shall notify the Court of Appeals and the parties to the appeal in
writing; the case shall thereafter proceed in due course in the Court of Appeals.
(5) The Court of Appeals may not certify an appeal more than one time.
(6) To accept a certified appeal, a majority of the judges of the Supreme Court
considering the certification must vote in favor of acceptance. The court shall file an order
accepting or denying the certification within 20 days after the date of receiving the certification,
except that the court, by order entered within that 20-day period, may extend by not more than
10 days the time for acceptance or denial of the certified appeal. If the court does not file an
order accepting or denying the certification within that time, the certification is deemed denied.
132 Chapter 10
If the court accepts or denies a certification by written order, the Administrator shall send a copy
of the order to the parties and to the Court of Appeals.
(7) If the Supreme Court accepts a certified appeal, the Court of Appeals shall
transmit the record of the case and the briefs of the parties to the Supreme Court, and the
Supreme Court shall thereafter have jurisdiction of the case, and it shall be considered pending in
the Supreme Court without additional notice of appeal, filing fee, undertaking or, except as the
Supreme Court may require, briefs. The case shall then proceed in the Supreme Court as
directed in its notification of acceptance.
_________
See ORS 250.044 regarding special provisions for certifying certain appeals arising from cases
filed in Marion County Circuit Court challenging the constitutionality of a state statute or an
amendment to the Oregon Constitution by a ballot measure.
Rule 10.15
JUVENILE DEPENDENCY AND ADOPTION CASES
(1) (a) Subsections (2) through (10) of this rule apply to an adoption case and a
juvenile dependency case under ORS 419B.100, including but not limited to a case
involving jurisdiction, disposition, permanency, or termination of parental rights, but
excluding a support judgment under ORS 419B.400 to 419B.408.
(b) On motion of a party or on the court's own motion, the Court of Appeals
may direct that a juvenile dependency case under ORS 419B.100, except a termination of
parental rights case, be exempt from subsections (2) through (10) of this rule.
(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 "EXPEDITED JUVENILE DEPENDENCY CASE (NOT TPR)," "EXPEDITED
TERMINATION OF PARENTAL RIGHTS CASE," "JUVENILE DEPENDENCY SUPPORT
CASE (NOT EXPEDITED)," or "EXPEDITED ADOPTION CASE," as appropriate.
1
(3) (a) In an adoption case or in a juvenile dependency case in which the
appellant is proceeding without counsel or is represented by retained counsel, appellant
shall make arrangements for preparation of the transcript within seven days after filing
the notice of appeal.
(b) When the appellant is eligible for court-appointed counsel on appeal, the
preparation of transcript at state expense is governed by the policies and procedures of
the Office of Public Defense Services.
2
(c) In a disposition proceeding pursuant to ORS 419B.325, a dispositional
review proceeding pursuant to ORS 419B.449, a permanency proceeding pursuant to
ORS 419B.470 to 419B.476, or a termination of parental rights proceeding, respecting
133 Chapter 10
the record in the trial court, the appellant may designate as part of the record on appeal
only the transcripts of the proceedings giving rise to the judgment or order being
appealed, the exhibits in the proceeding, and the list prepared by the trial court under
ORS 419A.253(2) and all reports, materials, or documents identified on the list. A party
may file a motion to supplement the record with additional material pursuant to ORS
19.365(4) and ORAP 3.05(3).
(4) (a) The court shall not extend the time for filing the transcript under ORAP
3.30 or for filing of an agreed narrative statement under ORAP 3.45 for more than 14
days.
3
(b) Except on a showing of exceptional circumstances, the court shall not
grant an extension of time to request correction of the transcript.
4
(5) The trial court administrator shall file the trial court record within 14 days after
the date of the State Court Administrator's request for the record.
(6) (a) Appellant's opening brief and excerpt of record shall be served and filed
within 28 days after the events specified in ORAP 5.80(1)(a) to (f).
(b) Respondent's answering brief shall be served and filed within 28 days after
the filing of the appellant's opening 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.
(7) The court will set the case for oral argument within 56 days after the filing of the
opening brief.
(8) Notwithstanding 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.
(9) The Supreme Court shall not grant an extension or extensions of time totaling
more than 21 days to file a petition for review.
(10) (a) Notwithstanding any provision to the contrary in 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 party
has filed a petition for review on the merits and the Supreme Court denies review,
134 Chapter 10
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 10.15.
2
See ORS 419A.211(3).
3
See ORS 19.370(2); ORS 19.395.
4
See ORS 19.370(5).
Rule 10.20
ARBITRATION OF DISPUTES OVER
PROVISION OF PUBLIC SERVICES
FOR PRISON SITES
(1) When a motion is filed under ORS 421.628(7) seeking selection of an arbitrator:
(a) The case title shall identify the moving party as the petitioner and the
adverse party as the respondent.
(b) The motion shall be entitled "MOTION FOR SELECTION OF
ARBITRATOR UNDER ORS 421.628(7)."
(c) The motion may nominate one or more arbitrators and shall suggest rules
and procedures for the arbitration proceeding.
(d) The moving party shall serve a copy of the motion on the adverse party
and the motion shall contain proof of service on the adverse party.
(e) The adverse party shall have 14 days after the date the motion was filed to
file an answer to the motion. The adverse party may nominate one or more arbitrators and
may suggest alternative rules and procedures for the arbitration proceeding.
135 Chapter 10
(f) When the Chief Judge of the Court of Appeals selects an arbitrator and
decides the rules and procedures to be followed in the proceeding, the Administrator shall
so inform the parties. Thereafter, the parties will be responsible for contacting the
arbitrator and making arrangements for the arbitration proceeding, including sharing the
expense of the arbitration proceeding and the arbitrator's fee.
(2) Following the arbitration proceeding, if either party files exceptions to the
arbitrator's decision and award:
(a) The case caption shall contain the same case title and appellate case
number as the motion for selection of arbitrator and the exceptions shall have attached to
it a copy of the arbitrator's decision and award.
(b) The arbitrator shall have 14 days after the date of being served with a copy
of the exceptions to submit to the Court of Appeals the original of the arbitration decision
together with any exhibits, memoranda or other written materials made part of the record
by the arbitrator.
(c) No later than 14 days after the arbitrator's record is submitted to the Court
of Appeals, any party wishing to have a special master appointed shall file a motion
demonstrating the need for a special master. The adverse party shall have 14 days to file
an answer to the motion. If the court appoints a special master, the court's order will
prescribe the rules and procedure for the proceeding before the special master.
(d) If no party requests appointment of a special master, the party filing
objections shall have 14 days after the arbitrator submits the record to the court to serve
and file a memorandum in support of the objections.
(e) If a special master is appointed, the party filing objections shall have 14
days after the special master submits the special master's findings to the court to file a
memorandum in support of the objections.
(f) The adverse party shall have 14 days after being served with the
memorandum in support of the objections to file an answer to the objections.
(g) The court in its discretion will hear oral argument on the objections to the
arbitrator's decision.
Rule 10.25
EXPEDITED APPEAL OF CERTAIN PRETRIAL
ORDERS IN CRIMINAL CASES
(1) This rule applies to a pretrial appeal under ORS 138.045(1)(a) or (d) when the
defendant is charged with a felony and is in custody, and the trial court has dismissed or set aside
136 Chapter 10
the accusatory instrument or suppressed evidence.
1
(2) In all cases subject to this rule:
(a) The case caption of any brief, motion, petition, or other paper filed with
the court shall include the words "EXPEDITED APPEAL UNDER ORS _____" and
identifying the statute authorizing the expedited appeal.
(b) Appellant's opening brief shall be due 35 days after the transcript settles.
Failure to file the opening brief within the prescribed time will result in automatic
dismissal of the appeal.
(c) Respondent's answering brief shall be due 35 days after appellant's
opening brief is served and filed. If respondent fails to file an answering brief within the
prescribed time, the appeal will be submitted on appellant's opening brief and oral
argument, and respondent will not be allowed to argue the case.
(d) Absent extraordinary circumstances, the court will not grant an extension
of time or reschedule oral argument.
(e) A motion made before oral argument will not toll the time for transmitting
the record, filing briefs, or hearing oral argument.
_________
1
See ORS 138.261.
Rule 10.35
JOINT MOTIONS FOR
RESOLUTION OF APPEALS BY UNPUBLISHED ORDER
(1) On joint motion of the parties to any appeal, a department of the Court of Appeals
may decide the merits of an appeal by unpublished order if the department determines;
(a) The appeal does not present a substantial question of law;
(b) All parties to the appeal agree both on the correct resolution of all
questions raised on appeal and on the appropriate disposition of the appeal; and
(c) A published opinion would not significantly benefit the bench, the bar, or
the public.
(2) Parties seeking relief based on the assertion that the appeal does not present a
substantial question of law must include a sufficient statement of facts of the case to show that
all of the questions raised on appeal are grounded in those facts.
137 Chapter 10
(3) Parties are discouraged from moving for relief under this subsection when
resolution of the merits of the appeal would require the appellate court to try the cause anew
upon the record or to make one or more factual findings anew upon the record. The Court of
Appeals will exercise its discretion to grant relief under this subsection in such cases only in
exceptional circumstances.
1
_________
1
See also ORS 138.227, ORS 138.665, and ORS 419A.209, pertaining, respectively, to criminal,
post-conviction relief, and juvenile court cases, and authorizing the filing of a joint motion to
vacate the trial court decision being appealed and to remand for reconsideration. Under ORS
2.570(6), such motions may be decided by order.
138 Chapter 11
11. ORIGINAL PROCEEDINGS IN
THE SUPREME COURT
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) Except as otherwise provided in this rule, a petition for writ of mandamus shall
comply as to form with ORAP 5.05(3). The petition shall also include, in addition to any matters
required by law:
(a) A title page including a caption containing the title of the proceeding, a
heading indicating the type of writ requested (e.g., "petition for alternative writ of
mandamus," "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.
(i) 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
(ii) 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
(b) On the title page, the relator shall include the litigant contact information
required by ORAP 1.30. If any party is not represented by an attorney, the title page shall
include the party's name, mailing address, and telephone number.
(c) A statement in support of the petition, containing:
(i) A concise but complete statement of facts material to a
determination of the question or questions presented and the relief sought;
(ii) A statement why the petition is timely.
4
(iii) A statement why application was not made to the circuit court for
139 Chapter 11
relief; and
(iv) 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.
5
(d) Proof of service as follows:
(i) 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.
(ii) 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.
(iii) 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.
6
(e) If the relator seeks a stay in the proceedings from which the mandamus
proceeding arises, the caption shall indicate "STAY REQUESTED," and the relator shall
show, in the statement in support of the petition, 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. If the relator seeks to
have the Supreme Court stay the proceedings from which the mandamus proceeding
arises, the relator shall file a motion pursuant to chapter 7 of the Oregon Rules of
Appellate Procedure.
(f) If the mandamus proceeding challenges a written order or decision, a copy
of the order or decision shall be attached to the petition.
(3) The relator shall accompany the petition:
(a) With a memorandum of law with supporting arguments and citations. The
form of the memorandum shall comply with ORAP 7.10(1) and (2).
(b) If the mandamus proceeding arises from a matter in which a record has
been made, the relator must assemble an excerpt of record containing such parts of the
record relating to the matter as is necessary for a determination of the question or
questions presented and the relief sought. The excerpt of record must comply with
ORAP 5.50(5).
140 Chapter 11
(c) 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.
(4) (a) 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."
7
(b) If no record was made below, the petition, memorandum, and other
supporting material may be submitted as a single document.
(c) If a record was made in the matter from which the mandamus proceeding
has arisen, the relator shall assemble and submit the petition, the memorandum in support
of the petition, and the excerpt of record as separate documents.
(d) The original petition and accompanying documents shall be filed with the
Administrator.
(5) If the petition, memorandum, or an accompanying motion in a mandamus
proceeding includes an attachment containing material that is, by statute or court order,
confidential, sealed, or otherwise exempt from disclosure,
8
the filing must comply with the
requirements of ORAP 8.52.
_________
1
See Illustration 1a in Appendix 11.05.
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 11.05.
4
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, 688 P2d 1303 (1984), regarding timeliness. As a rule of thumb,
the relator usually should file the petition within 30 days after the date of the action that the
relator seeks to challenge in mandamus.
5
See ORS 34.110; State ex rel Automotive Emporium v. Murchison, 289 Or 265, 611 P2d 1169
(1980).
6
See footnote 2 to ORAP 1.35 for the service address of the Attorney General.
7
See Illustration 1b in Appendix 11.05.
141 Chapter 11
8
See, e.g., ORS 36.222(5) regarding confidential mediation communications and agreements;
ORS 135.139, ORS 433.045(3), and ORS 433.055 regarding records revealing HIV test
information; ORS 137.077 regarding presentence investigation reports; ORS 179.495 and ORS
179.505 regarding medical records maintained by state institutions; ORS 412.094 regarding
nonsupport investigation records; ORS 419B.035 regarding abuse investigation records; ORS
426.160 and ORS 426.370 regarding records in civil commitment cases; and ORS 430.399(6)
regarding alcohol and drug abuse records. See generally ORAP 16.15(5)(b) for procedure for
eFiling attachments that are confidential or otherwise exempt from disclosure.
See ORS 34.105 to 34.240 regarding mandamus proceedings generally; ORS 34.120(2)
regarding the Supreme Court's original mandamus jurisdiction; and ORS 34.200 and 34.250
regarding procedure in Supreme Court mandamus proceedings.
See ORS 21.010(1), (5) regarding filing fees.
Rule 11.10
MANDAMUS:
RESPONSE BY ADVERSE PARTY AND
CONSIDERATION BY THE COURT
(1) Unless the court directs otherwise, the adverse party 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 or the defendant in any other mandamus proceeding may file a memorandum
in opposition.
1
The form of the memorandum shall comply with ORAP 7.10(1) and (2). The
original memorandum shall be filed within 14 days after the date the petition was filed. A relator
may not file a reply memorandum unless the court has requested one.
(2) The petition and any memoranda in opposition to the petition shall be considered
by the court without oral argument unless otherwise ordered. If the court determines to accept
jurisdiction, it shall issue an order allowing the petition. Otherwise, the petition shall be denied
by order of the court.
(3) If the court issues an alternative writ of mandamus 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 Administrator shall mail copies of the order allowing the petition and the
alternative writ of mandamus to the relator, to the adverse party, to any intervenor, and to the
judge or court whose action is challenged in the petition. Proof of service of an alternative writ
of mandamus need not be filed with the court. Unless the alternative writ of mandamus
specifically requires that a return, answer, or responsive pleading be filed, the judge or court to
which the writ is issued need not file a return, answer, or responsive pleading.
(4) If the court issues an alternative writ in any other mandamus proceeding, the court
shall set a return date in the writ, and the Administrator shall mail copies of the order allowing
the petition and the alternative writ of mandamus to the relator, to the defendant, and to any
intervenor. On or before the return date in the writ, the defendant shall either file a certificate of
142 Chapter 11
compliance or show cause by answer or motion to dismiss as provided by ORS 34.170. If the
defendant fails to file a certificate of compliance or show cause by answer or motion to dismiss
on or before the return date set in the writ, the court, without further notice to the parties, may
issue a peremptory writ of mandamus, as provided in ORS 34.180. When the case is at issue on
the pleadings,
2
the court will notify the parties to that effect.
(5) At any time after the filing of a petition for writ of mandamus or the issuance of
an alternative writ of mandamus, if the defendant, judge, or court performs the act sought in the
petition or required in the alternative writ, the relator shall notify, and the defendant, judge,
court, or any other party to the lower court case may notify, the court of that compliance. After
receiving notice of the compliance, the court on motion of any party or on its own motion may
dismiss the mandamus proceeding.
_________
1
See ORS 34.130(4) regarding an attorney for a party in an underlying proceeding appearing on
behalf of a judge who is the defendant in a mandamus proceeding. See ORS 34.250(4) regarding
a judge who is not the named defendant in a mandamus proceeding but whose action is
challenged in the proceeding moving to intervene as a party.
2
See ORS 34.170, ORS 34.180, and ORS 34.190.
See generally ORS 34.105 through 34.250 and Article VII (Amended), section 2, of the Oregon
Constitution.
Rule 11.15
MANDAMUS:
BRIEFS AND ORAL ARGUMENT
(1) Unless otherwise directed by the court, and provided that the court does not
receive notice of compliance with the alternative writ of mandamus by the official to whom the
writ was issued, the relator shall file the opening brief:
(a) Within 28 days after the date of issuance of the alternative writ of
mandamus, 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; or
(b) Within 28 days after the date that the case is at issue on the pleadings, in
any other mandamus proceeding.
(2) The adverse party 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, or the defendant
in any other mandamus proceeding, shall have 28 days after the date the relator serves and files
the opening brief to file the answering brief.
(3) The relator may file a reply brief only with leave of the court. A motion
143 Chapter 11
requesting leave to file a reply brief shall be filed within seven days after the filing of the brief to
which permission to reply is sought. The content of a reply brief shall be confined to matters
raised in the answering brief, and the form shall be similar to an answering brief, but need not
contain a summary of argument.
(4) In complex cases, such as cases with multiple parties, multiple writs, or both, the
parties may confer and suggest an alternative briefing schedule as provided in ORAP 5.80(8).
(5) All briefs shall be prepared in substantial conformity with ORAP 5.35 through
5.50. An original brief shall be filed with the Administrator with proof of service showing that
two copies were served on each party.
(6) After the briefs are filed, unless the court directs that the writ will be considered
without oral argument, the court will set the matter for oral argument as in cases on appeal. At
oral argument, the parties shall argue in the order in which their briefs were filed.
Rule 11.17
MANDAMUS:
ISSUANCE OF COMBINED
PEREMPTORY WRIT OF MANDAMUS
AND APPELLATE JUDGMENT
If the court has determined that the relator is entitled to a peremptory writ of mandamus,
the court shall direct the Administrator to issue the writ. The peremptory writ may be combined
with the appellate judgment and issued together as a single document. If the peremptory writ
and the appellate judgment are combined, the relator need not file proof of service of the writ
with the court, and the judge or court to which the writ is issued 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 or the defendant in any other mandamus proceeding need not file a return
showing compliance with the writ.
_________
See ORS 34.250(8).
Rule 11.20
HABEAS CORPUS AND
QUO WARRANTO PROCEEDINGS
(1) With respect to a habeas corpus or quo warranto proceeding under Article VII
(Amended), section 2, of the Oregon Constitution, the procedure for filing a petition (including a
statement in the petition why application was not made to the circuit court), the defendant's
appearance in opposition thereto, the court's consideration of the petition, and briefing and oral
argument shall be the same insofar as practicable as for a writ of mandamus.
144 Chapter 11
(2) A petition for a writ of habeas corpus shall be entitled "_____, Plaintiff, v. _____,
Defendant." A petition for a writ of quo warranto shall be entitled "_____, Petitioner, v. _____,
Respondent."
(3) If the petition for a writ of habeas corpus includes an attachment containing
material that is, by statute or court order, confidential, sealed, or otherwise exempt from
disclosure,
1
the petition must comply with the requirements of ORAP 8.52.
_________
1
See, e.g., ORS 36.222(5) regarding confidential mediation communications and agreements;
ORS 135.139, ORS 433.045(3), and ORS 433.055 regarding records revealing HIV test
information; ORS 137.077 regarding presentence investigation reports; ORS 179.495 and ORS
179.505 regarding medical records maintained by state institutions; ORS 412.094 regarding
nonsupport investigation records; ORS 419B.035 regarding abuse investigation records; ORS
426.160 and ORS 426.370 regarding records in civil commitment cases; and ORS 430.399(6)
regarding alcohol and drug abuse records. See generally ORAP 16.15(5)(b) for procedure for
eFiling attachments that are confidential or otherwise exempt from disclosure.
See ORS 34.310 through 34.730 and Article VII (Amended), section 2, of the Oregon
Constitution; see also ORS 30.510 through ORS 30.640 relating to actions for usurpation of an
office or of a franchise.
Rule 11.22
LENGTHY MEMORANDA
A memorandum longer than 20 pages, exclusive of appendices and exhibits, in support of
or in opposition to a petition invoking the Supreme Court's original jurisdiction in a mandamus,
habeas corpus, or quo warranto case, or any other original proceeding in the Supreme Court shall
contain an index of contents, an index of appendices or exhibits, and an index of authorities, each
with page references.
1
_________
1
See ORAP 5.35.
Rule 11.25
BAR ADMISSION, REINSTATEMENT,
AND DISCIPLINARY PROCEEDINGS
(1) As used in this rule, the following are parties:
(a) The Oregon State Bar in a disciplinary, contested reinstatement, or
contested admission proceeding.
(b) The respondent in a disciplinary proceeding.
145 Chapter 11
(c) The applicant in a contested reinstatement proceeding.
(d) The applicant in a contested admission proceeding.
(2) Disciplinary and Contested Reinstatement Proceedings
(a) A petition concerning a disciplinary proceeding or a trial panel opinion in
a former member's contested reinstatement shall be filed with the Administrator, with
proof of service on all parties, within 30 days after written notice by the Bar's
Disciplinary Board Clerk of receipt of the trial panel opinion.
(b) The Bar's Disciplinary Counsel must file the record of the proceedings
before the trial panel pursuant to BR 10.4. The preparation, transmission, and service of
the record is subject to ORAP 4.20, except that subsections (8) and (9) do not apply.
Upon receipt of the record, the Administrator must send written notice to the parties.
(c) An opening brief shall be due no later than 28 days after the
Administrator's notice to the parties of receipt of the record. An answering brief shall be
due 28 days after filing of the opening brief. A reply brief, if any, shall be due 14 days
after filing of the answering brief.
(d) If a respondent files a petition but then fails to file a brief within the time
allowed, the Bar must either:
(i) File a brief within the time allowed for filing an answering brief.
The brief shall comply with the rules governing petitions and opening briefs. At
the time the brief is filed, the Bar must indicate whether it wishes to waive oral
argument and submit the case on the record. Or:
(ii) Submit a letter stating that it wishes the matter submitted to the
court on the record without briefing or oral argument. Notwithstanding waiver of
briefing and oral argument under this paragraph, at the direction of the Supreme
Court, the Bar shall file a petition and brief within the time directed by the court.
(3) Contested Admission Proceedings
(a) The Bar must file the decision of the Board of Bar Examiners on
reinstatement with the Administrator pursuant to RFA 9.55. The Bar also must file the
record with the Administrator. The preparation, transmission, and service of the record is
subject to ORAP 4.20, except that subsections (8) and (9) do not apply. Upon receipt of
the record, the Administrator must send written notice to the parties.
(b) A petition concerning a bar applicant's contested admission under Rule for
Admission 9.60(1) shall be filed with the Administrator, together with an opening brief,
with proof of service on all parties, within 28 days after the Administrator's written notice
146 Chapter 11
to the parties of the court's receipt of the record of the proceedings before the Board.
(c) An answering brief shall be due 28 days after filing of the opening brief. A
reply brief, if any, shall be due 14 days after filing of the answering brief.
(4) A brief in any of the proceedings described in this rule must conform to ORAP
5.05, ORAP 5.35, and ORAP 9.17(5), except that no excerpt of record is required. The brief
must show proof of service on all parties to the proceeding. The Bar shall be served by service
on the Bar's Disciplinary Counsel.
(5) If the case is argued orally, the party who files the opening brief shall argue first.
_________
See ORS 9.536, and Oregon State Bar Rules of Procedure, which are found on the Oregon State
Bar's website, <https://www.osbar.org>, and in Thomson/West's Oregon Rules of Court.
Rule 11.27
JUDICIAL DISABILITY AND
DISCIPLINARY PROCEEDINGS
(1) Involuntary Retirement for Disability under ORS 1.310.
(a) On receipt of notice from the Secretary of State of a judge's appeal of a
determination of disability by the Commission, the Commission shall, within 14 days,
transmit the record to the Supreme Court. The Administrator shall inform the judge of
the date of receipt of the record from the Commission.
(b) The judge shall have 28 days after the date of the notice from the court of
receipt of the record to file a petition for review of the Commission's determination of
disability, together with an opening brief in support of the petition. The Commission
shall have 28 days after the date of filing of the opening brief to file an answering brief.
The judge may file a reply brief, which shall be due 14 days after the date of filing of the
Commission's answering brief.
(c) If the case is argued orally, the judge shall argue first, followed by the
Commission.
(d) If the court remands the matter to the Commission for additional findings
of fact, the review will be held in abeyance pending receipt from the Commission of
notice of its action on remand.
(e) The decision of the Supreme Court to affirm, reverse or annul the
Commission's determination is subject to a petition for reconsideration under ORAP 9.25.
If no petition for reconsideration is filed or if a petition for reconsideration is filed, on
disposition of the petition, the Administrator shall issue the appellate judgment and shall
147 Chapter 11
provide a copy of the appellate judgment to the Secretary of State.
(2) Disciplinary Proceedings under ORS 1.420.
(a) Appointment of Masters
Under ORS 1.420(1)(b), if the Commission requests appointment of three masters
to hold a hearing, the request shall be made in the form of a petition and the Commission
shall serve a copy of the petition on the judge. The Commission may nominate three or
more candidates for appointment as masters. The judge shall have 14 days after being
served with the Commission's request to file a response, which response may include
nominations for three or more candidates for appointment as masters.
(b) Review of Commission's Recommendations
1
(i) Under ORS 1.420(4), if the Commission recommends to the court
the censure, suspension, or removal from office of a judge, the Commission shall
accompany its recommendation with the record of proceedings before the
commission. The Administrator shall inform the judge of the date of receipt of
the record from the Commission.
(ii) A request for receipt of additional evidence shall be filed as a
motion in the manner provided in ORAP 7.05 and ORAP 7.10.
(iii) The judge shall have 28 days after the date of the notice from the
court of receipt of the record to file an opening brief concerning the Commission's
recommendation. The Commission shall have 28 days after the date of filing of
the opening brief to file an answering brief. The judge may file a reply brief,
which shall be due 14 days after the date of filing of the Commission's answering
brief. If the judge fails to file an opening brief, the Commission may file an
opening brief, and thereafter the judge may file an answering brief.
(iv) If the case is argued orally, the judge shall argue first, followed by
the Commission, unless the judge did not file any brief, in which case the
Commission alone may orally argue the matter.
(v) If the court remands the matter to the Commission for additional
findings of fact, the review will be held in abeyance pending receipt from the
Commission of notice of its action on remand.
(vi) The decision of the Supreme Court to affirm, reverse, or annul the
Commission's determination is subject to a petition for reconsideration under
ORAP 9.25. If no petition for reconsideration is filed or if a petition for
reconsideration is filed, on disposition of the petition, the Administrator shall
issue the appellate judgment. If the decision is for removal of the judge from
office, the Administrator shall provide a copy of the appellate judgment to the
148 Chapter 11
Secretary of State.
(vii) The decision of the Commission after hearing or upon review of
the record and report of the masters under ORS 1.420 shall be a public record,
together with the recommendations, if any, of the Commission to the Supreme
Court.*
(c) Temporary Suspension Under ORS 1.420(5)
(i) If the Supreme Court on its own motion proposes to suspend a
judge during the pendency of disciplinary proceedings under ORS 1.420, the
Administrator shall provide written notice thereof to the judge.
(ii) If the Commission files a recommendation that a judge be
suspended during the pendency of a disability determination proceeding, the
Commission shall serve a copy of the recommendation on the judge.
(iii) The judge shall have 14 days after the date of the court's notice of
proposed suspension or after the date of the Commission's recommendation that
the judge be suspended during the pendency of a disability determination to file a
memorandum regarding the proposed or recommended suspension.
(iv) When the court on its own motion proposes to suspend a judge
during the pendency of disciplinary proceedings, the Commission shall have 14
days after the date of filing of the judge's memorandum to file a memorandum
regarding the proposed suspension.
(v) The matter of a proposed or recommended temporary suspension
will not be subject to oral argument unless oral argument is requested by the judge
or the Commission.
(d) Consent to Discipline Under ORS 1.420(1)(c)
(i) On receipt of a judge's consent to censure, suspension, or removal,
the court may request briefing and oral argument before the consent is submitted
to the court for decision.
(ii) If the court accepts the stipulation of facts part of a consent, but
rejects the disciplinary action agreed to by the judge and Commission and
remands the matter to the Commission for further proceedings, the review will be
held in abeyance pending receipt of notice of the Commission's decision on
remand.
(iii) A judge's consent to censure, suspension, or removal shall not be a
public record until the consent or stipulation is submitted to the Supreme Court
for a decision. On submission to the court, the consent shall be a public record.*
149 Chapter 11
(3) Temporary Disability Proceedings Initiated by Chief Justice Under ORS 1.425.
(a) Review of Commission's Recommendation
(i) Under ORS 1.425(1)(a), if the Commission elects to proceed as
provided in ORS 1.420, the procedure in the Supreme Court shall be the same as
provided in subsection (2) of this rule.
(ii) Under ORS 1.425(4)(b), if the Commission finds that the judge has
a temporary disability and recommends to the court that the judge be suspended,
the Commission shall accompany its recommendation with the record of
proceedings before the Commission. The Administrator shall inform the judge of
the date of receipt of the record from the Commission.
(iii) A request for receipt of additional evidence shall be filed as a
motion in the manner provided in ORAP 7.05 and ORAP 7.10.
(iv) The judge shall have 28 days after the date of the notice from the
court of receipt of the record to file an opening brief concerning the Commission's
recommendation. The Commission shall have 28 days after the date of filing of
the opening brief to file an answering brief. The judge may file a reply brief,
which shall be due 14 days after the date of filing of the Commission's answering
brief. If the judge fails to file an opening brief, the Commission may file an
opening brief and thereafter the judge may file an answering brief.
(v) If the case is argued orally, the judge shall argue first, followed by
the Commission, unless the judge did not file any brief, in which case the
Commission alone may orally argue the matter.
(vi) The decision of the Supreme Court is subject to a petition for
reconsideration under ORAP 9.25. If no petition for reconsideration is filed or if
a petition for reconsideration is filed, on disposition of the petition, the
Administrator shall issue the appellate judgment and shall provide a copy of the
appellate judgment to the Secretary of State.
(vii) The decision of the commission after hearing or upon review of the
record and report of masters under ORS 1.425 shall not be a public record, except
for a decision and recommendation for suspension under ORS 1.425(4)(b).*
(b) Temporary Suspension Under ORS 1.425(5)
(i) If the Supreme Court on its own motion proposes to suspend a
judge during the pendency of disability, the Administrator shall provide written
notice thereof to the judge.
150 Chapter 11
(ii) If the Commission files a recommendation that a judge be
suspended during the pendency of a disability determination proceeding, the
commission shall serve a copy of the recommendation on the judge.
(iii) The judge shall have 14 days after the date of the court's notice of
proposed suspension, or the commission's recommendation that the judge be
suspended, during the pendency of a disability determination to file a
memorandum regarding the proposed or recommended suspension.
(iv) When the court on its own motion proposes to suspend a judge
during the pendency of disability proceedings, the Commission shall have 14 days
after the date of filing of the judge's memorandum to file a memorandum
regarding the proposed suspension.
(v) The matter of a proposed or recommended temporary suspension
will not be subject to oral argument unless oral argument is requested by the judge
or the Commission.
(c) Consent to Treatment Under ORS 1.425(4)(a)
(i) On receipt of a judge's consent to counseling, treatment or other
assistance or to comply with other conditions in respect to the future conduct of
the judge, the court may request briefing and oral argument before the consent is
submitted to the court for decision.
(ii) A judge's consent to counseling, treatment, or assistance or
compliance with other conditions shall not be a public record until the consent is
accepted by the Supreme Court.
4) As used in this rule, "Commission" means the Commission on Judicial Fitness
and Disability.
_________
1
See generally ORS 1.430.
* See ORS 1.440(1).
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
151 Chapter 11
file with the Administrator a petition to review the 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 ORAP 1.35(1), 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 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 referred to in ORS 250.045.
(e) The litigant contact information required by ORAP 1.30.
(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 Attorney General,
1
as well
as any chief petitioner who did not file the petition to review the ballot title and proof of
written notification to the Secretary of State that the petition has been filed.
152 Chapter 11
(c) The original petition shall be filed. The petition shall be accompanied by
the filing fee required for an original proceeding in the Supreme Court.
(6) The Attorney General has seven business days after the filing of the petition,
unless a shorter time is ordered by the court, to:
(a) File 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.
(b) File an answering memorandum. If the Attorney General claims that text
as contained in the petition is in error, the Attorney General must file an answering
memorandum pointing out the discrepancy; otherwise, the Attorney General may submit
a letter waiving the filing of an answering memorandum. Any answering memorandum
must be in the form prescribed by ORAP 7.10 for answers to motions and may not be
longer than 10 pages, except that when the court has consolidated review of more than
one petition to review a ballot title in one proceeding, the length of the answering
memorandum may be increased by five pages per each additional petition. The Attorney
General must file the original answering memorandum, with proof of service on counsel
for the petitioner. 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 answering memorandum may also contain under separate
heading legal arguments and citation to legal authorities.
(7) Any person who is interested in a ballot title that is the subject of a petition,
including the chief petitioner of a measure, may 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 must be accompanied by the proposed memorandum that the amicus curiae intends to
submit. The proposed memorandum must be in the form prescribed by ORAP 7.10 for answers
to motions and may not be longer than 10 pages. The motion and proposed memorandum must
be filed and served on or before the date that the answering memorandum is due. If a party seeks
to appear as an amicus curiae after the Attorney General has filed a modified ballot title after
referral from the Supreme Court, then the motion and memorandum must be filed with and
actually received by the Administrator and must be served on and actually received by all parties
within five business days after the date that a party has filed an objection.
(8) The petitioner has 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 must be in the form prescribed by ORAP 7.10 for answers to motions and
must not be longer than five pages. The petitioner must file the original reply memorandum,
with proof of service on the Attorney General.
153 Chapter 11
(9) After the filing of all memoranda permitted, the Supreme Court will consider the
matter without the filing of briefs or presentation of oral argument unless otherwise ordered by
the court, either on its own motion or on request of a party. If the court orders oral argument, the
petitioner shall argue first. Unless otherwise ordered by the court, an amicus curiae may not
participate in oral argument.
(10) (a) For ballot title review proceedings in which the Supreme Court has
referred the Attorney General's certified ballot title to the Attorney General for
modification, the Attorney General must prepare a modified ballot title. The modified
ballot title must be filed with and actually received by the Administrator, and it must be
served on and actually received by all parties, within five business days after the date of
the referral.
(b) The petitioner, or an intervenor under paragraph (10)(c), may file an
objection to the modified ballot title within five business days after the date of filing of
the modified ballot title. An objection or proposed objection under paragraph (10)(c)
must be in the form prescribed by ORAP 7.10, and it may not exceed 10 pages. The
objection or proposed objection must be filed with and actually received by the
Administrator within the time required. The objection or proposed objection must be
served on and actually received by all parties within five business days after the date of
filing of the modified ballot title. The objection or proposed objection may be filed and
served by telephonic facsimile communication as provided by ORAP 7.35(3).
2
A party
may file a response to the objection or proposed objection within five business days after
the date of filing of the objection, unless the court otherwise directs.
(c) A person who submitted written comments to the Secretary of State under
ORS 250.067 regarding the original ballot title, or the chief petitioner, may seek to
intervene as a party to object to a modified ballot title when the Supreme Court has
referred the Attorney General's certified ballot title to the Attorney General for
modification. The person must file a motion to intervene, together with a proposed
objection to the modified ballot title, within five business days after the date the modified
ballot title has been filed. The motion and proposed objection must comply with the
filing and service requirements prescribed by paragraph (10)(b). The proposed objection
may assert only that the modifications by the Attorney General themselves have caused
the modified ballot title to not comply substantially with the requirements of ORS
250.035.
(11) (a) If the Supreme Court issues a dispositional decision in which the court
dismisses the petition, certifies the Attorney General's certified ballot title or certifies the
Attorney General's modified ballot title, with or without additional modification, the
Administrator will issue the appellate judgment on the next judicial day after the filing
date of the decision.
(b) If the court refers the Attorney General's certified ballot title to the
Attorney General for modification or refers the Attorney General's modified ballot title to
154 Chapter 11
the Attorney General for further modification and no party files a timely objection to a
modified ballot title, then the Supreme Court will certify the modified ballot title, and the
Administrator will issue the appellate judgment, on the next judicial day after the time for
filing an objection expires.
(c) The court's decision shall become effective in accordance with ORAP
14.05(2)(c).
_________
1
See footnote 2 to ORAP 1.35 for the service address of the Attorney General.
2
The facsimile transmission number for the Administrator is (503) 986-5560. The facsimile
transmission number for the Attorney General (Appellate Division) is (503) 378-6306.
Rule 11.32
VOTERS' PAMPHLET EXPLANATORY
STATEMENT REVIEW
(1) Any elector dissatisfied with a voters' pamphlet explanatory statement for which
suggestions were offered at the Secretary of State's hearing under ORS 251.215 may file with the
Administrator a petition to review the explanatory statement. The petition must be filed within
five calendar days after the deadline for filing a revised statement with the Secretary of State.
(2) The provisions of ORAP 11.30(2), (3), (4), (5), (7), (8), and (9) shall apply,
except that:
(a) The citizens committee appointed to prepare the explanatory statement
shall be designated "Respondents," the Attorney General shall not be designated as a
respondent, and the title of the proceeding shall be "Petition to Review Explanatory
Statement"; and
(b) The petition shall show proof of service on each member of the
"committee of five citizens" referred to in ORS 251.205(2) and the Attorney General.*
(3) The petition shall inform the court of the petitioner's interest in the matter, the full
text of the explanatory statement as filed with the Secretary of State or as revised under ORS
251.215(3), the alleged insufficiency or unclearness of the explanatory statement challenged, and
a proposed explanatory statement that in the judgment of the petitioner would be sufficient and
clear and that the petitioner desires the Supreme Court to certify to the Secretary of State in lieu
of the explanatory statement challenged by the petitioner.
(4) The answering memorandum shall set forth concisely the reasons why the
explanatory statement challenged is sufficient and clear or, alternatively, may suggest alterations
that would make the explanatory statement sufficient and clear. The answering memorandum is
due within seven calendar days after the petition is filed.
155 Chapter 11
(5) The Administrator will issue the appellate judgment on the next judicial day after
the filing date of the Supreme Court's dispositional decision.
_________
* See footnote 2 to ORAP 1.35 for the service address of the Attorney General.
See ORS 251.235.
Rule 11.34
ESTIMATE OF FINANCIAL IMPACT REVIEW
(1) Any person entitled to petition under ORS 250.131 for review of an estimate of
financial impact may file with the Administrator a petition to review the estimate. The petition
must be filed not later than 85 calendar days before the election at which the measure is to be
voted on. The petition shall not concern the amount of the estimate or whether an estimate
should be prepared.
(2) The provisions of ORAP 11.30(2), (3), (4), (5), (7), (8), and (9) shall apply,
except that:
(a) The officials named in ORS 250.125(9) shall be designated
"Respondents," the Attorney General shall not be designated as a respondent, and the title
of the proceeding shall be "Petition to Review Estimate of Financial Impact"; and
(b) The petition shall show proof of service on each official named in ORS
250.125(9) and the Attorney General.
(3) The petition shall inform the court of the petitioner's interest in the matter, the full
text of the estimate of financial impact as filed by the Secretary of State, and the reasons the
estimate was prepared, filed or certified in violation of the procedures specified in ORS 250.125
or ORS 250.127.
(4) The answering memorandum shall set forth concisely the reasons why the
estimate challenged was prepared, filed or certified in compliance with the procedures specified
in ORS 250.125 or ORS 250.127. An answering memorandum shall include the complete
estimate as filed with the Secretary of State or as revised under ORS 250.127, if the respondent
claims that the estimate as contained in the petition is in error.
(5) The Administrator will issue the appellate judgment on the next judicial day after
the filing date of the Supreme Court's dispositional decision.
156 Chapter 11
Rule 11.35
REAPPORTIONMENT REVIEW
The practice and procedure for review of reapportionment under Article IV, section 6, of
the Oregon Constitution shall be as follows:
(1) Any qualified elector of the state seeking review of reapportionment shall file a
petition on or before August 1 of the year in which the Legislative Assembly enacts the
reapportionment.
1
(2) The petition shall be prepared in compliance with ORAP 7.10, governing
motions, and shall contain:
(a) A title page containing a caption identifying the person or persons seeking
review of reapportionment as the petitioner or petitioners, and the Legislative Assembly
as the respondent and the litigant contact information required by ORAP 1.30.
(b) A statement showing that the petitioner is a qualified elector of the state.
(c) A prayer for specific relief.
(d) The signature of the petitioner or the petitioner's attorney.
(3) The petition shall be accompanied by one copy of such part of the
reapportionment as is necessary for a determination of the question presented and the relief
sought.
(4) The petitioner shall file with the Administrator the original petition with proof of
service of a copy of the petition on the Secretary of the Senate, the Chief Clerk of the House, the
Secretary of State, and the Attorney General.
2
The petition shall be accompanied by the filing
fee prescribed in ORS 21.010(5).
(5) A petitioner shall serve and file an opening brief in support of the petition on the
same date that petitioner serves and files the petition.
(6) (a) The Legislative Assembly, the Secretary of State, or any other person who
desires to oppose a petition shall, no later than 10 business days after the date the
petitioner's opening brief is due, file with the Administrator the original answering brief
and, if not exempt from payment of filing fees, pay the respondent's first appearance fee
prescribed in ORS 21.010(5). Any party who files an answering brief shall be known in
the review proceeding as a "respondent."
(b) A respondent shall serve the answering brief on the petitioner, and proof
of service shall be endorsed on or attached to the answering brief. If the answering brief
responds to a petition by more than one petitioner, service of the brief need only be made
on the petitioner whose name is first identified in the caption as a petitioner or on the
157 Chapter 11
attorney for the petitioners.
(7) Reply briefs are discouraged, but, if a petitioner chooses to file a reply brief, the
petitioner shall file the reply brief within five business days after the date that a respondent's
answering brief is due.
(8) Amicus curiae briefs are discouraged, but, if a person applies for leave to file an
amicus curiae brief, the person shall file the application, accompanied by the brief tendered for
filing, on the date that a respondent's answering brief is due.
(9) Any brief in support of or in opposition to a petition, insofar as practicable, shall
be filed in the same form as a brief on appeal in a civil action under these rules.
(10) Except for a petition for review of a reapportionment filed in the manner provided
by ORS 19.260(1), a party may not rely on the date of mailing as the date of filing or service. A
brief or other thing required or permitted to be filed under this rule must be physically filed by
the prescribed day and must be physically served no later than one calendar day after the brief is
filed.
(11) The Supreme Court may invite oral argument from any petitioner or respondent.
However, ORAP 6.10 governs who will be allowed to argue.
(12) The Administrator shall not accept for filing, and the court will not consider, a
petition for reconsideration tendered for filing after a reapportionment has become operative
under Article IV, section 6, of the Oregon Constitution.
(13) Review of a reapportionment made by the Secretary of State under Article IV,
section 6, subsection (3), of the Oregon Constitution shall be the same as for a reapportionment
enacted by the Legislative Assembly except that:
(a) The caption of the petition shall identify the Secretary of State as the
respondent; and
(b) The petition and brief shall be filed and served on or before September 15
of the year of reapportionment.
_________
1
If the deadline for filing a petition is a Saturday or Sunday, the Oregon Constitution may
prohibit extending the deadline to the next business day. See Hartung v. Bradbury, 332 Or 570,
595 n 23, 33 P3d 972 (2001).
2
See ORAP 1.35(1)(a) for the filing address of the Administrator. See footnote 2 to ORAP 1.35
for the service address of the Attorney General.
158 Chapter 12
12. SPECIAL SUPREME COURT RULES
Rule 12.05
DIRECT APPEAL OR JUDICIAL
REVIEW IN THE SUPREME COURT
(1) Where a statute authorizes a direct appeal from a court of law to the Supreme
Court,
1
except as otherwise provided by statute or by rule of appellate procedure, the appeal shall
be taken in the manner prescribed in the rules of appellate procedure relating to appeals
generally.
(2) Where a statute authorizes direct judicial review of an agency order or a
legislative enactment by the Supreme Court,
2
except as otherwise provided by statute, the
judicial review shall be initiated and conducted in the manner prescribed in the rules of appellate
procedure relating to judicial review of agency orders generally.
(3) The notice of appeal or petition for judicial review shall state the statutory
authority under which a direct appeal or judicial review is taken to the Supreme Court. Filing
fees shall be assessed as provided in ORS 21.010.
(4) When required to do so by statute, the court will expedite its disposition of the
appeal or judicial review.
3
(5) On motion of a party or on the court's own initiative, the court may establish a
special briefing schedule for the appeal or judicial review.
_________
1
See, e.g., ORS 305.445 (tax court judgments and orders), ORS 662.120 (injunctions in labor
dispute cases), and ORS 138.045(2) (certain pretrial orders in murder and aggravated murder
cases).
2
See, e.g., ORS 469.403(3) (nuclear facility siting certificates).
3
See, e.g., ORS 138.261(6) and ORS 138.045(2) (requiring expedited disposition on appeal to
the Supreme Court of a pretrial order dismissing or setting aside the accusatory instrument or
suppressing evidence in a murder case).
Rule 12.07
EXPEDITED APPEAL OF CERTAIN
PRETRIAL ORDERS IN CRIMINAL CASES
(1) On appeal under ORS 138.045(2) from a pretrial order dismissing or setting aside
the accusatory instrument or suppressing evidence, when a defendant is charged with murder or
aggravated murder and is in custody:
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(a) The case caption of any brief, motion, petition, or other paper filed with
the court shall include the words "EXPEDITED APPEAL UNDER ORS 138.045(2)."
(b) Appellant's opening brief shall be due 28 days after the transcript settles.
Failure to file the opening brief within the prescribed time will result in automatic
dismissal of the appeal.
(c) Respondent's answering brief shall be due 28 days after appellant's
opening brief is served and filed. If respondent fails to file a brief within the prescribed
time, the appeal will be submitted on appellant's opening brief and oral argument, and
respondent will not be allowed to argue the case.
(2) On a petition for review of a decision of the Court of Appeals in an appeal under
ORS 138.045(1)(a) or (d) from a pretrial order dismissing or setting aside the accusatory
instrument or suppressing evidence, when a defendant is charged with a felony and is in custody:
(a) The case caption of any brief, motion, petition, or other paper filed with
the court shall include the words "EXPEDITED REVIEW UNDER ORS 138.045(1)."
(b) If the petitioner on review files a notice of intent to file a brief on the
merits and fails to file a brief within the time prescribed by ORAP 9.17, the review, if
allowed, will be submitted to the court on the petitioner's petition for review, the response
to the petition for review (if any), the brief on the merits filed by respondent (if any), the
parties' briefs in the Court of Appeals, and oral argument.
(3 In all cases subject to this rule:
(a) Absent extraordinary circumstances, the court will not grant an extension
of time or reschedule oral argument.
(b) A motion made before oral argument will not toll the time for transmitting
the record, filing briefs, or hearing oral argument.
Rule 12.08
INTERLOCUTORY APPEAL OF ORDER
CONCERNING CRIME VICTIM'S RIGHTS
(1) A notice of interlocutory appeal filed in the Supreme Court pursuant to ORS
147.537 shall be substantially in the form illustrated in Appendix 12.08 and shall comply
substantially with ORAP 2.05(1), (3), (4), (5), (6), (9), (10), and (11), except:
(a) The notice must be entitled "NOTICE OF INTERLOCUTORY APPEAL
UNDER ORS 147.537";
(b) The notice must include a statement of why the notice is timely; and
160 Chapter 12
(c) The notice must contain proof of service on persons identified in ORS
147.537(6).
(2) A notice of interlocutory appeal must be accompanied by:
(a) A copy of the order for which appellate review is sought;
(b) Excerpts of the record, as described in ORS 147.537(4);
(c) A memorandum of law with a statement of material facts and supporting
arguments and citations, in a form in compliance with ORAP 7.10(1) and (2), except as
provided by this rule.
(3) The appellant shall file the original notice of interlocutory appeal with the
Administrator.
(4) Notwithstanding ORAP 1.35(1)(c), a notice of interlocutory appeal and the
response are deemed filed when those documents are physically received by the Administrator
or, if the documents are filed electronically, as provided by ORAP 16.25.
(5) (a) Notwithstanding ORAP 1.35(2)(b), the appellant shall serve a copy of the
notice of interlocutory appeal and, if applicable, accompanying materials as provided in
ORS 147.537(6) and (7).
(b) In addition to any other method authorized by law, and notwithstanding
ORAP 16.45(3), or ORCP 9 G,
1
service may be by:
(i) Facsimile transmission, if the person or entity being served is
represented by an attorney, the attorney maintains such a device at the attorney's
office, and the device is operating at the time the service is made.
(ii) Electronic mail, if the person or entity being served is represented
by an attorney, and the email has been sent to the email address that the attorney
has listed with the Oregon State Bar.
(iii) A document served by facsimile transmission or electronic mail
must also be served in a manner that complies with ORAP 1.35(2)(b).
(c) Where service is made by facsimile transmission or electronic mail, the
filing must be accompanied with either an acknowledgment of service or a proof of
service that complies with ORAP 1.35(2)(d).
(6) A respondent may file a response within seven days of the date the notice of
interlocutory appeal is filed with the Supreme Court. A respondent shall file the original
response with the Administrator. The response shall comply with ORAP 7.10(1) and (2), except
161 Chapter 12
as otherwise provided by this rule. The response may contain a designation of parts of the trial
court record not designated in the notice of interlocutory appeal.
(7) No reply shall be filed except with leave of the Supreme Court.
(8) Notwithstanding ORAP 6.15, either the appellant or respondent may request oral
argument. The Supreme Court may grant or deny such a request or may order oral argument on
its own motion.
(9) A petition for reconsideration of a Supreme Court decision under this rule shall
comply with ORAP 9.25, except that it shall be filed within seven days of the date of the
decision.
(10) A victim may request that the court use initials in lieu of his or her first name in
the case caption. The court will grant such a request if filed within seven days of the notice of
interlocutory appeal. Requests filed after seven days may be granted at the court's discretion.
_________________
1
See ORS 147.537(20) (permitting service "by electronic mail or facsimile transmission, in a
manner consistent with any applicable rules of appellate procedure").
Rule 12.09
PETITIONS FOR SUPREME COURT REVIEW
OF ORDERS CONCERNING CRIME VICTIM'S RIGHTS
(1) A petition for review filed in the Supreme Court pursuant to ORS 147.539 shall
comply substantially with ORAP 9.05(3)(a)(i) to (iii) and (vii) and ORAP 9.05(4), except:
(a) The petition must be entitled "PETITION FOR REVIEW UNDER ORS
147.539";
(b) The petition must include a statement of why the petition is timely; and
(c) The petition must contain proof of service on persons identified in ORS
147.537(6) and ORS 147.539.
(2) A petition for review under this rule must be accompanied by:
(a) A copy of the order for which appellate review is sought;
(b) Excerpts of the record, as described in ORS 147.537(4) and ORS 147.539;
(c) A memorandum of law with a statement of material facts and supporting
arguments and citations, in a form in compliance with ORAP 7.10(1) and (2), except as
otherwise provided by this rule.
162 Chapter 12
(3) The petitioner shall file the original petition for review and the excerpts of the
record with the Administrator.
(4) A petition for review filed under this rule may refer to the criteria in ORAP 9.07
for allowing a petition for review and the following additional criterion: Whether the case
presents a significant issue involving the rights granted to crime victims by Article I, sections 42
and 43, of the Oregon Constitution.
(5) Notwithstanding ORAP 1.35(1)(c), a petition for review and the response, if any,
are deemed filed when those documents are physically received by the Supreme Court or, if the
documents are filed electronically, as provided by ORAP 16.25.
(6) Notwithstanding ORAP 1.35(2)(b), the petitioner shall serve a copy of the petition
for review and, if applicable, accompanying materials as provided in ORS 147.537(6) and (7)
and ORS 147.539. In addition to any other method authorized by law, and notwithstanding
ORAP 16.45(3) or ORCP 9 G,
1
service may be by facsimile transmission or electronic mail as
provided in ORAP 12.08(5).
(7) The respondent may, but need not, file a response to a petition for review filed
under this rule. The respondent may file the original response within seven days of the petition
for review or within seven days after the Supreme Court issues an order granting review. The
response shall comply with ORAP 9.10, unless otherwise provided by this rule. The response
may contain a designation of parts of the trial court record not designated in the petition for
review.
(8) No briefs on the merits shall be filed, except as otherwise provided by court order.
(9) A petition for review under this rule shall be allowed if one less than a majority of
the judges eligible to vote on the petition vote to allow it.
(10) In cases where the court has allowed review, either the appellant or respondent
may request oral argument. Notwithstanding ORAP 6.15, the Supreme Court may grant or deny
such a request or may order oral argument on its own motion.
(11) A petition for reconsideration of a Supreme Court decision under this rule shall
comply with ORAP 9.25, except that it shall be filed within seven days of the date of the
decision.
(12) A victim may request that the court use initials in lieu of his or her first name in
the case caption. The court will grant such a request if filed within seven days of the petition for
review. Requests filed after seven days may be granted at the court's discretion.
__________
1
See ORS 147.537(20) (permitting service "by electronic mail or facsimile transmission, in a
manner consistent with any applicable rules of appellate procedure").
163 Chapter 12
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, telephone numbers, and email
addresses of the attorneys of record for the state and for the defendant at the date
of entry of each writing described above.
(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 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 the transcript coordinator shall be
deemed to be authorization for the transcript coordinator to arrange for preparation of a
transcript of all parts of the criminal proceeding, including all pretrial hearings and
selection of the jury.
164 Chapter 12
(b) A transcript shall meet the specifications of ORAP 3.35.
(c) A transcript shall be filed within 60 days after the date the packet is served
on the transcript coordinator.
(d) Transcripts shall be settled in the same manner as on an appeal pursuant to
ORS 138.015 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 an opening brief, the brief is due 180 days
after the transcript is settled.
(b) If the state desires to file an answering brief, the brief is due:
(i) When the defendant does not desire to file an opening brief, 180
days after the transcript is settled.
(ii) When the defendant files an opening brief, 180 days after the
defendant serves and files the defendant's opening brief.
(c) If the defendant has filed an opening brief, the defendant may file a reply
brief, which shall be due 90 days after the state serves and files its answering brief.
(d) Specifications for briefs shall be those set forth in ORAP 5.05, except that
the maximum length of a brief without obtaining leave of the court for a longer brief is
28,000 words or, if the certification under ORAP 5.05(2)(d) certifies that the preparer
does not have access to a word-processing system that provides a word count, 100 pages.
(7) Notwithstanding UTCR 6.120(1), the trial court administrator shall send the trial
court file and exhibits to 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 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
165 Chapter 12
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 12.15
COORDINATION OF CLASS ACTIONS
IN TRIAL COURTS
The practice and procedure for coordination of class actions in circuit court shall be as
follows:
(1) A motion filed pursuant to ORCP 32 K shall set forth the grounds for
coordination and may be accompanied by an affidavit. Service by mail shall be made on all
counsel and the trial court administrators of the courts where the cases are pending. If the
motion is filed by a party, the presiding judge shall allow or deny it within 10 days. If the
motion is allowed, the presiding judge shall immediately request the Supreme Court to assign a
judge to determine whether coordination is appropriate and to forward to the Supreme Court a
copy of the motion and of the papers filed in support and in opposition to the motion.
(2) The Supreme Court will assign a judge, pursuant to ORCP 32 K(1)(a), within
seven days after receiving a request for the assignment, and shall notify by mail all counsel and
166 Chapter 12
trial court administrators of the identity and address of the assigned judge. The Supreme Court
shall forward to the assigned judge copies of all papers accompanying the request for
appointment.
(3) Within 14 days after the Supreme Court designates the assigned judge, any party
may file a memorandum in favor of coordination and serve it on all counsel. Any party may
serve and file a memorandum in opposition to coordination within 21 days after the Supreme
Court designates the assigned judge. The assigned judge may take testimony and hear oral
argument on the issue of coordination. Within 28 days after being designated by the Supreme
Court, the assigned judge shall determine which, if any, cases are to be coordinated and, if any
are coordinated, recommend the court in which they shall proceed.
(4) In the absence of a stay order, a case which is being considered for coordination
may proceed as if no motion for coordination had been filed, but no trial shall be commenced
and no judgment shall be entered in that action.
(5) If the assigned judge orders coordination, the judge shall send a copy of the order
to the Chief Justice and to all counsel and the trial court administrators of the respective trial
courts. The Chief Justice shall sign an order within 14 days designating a trial judge and the
court where the coordinated cases will proceed and shall serve all counsel and trial court
administrators with a copy of the order. An order coordinating the cases shall operate as a stay
of all proceedings in the coordinated cases except as otherwise permitted by the trial judge
designated to hear them. If the assigned judge denies coordination, the judge shall send a copy
of the order to the Chief Justice and to all counsel and the trial court administrators of the
respective trial courts.
(6) The trial judge designated to hear the coordinated cases shall have full power to
control pleadings, discovery, notices, conferences, hearings, and the schedule of the trial or trials
in any manner the judge deems appropriate with due consideration to the convenience of the
witnesses, parties, and counsel, efficient judicial administration, and the ends of justice. The trial
judge may decoordinate all or some or one of the cases and may order any issue tried separately.
The trial judge shall pass on motions filed under ORCP 32 K(3) to include an additional case or
cases.
(7) On a showing of good cause, any time limit in this rule may be extended for a
period not exceeding seven days by the judge before whom the issue of coordination is then
pending.
_________
See ORS 1.004 regarding the authority of the Supreme Court to adopt a rule prescribing
procedure for coordination of class actions under ORCP 32.
167 Chapter 12
Rule 12.20
CERTIFICATION OF QUESTION OF LAW TO
SUPREME COURT BY FEDERAL COURTS
AND OTHER STATE COURTS
The procedure for certifying a question of law to the Supreme Court under ORS 28.200
through 28.255 shall be as follows:
(1) (a) The certification order shall set forth the question of law sought to be
answered and a statement of facts relevant to the question, including the nature of the
controversy in which the question arose. The statement of facts may be a brief,
memorandum, or other material from the file of the certifying court if it contains the
relevant facts and shows the nature of the controversy.
(b) The certification order shall be signed by the presiding judge and
forwarded to the Supreme Court by the certifying court's clerk of court or court
administrator accompanied by a copy of the court's register of the case. If the certifying
court's register does not show the names and addresses of the parties or their attorneys,
the court clerk or administrator shall separately provide that information.
(2) The filing and first appearance fees in the Supreme Court shall be equally divided
between the parties unless otherwise ordered by the certifying court in its order of certification.
The fees shall be collected when the parties file their stipulated or separate designations of
record, as provided in subsection (5) of this rule.
(3) The Supreme Court will consider whether to accept a question certified to it
without oral or written argument from the parties unless otherwise directed by the Supreme
Court.
(4) The Administrator shall send a copy of the court's order accepting or declining to
accept a certified question of law to the certifying court and to the parties.
(5) (a) If the court accepts certification of a question of law, the parties to the
certified question shall attempt to agree on a designation of the part of the record of the
certifying court necessary to a determination of the question. If the parties are unable to
agree on a designation of record, each party may file a separate designation of record.
(b) A stipulated designation of record or the parties' separate designations of
record shall be filed within 14 days after the date of the court's order accepting
certification.
(c) On receipt of a stipulated designation or separate designations of record,
the Administrator shall request from the certifying court's clerk of court or court
administrator the part or parts of the record as designated, and any parts of the record that
the Supreme Court determines may be necessary in answering the certified question(s).
The Administrator shall serve a copy of the request on the parties.
168 Chapter 12
(6) (a) Unless otherwise ordered by the Supreme Court, the certified question of
law shall be briefed by the parties. The proponent of the question certified to the court
shall file the opening brief and any other party may file an answering brief. If the nature
of the question is such that no party is the proponent of the question, the plaintiff or
appellant shall file the opening brief and the defendant, respondent, or appellee shall file
the answering brief.
(b) The opening brief shall be served and filed within 28 days after the date
the Administrator requests the record from the certifying court. The answering brief shall
be served and filed within 28 days after the date the opening brief is served and filed. The
reply brief, if any, is due within 14 days of the date the answering brief is served and
filed.
(c) As nearly as practicable, briefs shall be prepared as provided in ORAP
5.05 through 5.52, except that, in lieu of assignments of error, the brief shall address each
certified question accepted by the court.
(7) The case will be set for oral argument as soon as practicable after the parties'
briefs are filed.
(8) The court shall issue a written decision stating the law governing the question
certified. Unless specifically ordered by the Supreme Court, costs will not be allowed to either
party. The Administrator shall send to the parties copies of the court's decision at the time the
decision is issued.
(9) Petitions for reconsideration of the court's decision shall be subject to ORAP 9.25.
After expiration of the period for filing a petition for reconsideration or after disposition of all
petitions for reconsideration, the Administrator shall send a copy of the decision under seal of the
Supreme Court to the certifying court and shall send copies thereof to the parties. Issuance of a
sealed copy of the court's decision to the certifying court terminates the Supreme Court case.
Rule 12.25
EXPEDITED JUDICIAL REVIEW OF ORDERS OF
THE ENERGY FACILITY SITING COUNCIL AND
THE PUBLIC UTILITY COMMISSION
On direct judicial review of an order of the Energy Facility Siting Council under ORS
469.403 or of the Public Utility Commission under ORS 758.017:
(1) The case caption of any brief, motion, or other paper filed with the court shall
include the words "EXPEDITED JUDICIAL REVIEW UNDER ORS _______" and identifying
the statute authorizing the expedited judicial review proceeding.
(2) Within seven days after being served with a copy of the petition for judicial
169 Chapter 12
review, the Energy Facility Siting Council or the Public Utility Commission, as appropriate, shall
transmit the record to the Administrator. The record shall be accompanied by proof of service of
copies of the record, except exhibits, on all other parties of record in the proceeding and on any
other person required by law to be served.
(3) (a) Petitioner's opening brief and excerpt of record shall be served and filed
not later than 14 days after the filing of the petition for judicial review. Failure to file the
opening brief within the prescribed time will result in automatic dismissal of the petition.
(b) Any respondent's answering brief shall be served and filed within 14 days
after the filing of petitioner's opening brief. If any respondent fails to file a brief within
the prescribed time, the judicial review will be submitted without that respondent's
answering brief and that respondent will not be allowed to argue the case.
(c) No party shall file a reply brief.
(4) Except as prescribed in ORS 469.403(6), (7), and (8), or ORS 758.017(5), (6), and
(7), as appropriate, the court shall not grant a continuance or extension for transmitting the
record or filing briefs as specified in this rule, or for the time set for oral argument.
(5) A motion made before oral argument will not toll the time for transmitting the
record, filing briefs, or hearing oral argument.
170 Chapter 13
13. COSTS AND DISBURSEMENTS,
ATTORNEY FEES, AND DAMAGES
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.
(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.
(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 must file the original statement of costs and disbursements,
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.
(6) (a) (i) Except as provided in paragraph (ii) of this subsection, whether a brief
171 Chapter 13
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.
(ii) If a party filed a brief using the eFiling system, the party allowed
costs is entitled to recover the amount of the transaction charge and any document
recovery charge
*
incurred by that party for electronically filing the brief, as
provided in subsection (b) of this section. The party allowed costs is not entitled
to recover for the service copy of any brief served on a party via the eFiling
system, but is entitled to recover for two copies for each party served
conventionally.
(b) If the party who has been allowed costs has incurred transaction charges or
any document recovery charges
*
in connection with electronically filing any document,
the party is entitled to recover any such charge so incurred.
(c) 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 any such charge so incurred.
(d) (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.
2
(e) 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.
(f) 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).
(g) 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.
172 Chapter 13
(7) Parties liable for payment of costs and disbursements shall be jointly liable.
_________
1
See generally ORS 20.310 to 20.330 concerning costs and disbursements on appeal and in
cases of original jurisdiction.
*
Document recovery charges were charges collected to offset the cost incurred by the courts in
making the necessary number of printed copies of documents eFiled before February 8, 2016,
under the authority of a prior version of ORAP 16.20(2). See, e.g., ORAP 16.20(2) (2017).
2
See ORS 20.190(4).
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 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
appellate court 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. The failure of a party
on appeal or on review to petition for an award of attorney fees under this subsection is not a
waiver of that party's right later to petition on remand for fees incurred on appeal and review if
that party ultimately prevails on remand.
(4) When the Supreme Court denies a petition for review, a petition for attorney fees
for preparing a response to the petition for review may 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
173 Chapter 13
(2) or ORS 20.105(1), that the court may consider in determining whether and to what
extent to award attorney fees.
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.
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 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
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.
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, adh'd to on recons, 327 Or 185, 957 P2d 1200
(1998), with respect to ORS 20.075.
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)."
See Appendix 13.10.
174 Chapter 13
Rule 13.15
APPEAL OF PUBLIC DEFENSE SERVICES COMMISSION
DECISION REGARDING COURT-APPOINTED COUNSEL
COMPENSATION, COSTS, AND EXPENSES
(1) 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. The person shall serve a copy of the motion
on the executive director of the Public Defense Services Commission and shall include with the
motion proof of service on the executive director.
Rule 13.25
PETITIONS AND MOTIONS FOR DAMAGES
AND SANCTIONS
(1) Damages under ORS 19.445, attorney fees under ORS 20.105, and reasonable
expenses (including attorney fees) under ORAP 1.40(4) and ORCP 17 D are recoverable only by
petition filed within 21 days after the decision deciding the appeal or review in the manner
provided in ORAP 13.10. A request for damages, attorney fees, and reasonable expenses should
not be included in the party's brief.
(2) A motion for reasonable expenses (including attorney fees) under ORAP 1.40(4)
and ORCP 17 D based on the filing of a motion or thing shall be included in the answer or
objection to the motion, statement of costs and disbursements, or petition for attorney fees to
which the motion for sanctions relates.
Rule 13.30
REQUESTS FOR JUDGMENT AGAINST SURETIES
(1) A party entitled to judgment against a surety under ORS 19.450(4) shall file with
the Administrator and serve on the other parties to the appeal and on the surety a notice
requesting entry of judgment as part of the appellate judgment. The notice shall identify the
party in whose favor judgment will be entered, the surety against whom judgment will be
entered, the amount of the judgment, the rate of interest and the date from which interest will
run. In the absence of an indication otherwise, the interest will be simple, at nine percent per
annum, from the date of entry of the appellate judgment.
(2) All parties served with the notice shall have 14 days after the date of filing to file
objections.
175 Chapter 13
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176 Chapter 14
14. APPELLATE JUDGMENT
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 court or the Tax Court, or on judicial
review of an agency proceeding, an order disposing of the appeal or judicial
review or affirming without opinion; or with respect to a per curiam 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) of this paragraph, 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 part
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 part 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 the 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
177 Chapter 14
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 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 ORAP 9.25 or a petition for attorney fees or submission of a
statement of costs and disbursements under ORAP 13.05 and ORAP 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 award part 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 18.225 to 18.238, or other applicable law.
(b) The money award part 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 award. As requested by the party, the Administrator shall issue a
178 Chapter 14
certificate to the party, to the court or administrative agency to which a copy of
the appellate judgment was sent, or to both.
_________
See generally ORS 19.450 regarding appellate judgments in appeals from circuit court and Tax
Court. A party considering petitioning the United States Supreme Court for a writ of certiorari
with respect to an Oregon appellate court decision should review carefully 28 USC § 2101(c)
and the United States Supreme Court Rules, currently US Sup Ct 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 14.10
STAY PENDING ACTION BY THE
SUPREME COURT OF THE UNITED STATES
(1) A party may file a motion requesting a stay of the issuance of the appellate
judgment, a stay of the enforcement of the appellate judgment, or a recall of the appellate
judgment pending the filing of a petition for a writ of certiorari with the Supreme Court of the
United States.
1
The motion must show that the certiorari petition would present a substantial
question and that there is good cause for a stay.
(2) The motion shall be addressed to and acted upon by:
(a) the Court of Appeals when the Oregon Supreme Court has denied review
of a Court of Appeals decision;
(b) the Oregon Supreme Court in all other instances.
(3) The stay will automatically terminate in 90 days, unless:
(a) The appellate court extends the period for good cause shown, or
(b) The party who obtained the stay files a petition for a writ of certiorari with
the United States Supreme Court and so notifies the Appellate Court Administrator in
writing within the period of the stay. In that case, the stay will continue until the final
disposition by the United States Supreme Court.
_________
1
A stay granted under the terms of this rule does not affect the time for petitioning for a writ of
certiorari. See 28 USC § 2101 (generally establishing deadlines for certiorari); US Sup Ct Rule
13 (addressing certiorari deadlines specifically).
See ORS 19.270(6)(b) and (c).
179 Chapter 15
15. APPELLATE SETTLEMENT
CONFERENCE PROGRAM
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 unless the program director or the court cancels the conference or
removes the case from the program. A party or person with actual 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 program director.
(ii) After the first settlement conference is held, any party may
withdraw from the program, except that the 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 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
180 Chapter 15
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 (including correcting it or adding to it), preparation of
the record, and briefing, in abeyance for a period of 120 days after 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.
(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, any party may request the program director
to order, and the program director may order, an extension of the abeyance period
for up to 60 days. If all parties to an appeal agree to an extension for longer than
60 days, the program director may extend the abeyance period for as long as
reasonably necessary to implement a settlement.
(b) If a respondent files a motion to dismiss the appeal or an appellant files a
motion to stay enforcement of the judgment when the case is being held in abeyance, in
addition to serving a copy of the motion on all other parties to the appeal, the party shall
serve a copy of the motion on the program director accompanied by a letter of transmittal
stating whether the party prefers that the motion 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, the case may
be re-referred to the program after the court disposes of the motion to stay enforcement or
denies the motion to dismiss.
(c) The program director may reactivate a case held in abeyance at any time:
(i) On the program director's own motion; or
(ii) On motion of a party showing good cause for reactivating the
181 Chapter 15
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) The Appellate Settlement Conference Program is a "mediation program,"
as defined in ORS 36.110(8), and the provisions of ORS 36.100 to 36.238 apply to the
program, including the provisions of ORS 36.220 providing that "mediation
communications," as defined in ORS 36.110(7), are confidential. For purposes of the
program, "mediation," which is defined in ORS 36.110(5), begins when an appeal is
referred to the program and ends when the program director removes the appeal from the
program, or when the court dismisses the appeal, whichever occurs first.
(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 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) of this rule, 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) Appellate Settlement Conference Program Fees
(a) For the purposes of this paragraph, multiple parties who are represented by
the same attorney or attorneys shall be deemed to be a single party. Except as provided
in paragraph (d) of this subsection, each party to the appeal who participates in the
program shall pay the initial program fee prescribed in this subsection. Each party shall
pay the initial program fee directly to the neutral or, if instructed by the program director,
182 Chapter 15
to the State Court Administrator. Except as provided in paragraph (f) of this subsection,
each party shall pay the initial program fee no later than the date of the first settlement
conference. Unless otherwise agreed to by the parties, the neutral, and the program
director, each party to a general civil or domestic relations appeal must pay an initial
program fee of $350, and each party to a workers' compensation appeal must pay an
initial program fee of $150. In all other appeals, the parties, neutral, and program
director shall agree on the fees.
(b) (i) The initial program fee shall cover up to one hour of neutral
preparation time and up to five hours of settlement conference time whether or
not the settlement conference involves more than one session.
(ii) In unusual cases, if the neutral reasonably needs more than one
hour of preparation time, the neutral may contact the program director and the
program director may contact the parties to discuss whether to exclude the
additional preparation time from the initial program fee.
(iii) If the parties agree to extend the settlement conference beyond the
initial five hours, the parties shall compensate the neutral for any additional time
that is expended and recorded by the neutral, with the total cost of the additional
time being shared equally by the parties. The rate shall be $150 per hour, unless
otherwise agreed to by the parties, the neutral, and the program director.
(c) If an individual or entity who is not a party to the appeal participates in the
settlement conference as part of an attempt to reach a global resolution of a dispute or
disputes outside the scope of the appeal but involving some or all of the parties to the
appeal, the program director may require each such individual or entity to pay the
program fees prescribed in paragraph (a) of this subsection.
(d) The Chief Judge or the Chief Judge's designee may waive or defer
payment of program fees on motion of a party based on a showing that the party is
financially unable to pay the fees 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 program fees is waived or deferred, that party's portion of
program fees shall be paid by the program from funds appropriated for that purpose.
(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 make the program fees payable to the State Court
Administrator, reference the case name and number, and mail it to: Appellate Settlement
Conference Program, 1163 State Street, Salem, OR 97301-2563.
(f) A party whose program fees are deferred and who has not paid the fees by
the conclusion of the settlement conference shall remain liable for the unpaid fees, unless
the fees are waived following completion of the settlement conference. If a party's
program fees have been paid by the program and the party thereafter pays the fees, the
183 Chapter 15
fees shall be paid to the 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 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.
_________
See ORS 2.560(3).
Rule 15.10
APPELLATE SETTLEMENT CONFERENCE PROGRAM
IN THE SUPREME COURT
(1) Cases Subject
(a) The procedures in this rule apply only to cases filed in the Supreme Court.
The court shall determine which pending cases or category of cases, if any, may be
included in the Appellate Settlement Conference Program (program).
(b) Cases shall be screened and settlement conferences held in the manner
prescribed by ORAP 15.05, unless otherwise stated in this rule.
(2) Abeyance of Case
(a) On assignment of a case to the program, the Chief Justice or his designee
shall inform the program director and/or parties whether any abeyance of the case will
occur pending the settlement conference.
(b) The court may reactivate a case held in abeyance at any time:
(i) At the request of the program director pursuant to the request of a
party or on the director's own motion, or
(ii) On the motion of a party showing good cause for reactivating the
case. In addition to serving a copy of the motion on all parties to the case, a party
184 Chapter 15
filing a motion to reactivate shall serve a copy of the motion on the program
director, or
(iii) On the court's own motion.
185 Chapter 16
16. FILING AND SERVICE BY ELECTRONIC MEANS
Rule 16.03
APPLICABILITY
These rules apply to electronic filing in the Oregon Court of Appeals and the Oregon Supreme
Court. At this time, only attorneys who are members of the Oregon State Bar and are authorized
to practice law in Oregon are eligible to file documents electronically.
Rule 16.05
DEFINITIONS
(1) "Document" means a brief, petition, notice, motion, response, application,
affidavit or declaration, or any other writing that, by law, may be filed with an appellate court,
including any exhibit or attachment referred to in that writing
(2) "Electronic filing" or "eFiling" means the process whereby a user of the eFiling
system transmits a document directly from the user's computer to the electronic filing system to
file that document with the appellate court.
(3) "Electronic filing system" or "eFiling system" means the system provided by the
Oregon Judicial Department for a party to electronically submit a document for filing in the
appellate courts via the internet. The system may be accessed at the Judicial Department's
website.
1
(4) "Electronic payment system" means the system provided by the Oregon Judicial
Department for paying filing fees and associated charges electronically in the appellate court.
(5) An "eFiler" means a person registered with the eFiling system who submits a
document for electronic filing with the appellate court.
(6) "Electronic service" or "eService" means the process for a user of the eFiling
system to accomplish service via the electronic mail function of the appellate court eFiling
system.
(7) "Hyperlink" means a navigational link in the electronic version of a document to
another section of the same document or to another electronic document accessible via the
internet.
(8) "Initiating document" means any document that initiates a case, including but not
limited to a notice of appeal; a petition for review;
2
a petition for judicial review; a petition for a
writ of mandamus, habeas corpus or quo warranto; and a recommendation for discipline from
the Oregon State Bar or the Commission on Judicial Fitness and Disability.
(9) "PDF" means Portable Document Format, an electronic file format.
186 Chapter 16
(10) "Username" means the identifying term assigned to an eFiler by the court, used to
access the appellate court eFiling system.
_________
1
<https://courts.oregon.gov/services/online/Pages/appellate-efile.aspx>
2
ORAP 1.35 defines "initiating document" for purposes of conventional filing. For those
purposes, the term does not include a petition for review under ORAP 9.05. ORAP 1.35(1)(b)(i).
ORAP 16.05 defines "initiating document" for purposes of eFiling and eService. For those
purposes, the term does include a petition for review under ORAP 9.05.
Rule 16.10
eFILERS
(1) Authorized eFilers
(a) Any member of the Oregon State Bar who is authorized to practice law
may register to become an eFiler.
(b) To become an eFiler, an attorney must complete a registration form to
request a username and must complete a training program, either online or in person,
regarding the appellate court eFiling system. Links to the registration form and to the
online training program are available at Appellate eFiling. An attorney who has been
assigned a username, has created a password, and has completed training may eFile
documents with the appellate courts.
(2) Conditions of Electronic Filing
(a) To access the eFiling system, each eFiler agrees to and shall
(i) review the technical requirements for electronic filing at Appellate
eFiling FAQs;
(ii) register for access to the eFiling system;
(iii) comply with the electronic filing terms and conditions when using
the eFiling system;
(iv) furnish required information for case processing;
(v) advise the Oregon Judicial Department Enterprise Technology
Services Division of any change in the eFiler's email address.
1
(b) An eFiler's username and password may be used only by the attorney to
whom the username and password were issued or by an employee of that attorney's law
187 Chapter 16
firm or office or by another person authorized by that attorney to use the username and
password.
(c) The appellate court may suspend the electronic filing privileges of an
eFiler if the court becomes aware of misuse of the eFiling system or of the eFiler's
username and password.
_____________
1
Use the form located on the Judicial Department's website, at the following address:
<https://www.courts.oregon.gov/services/online/Pages/appellate-eFile-support.aspx>.
An eFiler should allow two business days for processing the update. Once the update is made, it
becomes effectively immediately. This obligation is independent from the obligation of Oregon
lawyers to notify the Oregon State Bar when the lawyer's email address changes.
Rule 16.15
FORMAT OF DOCUMENTS TO BE FILED ELECTRONICALLY
(1) Any document filed via the eFiling system must be in a Portable Document
Format (PDF) or Portable Document Format/A (PDF/A) that is compatible with the eFiling
system requirements and that does not exceed 25 megabytes. An eFiler should break down a
document that exceeds the size limit into as few smaller separate documents as possible, which
the filer may upload as supporting documents under subsection (5) of this rule.
1
The PDF
document shall allow text searching and shall allow copying and pasting text into another
document.
(2) A submitted document, when viewed in electronic format and when printed, shall
comply, to the extent practicable, with the formatting requirements of any applicable Oregon
Rule of Appellate Procedure. Except as provided in ORAP 16.40, a document submitted for
electronic filing need not contain a physical signature.
(3) An eFiler who submits a document that does not comply with an applicable
Oregon Rule of Appellate Procedure will receive from the court an acknowledgement of the
electronic filing and a notice of the deficiency or deficiencies to be corrected.
2
(4) The court may require that an eFiler submit, in the manner and time specified by
the court, an electronic version of a document in its original electronic format.
(5) Except as provided in subsection (1) and paragraphs (5)(a) through (c) of this rule,
to the extent practicable, an electronic filing must be submitted as a unified single PDF file,
rather than as separate eFiled documents or as a principal eFiled document with additional
supporting documents attached through the eFiling system.
3
(a) The following documents must be submitted as supporting documents
through the eFiling system:
188 Chapter 16
(i) One or more parts of an eFiled document that exceeds the size
limit set out in subsection (1) of this rule, as a supporting document to the initial
eFiled document.
(ii) A memorandum of law accompanying a petition in a mandamus,
habeas corpus, or quo warranto proceeding in the Supreme Court under ORAP
11.05 or ORAP 11.20, as a supporting document to the eFiled petition.
(b) For an electronic filing containing an attachment that is confidential or
otherwise exempt from disclosure, the eFiler must eFile the attachment separately from
the principal document, not as a supporting document attached through the eFiling
system. For the principal document, the eFiler must include a comment that the related
eFiling is a confidential attachment to the principal document. For the eFiled attachment,
the eFiler must select the document name "Notice to Court Confidential Attachment."
(c) For an electronically filed motion seeking approval to file another
document, including an application to appear amicus curiae with an accompanying brief,
where the eFiler intends to submit the brief or other document for filing at the same time,
the brief or other document must be electronically filed separately from the motion
seeking approval or application to appear amicus curiae, rather than being submitted as a
supporting document attached to the motion. For each electronic filing transaction under
this paragraph, the eFiler must include the following comments:
(i) For the motion seeking approval or application to appear amicus
curiae, a comment that the eFiler is submitting the brief or other document
through a separate eFiling transaction; and
(ii) For the brief or other document, a comment that the electronic
filing transaction relates to the earlier electronic filing transaction that submitted
the motion or application to appear amicus curiae.
(6) An eFiled document may not contain an embedded audio or video file.
(7) Unless otherwise provided by these rules or directed by the court, an eFiler shall
not submit to the court paper copies of an eFiled document.
_________
1
See Appellate eFiling FAQ for more information about the technical requirements of eFiling:
<https://www.courts.oregon.gov/services/online/Pages/appellate-faq.aspx>.
2
See ORAP 1.20.
3
Examples of content that should be included as part of a unified single PDF file include: (1)
notice of appeal, judgment being appealed, and certificate of service; (2) petition for judicial
review, agency order as to which review is sought, and certificate of service; (3) petition for
189 Chapter 16
reconsideration, underlying decision as to which reconsideration is sought, and certificate of
service; (4) petition for review, Court of Appeals decision as to which review is sought, and
certificate of service; (5) motion, affidavit or declaration (if any) and certificate of service; (6)
Supreme Court mandamus or habeas corpus petition, copy of order or written decision, and
certificate of service; (7) Supreme Court memorandum in support of a mandamus or habeas
corpus petition, excerpt of record, and certificate of service.
Rule 16.20
FILING FEES AND eFILING CHARGES
(1) The appellate courts may impose a transaction charge for using the eFiling
system, as prescribed by order of the Chief Justice.
(2) An eFiler shall pay any required filing fees or eFiling charges at the time of the
electronic filing, by using the electronic payment system, unless otherwise directed by the court.
Charges for electronic filing may be recovered in the manner provided by ORAP 13.05.
(3) If an eFiler seeks to waive or defer filing fees, the eFiler shall apply for a waiver
or deferral of filing fees by eFiling an application to waive or defer filing fees at the time of
filing a document electronically.
Rule 16.25
ELECTRONIC FILING AND ELECTRONIC FILING DEADLINES
(1) Except as provided in subsection (4), the filing deadline for any document filed
electronically is 11:59:59 p.m. in the time zone in which the court is located on the date by which
the document must be filed.
(2) The submission of a document electronically by the eFiler and acceptance of the
document by the court accomplishes electronic filing. When accepted for filing, the electronic
document constitutes the court's official record of the document.
(3) (a) The court considers a document received when the eFiling system receives
the document. The eFiling system will send an email that includes the date and time of
receipt to the eFiler's email address, and to any other email address provided by the
eFiler, to confirm that the eFiling system received the document.
(b) When the court accepts the document for filing, the eFiling system will
affix to the document the time of day, the day of the month, the month, and the year that
the eFiling system received the document. The date and time of filing entered in the
register relate back to the date and time that the eFiling system received the document.
The eFiling system will send an email that includes the date and time of acceptance to the
eFiler's email address and to any other email address provided by the eFiler. If the
document was electronically served by the eFiling system pursuant to ORAP 16.45,
1
the
190 Chapter 16
date of service will also relate back to the date that the eFiling system received the
document.
(4) (a) As used in this subsection, "temporary unavailability" means the eFiling
system is temporarily unavailable or an error in the transmission of the document or other
technical problem prevents the eFiling system from receiving the document. A
"temporary unavailability" does not include a problem with the eFiler’s equipment or
software, or other problem within the eFiler’s control.
(b) When a party is unable to use the eFiling system because of a temporary
unavailability, the party may file and serve the document as provided in subparagraph (i)
or (ii) of this paragraph.
(i) The party may conventionally file and serve the document. If the
party conventionally files and serves the document by the end of the next business
day following the cessation of the temporary unavailability, together with
satisfactory proof of the temporary unavailability, the filing and service date
relates back to the date the party attempted to eFile the document.
(ii) Upon cessation of the temporary unavailability, the party may use
the eFiling system to file and, except as provided in ORAP 16.45(3), serve the
document. If the party files and serves the document using the eFiling system by
11:59:59 p.m. of the next business day following the cessation of the temporary
unavailability and submits satisfactory proof of the temporary unavailability, the
filing and service date relates back to the date the party attempted to eFile the
document.
(c) Paragraph (b) of this subsection does not apply to extend any jurisdictional
time period imposed by statute, including those related to the filing and service of a
notice of appeal, a petition for judicial review, or any other initiating document. A
party's circumstances may require the party to conventionally file and serve an initiating
document within the time period imposed by statute.
(d) "Satisfactory proof of the temporary unavailability" means a written
description of the temporary unavailability, together with any supporting documentation,
satisfactory to the court.
(5) Documents Conventionally Filed: The court may digitize, scan, or otherwise
reproduce a document that is filed conventionally into an electronic record, document, or image.
The court subsequently may destroy a conventionally filed document in accordance with the
protocols established by the State Court Administrator under ORS 8.125(11).
_________
1
As provided in ORAP 16.45(3), the eFiling system cannot electronically serve some
documents.
191 Chapter 16
Rule 16.30
CONVENTIONAL FILING REQUIREMENTS
(1) The following documents must be conventionally filed:
(a) A document filed under seal, including a motion requesting that a
simultaneously filed document be filed under seal or a document with an attachment that
is sealed by statute or court order.
(b) An oversized demonstrative exhibit or oversized part of an appendix or
excerpt of record. Such a document must be filed within three business days of eFiling
the document to which the oversized document relates. An eFiler may note, in the
"comments" section of the eFiling screen, that an oversized appendix or excerpt of record
will be filed conventionally.
(c) An opinion of a trial panel of the Disciplinary Board filed with the State
Court Administrator under Bar Rule of Procedure 10.1.
(2) An eFiler who is not a lawyer of record for a party in a case must conventionally
file any document in any case that is confidential by law or court order.
(a) The conventional filing requirement in this subsection applies to a lawyer
for a person or entity appearing as amicus curiae.
(b) The Administrator is authorized to develop a means of electronic
transmission for the filing of a notice of appointment of counsel in a confidential case, for
the purpose of documenting a lawyer of record on the case.
(3) The following documents may be conventionally filed or eFiled:
(a) A notice of appeal, petition for judicial review, cross-petition for judicial
review, or petition under original Supreme Court or Court of Appeals jurisdiction.
1
(b) A request or motion for waiver of the mandatory eFiling requirement, as
set out in ORAP 16.60(2). If the request is approved or the motion granted, then the
approval or order filed in a case under ORAP 16.60(2)(c) or (d), and any document
subject to that approval or order may be conventionally filed.
______________________
1
ORS 19.260 provides that the filing of a notice of appeal may be accomplished by mail or
commercial delivery service; ORS 19.260(4) provides that, except as otherwise provided by law,
subsection (1) applies to petitions for judicial review, cross-petitions for judicial review, and
petitions under original jurisdiction of the Supreme Court or Court of Appeals.
192 Chapter 16
Rule 16.40
ELECTRONIC SIGNATURES
(1) The username and password required to submit a document to the eFiling system
constitute the signature of the eFiler for purposes of these rules and for any other purpose for
which a signature is required.
(2) (a) In addition to information required by statute or rule to be included in the
document, an electronically filed document must include a signature block that includes
the printed name of the eFiler and an indication that the printed name is intended to
substitute for the eFiler's signature. The attorney's bar number and an indication of the
party that the attorney represents must appear as part of or in addition to the signature
block.
Example: s/Attorney Name
Attorney Name
Oregon State Bar No. _____
Attorney for ___________.
(b) The Administrator is authorized to provide notice on the Judicial
Department's website
1
that eFilers may not include signature blocks generated by certain
programs that are incompatible with the appellate electronic court systems.
(3) When a document is filed electronically in which an opposing party joins, that all
such parties join in the document must be shown either by:
(a) submitting a scanned document containing the signatures of all parties
joining in the document;
(b) including a recitation in the document that all such parties consent or
stipulate to the document; or
(c) identifying in the document the signatures that are required and submitting
each such party's written confirmation no later than three business days after the court's
acceptance of the electronic filing.
(4) A party electronically filing a document, such as a declaration, that must be
signed by a person other than the eFiler, shall include a scanned image of the signature page
showing the person's signature.
__________
1
<https://www.courts.oregon.gov/services/online/pages/appellate-efile.aspx>
193 Chapter 16
Rule 16.45
ELECTRONIC SERVICE
(1) Registration as an eFiler with the eFiling system constitutes consent to receive
service via the electronic mail function of the eFiling system.
(2) (a) Except as provided in subsection (3), a party eFiling a document with the
appellate court may accomplish service of that document on any other party's attorney, if that
attorney is a registered eFiler, by using the eService function of the eFiling system. The eFiling
system will generate an email to the attorney being eServed that includes a link to the document
that was eFiled. To access the eFiled document, the attorney who has been eServed must log in
to the eFiling system.
(b) eService is effective under this rule when the eFiler has received a
confirmation email stating that the eFiled document has been received by the eFiling
system.
(3) A party eFiling a document must accomplish service via the conventional manner,
as provided by ORAP 1.35 and other applicable rules and statutes, if:
(a) The document to be served:
(i) initiates a case in the Court of Appeals;
(ii) initiates a case in the Supreme Court under that court's original
jurisdiction;
(iii) is a first motion for extension of time to file a petition for review in
the Supreme Court; or
(iv) if no motion for extension of time has been filed, is a petition for
review in the Supreme Court;
(b) The party to be served is self-represented; or
(c) The attorney to be served is not a member of the Oregon State Bar or has
obtained a waiver to the mandatory eFiling requirement under ORAP 16.60.
(4) All eFiled documents must be accompanied by a proof of service under ORAP
1.35(2)(e). The proof of service must certify service on all parties regardless of the means by
which service was accomplished, including eService. The proof of service must state that
service was accomplished at the person's email address as recorded on the date of service in the
eFiling system, and need not include that person's email address or mailing address.
(5) If an eFiled document is not eServed by the eFiling system because of an error in
the transmission of the document or other technical problem experienced by the eFiler, the court
may, upon satisfactory proof, permit the service date of the document to relate back to the date
that the eFiler first attempted to eServe the document. A party must show satisfactory proof by
194 Chapter 16
filing and serving an accompanying letter explaining the circumstances, together with any
supporting documentation.
Rule 16.50
HYPERLINKS AND BOOKMARKS IN eFILED BRIEFS
(1) An eFiled document may contain one or more hyperlinks to other parts of the
same document or hyperlinks to a location outside of the document that contains a source
document for a citation.
(a) When a party eFiles a brief or other memorandum that is accompanied by
excerpts of record or attachments, the party is encouraged to hyperlink citations to the
relevant portions of the excerpts or attachments.
(b) The functioning of a hyperlink reference is not guaranteed. The appellate
courts neither endorse nor accept responsibility for any product, organization, or content
at any hyperlinked site.
(c) A hyperlink to cited authority does not replace standard citation format.
The complete citation must be included within the text of the document. Neither a
hyperlink, nor any site to which it refers, shall be considered part of the record. A
hyperlink is simply a convenient mechanism for accessing material cited in an eFiled
document.
(2) When a party eFiles a brief, the party is encouraged to electronically bookmark
the sections of the brief, excerpt of record, and any appendix using PDF document creation
software. The caption of a bookmark should be concise. The sections of the brief that should be
bookmarked include the discussion on each assignment of error or question presented on review,
or the response to any assignment of error or presented question. The sections of the excerpt of
record or appendix that should be bookmarked include the judgment, order, or opinion under
review and any separate findings or determinations that are part of that disposition.
______________
See Appendix 16.50 (example of electronic view of bookmarks).
Rule 16.55
RETENTION OF DOCUMENTS BY eFILERS
AND CERTIFICATION OF ORIGINAL SIGNATURES
(1) Unless the court orders otherwise, if an eFiler electronically files an image of a
document that contains the original signature of a person other than the eFiler, the eFiler must
retain the document in the eFiler's possession in its original paper form for no less than 30 days.
(2) When an eFiler electronically files a document described in subsection (1) of this
rule, the eFiler certifies by filing that, to the best of the eFiler's knowledge and after appropriate
195 Chapter 16
inquiry, the signature purporting to be that of the signer is in fact that of the signer.
Rule 16.60
MANDATORY ELECTRONIC FILING
(1) An active member of the Oregon State Bar must file a document using the eFiling
system, except:
(a) When a document must or may be conventionally filed under ORAP
16.30, or
(b) When the eFiling system is temporarily unavailable as provided in ORAP
16.25.
(2) An active member of the Oregon State Bar required under subsection (1) of this
rule to file a document using the eFiling system may obtain a waiver of the requirement as
follows:
(a) The member must file one of the following:
(i) a request for waiver in all cases before the Court of Appeals, or the
Supreme Court, or both, for a specific period of time; or
(ii) a motion in an existing case for waiver in that specific case.
(b) A request or motion must include an explanation describing good cause
for the waiver. The request or motion may be filed conventionally.
(c) The Administrator is authorized to approve or deny a request filed under
subparagraph (a)(i) of this subsection. If the court or the Administrator approves a
request under that subsection, the person must
(i) file a copy of the court's or the Administrator's approval in each
case subject to the waiver; and
(ii) include the words "Exempt from eFiling per Waiver Approved
[DATE]" in the caption of all documents conventionally filed during the duration
of the waiver.
(d) If the court grants a motion filed under subparagraph (a)(ii) of this
subsection, the person must include the words "Exempt from eFiling per Waiver Granted
[DATE]" in the caption of all documents conventionally filed in the case.
(3) The Administrator is authorized to suspend subsection (1) of this rule when the
Administrator becomes aware of a temporary unavailability as defined in ORAP 16.25(4)(a) and,
196 Chapter 16
in the Administrator’s judgment, the temporary unavailability is likely to prevent electronic
filing for a substantial period of time under the circumstances.
(a) If the Administrator suspends subsection (1) of this rule, then the
Administrator will strive to provide 24-hour advance notice of the suspension to
registered eFilers via email and to the public via notice on the Oregon Judicial
Department's website. If circumstances make it impractical to provide 24 hours' notice,
the Administrator will provide as much advance notice as is practical under the
circumstances.
(b) If the Administrator suspends subsection (1) of this rule under this
subsection, then an active member of the Oregon State Bar may file the document as
provided in ORAP 16.25(4).
(4) If a filer submits a document for conventional filing in contravention of
subsection (1) of this rule and the filer has not obtained a waiver pursuant to subsection (2) of
this rule, nor is the electronic system unavailable as described in subsection (3) of this rule, then
the Administrator is authorized to take any of the following actions:
(a) Accept the document for filing and provide notice to the filer that the
Administrator will reject future conventional submissions by the filer that are subject to
subsection(1) of this rule.
(b) Refuse to accept the document for filing.
(c) Return the document to the filer as unfiled.
(d) Refer the filing to the court for consideration of sanctions under ORAP
1.20(2).
197 Chapter 16
This page left blank intentionally.
198 Appendix 2.05
APPENDICES
APPENDIX 2.05
Illustration for ORAP 2.05
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
____________________________________, )
Plaintiff-Appellant, )
(or Plaintiff-Respondent) ) _______________ County Circuit
) Court No. _______________
)
v. )
____________________________________, )
Defendant-Respondent. ) NOTICE OF APPEAL
(or Defendant-Appellant) )
1.
(Plaintiff/Defendant) hereby gives notice of appeal from the judgment entered in this case
on [date of judgment , signed by Judge _______________ , in the _______________ County
Circuit Court.
2.
The parties to this appeal are:
Appellant(s) Respondent(s)
____________________________________ ____________________________________
____________________________________ ____________________________________
3.
The name, bar number, address, telephone number, and email address of the attorney(s)
for each party represented by an attorney is:
Name & Bar Number _____________________________ Representing __________________
Address ________________________________________ Telephone Number ______________
Email Address __________________________________
199 Appendix 2.05
Name & Bar Number _____________________________ Representing __________________
Address ________________________________________ Telephone Number ______________
Email Address __________________________________
The name, address, and telephone number of each self-represented party is:
Name ____________________________________
Address___________________________________ Telephone Number ___________________
Name ____________________________________
Address___________________________________ Telephone Number ___________________
4.
Appellant designates the record in its entirety. Thus, in addition to the trial court file,
appellant designates all exhibits, and the record of oral proceedings.
[or]
In addition to the trial court file, appellant designates only the following parts of the
record: _____ all exhibits; _____the record of the following oral proceedings:
______________________________________________; other: ________________________.
5.
[If the record includes an audio or video recording played in the trial court and the appellant
wants the transcript to include a transcript of the recording:]
The record includes one or more audio or video recordings that were played in the trial
court, and appellant wants the transcript to include a transcript of those recordings. The dates of
each hearing at which such a recording was played are:
_____________________________________________________________________________.
6.
[Only if less than the entire record is designated in paragraph 4:]
Appellant intends to rely on the following points:
_____________________________________________________________________________.
7.
This appeal is timely and otherwise properly before the Court of Appeals because:
_____________________________________________________________________________.
200 Appendix 2.05
8.
Attached to this notice of appeal is a copy of the judgment being appealed. Also attached
are copies of any other materials pertinent to determining appellate jurisdiction.
9.
[If filing two or more notices of appeal in cases that were consolidated in the trial court
and the appellant would like the cases to be consolidated in the appellate court:]
Appellant requests that this case be consolidated in the appellate court with the appeal
from ______________County Circuit Court, case number ______, in which a notice of appeal
was filed on ________________.
10.
CERTIFICATE OF SERVICE
I certify that on [date] , I served a true copy of this notice of appeal on:
______________________________ ______________________________
______________________________ ______________________________
______________________________ ______________________________
[Opposing party(ies) or attorney for opposing party(ies)]
______________________________ ______________________________
______________________________ ______________________________
______________________________ ______________________________
[trial court administrator] [transcript coordinator, if a transcript is
designated as part of the record on appeal]
by [specify method of service]:
__ United States Postal Service, ordinary first class mail
__ United States Postal Service, certified or registered mail, return receipt requested
__ hand delivery
__ other (specify) __________________________________
10.
CERTIFICATE OF FILING
I certify that on [date] , I filed the original of this notice of appeal with the Appellate
201 Appendix 2.05
Court Administrator by [specify method of filing]:
__ United States Postal Service, ordinary first class mail
__ United States Postal Service, certified or registered mail, return receipt requested
__ hand delivery
__ other (specify) __________________________________
____________________________________
[Signature of appellant or attorney]
____________________________________
[Typed or printed name of appellant
or attorney]
202 Appendix 2.25
APPENDIX 2.25
Illustration for ORAP 2.25
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
In the Matter o f )
the Estate of John Doe, Deceased. )
)
MARY DOE, RICHARD DOE and )
DAVID DOE, )
Plaintiffs-Respondents- ) _______________ County Circuit
Cross-Appellants, ) Court No. _______________
)
NANCY DOE, ) CA A _______________
Plaintiff, )
)
v. )
)
NATIONAL BANK OF OREGON, )
Trustee of the John Doe Trust, )
)
Defendant-Appellant- )
Cross-Respondent. )
)
RICHARD DOE, )
Cross-claim Plaintiff, )
)
v. )
)
MARY DOE, )
Cross-claim Defendant. )
)
NATIONAL BANK OF OREGON, )
Third-Party Plaintiff- )
Appellant, )
)
v. )
)
ACME LIFE INSURANCE CO., )
Third-Party Defendant- )
Respondent. )
203 Appendix 2.40
APPENDIX 2.40
Illustration for ORAP 2.40
The trial court erred when, over objection, it categorized defendant as a criminal history category
C offender.
The trial court erred when, over objection, it imposed a condition of probation that requires
defendant to undergo drug evaluation and treatment.
The trial court erred when, over objection, it imposed a condition of probation that prohibits
defendant from contacting defendant's children.
The trial court erred when, over objection, it imposed a disputed amount of restitution.
204 Appendix 3.30
APPENDIX 3.30
Illustration for ORAP 3.30
IN THE COURT OF APPEALS (SUPREME COURT)
OF THE STATE OF OREGON
____________________________________, )
Plaintiff-Appellant, )
(or Plaintiff-Respondent) ) _______________ County Circuit
) Court No. _______________
)
v. )
____________________________________, ) CA A_______________
Defendant-Respondent. )
(or Defendant-Appellant) )
REQUEST BY REPORTER OR TRANSCRIBER FOR TIME EXTENSION
FOR PREPARATION OF TRANSCRIPT
1. I am responsible for preparing a transcript for _____ days of proceedings. A transcript of
those proceedings will be approximately _____ pages. The transcript was ordered on [date] .
2. I request an extension of time of _____ days, from __________ through __________,
within which to prepare, serve, and file the transcript. This is the __________ request for a time
extension and is sought because:
I have not received payment for the transcript and a satisfactory arrangement for payment
has not been made. [or]
I have now received payment for the transcript [or] a satisfactory arrangement for
payment has been made. [or]
[Other reason:] ____________________________________.
3. On order from me, and undelivered to date, are transcripts in the following cases: [Attach
additional sheet(s) if necessary.]
Caption Date Extension Date Est. No.
& Court Ordered Allowed Now Due Of Pages
_____________________________________________________________________________
_____________________________________________________________________________
205 Appendix 3.30
4. I have served copies of this request on: [List names and complete addresses of all
counsel, parties, and, when appropriate, the trial court judge(s)]
____________________
Date
____________________ ________________ _________________
Court Reporter County Telephone No.
or Transcriber
206 Appendix 3.33-1
APPENDIX 3.33-1
Illustration for ORAP 3.33(4)(b) and ORS 19.370
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
____________________________________, )
Plaintiff-Appellant, )
(or Plaintiff-Respondent) ) _______________ County Circuit
) Court No. _______________
)
v. )
____________________________________, ) CA A_______________
Defendant-Respondent. )
(or Defendant-Appellant) )
CERTIFICATE OF PREPARATION
AND SERVICE OF TRANSCRIPT
I certify that I prepared:
All of the transcript designated as part of the record for this appeal. [or]
These parts of the transcript designated as part of the record for this appeal: [List the
dates of all proceedings transcribed, the volume number of the transcript(s), and the page
numbers specific to each transcript.]
_______________________________________________________________________.
I certify that the original of this Certificate was filed with the Appellate Court Administrator and
copies were served on the trial court administrator and transcript coordinator on [date] .
I certify that on [date] a copy of the transcript or part thereof prepared by me and a copy of
this Certificate were served on:
[name and address of each person served]
[Date]
_______________________
Court Reporter or Transcriber
207 Appendix 3.33-2
APPENDIX 3.33-2
Illustration for ORAP 3.33(4)(c)
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
____________________________________, )
Plaintiff-Appellant, )
(or Plaintiff-Respondent) ) _______________ County
) Circuit Court No. ____________
)
v. )
____________________________________, ) CA A_______________
Defendant-Respondent. )
(or Defendant-Appellant) )
CERTIFICATE OF FILING OF TRANSCRIPT
I certify that I prepared:
All of the transcript designated as part of the record for this appeal. [or]
These parts of the transcript designated as part of the record for this appeal:
__________________________________________________________.
The transcript is now settled.
I certify that on [date] the transcript or part thereof prepared by me
was filed with the Appellate Court Administrator in electronic form in the form required by
ORAP 3.35(2).
I certify that on [date] a copy of this Certificate was served on:
[name and address of each person served]
[Date]
_______________________
Court Reporter or Transcriber
208 Appendix 3.35
APPENDIX 3.35
Illustration for ORAP 3.35(2)(b)
File Naming Conventions for
Electronic Transcripts
Transcripts, Nonconfidential Case:
[Appellate Case Number]_transcript-[year-month-day, of proceeding-am/pm if
appropriate] [volume number, if applicable]_pp[starting page number-ending page number]
[court reporter or transcriber last, first name]
Example: CA123456_transcript-2002-02-15-am_vII_pp205-410_johnsonerin
If the transcript spans several dates, then the date span should be indicated, such as:
SC012345_transcript-2002-02-15to2002-02-20_johnsonerin
Transcripts, Confidential Cases (juvenile, adoption, civil commitment):
[Appellate Case Number]_transcript-confidentialcase-[year-month-day, of proceeding-
am/pm if appropriate]_[court reporter or transcriber last, first name]
Example: CA123456_transcript-confidentialcase-2002-02-15-
am_vX_pp1000-1205_johnsonerin
209 Appendix 4.15-1
APPENDIX 4.15-1
Illustration for ORAP 4.15
(Other than Workers' Compensation Case)
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
[The title should be set up, to the ) [Agency Name]
extent possible, as it was before the )
agency, showing the parties with ) No. ______________
their appropriate appellate designations] )
) CA A ____________
PETITION FOR JUDICIAL REVIEW
Petitioner seeks judicial review of the final order of the _______________ in case
number ______, dated _____________.
The parties to the judicial review proceeding before the Court of Appeals are:
Petitioner(s) Respondent(s)
____________________________________________________________________________
____________________________________________________________________________
The name, bar number, address, telephone number, and email address of the attorney(s)
for each party represented by an attorney is:
Name & Bar Number _____________________________ Representing __________________
Address ________________________________________ Telephone Number ______________
Email Address __________________________________
Name & Bar Number _____________________________ Representing __________________
Address ________________________________________ Telephone Number ______________
Email Address __________________________________
The name, address, and telephone number of each self-represented party is:
Name ____________________________________
Address___________________________________ Telephone Number ___________________
Email address
□ For self-represented parties: Please check here if you consent to receiving notices from the
appellate court by email.
210 Appendix 4.15-1
□ For self-represented parties: Please check here if you consent to receiving the agency record
by Secure File Transmission Protocol (SFTP).
A. Attached to this petition is a copy of the order, rule or ruling for which judicial review is
sought. If a copy of the order, rule or ruling is not attached, the nature of the order for which
review is sought is ________________.
B. Petitioner was a party to the administrative proceeding which resulted in the order for
which review is sought.
[or]
Petitioner was denied status as a party to the administrative proceeding that resulted in
the order for which review is sought.
[or]
Petitioner is adversely affected or aggrieved by the order as set forth in an affidavit
attached to this petition.
C. Petitioner is not willing to stipulate that the agency record may be shortened.
[or]
Petitioner is willing to stipulate that the agency record may be shortened and designates
these parts of the record to be included in the record:______________________________.
DATED this _____ day of ____________, ______.
_______________________________
Attorney for Petitioner
[Sign and print/type name, bar number,
address, telephone number, and email
address]
CERTIFICATE OF SERVICE
I certify that on [date] , I served a true copy of this petition for judicial review on:
______________________________ ______________________________
______________________________ ______________________________
______________________________ ______________________________
[State agency and address] Attorney General of the State of Oregon
Office of the Solicitor General
______________________________ 400 Justice Building
1162 Court Street NE
211 Appendix 4.15-1
______________________________ Salem, Oregon 97301-4096
[Other party(ies) or attorney for other party(ies)]
by [specify method of service]:
__ United States Postal Service, ordinary first class mail
__ United States Postal Service, certified or registered mail, return receipt requested
__ hand delivery
__ other (specify) __________________________________
CERTIFICATE OF FILING
I certify that on [date] , I filed the original of this petition for judicial review with the
Appellate Court Administrator by [specify method of filing]:
__ United States Postal Service, ordinary first class mail
__ United States Postal Service, certified or registered mail, return receipt requested
__ hand delivery
__ other (specify) __________________________________
____________________________________
[Signature of petitioner or attorney]
____________________________________
[Typed or printed name of petitioner
or attorney]
212 Appendix 4.15-2
APPENDIX 4.15-2
Illustration for ORAP 4.15
(Workers' Compensation Case)
IN THE COURT OF APPEALS OF THE STATE OF OREGON
In the Matter of )
the Compensation of )
________________, Claimant. ) WCB Case No.________________
)
___________________________, ) CA A____________
Petitioner, )
)
v. )
___________________________, )
Respondent. )
PETITION FOR JUDICIAL REVIEW
OF ORDER OF THE WORKERS' COMPENSATION BOARD
Petitioner seeks judicial review of the Workers' Compensation Board Order on Review
dated ________.
The parties to the judicial review proceeding before the Court of Appeals are:
Petitioner(s) Respondent(s)
____________________________________________________________________________
____________________________________________________________________________
The name, bar number, address, telephone number, and email address of the attorney(s)
for each party represented by an attorney is:
Name & Bar Number _____________________________ Representing __________________
Address ________________________________________ Telephone Number ______________
Email Address __________________________________
Name & Bar Number _____________________________ Representing __________________
Address ________________________________________ Telephone Number ______________
Email Address __________________________________
The name, address, and telephone number of each self-represented party is:
Name ____________________________________
213 Appendix 4.15-2
Address___________________________________ Telephone Number ___________________
Email address
□ For self-represented parties: Please check here if you consent to receiving notices from the
appellate court by email.
□ For self-represented parties: Please check here if you consent to receiving the agency record
by Secure File Transmission Protocol (SFTP).
The relief sought and reason relief should be granted are:
__________________________
DATED this ________ day of _____________, ________.
________________________________
Attorney for Petitioner
[Sign and print/type name, bar number,
address, telephone number, and email
address]
CERTIFICATE OF SERVICE
I certify that on [date] , I served a true copy of this petition for judicial review on:
Workers' Compensation Board
________________________________
________________________________
[address]
______________________________ ______________________________
______________________________ ______________________________
______________________________ ______________________________
[Other party(ies) or attorney for other party(ies)]
by [specify method of service]:
__ United States Postal Service, ordinary first class mail
__ United States Postal Service, certified or registered mail, return receipt requested
__ hand delivery
__ other (specify) __________________________________
CERTIFICATE OF FILING
I certify that on [date] , I filed the original of this petition for judicial review with the
214 Appendix 4.15-2
Appellate Court Administrator by [specify method of filing]:
__ United States Postal Service, ordinary first class mail
__ United States Postal Service, certified or registered mail, return receipt requested
__ hand delivery
__ other (specify) __________________________________
____________________________________
[Signature of petitioner or attorney]
____________________________________
[Typed or printed name of petitioner
or attorney]
215 Appendix 5.05-1
APPENDIX 5.05-1
Illustration for ORAP 5.05
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
____________________________________, )
Plaintiff-Appellant, )
(or Plaintiff-Respondent) ) _______________ County Circuit
) Court No. _______________
)
v. )
____________________________________, ) CA A_______________
Defendant-Respondent. )
(or Defendant-Appellant) )
APPELLANT'S OPENING BRIEF AND EXCERPT OF RECORD
Appeal from the judgment (order) of the Circuit Court for _________ County; Honorable
_________________, Judge.
________________________
Attorney(s) for Appellant [if more than one appellant, identify which; include separate listing for
each appellant represented by a different attorney]
[Mailing address, bar number, telephone number, and email address]
[or]
_______________________________ [name of self-represented appellant; include separate
listing for each self-represented appellant]
[Mailing address and telephone number]
________________________
Attorney(s) for Respondent [if more than one respondent, identify which; include separate listing
for each respondent represented by a different attorney]
[Mailing address, bar number, telephone number, and email address]
[or]
_______________________________ [name of self-represented respondent; include separate
listing for each self-represented respondent]
[Mailing address and telephone number]
216 Appendix 5.05-1
__________________________________________
[Signature of attorney or unrepresented party]
__________________________________________
[Typed or printed name of attorney or unrepresented party]
217 Appendix 5.05-2
APPENDIX 5.05-2
Illustration for ORAP 5.05(2)
COMBINED CERTIFICATE OF COMPLIANCE WITH BRIEF LENGTH
AND TYPE SIZE REQUIREMENTS,
AND CERTIFICATES OF FILING AND SERVICE
[Brief length]
I certify that this brief complies with the word-count limitation in ORAP 5.05, which word count
is ________________.
[or]
I certify that (1) I do not have access to a word-processing system that provides a word count; (2)
this brief complies with the page limitation in ORAP 5.05 and the number of pages of this brief
is ___________.
[or]
The court granted a motion to exceed the length limit for this brief. The order granting that
motion was dated [date] and permits a brief of up to [number of words
/pages] . I certify that (1) this brief complies with that order and (2) the word count of this
brief is ____________ [OR] the number of pages in this brief is ____________.
[Type size; exclude if brief is prepared using uniformly spaced type]
I certify that the size of the type in this brief is not smaller than 14 point for both the text of the
brief and footnotes.
[Filing]
I certify that I filed this brief with the Appellate Court Administrator on this date.
[Service]
[When the case party or participant is being eServed using the appellate courts' eFiling system]
I certify that service of a copy of this brief will be accomplished on the following participant(s)
in this case, who is a registered user of the appellate courts' eFiling system, by the appellate
courts' eFiling system at the participant's email address as recorded this date in the appellate
eFiling system:
[List name of each party or participant who is being eServed]
[When the case party or participant is not being eServed using the appellate courts' eFiling
system]
218 Appendix 5.05-2
I certify that I have this date served each participant in this case who is not being served by the
appellate courts' eFiling system by [specific method] at the following address:
[List name and address of each party or participant who is not being eServed]
DATED:
__________________________________________
[Signature of attorney or unrepresented party]
__________________________________________
[Typed or printed name of attorney or unrepresented party]
219 Appendix 5.45
APPENDIX 5.45
Illustration for ORAP 5.45
Model Complete Assignment of Error (Ill. 1);
Other Partial Assignments of Error (Ill. 2-6)
(Model Complete Assignment of Error)
Illustration 1
FIRST ASSIGNMENT OF ERROR
The trial court erred in declining to give defendant's requested menacing instruction on
the ground that menacing is not a lesser included offense of robbery in the first and second
degrees.
A. Preservation of Error
At the close of the evidence, defendant submitted a requested instruction on menacing.
(ER-___.) By way of memorandum in support of the requested instruction, defendant argued to
the trial court that menacing is necessarily included in the statutory definition of robbery in the
first degree (the crime with which defendant was charged) and that the record contained evidence
from which a jury could find defendant guilty of the lesser charge and not guilty of the greater
charge. (ER-___.) The trial court declined to give the instruction, stating:
"I'm not going to give the requested instruction on menacing. Menacing is not
expressly included in the charging instrument and, in my view, is not a statutorily
lesser-included offense of the crime of robbery because it does not share all of the
same elements as robbery. The prosecutor could have charged defendant with
menacing, but didn't. And without a match on the elements of the two offenses, a
lesser-included instruction isn't proper."
(Tr 142.)
B. Standard of Review
The court reviews the trial court's decision either to give or to decline to give a requested
jury instruction pursuant to a combination of standards of review. Regarding review of the
record to support such an instruction, the court "review[s] the evidence in the light most
favorable to the establishment of facts that would require those instructions." State v. Boyce, 120
Or App 299, 302, 852 P2d 276 (1993). Whether the language of the statute defining the lesser
offense is necessarily included in the greater offense is a pure question of law, one that the court
decides without any particular deference to its resolution below. See State v. Cunningham, 320
Or 47, 57, 880 P2d 431 (1994), cert den, 514 US 1005 (1995); State v. Moses, 165 Or App 317,
319, 997 P2d 251, rev den, 331 Or 334 (2000).
220 Appendix 5.45
ARGUMENT
(Other Partial Forms for Assignments of Error)
Illustration 2
The court erred in denying (or allowing) the following motion:
[Show that the error was preserved, including setting forth verbatim the motion and the ruling of
the court.]
Illustration 3
The court on examination of witness _________ erred in sustaining (or failing to sustain)
objection to the following question:
[Show that the error was preserved, including setting forth verbatim the question, the objection
made, the answer given, if any, offer of proof, if any, and the ruling of the court.]
Illustration 4
The court erred in denying (or sustaining) the motion for dismissal or directed verdict:
[Show that the error was preserved, including setting forth verbatim the motion and the ruling of
the court.]
Illustration 5
The court erred in giving the following instruction:
[Show that the error was preserved, including setting forth verbatim the instruction (or citing to
the excerpt of record, if the instruction is set forth verbatim in the excerpt of record), and the
exception made to the instruction.]
Illustration 6
The court erred in granting plaintiff's motion for summary judgment based on its holding
that ORS _____ (or Oregon Laws [year] , chapter ___, section ___) is unconstitutional (or
constitutional):
[Show that the error was preserved, including setting forth verbatim the statutory provision and
the manner in which constitutionality was challenged.]
221 Appendix 5.50
APPENDIX 5.50
Illustration for ORAP 5.50
EXCERPT OF RECORD
In civil cases, the excerpt of record properly might contain:
(1) When a claim or defense is an issue on appeal, the specific parts of the complaint,
petition, answer or other pleading that are essential to consideration of the issue on appeal;
otherwise, as much of the complaint, petition, answer or other pleading as is essential to frame
the issue on appeal;
(2) When an issue on appeal is based on the grant or denial of a written motion, the
motion, the response to the motion, those specific parts of any affidavits, exhibits or similar
attachments submitted in support of or in opposition to the motion that are essential to
consideration of the issue on appeal, and the written order ruling on the motion;
(3) Any opinion, findings of fact or conclusions of law relating to an issue on appeal;
(4) When an issue on appeal is based on a ruling, order, finding of fact or conclusion
of law that was delivered orally, that specific part of the transcript containing the ruling, order,
finding of fact, or conclusion, together with any discussion of the matter by the judge, counsel or
a party;
(5) When an issue on appeal is based on a challenge to the admission or exclusion of
evidence, the specific part of the transcript containing any discussion involving the evidence by
the court, counsel, or a party, and any offer of proof, ruling or order, and objection;
(6) When an issue on appeal is based on a written exhibit, including an affidavit, the
specific part of the exhibit essential to consideration of an issue on appeal;
(7) When an issue on appeal is based on a jury instruction given or refused, the jury
instruction and the specific part of the transcript containing any discussion of the jury instruction
by the court, counsel or a party, and any ruling and objection;
(8) When an issue on appeal is based on the verdict, the written verdict, if any, or, if
the verdict was rendered orally, the specific part of the transcript containing the verdict.
222 Appendix 5.95
APPENDIX 5.95
Illustration for ORAP 5.95
1. Sample Brief Caption for Brief Containing Confidential Material
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON, ) ____________ County
Plaintiff-Respondent, ) Circuit Court No. _______________
)
v. ) CA A_______________
)
JOHN DOE, )
Defendant-Appellant. )
CONFIDENTIAL BRIEF UNDER ORS 137.077
[or]
CONFIDENTIAL BRIEF UNDER
TRIAL COURT ORDER DATED JANUARY 1, 1999
APPELLANT'S OPENING BRIEF AND EXCERPT OF RECORD
2. Sample Brief Caption for Brief With Confidential Material Redacted
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON, ) ____________ County
Plaintiff-Respondent, ) Circuit Court No. _______________
)
v. ) CA A_______________
)
JOHN DOE, )
Defendant-Appellant. )
REDACTED BRIEF UNDER ORS 137.077
[or]
REDACTED BRIEF UNDER
TRIAL COURT ORDER
DATED JANUARY 1, 1999
APPELLANT'S OPENING BRIEF AND EXCERPT OF RECORD
223 Appendix 6.05
APPENDIX 6.05
Illustration for ORAP 6.05
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
_________________________, )
Plaintiff-Appellant, )
(or Plaintiff-Respondent) ) _______________County Circuit
v. ) Court No. _________________
_________________________, )
Defendant-Respondent. ) CA A_____________________
(or Defendant-Appellant) )
REQUEST FOR ORAL ARGUMENT
To the Calendar Clerk for the Court of Appeals:
[Appellant/Respondent/Other Party] hereby requests that the above-captioned case,
scheduled to be submitted to the court on [date] , be scheduled for oral argument before the
Oregon Court of Appeals on that date. The name and bar number of the attorney who will
appear on behalf of [appellant / respondent] at oral argument are [name] ,
[bar number] .
Date _____________________________________
__________________________________________
Attorney for [Appellant/Respondent/Other Party]
[Sign and print/type name, bar number,
address, telephone number, and email address]
224 Appendix 7.10-1
APPENDIX 7.10-1
List of Commonly Used Motion Titles for
ORAP 7.10(1)(b) and (c)
1
Motion Titles (Motions Other Than Motions for Extension of Time–ORAP 7.10(1)(b))
Motion–Allow Oral Argument
Motion–Amend Brief
Motion–Amend Designation of Record
Motion–Appear Amicus Curiae
Motion–Appoint Counsel
Motion–Appoint Counsel and for State-Paid Transcript
Motion–Appoint Legal Advisor
Motion–Appoint Special Master
Motion–Assign to Settlement Conference Program
Motion–Authorize Service
Motion–Consolidate Cases
Motion–Correct/Amend Record
Motion–Default Order
Motion–Determine Jurisdiction
Motion–Dismiss - Appellant/Petitioner
Motion–Dismiss - Non-Appellant/Non-Petitioner
Motion–Dismiss - Settlement
Motion–Dismiss - Stipulated
Motion–Disqualify Judge/Justice
Motion–Excerpt of Record Preparation
Motion–File Additional Authorities
Motion–File Additional Evidence
Motion–File Extended Brief/Excerpt/Appendix
Motion–File Extended Petition for Review
Motion–File Extended Memorandum of Additional Authorities
Motion–File Late Appeal
Motion–File Late Brief
Motion–File Late Transcript
Motion–File Reply Brief
Motion–File Supplemental Brief
Motion–Hold In Abeyance
Motion–Hold In Abeyance - Bankruptcy
Motion–Inspect Sealed/Confidential Material
Motion–Intervene
Motion–Issue Appellate Judgment - Stipulated
Motion–Law Student Appearance
Motion–Leave to File Petition for Review
Motion–Modify Case Title
Motion–Other
Motion–Out of State Counsel
225 Appendix 7.10-1
Motion–Postpone Oral Argument
Motion–Prepare Jury Selection Transcript
Motion–Present Oral Argument
Motion–Reactivate Case
Motion–Reactivate Case from Settlement Conference Program
Motion–Reactivate Petition for Review
Motion–Recall Appellate Judgment
Motion–Reconsider Order
Motion–Redact Previously Filed Document, ORAP 8.50(2)(b)
Motion–Reinstate Case
Motion–Release Transcript
Motion–Relief from Default
Motion–Remand Agency - Other
Motion–Remand Agency - Take Additional Evidence
Motion–Remand Non-Agency
Motion–Remove Court Appointed Counsel and Proceed as a Self-Represented Party
Motion–Replace Filed Document with Redacted Document
Motion–Request Appointment of Masters in JFC Proceeding
Motion–Request Assignment of Judge in Class Action
Motion–Request Record/Exhibits
Motion–Restraining Order
Motion–Review of PDSC Payment Decision
Motion–Review Under ORAP 8.40
Motion–Sanctions
Motion–Seal Case/Make Case Confidential
Motion–Seal Materials/Make Materials Confidential
Motion–Settle Transcript
Motion–Sever Cases
Motion–Show Cause
Motion–State Paid Transcript
Motion–Stay Enforcement of Appellate Judgment
Motion–Stay Issuance of Appellate Judgment
Motion–Stay Previous Judgment/Order
Motion–Stay Trial Court Proceedings
Motion–Strike
Motion–Submit on Briefs
Motion–Submit on Record
Motion–Substitute Appointed Counsel
Motion–Substitute Party
Motion–Substitute Retained Counsel
Motion–Summary Affirmance
Motion–Summary Determination of Appealability
Motion–Supplement Record
Motion–Suspend Judge/Lawyer Pending Disability/Disciplinary Proceeding
Motion–Take Judicial Notice
Motion–Transmission of Part of Record Not Designated
226 Appendix 7.10-1
Motion–Vacate and Remand - Joint
Motion–Waive Court Rules
Motion–Waive Transcript
Motion–Waive/Defer Filing Fee
Motion–Waive/Defer Settlement Conference Program Fee
Motion–Withdraw as Court Appointed Counsel
Motion–Withdraw as Retained Counsel
Motion–Withdraw Filing
Motions for Extension of Time (MOET) Titles–ORAP 7.10(1)(c)
MOETCorrect Brief
MOETExtend Time in Settlement Conference Program
MOETFile Agency Record
MOETFile Agreed Narrative Statement
MOETFile Amicus Brief
MOETFile Answer
MOETFile Answer to Petition for Attorney Fees
MOETFile Answering Brief
MOET–File Answering on Cross-Assignment of Error Brief
MOETFile Brief on Merits - Petitioner
MOETFile Brief on Merits - Respondent
MOET–File Combined Answering and Cross-Assignment of Error Brief
MOETFile Combined Reply and Answering on Cross-Appeal/Petition Brief
MOET–File Combined Reply and Answering on Cross-Assignment of Error Brief
MOETFile Cost Bill
MOETFile Cross-Answering Brief
MOETFile Cross-Opening Brief
MOETFile Cross-Reply Brief
MOETFile Intervenor's Brief
MOETFile Motion for Leave to File a Reply Brief
MOET–File Motion for Leave to File an Extended Brief
MOET–File Motion for Sanctions
MOET–File Motion to Correct Agency Record
MOET–File Motion to Correct Transcript
MOET–File Motion to Reconsider Order
MOETFile Objection to Cost Bill
MOETFile Opening Brief
MOETFile Petition for Attorney Fees
MOETFile Petition for Reconsideration
MOETFile Petition for Review
MOETFile Reply
MOETFile Reply Brief
MOET–File Reply on Cross-Assignment of Error Brief
MOETFile Reply to Answer to Petition for Attorney Fees
MOETFile Reply to Objection for Cost Bill
MOET–File Response to Motion
227 Appendix 7.10-1
MOET–File Response to Order to Show Cause
MOETFile Response to Status Request
MOET–File Revised Order on Reconsideration
MOETFile Supplemental Brief
MOETFile Transcript
MOET–Indefinite - File Petition for Review
MOETOther
MOETPay Filing Fee
MOET–Provide Copy of Judgment/Order Being Appealed
MOET–Provide Service of Document
_________
1
The courts may modify this list of commonly used motion titles between publication dates of
the Oregon Rules of Appellate Procedure. The updated list, if any, will be available on the
Oregon Rules of Appellate Procedure page of the Judicial Department's website:
<https://www.courts.oregon.gov/courts/appellate/rules/Pages/orap.aspx>
228 Appendix 7.10-2
APPENDIX 7.10-2
Illustration for ORAP 7.10(1)(b)–Motions
Illustration 1
IN THE SUPREME COURT (COURT OF APPEALS)
OF THE STATE OF OREGON
____________________________________, )
Plaintiff-Appellant, )
(or Plaintiff-Respondent) ) _______________ County Circuit
) Court No. ___________________
)
v. )
____________________________________, ) (SC or CA) __________________
Defendant-Respondent. )
(or Defendant-Appellant) )
APPELLANT'S MOTIONREACTIVATE CASE
APPELLANT'S MOTIONOUT-OF-STATE COUNSEL
(single document containing a motion to reactivate the case and
a motion to allow the appearance of out-of-state counsel)
Illustration 2
IN THE SUPREME COURT (COURT OF APPEALS)
OF THE STATE OF OREGON
____________________________________, )
Plaintiff-Appellant, )
(or Plaintiff-Respondent) ) _______________ County Circuit
) Court No. ___________________
)
v. )
____________________________________, ) (SC or CA) __________________
Defendant-Respondent. )
(or Defendant-Appellant) )
RESPONDENT'S MOTIONRECONSIDER ORDER
RESPONDENT'S MOTIONSUMMARY AFFIRMANCE
(single document containing a motion to reconsider a previous order and
a motion for summary affirmance)
229 Appendix 7.10-2
Illustration 3
IN THE SUPREME COURT (COURT OF APPEALS)
OF THE STATE OF OREGON
____________________________________, )
Plaintiff-Appellant, )
(or Plaintiff-Respondent) ) _______________ County Circuit
) Court No. ___________________
)
v. )
____________________________________, ) (SC or CA) __________________
Defendant-Respondent. )
(or Defendant-Appellant) )
RESPONDENT'S MOTIONSTRIKE
(document contains single motion to strike appellant's opening or reply brief)
230 Appendix 7.10-3
APPENDIX 7.10-3
Illustration for ORAP 7.10(1)(c) and ORAP 7.25–Motions for Extension of Time
Illustration 1
IN THE SUPREME COURT (COURT OF APPEALS)
OF THE STATE OF OREGON
____________________________________, )
Plaintiff-Appellant, )
(or Plaintiff-Respondent) ) _______________ County Circuit
) Court No. ___________________
)
v. )
____________________________________, ) (SC or CA) __________________
Defendant-Respondent. )
(or Defendant-Appellant) )
APPELLANT'S [RESPONDENT'S] MOET
FILE OPENING [ANSWERING] BRIEF
(OR OTHER ITEMSEE LIST OF
MOET TITLES IN APPENDIX 7.10-1)
Appellant (Respondent) moves this court for an extension of time of ____ days, from ___
through ____, within which to serve and file the appellant's opening (or respondent's answering)
brief (or other item) in this case.
The Notice of Appeal in this case was filed on [date] . The brief (or other item) is due
on [date] . This is the first (or second or third) request for a time extension and one is now
sought because [set out the reason].
[In a criminal case, indicate whether defendant is incarcerated or under what terms defendant has
been released.]
Opposing counsel in this case informs me that (counsel) (has no objection to/concurs
in/has no comment on) this request for extension of time.
Date _________________________
___________________________________
Attorney for Petitioner
[Sign and print/type name,
bar number, address,
telephone number, and email address]
231 Appendix 7.10-3
Illustration 2
IN THE SUPREME COURT (COURT OF APPEALS)
OF THE STATE OF OREGON
____________________________________, )
Plaintiff-Appellant, )
(or Plaintiff-Respondent) ) _______________ County Circuit
) Court No. ___________________
)
v. )
____________________________________, ) (SC or CA) __________________
Defendant-Respondent. )
(or Defendant-Appellant) )
RESPONDENT'S MOTIONRELIEF FROM DEFAULT
RESPONDENT'S MOETFILE ANSWERING BRIEF
(single document containing motion for relief from default
and motion for extension of time to file respondent's answering brief)
232 Appendix 9.05
APPENDIX 9.05
Illustration for ORAP 9.05
[The case title of a petition for review is to appear as shown on the appellate decision in
substantially the following form:]
IN THE SUPREME COURT
OF THE STATE OF OREGON
____________________________________, )
Respondent, )
(or Petitioner) on Review, ) _______________ County Circuit
) Court No. _______________
v. )
____________________________________, ) CA A_______________
Petitioner )
(or Respondent) on Review. )
PETITION FOR REVIEW OF
[NAME OF PARTY]
Petition for review of the decision of the Court of Appeals on appeal from a judgment of
the Circuit Court for _______ County, Honorable _____________, Judge (or an order of [name
of agency]).
Opinion Filed: [date]
[If the court decided the case by opinion indicating its author]
Author of Opinion: ________________________________________
Concurring Judge(s): _______________________________________
Dissenting Judge(s): ________________________________________
[or]
[If the court affirmed without opinion or
decided the case by per curiam opinion]
Before ______________________________, Presiding Judge
______________________________
______________________________
________________________
Attorney(s) for Petitioner on Review [if more than one petitioner on review, identify which;
include separate listing for each petitioner on review represented by a different attorney]
[Mailing address, bar number, telephone number, and email address]
233 Appendix 9.05
[or]
_______________________________ [name of self-represented petitioner on review; include
separate listing for each self-represented petitioner on review]
[Mailing address and telephone number]
________________________
Attorney(s) for Respondent on Review [if more than one respondent on review, identify which;
include separate listing for each respondent on review represented by a different attorney]
[Mailing address, bar number, telephone number, and email address]
[or]
_______________________________ [name of self-represented respondent on review; include
separate listing for each self-represented respondent on review]
[Mailing address and telephone number]
PETITIONER ON REVIEW
[INTENDS/DOES NOT INTEND]
TO FILE A BRIEF ON THE MERITS
234 Appendix 10.15
APPENDIX 10.15
Illustration for ORAP 10.15
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
In the Matter of ___________, )
a Minor Child ) _________ County
) Circuit Court No.______________
STATE ex rel DEPARTMENT OF )
HUMAN SERVICES, ) CA A_____________
Respondent (or Appellant), )
)
v. )
________________________________, )
Appellant (or Respondent). )
EXPEDITED TERMINATION OF PARENTAL RIGHTS CASE
NOTICE OF APPEAL
235 Appendix 11.05
APPENDIX 11.05
Illustration for ORAP 11.05
Illustration 1a. Sample case title for a peremptory writ of mandamus proceeding
challenging the action of a judge in a particular case (Chris Doe,
Plaintiff, v. Out of State Business, Inc., Defendant).
IN THE SUPREME COURT OF THE
STATE OF OREGON
CHRIS DOE, ) ____________ County
Plaintiff-Adverse Party, ) Circuit Court No. _______________
)
v. ) SC S_______________
)
OUT OF STATE BUSINESS, )
INC., ) PETITION FOR
Defendant-Relator. ) PEREMPTORY
) WRIT OF MANDAMUS
_______________________________________
Illustration 1b. Sample case title for a motion in a mandamus proceeding challenging
the action of a judge in a particular case.
IN THE SUPREME COURT OF THE
STATE OF OREGON
CHRIS DOE, ) ____________ County
Plaintiff-Adverse Party, ) Circuit Court No. _______________
)
v. ) SC S_______________
)
OUT OF STATE BUSINESS , )
INC., ) MANDAMUS PROCEEDING
Defendant-Relator. )
) MOTION TO DISMISS
_______________________________________
Illustration 2. Sample case title for an alternative writ of mandamus proceeding
against an administrative agency.
IN THE SUPREME COURT OF THE
STATE OF OREGON
236 Appendix 11.05
STATE ex rel TERRY DOE, ) ____[Agency Name]___________
an elector of the State of Oregon, )
Plaintiff-Relator, ) Case No. _____________________
)
v. )
) SC S______________
PAT ROE, )
Secretary of State of the State )
of Oregon, ) PETITION FOR
Defendant. ) ALTERNATIVE
) WRIT OF MANDAMUS
Illustration 3. Sample case title for an alternative writ of mandamus
proceeding challenging an administrative action of a judge.
IN THE SUPREME COURT OF THE
STATE OF OREGON
STATE ex rel OREGON )
ADVOCATES FOR JURORS, ) SC S______________
Plaintiff-Relator, )
)
v. )
)
KELLY BENCH, ) PETITION FOR
Presiding Judge for _____________ ) ALTERNATIVE
County Circuit Court, ) WRIT OF
Defendant. ) MANDAMUS
237 Appendix 12.08
APPENDIX 12.08
Illustration for ORAP 12.08
IN THE SUPREME COURT OF THE
STATE OF OREGON
____________________________________, )
State of Oregon, )
Plaintiff, ) ___________ County Circuit
) Court No. _______________
v. )
____________________________________, )
Defendant. ) NOTICE OF INTERLOCUTORY
) APPEAL UNDER ORS 147.537
_____________________________________ )
)
____________________________________, )
Appellant(s), )
)
v. )
____________________________________, )
Respondent(s). )
1.
Appellant hereby gives notice of interlocutory appeal from the order entered in this case
on [date of judgment] , signed by Judge _______________ , in the _______________
County Circuit Court.
2.
The parties to this appeal are:
Appellant(s) Respondent(s)
__________________________________ ________________________________
__________________________________ ________________________________
3.
The name, bar number, address, telephone number, and email address of the attorney(s)
for each party represented by an attorney is:
Name & Bar Number __________________ Representing __________________
Address ______________________________ Telephone Number ______________
Email Address __________________________________
238 Appendix 12.08
Name & Bar Number __________________ Representing __________________
Address ______________________________ Telephone Number ______________
Email Address __________________________________
The name, address, and telephone number of each self-represented party is:
Name____________________________________
Address__________________________________ Telephone Number:______________
Name____________________________________
Address__________________________________ Telephone Number:______________
4.
Appellant designates only the following parts of the record, copies of which accompany
this notice as excerpts of the record:
______________________________________________________________________________
_______________________________________________.
5.
This appeal is timely and otherwise properly before the Supreme Court because:
_______________________________________________________________________.
6.
[In cases involving an audio record:]
Appellant hereby requests copies at appellant's expense of the audio record designated in
paragraph 4 of this notice of appeal. Copies are to be served on the parties to the appeal listed in
paragraph 3 of this notice of appeal.
7.
Attached to this notice of appeal is a copy of the order being appealed. Also attached is a
memorandum of law as described in ORS 147.537(4).
8.
CERTIFICATE OF SERVICE
I certify that on [date] , I served a true copy of this notice of appeal on:
______________________________ ______________________________
______________________________ ______________________________
______________________________ ______________________________
[Respondents as listed in ORS 147.537(6) or attorneys for respondents]
239 Appendix 12.08
______________________________ ______________________________
______________________________ ______________________________
______________________________ ______________________________
[trial court administrator] [transcript coordinator, if a transcript
is designated as part of the record on
appeal]
by [specify method of service]:
__ United States Postal Service, ordinary first-class mail
__ United States Postal Service, certified or registered mail, return receipt requested
__ hand delivery
__ other (specify) __________________________________
9.
CERTIFICATE OF FILING
I certify that on [date] , I filed the original of this notice of appeal with the Appellate
Court Administrator by [specify method of filing]:
__ United States Postal Service, ordinary first-class mail
__ United States Postal Service, certified or registered mail, return receipt requested
__ hand delivery
__ other (specify) __________________________________
____________________________________
[Signature of appellant or attorney]
____________________________________
[Typed or printed name of appellant
or attorney]
240 Appendix 13.10
APPENDIX 13.10
Illustration for ORAP 13.10
IN THE SUPREME COURT (COURT OF APPEALS)
OF THE STATE OF OREGON
___________________________________, )
Plaintiff-Appellant, )
(or Plaintiff-Respondent) ) _______________ County Circuit
) Court No. ___________________
)
v. )
___________________________________, ) (SC or CA) __________________
Defendant-Respondent. )
(or Defendant-Appellant) ) PETITION FOR
) ATTORNEY FEES
Appellant (Respondent) moves this court for an order allowing appellant (respondent) a
reasonable sum as attorney fees in the amount of $______________.
This petition is based on [cite authority] and on the following facts.
[Set out facts showing the attorney time involved, the 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.]
[If the petition is based on a contractual provision, that provision should be set out verbatim in
the petition.]
__________________________
Attorney for Petitioner
[Sign and print/type name,
bar number, address,
telephone number, and email address]
241 Appendix 16.05-1
APPENDIX 16.05-1
INITIATING DOCUMENTS
Initiating Document - Application for Teacher's Admission to Practice
Initiating Document - Board of Bar Examiners Decision - Admission
Initiating Document - Board of Bar Examiners Decision - Contested Admission
Initiating Document - Certification Order for Certified Question
Initiating Document - Consent - Other
Initiating Document - Consent to Censure/Suspension/Removal
Initiating Document - Form B Resignation
Initiating Document - Judicial Fitness Commission Recommendation
Initiating Document - Notice of Appeal - Ballot Measure Constitutionality Review
Initiating Document - Notice of Appeal - State's Pretrial Appeal - Murder/Ag Murder
Initiating Document - Notice of Appeal - Tax
Initiating Document - Notice of Child Support Arrears
Initiating Document - Notice of Entry of Death Sentence
Initiating Document - Notice of Student Loan Default
Initiating Document - Order Accepting Certified Appeal
Initiating Document - Other
Initiating Document - Petition - Other
Initiating Document - Petition for Direct Review - Other
Initiating Document - Petition for Judicial Review - EFSC Rules Challenge
Initiating Document - Petition for Judicial Review - Energy Facility Siting Council
Initiating Document - Petition for Original Proceeding
Initiating Document - Petition for Review - Ballot Title
Initiating Document - Petition for Review - CA Decision
Initiating Document - Petition for Review - Explanatory Statement
Initiating Document - Petition for Review - Financial Impact Estimate
Initiating Document - Petition for Review - Judicial Fitness Commission Determination
Initiating Document - Petition for Writ - Habeas Corpus
Initiating Document - Petition for Writ - Mandamus
Initiating Document - Petition for Writ - Quo Warranto
Initiating Document - Recommendation - Reciprocal Discipline
Initiating Document - Recommendation on Reinstatement - Adverse
Initiating Document - Recommendation on Reinstatement - Favorable
Initiating Document - Request for Review - Disciplinary Board Decision
Initiating Document - Request for Review - Stipulation for Discipline
Initiating Document - Transfer Order - Public Body
242 Appendix 16.05-3
APPENDIX 16.05-2
SUPPORTING DOCUMENTS
Challenged Judgment/Order/Ruling
Excerpt of Record
Memorandum of Law
Proof of Service
Proposed form of Writ of Mandamus
APPENDIX 16.05-3
ASSOCIATED DOCUMENTS
Application to Waive/Defer Filing Fee
Brief in Support of Reapportionment Review
Declaration for Waiver/Deferral of Filing Fee
Motion to Appoint Counsel
Motion to Appoint Counsel and for State-Paid Transcript
Motion to Consolidate Cases
Motion to File Late Appeal
Motion to Stay Previous Judgment/Order
Motion to Stay Trial Court Proceedings
243 Appendix 16.05-3
APPENDIX 16.50
Illustration for Rule 16.50
In the Court of Appeals:
Statement of Case or Statement of Facts
Assignment of Error
In Opening Brief, abbreviate as AE 1, AE 2, etc.
In Answering/Response brief, abbreviate as AE 1 Response, AE 2 Response, etc.
Include concise description of the AE or response to AE.
Cross-assignments of error are abbreviated as CAE 1, CAE 2, etc.
Examples:
AE 2: Permanent disability finding is not supported by substantial evidence.
AE 2 Response: Finding supported by substantial evidence and reason.
CAE 1: Resident voided lease.
Judgment
Order (specify source: WCB, ALJ, ODFW, etc.)
Opinion
In the Supreme Court:
Facts and Proceedings
Question(s) Presented
Proposed Rules(s) of Law
Discussion
Judgment
Order (specify source: WCB, ALJ, ODFW, etc.)
Opinion (specify source: COA, Trial Panel, Special Master, etc.)