ORS 2.570(6) authorizes the Chief Judge of the Oregon Court of Appeals to “rule on motions and issue orders in procedural matters”; it also authorizes the Chief Judge to delegate that authority to an appellate commissioner “as provided for in the court’s rules of appellate procedures.” In March 2008, the Court of Appeals established the appellate commissioner position, adopted ORAP 7.55 defining the scope of the Appellate Commissioner’s authority, and appointed the Appellate Commissioner (presently, Theresa Kidd).
ORAP 7.55 provides, subject to exceptions, that the Appellate Commissioner’s authority to decide motions and procedural matters is the same as the Chief Judge’s authority. The primary exception is that the commissioner may not decide a motion or procedural matter disposing of an appeal or a judicial review on its merits. The court addressed some aspects of the appellate commissioner position in Bova v. City of Medford, 236 Or App 257, 236 P3d 760 (2010).
The appellate commissioner position is not a judicial office created under the Oregon Constitution, Article VII (amended), therefore, any Appellate Commissioner ruling is subject to reconsideration or review by an Article VII judge. Under ORAP 7.55, if a party seeks reconsideration, the commissioner has authority to change the prior decision. But, if the commissioner would deny reconsideration, or grant reconsideration but adhere to the prior decision, the matter is referred to the Chief Judge or the Motions Department of the Court of Appeals to decide. Also, while a party may petition for Supreme Court review of the ruling of the Chief Judge or the Motions Department on a motion or procedural matter, generally, a party may not petition for Supreme Court review of an Appellate Commissioner ruling.
List of motions most frequently decided by the Office of the Appellate Commissioner
|Motion to determine jurisdiction
Motions to dismiss (e.g., for mootness or lack of jurisdiction or appealability)
Motion to file late appeal
Motion for summary determination of appealability
Motion to inspect or seal confidential record
Motion to seal confidential case
Motions related to the record (e.g., to amend designation of the record, correct/amend the record, supplement the record, file additional evidence, or to remand to agency to take additional evidence
Motion to take judicial notice
Motion to issue/recall appellate judgment
Motion for reconsideration of Appellate Commissioner’s order
Motion to refer to Settlement Conference Program
Motion to consolidate or sever cases
Motions for default or relief from default
|Motion for sanctions|
Motion to show cause
Motion to waive/defer court fees
Motion to withdraw filing
Motions related to counsel (e.g., withdrawing, appointing, or substituting counsel)
Motions related to transcripts (e.g., for state-paid transcript or to file late transcript)
Motions for summary affirmance or summary reversal
Motions to stay (e.g., enforcement of judgment, trial court proceedings)
Motion for review of trial court order
Motions to hold case in abeyance or to reactivate/reinstate case
Motions related to parties (e.g., to intervene, substitute a party, or appear amicus curiae)
Motions related to a brief (e.g., amend or strike a brief, or file an extended, late, or supplemental brief)
Motion to remand – non-agency
Joint motion to vacate and remand to trial court
The Office of the Appellate Commissioner is staffed by the Appellate Commissioner, a law clerk, and a paralegal. The office is also assisted by a law student extern who typically serves a term of eight to 12 weeks.
The Appellate Commissioner and staff work closely with the Records Section of the Office of the Appellate Court Administrator (the clerk of the court for the Supreme Court and Court of Appeals) in screening appeals for jurisdictional and non-jurisdictional defects and otherwise enforcing the Oregon Rules of Appellate Procedure. The Appellate Commissioner offices are located adjacent to the Records Section in the Supreme Court Building.
The Court of Appeals has established different processes for deciding administrative motions and substantive motions. An administrative motion is usually unopposed and does not require legal analysis to rule on the motion; examples include: motion for extension of time to file a brief, motion to file an amended brief, and motion for substitution of counsel. Substantive motions, on the other hand, are typically opposed and usually require legal analysis; examples include: motions to dismiss an appeal for lack of jurisdiction, to stay enforcement of the judgment or order being appealed, and to remand to take additional evidence in judicial review cases. Generally, the Chief Judge, assisted by a paralegal in the Office of the Appellate Court Administrator, decides administrative motions and the Appellate Commissioner decides substantive motions. However, any motion filed after a case is scheduled for submission to a department of the court for decision on the merits is decided by the presiding judge of the department or the department itself.
Since 2013, the number of substantive motions decided has ranged from 829 to 1,091 per year. On average, the Court of Appeals collectively decides 80 substantive motions per month, most of which are decided by the Appellate Commissioner.