IN THE SUPREME COURT OF THE STATE OF OREGON

IN THE COURT OF APPEALS OF THE STATE OF OREGON

ORDER ADOPTING AMENDMENTS

By this order, the Supreme Court and Court of Appeals adopt permanent and temporary amendments to the Oregon Rules of Appellate Procedure and delegate specified authority to the Editor of the Rules. The amendments adopted by this order are effective January 1, 2007.

Amended rules are shown below and in the attached pages with material to be deleted in strikeout print and material to be added in boldface print. (Exception: The former and new versions of Appendix O are set out in full.) New rules and appendices are denoted by ''New Rule [Appendix] _____,'' with the title and text of the new rule or appendix in boldface print.

AMENDMENTS

Permanent Amendments

The Supreme Court and Court of Appeals:

(1)  Adopt amendments to the following Oregon Rules of Appellate Procedure: ORAP 1.10, 1.40, 2.05, 2.25, 2.35, 2.40, 3.33, 4.15, 4.20, 4.35, 4.40, 4.66, 5.05, 5.10, 5.50, 5.52, 5.95, 6, 6.25, 7.10, 8.05, 8.10, 8.12, 8.15, 8.20, 8.50, 10.15, 11.05, 11.30, 13.15, 13.25, 14.05, 15.05, Appendix A, Appendix M, Appendix O.

(2)  Adopt new ORAP 4.67.

(3)  Adopt two new appendices relating to ORAP 7.10.

(4)  Discontinue reprinting ORS Chapter 19, currently Appendix R to the Oregon Rules of Appellate Procedure.

Temporary Amendments

Pursuant to ORAP 1.10(2), the Supreme Court and Court of Appeals may, from time to time, adopt temporary amendments to the Oregon Rules of Appellate Procedure. The Supreme Court and Court of Appeals by this order adopt temporary amendments to the following Oregon Rules of Appellate Procedure: ORAP 1.35, 2.05, and 8.50. The amendments are set out below. These amendments shall expire on December 31, 2008, if not previously adopted as permanent amendments.

ORAP 1.35

ORAP 1.35 is amended to add the following paragraph after ORAP 1.35(1)(a):

If, pursuant to law or order of a court, a party's address is not subject to public disclosure, the party filing any thing in the Supreme Court or Court of Appeals shall provide an alternative contact address that the court may make available for public inspection.

ORAP 2.05

ORAP 2.05 is amended to add the following footnote at the end of ORAP 2.05(5):

See also ORAP 1.35(1)(b) concerning requirement that parties with contact information that is shielded from public disclosure by law or court order provide appellate courts with alternative contact information that may be made available for public inspection.

ORAP 8.50

ORAP 8.50 is amended to add the boldfaced wording to the footnote at the end of the rule:

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 from public disclosure by law or court order provide appellate courts with alternative contact information that may be made available for public inspection.

AUTHORITY DELEGATED TO EDITOR OF THE OREGON RULES OF APPELLATE PROCEDURE

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

•  Divide first and second sentences of ORAP 5.50(3) into ORAP 5.50(3)(a) and ORAP 5.50(3)(b), respectively.

•  Replace the word ''response'' with the word ''answer'' in ORAP 5.57(3).

•  By footnote to ORAP 7.25, refer the reader to ORAP 7.10(1)(c) governing captions of motions for extension of time.

•  Add the phrase ''for the Administrator'' to the indication of the facsimile transmission number in footnote 1 to ORAP 7.25 and footnote 1 to ORAP 7.35.

•  Replace as appropriate the word ''portion'' with the word ''part'' throughout the Rules, including but not limited to ORAP 2.05(6), 2.05(10)(c)(ii), 3.05(3), 3.15(2)(a), 3.15(2)(d), 3.33(3), 3.40(1), 3.63(3), 3.63(5), 4.15(3), 4.20(1), 4.64(1), 5.40(11), 5.45(4)(a)(ii), 5.50(2)(b), 5.50(3), 5.50(4), 5.50(6)(a), 5.65(1), 5.75, 5.77(4)(a), 5.77(4)(b), 8.40 footnote 1, 11.05(5)(b), 11.27(2)(d)(ii), 11.35(3), 12.10(5)(a), 12.20(5)(a), 12.20(5)(c), 14.05(1)(c), 14.05(1)(d), 14.05(4)(a), 14.05(4)(b), Appendix A, Appendix D, Appendix E, Appendix F, Appendix K.

•  Delete the ''Prologue'' to the Rules.

•  Update as necessary all references to statutes and rules to reflect current versions of those authorities as of the date of this order.

•  Renumber all appendices and references to appendices as necessary. Replace current system of lettering each appendix with system of numbering each appendix to correspond to pertinent rule number. Reorder appendices as necessary.

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

DATED this 17th day of November, 2006.
Paul J. De Muniz, Chief Justice

DATED this 15th day of November, 2006.
David V. Brewer, Chief Judge

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

(2) Pursuant to order of the Supreme Court and Court of Appeals, from time to time, the appellate courts may adopt one or more temporary new rules or temporary amendments to existing rules. A temporary new rule or temporary amendment to an existing rule will be published in the Oregon Appellate Courts Advance Sheets and on the Judicial Department's website.² 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.¹

(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.²

¹ Except for any temporary new rule or temporary amendment to an existing rule adopted pursuant to subsection (2) of this rule, these rules were last amended effective January 1, 2005. These rules were last regularly amended effective January 1, 2007.

² The Judicial Department's website address is: www.ojd.state.or.us. A temporary new rule or temporary amendment to an existing rule will be published in the Oregon Appellate Courts Advance Sheets and on the Judicial Department's website (www.ojd.state.us).

(1) Filing

(a) Any thing to be filed in the Supreme Court or Court of Appeals shall be delivered to the State Court Administrator, Appellate Courts Records Section, 1163 State Street, Salem, Oregon 97301-2563.

(b) If, pursuant to law or order of a court, a party's address is not subject to public disclosure, the party filing any thing in the Supreme Court or Court of Appeals shall provide a contact address that the court may make available for public inspection.

(b)(c) A person filing a notice of appeal, petition for judicial review or petition under the original jurisdiction of the Supreme Court may file by mail and the filing shall be complete on deposit in the mail if mailed in accordance with ORS 19.260(1). If the person relies on the date of mailing as the date of filing under ORS 19.260(1), the person shall certify the date of mailing and shall file the certificate, together with acceptable proof from the post office of the date of mailing, with the Administrator with proof of service on the parties to the appeal, judicial review or original proceeding. Acceptable proof from the post office of the date of mailing shall be a receipt for certified or registered mail, with the certified or registered mail number on the envelope or on the item being mailed, with the date of mailing either stamped by the United States Postal Service on the receipt or shown by a United States Postal Service postage validated imprint on the envelope received by the Administrator.

(c)(d) Filing of briefs, petitions for attorney fees, statements of costs and disbursements, motions, petitions for review, and all other things required to be filed within a prescribed time, shall be complete if mailed on or before the due date by first-class mail through the United States Postal Service.

(d)(e) If filing is not done as provided in paragraphs (b) or (c) of this section, then the thing shall not be deemed filed until the thing actually is received by the Administrator.

(2) Service Generally

(a) A copy of any thing delivered for filing under these rules must also be served by the party or attorney delivering it to the other parties to the cause.¹

(b) Except as otherwise provided by law,² service may be in person or by first-class mail. Service by mail through the United States Postal Service shall be complete on deposit in the mail unless otherwise provided by statute.

(c) All service copies must include a certificate showing the date of filing.

(d) Any thing filed with the Administrator shall contain either an acknowledgment of service by the person served or proof of service in the form of a statement of the date of personal delivery or deposit in the mail and the names and addresses of the persons served, certified by the person who made service.

(3) Service on Trial Court Administrators and Transcript Coordinators

(a) 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.

(b) When a copy of a notice of appeal is required to be served on the transcript coordinator for the court from which the appeal is taken, the notice shall be mailed or delivered to the office of the trial court administrator addressed to ''transcript coordinator.''

(4) With respect to a person confined in an institution of confinement who files and serves a thing in the appellate court, the thing shall be deemed filed in the appellate court and served on another person when the original of the thing and the appropriate number of copies are delivered, in a form suitable for mailing, to the person or place designated by the institution for handling outgoing mail.

(5) (a) Parties filing any thing in the Supreme Court or Court of Appeals, including but not limited to notices of appeal, petitions for judicial review, and petitions invoking original jurisdiction, motions, and briefs, are

(i) 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 279.545, that is recyclable in the office paper recycling program in the party's community, and

(ii) Encouraged to print on both sides of each sheet of paper of the thing being filed.

(b) The court will not decline to accept any filing on the ground that the filing does not comply with paragraph (a) of this subsection.³

¹ Whenever these rules authorize or require service of a copy of any thing on the Attorney General, the copy shall be served at this address: Attorney General of the State of Oregon, Office of the Solicitor General, 400 Justice Building, 1162 Court St. N.E., Salem, Oregon 97301.

² See, e.g., ORS 183.482(2), relating to cases arising under the Administrative Procedures Act and ORS 197.850(4), relating to judicial review of Land Use Board of Appeals orders, each of which requires service of petitions for judicial review by registered or certified mail.

³ See ORS 7.250.

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

(2) When a statute requires a paper filed with the appellate court to be verified, a verification shall consist of a 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) Oregon Rule of Civil Procedure (ORCP) 17 is hereby adopted as a rule of appellate procedure applicable to the Supreme Court and Court of Appeals.^{2 1}

¹ See, e.g., ORS 138.500(3), which requires that claims for costs, expenses, and compensation of court-appointed counsel be verified; see also ORS 20.320, which requires that a statement of costs and disbursements and objections to a statement of costs and disbursements be verified. See ORAP 13.25 regarding the procedure for requesting sanctions under this subsection.

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

* * * * *

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

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

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

(3) A statement that an appeal is taken from the judgment or some specified part of the judgment,¹ the name of the court and county from which the appeal is taken, and the name of the trial judge or judges whose judgment is being appealed.

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

(5) The names of the parties and the names, bar numbers, mailing addresses, and telephone numbers of the attorneys for the respective parties, identifying the party or parties that each attorney represents, and the names, mailing addresses, and telephone numbers of parties appearing pro se.²

(6) A designation of those portions parts of the proceedings to be transcribed^{2 3} and exhibits^{3 4} to be included in the record in addition to the trial court file.

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

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

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

(10) Proof of service, specifying the date of service.

(a) In a civil case, the notice of appeal shall contain proof of service on all other parties who appeared in the trial court. and, for those civil cases in which the district attorney appeared (e.g., contempt proceedings), proof of service of a copy of the notice of appeal on the Attorney General.⁵

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

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

(ii) The district attorney, in an appeal by the defendant. The notice of appeal in such an appeal also shall contain proof of service of a copy of the notice of appeal on the Attorney General.^{4 6}

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

(i) The trial court administrator; and

(ii) The transcript coordinator, if any portion of the record of oral proceedings in the trial court has been designated as part of the record on appeal.^{5 7}

(11) 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 also ORAP 1.35(1)(b) concerning requirement that parties with contact information that is shielded from public disclosure by law or court order provide appellate courts with alternative contact information that may be made available for public inspection.

²³ See ORAP 3.33 regarding the appellant's responsibility to make financial arrangements with either the court reporter or the transcript coordinator for preparation of a transcript of oral proceedings.

³⁴ See ORAP 3.25 regarding making arrangements for transmitting exhibits to the appellate court for use on appeal. See also Uniform Trial Court Rules (UTCR) 6.120(2) and (3) regarding retrieval of exhibits by trial court administrators for use on appeal.

⁴⁵ Service of the notice of appeal on the Attorney General is for the purpose of facilitating the appeal and is not jurisdictional. See footnote 1 in ORAP 1.35 for the service address of the Attorney General.

⁶ See footnote 5 to paragraph (10)(a) of this rule.

⁵⁷ See ORAP 1.35(3)(b).

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

See Appendix A for a form of notice of appeal.

* * * * *

(4) On motion of a party or on its own motion, the court may modify the case title as it will appear in the published decision for the purpose of protecting the identities of juveniles or for other good cause shown. The A party's motion must be filed no later than when the party's brief is filed.

* * * * *

(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 of 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.

(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 from a judgment following a guilty plea, no contest plea, resentencing pursuant to a remand from an appellate court, or resentencing pursuant to the judgment of a court granting post-conviction relief, or from an order or judgment revoking probation or sentence suspension:

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

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

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

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

(2) The defendant need not comply with this rule:

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

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

(2) 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(4), the defendant need not identify a colorable claim of error in the notice of appeal.

(3) If the defendant entered a conditional or no contest plea under ORS 135.335(3), the defendant need not comply with paragraphs (1)(a) and (b) of this rule, but the caption of the notice of appeal shall identify the case as a ''Conditional Plea Case.'' ²

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

¹ See State ex rel Juv. Dept. v. Balderas, 172 Or App 223, 18 P3d 434 (2001), State ex rel Dept. of Human Services v. Rardin, 338 Or 399, 406-08, 110 P3d 580 (2005), for a description of ''colorable claim of error.'' See Appendix C for illustrations of colorable claims of error.

² See ORAP 5.50(3) regarding how defendant must establish on appeal that defendant's guilty or no contest plea was conditional.

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

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

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

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

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

(a)(i) A court reporter, Tthe 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) or reporters of the due date of the transcript.

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

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

(c) If the trial court has issued an order authorizing preparation of a transcript at state expense, the transcript coordinator shall forward a copy of the order to the court reporter(s) or transcriptionist(s) responsible for preparation of all or a part of the transcript. When the Office of Public Defense Services has authorized preparation of a transcript at state expense¹ and the transcript coordinator has received a copy of the authorization, the transcript coordinator shall forward the authorization to the court reporter(s) or transcriptionist(s) responsible for preparation of all or part of the transcript.

(d) If the transcript coordinator has not notifed the reporter(s) or assigned the case to a transcriptionist before the transcript due date, the transcript coordinator shall notify the appellate court of that fact.

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

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

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

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

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

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

(b) Serve and file^{1 2} the transcript within the time provided in ORS 19.370 and, if the transcript is not served and filed within that time, to move for an extension of time.

(6)(5) The court reporter or transcriptionist preparing a transcript that otherwise would exceed one volume may prepare the transcript by reducing the pages of the transcript in such a manner as to fit up to four pages of transcript onto a single 8-1/2 x 11 inch page. However, a party may specify in the party's designation of record or other request for preparation of a transcript on appeal that the transcript be prepared in the one page of transcript per one standard page format. If a party not responsible for arranging for preparation of a transcript is served with a transcript containing four reduced pages of transcript on one standard page, that party may arrange with the court reporter or transcriptionst, at the party's own expense, for preparation of a transcript in the one page of transcript per one standard page format.²³

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

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

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

¹ See ORS 138.500(3).

¹² See Appendix E for form of certificate of preparation, filing, and service of a transcript.

²³ See ORAP 3.35(2) regarding the form of a transcript prepared in the four pages of transcript per one standard page format.

* * * * *

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

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

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

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

(d) any other person required by law to be served.³

* * * * *

² See footnote 1 in ORAP 1.35 for the service address of the Attorney General.

³ Nothing in ORAP 4.15(5) shall be construed to require service of briefs on an agency or the Attorney General. For requirements governing the service of briefs, see ORAP 5.10(3) and ORAP 5.12.

* * * * *

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

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

(3) The record shall be prepared in the manner provided by ORAP 3.20(1) and transmitted in a suitable cover or folder bearing on the outside the title and agency number of the case and the name of the agency from which the review is taken. Whenever feasible, the original record shall be transmitted. Notwithstanding ORAP 3.20(2), the agency may prepare the record either with the first filed document on top or the last filed document on top. Each document shall be separately indexed. Pages shall be consecutively numbered at the bottom of the page, commencing with the first page of the file if the first filed document is on top or with the bottom page of the file if the last filed document is on top. Notwithstanding ORAP 3.35(1)(b), any transcript of oral proceedings prepared for use by the administrative agency or tribunal and printed on only one side of each page is acceptable on judicial review.

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

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

¹ See ORAP 14.05.

* * * * *

(4) (a) (i) Except as provided in subparagraph (ii), after the filing of an order on reconsideration, if the petitioner desires judicial review of the order on reconsideration, the petitioner shall file an amended petition for judicial review 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, or 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 a 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 brief. If the petitioner had not filed a brief or desires to file a supplemental brief, the petitioner's brief shall be filed 28 days after the date the amended petition for judicial review 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 brief, if any, shall be filed within 28 days after the filing of the petitioner's brief or notice that the petitioner will proceed on the original brief.

¹ See ORS 183.482(6).

² See ORS 144.335(10).

* * * * *

(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.

* * * * *

(1) Notwithstanding ORAP 5.80, the petitioner's opening brief and excerpt of record shall be served and filed not later than 14 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.

(2) The respondent's brief shall be served and filed within 14 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 brief and oral argument, and the respondent will not be allowed to argue the case.

* * * * *

¹ To determine whether material properly belongs in the excerpt of record or in an appendix, see ORAP 5.50 and ORAP 5.52.

* * * * *

(4) All briefs shall conform to these requirements:

* * * * *

(f) Briefs shall be legible and capable of being read without difficulty. Briefs may be prepared using either uniformly spaced type (such as produced by typewriters) or proportionally spaced type (such as produced by commercial printers and many computer printers). Uniformly spaced type shall not exceed 10 characters per inch (cpi) for both the text of the brief and footnotes. If proportionally spaced type is used, it shall not be smaller than 12 13 point for both the text of the brief and footnotes. Reducing or condensing the typeface in a manner that would increase the number of words in a brief is not permitted. Briefs printed entirely or substantially in uppercase are not acceptable. All briefs shall be double-spaced with double space above and below each paragraph of quotation.

* * * * *

(1) Any party filing a brief on appeal or on judicial review in the Court of Appeals shall file with the Administrator^* one brief, marked as the original, and 20 copies, except that as provided in paragraphs (1)(a) and (1)(b) of this rule.

(a) tThe original and five copies only need be filed for:

(a) (i) A brief submitted pursuant to ORAP 5.90 and a brief filed in response;

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

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

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

(b) The original and 10 copies only need be filed for any case in which the state, a state agency, or a county juvenile department is represented by the Attorney General and the adverse party is represented by appointed counsel compensated by the Office of Public Defense Services at state expense. Under this paragraph, the Administrator may provide additional copies of briefs as needed and bill the parties for the additional copies.

* * * * *

^* See ORAP 1.35(1)(a) for the service address of the Administrator.

* * * * *

* * * * *

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

(4) In agency review cases, including workers' compensation and the Land Use Board of Appeals cases, the excerpt of record shall include the order of the administrative law judge, the agency, and other administrative tribunal, if part of the lower tribunal's record, together with such other portions of the record as are appropriate to include.²

* * * * *

^{* * * * *}

² For other requirements for the excerpt of record in Land Use Board of Appeals cases, see ORAP 4.67.

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 Board of Appeals cases, see ORAP 4.67.

(1) If a brief contains matter 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 material that is confidential or exempt from disclosure shall be italicized, highlighted or otherwise marked so that the court can distinguish between the material that is confidential or exempt from disclosure and the material that is not. 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) If a brief described in subsection (1) of this rule is filed in the Court of Appeals, the party filing the brief shall file 15 copies of the confidential brief and five six copies of the redacted brief.

(b) If a brief described in subsection (1) of this rule is filed in the Supreme Court, the party filing the brief shall file 10 copies of the confidential brief and seven eight copies of the redacted brief.

* * * * *

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 192.525 regarding medical records; ORS 179.505 regarding medical records maintained by state institutions; ORS 418.135, ORS 418.747(13), and ORS 419B.035 regarding abuse investigation records; ORS 426.160 and ORS 426.370 regarding records in mental commitment cases; and ORS 430.399(5) regarding alcohol and drug abuse records.

^* See Appendix L.

(1) As used in this subsection, ''decision'' means an opinion, per curiam opinion, affirmance without opinion, and an order ruling on a motion or an own motion matter that dismisses 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:

* * * * *

(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.^*

* * * * *

^* See ORAP 9.05(3)(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.

(1) A mMotions, or a responses to a motions and, including a supporting memorandaum shall be on 8-1/2 x 11 inch white paper, printed or typewritten, double-spaced, and securely fastened in the upper left-hand corner with a single staple. The motion or response shall note the names, bar numbers, addresses, and telephone numbers of counsel for all parties or names, addresses, and telephone numbers of parties appearing without counsel, either on the first page of the motion or response, on the signature page, or on the proof of service. The first page of the motion or response shall contain the following information:

(a) The 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) 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 ____.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 ____ 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 ____ and does not find a title that describes the motion; or

(c) 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 ____. 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 ____ 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 ____ and does not find a title that describes the motion for extension of time; or

(d) 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 Appellant's MOET--File Opening Brief.''

(2) A memorandum motion or response, including any supporting memorandum, but excluding appendices or exhibits, longer than 20 pages, exclusive of appendices or exhibits, in support of or in opposition to any motion shall include a title page and contain an index of contents, an index of appendices or exhibits, and an index of authorities, each with page references.¹² The title page shall be printed on plain white paper and shall contain 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;

(b) A title designating the party filing the motion or response to a motion and describing the thing being filed, such as ''Appellant's Motion for Reconsideration'' or ''Appellant's Response to Motion to Dismiss''; and

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

(3) Except as otherwise provided in this rule, a moving or responding party shall file with the Administrator the original motion or response or opposing memorandum with proof of service and nine copies, if in the Supreme Court, or one copy, if in the Court of Appeals. Parties need not file copies of motions for extension of time, consolidation, permission to file reply briefs or extended briefs, appellant's motions to dismiss, or stipulated motions to dismiss.

¹ A party's use of the motion titles listed in Appendix ____ 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(4)(3).

See Appendix ____ for illustrations of motion title designations and Appendix M for illustrations of a motions for extension of time.

* * * * *

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

(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 of 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 of 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 paragraphs (ii) and (iii) of this subsection, 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 appellant has not surrendered at the time the motion is decided by the court, the court may dismiss the appeal or judicial review. If the court has not been advised otherwise, the court may assume that the appellant has not surrendered when the court considers and decides the motion.

(1) Except as provided in ORAP 8.12, after the filing of a notice of 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 opposing every other partiesy to the appeal, and is subject to ORS 9.380(2) and ORS 9.390.

(2) Except as provided in ORAP 8.12, substitution of attorney shall be accomplished in the manner prescribed in ORS 9.380. The substitution of attorney shall be accompanied by proof of service on all parties to the appeal. U 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. and, oOn filing of the motion for the 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 partiesy to the appeal.

* * * * *

(1) (a) During the pendency of an appeal, when a court-appointed attorney moves to withdraw or to substitute counsel, the attorney shall file the motion to withdraw in the appellate court. withdrawal or substitution of court-appointed counsel is subject to subsection (1) of ORAP 8.10. The court shall decide a motion for substitution of court-appointed counsel in accordance with the policies, procedures, standards, and guidelines of the Public Defense Services Commission.¹

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

(2) (a) If 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 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 subsection (1) of ORAP 8.10, counsel of record shall serve a copy of the motion on the Office of Public Defense Services. Upon expiration of seven days from 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

(2)(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.

(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).³

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).

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 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.

* * * * *

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

* * * * *

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

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

(b) Unless the court grants leave otherwise for good cause shown, an application to appear amicus curiae in support of or in opposition to a petition for review shall be filed within 21 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 brief of petitioner on review is due, if amicus curiae is not aligned with any party on review,³ or

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

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

* * * * *

* * * * *

² See ORAP 5.05 to 5.30, ORAP 5.52, ORAP 5.77, and ORAP 5.95, ORAP 9.10, and ORAP 9.17 concerning requirements for briefs.

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

* * * * *

(1) Whenever a party by motion shows that a case on appeal is subject to the stay provisions of 11 USC § 362(a)(1)¹ (relating to bankruptcy proceedings), the court shall enter an order holding the appeal in abeyance and hold the appeal 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.

* * * * *

(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 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 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 separate 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 separate document containing protected personal information must be made in writing, filed with the appellate court, and 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), 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 from public disclosure by law or court order provide appellate courts with alternative contact information that may be made available for public inspection.

(1) (a) Subsections (2) through (10) of this rule apply to: (a) an adoption case and A 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. unless, on motion of a party or on the court's own motion, the Court of Appeals directs otherwise;

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

(c) An adoption case.

(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 UNDER ORAP 10.15,'' ''EXPEDITED TERMINATION OF PARENTAL RIGHTS CASE EXPEDITED UNDER ORAP 10.15,'' ''JUVENILE DEPENDENCY SUPPORT CASE (NOT EXPEDITED),'' or ''EXPEDITED ADOPTION CASE EXPEDITED UNDER ORAP 10.15,'' as appropriate.¹

(3) (a) In a juvenile dependency case, if the transcript has not already been filed, within seven days after the date of the order directing that the case be expedited, appellant shall make arrangements for preparation of the transcript. In a termination of parental rights case, wWithin seven days after filing the notice of appeal or appointment of counsel on appeal, whichever is later, appellant shall make arrangements for preparation of the transcript. If appellant is indigent, appellant shall make arrangements for preparation of the transcript by causing an order for preparation of the transcript at state expense to be served on the transcript coordinator.

* * * * *

¹ See Appendix O.

* * * * *

* * * * *

(5) The relator shall accompany the petition with:

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

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

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

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

(6) The form of a petition shall comply with ORAP 5.05(4)(c) through (h). Relator shall assemble and submit the petition, the record (if any a record was made in the matter from which the mandamus proceeding has arisen), and the memorandum in support of the petition as separate documents, and file the original and nine copies with the Administrator. The excerpt of record shall be prepared in compliance with ORAP 5.50(6)(a), (b), and (c). If the excerpt of record is more than 50 pages, relator need file only two copies of the record.

* * * * *

* * * * *

(6) The respondent or respondents shall be allowed five business days after the filing of the petition, unless a shorter time is ordered by the court, to file an answering memorandum. Any answering memorandum shall be in the form prescribed by ORAP 7.10 for answers to motions and shall 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 original and nine copies of the answering memorandum shall be filed, with proof of service on counsel for the petitioner.

* * * * *

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

* * * * *

(11) For proceedings in which the Attorney General has filed a modified ballot title after referral from the Supreme Court, the petitioner in the ballot title review proceeding may file an objection to the modified ballot title within five business days from the date of filing of the modified ballot title. The objection must be filed with and actually received by the Administrator and must be served on and actually received by the Attorney General within five business days from the date of filing of the modified ballot title. The objection and may be filed and served by telephonic facsimile communication as provided by ORAP 7.35(3).^** The Attorney General may not file a respondse to the objection unless the court requests a response, provided that the court will not sustain an objection to a modified ballot title unless the court has given the Attorney General the opportunity to respond. If the court requests a response, the response shall be due within five business days of the date of the request, unless the court otherwise directs filing of the objection, unless the court otherwise directs. If the petitioner does not file a timely objection, then the court shall certify the modified ballot title, and the Administrator shall issue the appellate judgment on the next judicial day after the time for filing an objection expires.

* * * * *

^{* * * * *}

^{* *} 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.

* * * * *

(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.

(1) Damages under ORS 19.445, attorney fees under ORS 20.105, and reasonable expenses (including attorney fees) under ORAP 1.40(3) and ORCP 17 C 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(3) and ORCP 17 C 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.

(1) As used in this rule,

(a) ''Appellate judgment'' means a decision of the Court of Appeals or Supreme Court together with a final order and the seal of the court.

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

(i) In an appeal from circuit or tax court, or on judicial review of an agency proceeding, an order dismissing 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.

* * * * *

* * * * *

(4) Abeyance of Appeal

(a)(i) On assignment of a case to the program, the court will hold preparation of the transcript and the record, and briefing, in abeyance for a period of 120 days from the date of the notice of assignment of the case to the program. During that time, a party to the appeal may file an amended designation of record. A party wishing to hold in abeyance any other aspect of the appeal or seeking an extension of time to complete any other task required by law or by the Oregon Rules of Appellate Procedure must file an appropriate motion with the court.¹

(ii) At the end of the 120-day abeyance period, if the parties have engaged in settlement negotiations and need more time to reduce the settlement to writing or to implement a settlement, the parties 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. After the extension granted by the program director, if the parties need more to time to complete or implement the settlement, the parties may move the court for an extension of time. If all parties to an appeal agree to an extension for longer than 60 days, the 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 respondent party shall serve a copy of the motion on the program director accompanied by a letter of transmittal stating whether respondent the party prefers that the motion to dismiss be decided before the case proceeds in the program. The program director may direct that the case proceed in the program or may terminate the referral. If the program director terminates the referral and if the court denies the motion to dismiss, the case will 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 Chief Judge may reactivate a case held in abeyance at any time:

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

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

* * * * *

(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 paragraphs (c) and (d) of this subsection, each party to the appeal who participates in the program shall pay the program fee prescribed in this subsection. Each party shall pay the program fee directly to the neutral or, if instructed by the program director, to the Judicial Department Appellate Settlement Conference Program Account. ² Except as provided in paragraph (f) of this subsection, each party shall pay the program fee no later than the date of the first settlement conference. In workers' compensation cases, each party shall pay a fee of $150; in all other cases, each party shall pay a fee of $250 $350.

(b)(i) The program fee shall cover an initial settlement conference of up to six five hours in duration 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 Director and the Director may contact the parties to discuss whether to exclude the additional preparation time from the five-hour settlement conference time.

(iii) If the parties agree to extend the settlement conference beyond the initial six 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. at the rate of The rate shall be $125 $150 per hour.

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

(c) 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 Director may require each such individual or entity to pay the mediation fee prescribed in paragraph (a) of this subsection.

(d) The Chief Judge or the Chief Judge's designee may waive or defer payment of the program fee on motion of a party based on a showing that the party is financially unable to pay the fee without substantial economic hardship in providing basic economic necessities to the party or the party's dependent family. If liability for payment of a party's share of the program fee is waived or deferred, that party's portion of the program fee 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 fee payable to the Judicial Department Appellant Appellate Settlement Conference Program Account and mail it to: Appellate Settlement Conference Program, 1163 State Street, Salem, OR 97301.

(f) A party whose program fee is deferred and who has not paid the fee by the conclusion of the settlement conference shall remain liable for the unpaid fee, unless the fee is waived following completion of the settlement conference. If a party's program fee has been paid by the program and the party thereafter pays the fee, the fee shall be paid to the program as provided in paragraph (e) of this subsection.

* * * * *

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

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

See ORS 2.560(3).

* * * * *

Appellant designates the record in its entirety, including the trial court file, all exhibits, and the record of oral proceedings.

Appellant designates only the following portions of the record: __ the trial court file; __ all exhibits; __ the transcript or audio record of the following oral proceedings: ______________ ; other: ________.

* * * * *

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 Memorandum of Additional Authorities

Motion -- File Extended Petition for Review

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 -- Leave to Proceed

Motion -- Modify Case Title

Motion -- Other

Motion -- Out-of-State Counsel

Motion -- Postpone Oral Argument

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 -- 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 Pro Se

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 -- Summary Reversal

Motion -- Supplement Record

Motion -- Suspending Judge/Lawyer Pending Disability/Disciplinary Proceeding

Motion -- Take Judicial Notice

Motion -- Transmission of Part of Record Not Designated

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

MOET -- Correct Brief

MOET -- Extend Time in Settlement Conference Program

MOET -- File Agency Record

MOET -- File Agreed Narrative Statement

MOET -- File Amicus Brief

MOET -- File Answer to Motion

MOET -- File Answer to Petition for Attorney Fees

MOET -- File Answering Brief

MOET -- File Answering on Cross-Assignment of Error Brief

MOET -- File Combined Answering and Cross-Assignment of Error Brief

MOET -- File Combined Reply and Answering on Cross-Assignment of Error Brief

MOET -- File Cost Bill

MOET -- File Cross-Answering Brief

MOET -- File Cross-Opening Brief

MOET -- File Cross-Reply Brief

MOET -- File Intervenor's Brief

MOET -- File 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 Objection to Cost Bill

MOET -- File Opening Brief

MOET -- File Petition for Attorney Fees

MOET -- File Petition for Reconsideration

MOET -- File Petition for Review (Supreme Court)

MOET -- File Reply

MOET -- File Reply Brief

MOET -- File Reply on Cross-Assignment of Error Brief

MOET -- File Reply to Answer to Petition for Attorney Fees

MOET -- File Reply to Objection for Cost Bill

MOET -- File Respondent's Brief

MOET -- File Response to Order to Show Cause

MOET -- File Response to Status Request

MOET -- File Revised Order on Reconsideration

MOET -- File Supplemental Brief

MOET -- File Transcript

MOET -- Other

MOET -- Pay 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 will be available on the Judicial Department's website, www.ojd.state.or.us. In the menu bar, select ''RULES.'' From the ''Rules'' menu box, select ''Oregon Rules of Appellate Procedure'' and click on ''view,'' then select ''Appellate Motion Titles.''

Appellant (Respondent) moves this court for an extension of time of _____ days, from _____ through _____ , within which to serve and file the appellant's (or respondent's) 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 inform 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, and
telephone number]