(Explanations set out below for particular actions of the Uniform Trial Court Rules Committee are not approved by the committee, but are abstracted by the Reporter from committee discussions.)
The Uniform Trial Court Rules (UTCR) Committee is authorized to make recommendations to the Chief Justice of the Oregon Supreme Court on proposals for changes to the UTCR. Before the committee makes its final recommendations to the Chief Justice, the preliminary recommendations are published in the Advance Sheets for public comment; see UTCR 1.020(3).
At its fall meeting on October 19 and 20, 2001, the committee made preliminary recommendations on proposals for changes to the UTCR. These recommendations are described below.
The purpose of this notice is to solicit public comment on both the proposals and the committee's recommendations. Written comments should be submitted to:
In order to be considered by the committee, this public comment must be received by the UTCR Reporter on or before the date of the committee's spring meeting, April 26, 2002. Comment may be made on the proposals and recommendations on changes to the UTCR, whether conditionally approved or conditionally disapproved, as well as on other actions taken by the committee. At its spring meeting, the committee may consider amendments to proposals, may reconsider proposals entirely, may reconsider its recommendations for approval or disapproval, and may reconsider other actions taken by the committee irrespective of whether the actions resulted in proposed changes to the UTCR.
The committee will review timely public comment on these actions before it makes its final recommendations to the Chief Justice. Any of the committee's recommendations that are adopted by the Chief Justice will take effect August 1, 2002, and will be published in the Oregon Appellate Courts Advance Sheets in May 2002 (No. 11).
UTCR REPORTER NOTE: FUTURE UTCR COMMITTEE MEETINGS
The current schedule for future meetings of the full UTCR Committee is as follows:
WINTER MEETING: February 8, 2002, at the Office of the Oregon State Court Administrator, Salem. This meeting is intended to be restricted to a strategic planning meeting for the committee.
SPRING MEETING: April 26, 2002, at the Office of the Oregon State Court Administrator, Salem. At this meeting, the committee will review public comment on the proposals and recommendations explained in this notice and will make final proposals to the Chief Justice for changes to the UTCR to take effect August 1, 2002.
FALL MEETING: October 11 and 12, 2002, at the Office of the Oregon State Court Administrator, Salem. The committee will review existing and proposed Supplemental Local Rules (SLR) and make recommendations to the Chief Justice on disapproval of SLR pursuant to UTCR 1.050. Currently, this two-day meeting is also the only one in the 2002-2003 cycle at which the committee intends to accept proposals for changes to the UTCR to take effect August 1, 2003. Committee meeting dates for the following year will be scheduled at this meeting.
QUICK SUMMARY OF FALL 2001 ACTIONS
NOTE ON FORMAT OF PROPOSED CHANGES TO THE UTCR: Wording proposed to be taken out of existing UTCR sections is in brackets and italics. New wording proposed to be added to existing UTCR is underlined and in bold. Repealed UTCR are not set out. In some cases, no draft wording was submitted to the committee and so no proposed wording is set out in the explanation.
FALL 2001 ACTIONS OF THE UTCR COMMITTEE
ACTION TAKEN.
Conditionally approve.
REASON.
Acting on a recommendation from Judge Henry, the committee had a general
discussion on the merits of including this information in the SLR. The committee
felt that in the future all courts will have websites with detailed information
pertaining to the operation and procedures and that these sites may become the
primary source of such information for both local and out-of-town attorneys and
parties. Hence, the committee concluded there should be an SLR reserved for
this information.
VOTE.
Motion 6 to conditionally approve the proposed rule: pass by consensus.
The proposed rule is as follows:
1.170 COURT WEBSITES
SLR 1.171 is reserved for judicial districts to announce the website addresses of their courts. Links to these websites may also be found at the Oregon Judicial Department website: http://www.ojd.state.or.us.
ACTION TAKEN
Conditionally approve.
REASON
The committee found in its review of all the SLR that some courts put the forms
in an appendix while others put them in the body of the applicable rule. Some
forms found in an appendix lack a reference to the applicable SLR. The
committee felt that uniformity is important in this area for ease of use by
attorneys and parties. The committee also asked the UTCR Reporter to review
the UTCR and reformat it in a similar manner where needed (see Section C.7.
below).
The proposed amendment is as follows:
1.050 PROMULGATION OF SLR; REVIEW OF SLR; ENFORCEABILITY OF LOCAL PRACTICES (1) Promulgation of SLR(a) * * * * * * * * (d) All forms required by SLR must be submitted as part of the SLR. Such forms shall be placed in an index and organized by chapter and SLR number. SLR and related forms shall contain cross-references to one another. (e) * * *
* * * * *
ACTION TAKEN
Conditionally approve.
REASON
1994 amendments to UTCR 1.050 moved the provisions contained in
subsection (2) to subsection (1)(c). This proposed change corrects the
commentary so that the correct UTCR section is cited.
VOTE
Motion 37 to conditionally approve the proposed amendment: pass by
consensus.
The proposed amendment is as follows:
1.080 FORMAT AND LOCATION OF COURT RULES
(1) * * *
* * * * *
1991 Commentary:
For purposes of UTCR 1.080(3) the committee did not intend that SLR required by UTCR [1.050(2)] 1.050(1)(c) be placed in Chapter 1 but intended that such SLR be placed in Chapter 7 or other chapters related to the particular subject.
ACTION TAKEN
Conditionally approve.
REASON
Coos and Curry Counties have a requirement of this type for their judicial district.
The committee felt that a similar statewide uniform requirement would aid
efficiency in all the courts. Often the courts receive correspondence that lacks
this information. The courts then must go through a difficult and lengthy process
of trying to match the correspondence with the appropriate file, and they are not
always able to make such a match. The committee concluded that this
requirement would help alleviate that problem thus saving time and cost for the
court and reducing inconvenience and misunderstandings for parties.
VOTE
Motion 13 to conditionally approve the proposed amendment: pass by
consensus.
The proposed amendment is as follows:
2.080 COMMUNICATION WITH COURT
(1) Except as exempted by statute, when written communication is made to the court, copies must simultaneously be mailed or delivered to all other parties and indication made on the original of such mailing or delivery. (2) All written communication to the court shall refer to the title of the cause and the case number.ACTION TAKEN
Conditionally approve (from agenda item B.7. and pages 913 -916 of the
committee's fall meeting materials).
REASON
The Office of the State Court Administrator (OSCA) brought this issue to the
committee's attention. This past summer OSCA received a request for help in
locating rules on coordinating class actions as described in ORS 1.004. The
caller, a city attorney, was concerned that she was missing the UTCR on class
actions. ORS 1.004 creates a somewhat confusing situation in that it requires
the Supreme Court to produce the rules pertaining to coordination of class
actions. Supreme Court rules are set out in the Oregon Rules of Appellate
Procedure (ORAP). Because practitioners generally look to the UTCR and
Oregon Rules of Civil Procedure (ORCP) for guidance on trial court matters,
rather than the ORAP, the committee felt it was appropriate in this case to
include a UTCR reference to ORAP 12.15. The committee debated whether this
information should be set out in a note or in a new rule. They decided on using a
new rule as the easiest way to make this information available to those
researching this topic.
VOTE
Motion 114 to conditionally approve the new rule: pass by consensus.
The proposed rule is as follows:
5.110 CLASS ACTIONS
Rules relating to class actions may be found at Oregon Rule of Civil Procedure 32 and Oregon Rule of Appellate Procedure 12.15.
ACTION TAKEN
Conditionally approve (from agenda item D.2. and pages 1000-1008 of the
committee's fall meeting materials).
REASON
This issue was raised at the fall 2000 meeting by the Honorable Milo Pope, and
discussion was continued to the fall 2001 meeting. UTCR 10.090 requires the
court, in review of DMV final orders in implied consent cases, to render a
judgment within 7 days of the court's hearing. UTCR 5.100 requires that a
proposed judgment must be mailed to an unrepresented party not less than 7
days prior to submission to the court. UTCR 10.090 cannot be met if proper
notice is given to an unrepresented party under UTCR 5.100. The committee
considered possible amendments to UTCR 10.090 and 5.100 and choose to
solve this conflict by amending UTCR 5.100.
VOTE
Motion 123 to conditionally approve the proposed amendment: pass by
consensus.
The proposed amendment is as follows:
5.100 SUBMISSION OF PROPOSED ORDERS OR JUDGMENTS
Any proposed judgment, except those subject to UTCR 10.090, or proposed order submitted in response to a ruling of the court must be:
(1) * * *
* * * * *
ACTION TAKEN
Conditionally approve (from agenda item B.8. and pages 910-912 of the
committee's fall meeting materials).
REASON
The Honorable Rudy M. Murgo made this suggestion to the committee in a letter
dated June 21, 2001. The problem in this instance is that courts expend
significant resources in arranging for specific jury trials, yet often the court does
not receive notice of settlement in a timely manner, so those resources are
wasted. The rationale for the amendment is to give the court a stronger tool by
extending sanctions beyond the parties to the attorneys involved and by
extending the rule to criminal cases.
VOTE
Motion 113 to conditionally approve the proposed amendment: pass by
consensus.
The proposed amendment is as follows:
6.020 COURT NOTIFICATION ON SETTLEMENT OR CHANGE OF PLEA
(1) * * *
* * * * *
(3) If parties to a civil action or criminal case fail to notify the court of a settlement, decision to dismiss, or change of plea before 12:00 p.m. (noon) of the last judicial day preceding a jury trial, or if the action or case settles, is to be dismissed, or a change of plea has been entered after 12:00 p.m. (noon) of such day, the court may assess on one or [both] all parties, or their counsel, the per diem fees and mileage costs of bringing in the jury panel for that particular trial.
ACTION TAKEN
Conditionally approve (from page 1018 of the committee's fall meeting
materials).
REASON
The Honorable Jack Mattison, by way of the Honorable Eveleen Henry, asked
the committee to consider amending UTCR 7.020(5) to shorten the time to bring
a case from one year to 11 months. Judge Mattison believes the change is
necessary to allow time for entry of judgment before one year runs, which in turn
will aid the courts in meeting disposition guidelines.
VOTE
Motion to conditionally approve the proposed amendment: pass by consensus.
The proposed amendment is as follows:
7.020 SETTING TRIAL DATE IN CIVIL CASES
(1) * * *
* * * * *
(5) The trial date must be no later than [one year] 11 months from date of filing for civil cases or [six] 6 months from the date of the filing of a third-party complaint under ORCP 22 C, whichever is later, unless good cause is shown to the presiding judge or designee.
(6) * * *
* * * * *
ACTION TAKEN
Conditionally approve (from agenda item C.3.).
REASON
The committee felt there should be a uniform location for standardized parenting
plans in the SLR. Some courts that have standardized parenting plans put them
in the body of the governing SLR, while others put them in the appendix. To
streamline the rules and to be consistent with the proposal that all forms should
be placed in an appendix, the committee concluded that the plans themselves
should also be set out in an appendix. See Section A.2. above regarding SLR
forms and appendices in general.
VOTE
Motion 116 to conditionally approve the proposed rule: pass by consensus.
The proposed rule is as follows:
8.070 STANDARDIZED PARENTING PLANS (1) SLR 8.075 is reserved for judicial districts to announce that they have adopted a standardized parenting plan. (2) The specifics of such plans shall be placed in an index to the SLR. ACTION TAKEN
Conditionally approve.
REASON
In reviewing Chapter 8 of the SLRs and the UTCR, the committee noted that
common court practice was to allow the filing of joint statements in these
contested proceedings. The committee questioned whether this was allowed by
UTCR 8.010(4). The committee proposed this amendment to rule out any
ambiguity and to have the rule reflect actual practice.
VOTE
Motion 64 to conditionally approve the proposed amendment: pass by
consensus.
The proposed amendment is as follows:
8.010 ACTIONS FOR DISSOLUTION OF MARRIAGE, SEPARATE MAINTENANCE AND ANNULMENT, AND CHILD SUPPORT
(1) * * *
* * * * *
(4) In any contested dissolution of marriage, separate maintenance or annulment action, each party must file with the trial court administrator and serve on the other party a statement listing all marital and other assets and liabilities, the claimed value for each asset and [liabilities] liability, and the proposed distribution of the assets and liabilities. In the alternative, the parties may elect to file with the trial court administrator a joint statement containing this information.(5) * * *
* * * * *
ACTION TAKEN
Conditionally approve.
REASON
Member Deras brought this issue to the committee's attention. The
requirements for the affidavit are already set out in UTCR 8.010(5) so there is no
need to repeat them. The committee would like to streamline the rules where
possible. See Sections A.12. and A.14. below for related changes.
VOTE
Motion 122 to conditionally approve the proposed amendment: pass by
consensus.
The proposed amendment is as follows:
8.010 ACTIONS FOR DISSOLUTION OF MARRIAGE, SEPARATE MAINTENANCE AND ANNULMENT, AND CHILD SUPPORT
(1) * * *
* * * * *
(7) No judgment under this chapter shall be signed, filed or entered without the filing with the trial court administrator of all relevant documents, including the following:(a) * * *
* * * * *
(e) If child support or spousal support is an issue, a Uniform Support Affidavit for each party, except where that issue is resolved by stipulation or default. A Uniform Support Affidavit required by this paragraph must be completed as provided under subsection (5) of this rule. [follows:(i) If no party seeks spousal support or deviation from the uniform child support guidelines, the parties must complete the affidavit and attachments required for the affidavit; but the parties need not complete the schedules or attachments to the schedules. (ii) If any party seeks spousal support or any deviation from the uniform child support guidelines, all parties must complete the affidavit and all schedules and the attachments for all of them.]
(f) * * *
* * * * *
ACTION TAKEN
Conditionally approve.
REASON
Member Deras brought this issue to the committee's attention. The
requirements for the affidavit are already set out in UTCR 8.010(5) so there is no
need to repeat them. The committee would like to streamline the rules where
possible. See Section A.11. above for related changes.
VOTE
Motion 122 to conditionally approve the proposed amendment: pass by
consensus.
The proposed amendment is as follows:
8.040 PREJUDGMENT RELIEF UNDER ORS 107.095(1)
(1) * * *
* * * * *
(3) Any motion regarding temporary support must be accompanied by a Uniform Support Affidavit in the form specified in the Appendix of Forms to these rules. A Uniform Support Affidavit required by this subsection must be completed as provided under subsection (5) of UTCR 8.010. [follows:(a) If no party seeks spousal support or deviation from the uniform child support guidelines, the parties must complete the affidavit and attachments required for the affidavit; but the parties need not complete the schedules or attachments to the schedules. (b) If any party seeks spousal support or any deviation from the uniform child support guidelines, all parties must complete the affidavit and all schedules and the attachments for all of them.](4) At least 7 days before the hearing, the opposing party also must serve and file a Uniform Support Affidavit on the moving party, when support is to be an issue. A uniform Support Affidavit required by this subsection must be completed as provided for completion of the affidavit under subsection [(3) of this section] (5) of UTCR 8.010.
ACTION TAKEN
Conditionally approve (from agenda item B.9. and pages 917-919 of the fall
meeting materials).
REASON
This proposed amendment came from the Jackson County bench to ensure that
their local practice is in line with UTCR 8.050 (1). Their SLR 5.061(2) allows
evidentiary motions without an order to show cause. They found the perfunctory
judicial signature on a show cause order to create unnecessary work for the
parties and the court. They have realized savings in attorney time, court staff
time, and judge time. This court feels that since parties are entitled to a hearing,
they could not refuse to sign a show cause order, making it an unnecessary
step. They contrast this situation from contempt proceedings where a show
cause order is necessary because the party is required to appear. In Jackson
County's experience, the Bar appreciates the quicker procedure, and the court
has found that it has worked well.
VOTE
Motion 115 to conditionally approve the proposed amendment: pass by
consensus.
The proposed amendment is as follows:
8.050 JUDGMENT MODIFICATION PROCEEDINGS
(1) Modification proceedings must be initiated by an order to show cause based on a motion supported by an affidavit setting forth the factual basis for the motion or by other procedure established by SLR. When support is to be an issue, a Uniform Support Affidavit, as set out in the Appendix of Forms to these rules, must also be filed with the motion and completed as provided in subsection (5) of this section.(2) * * *
* * * * *
ACTION TAKEN
Conditionally approve.
REASON
Member Deras brought this issue to the committee's attention. The
requirements for the affidavit are already set out in UTCR 8.010(5) so there is no
need to repeat them. The committee would like to streamline the rules where
possible. See Sections A.11. and A.12. above for related changes.
VOTE
Motion 122 to conditionally approve the proposed amendment: pass by
consensus.
The proposed amendment is as follows:
8.050 JUDGMENT MODIFICATION PROCEEDINGS
(1) Modification proceedings must be initiated by an order to show cause based on a motion supported by an affidavit setting forth the factual basis for the motion. When support is to be an issue, a Uniform Support Affidavit, as set out in the Appendix of Forms to these rules, must also be filed with the motion and completed as provided [in subsection (5) of this section.] under subsection (5) of UTCR 8.010.
(2) * * *
(3) At least 7 days before the hearing, the opposing party also must serve and file a Uniform Support Affidavit on the moving party, when support is to be an issue. The Uniform Support Affidavit must be completed as provided [in subsection (5) of this section.] under subsection (5) of UTCR 8.010.
(4) * * *
[(5) When a Uniform Support Affidavit is required by this section, it must be completed as follows:
(a) If no party seeks spousal support or deviation from the uniform child support guidelines, the parties must complete the affidavit and attachments required for the affidavit; but the parties need not complete any of the schedules or attachments to the schedules.
(b) If any party seeks spousal support or any deviation from the uniform child support guidelines, all parties must complete the affidavit and all schedules and the attachments for all of them.]
ACTION TAKEN
Conditionally approve.
REASON
This proposal was presented by Member Deras to ensure the courts: a)
designate, in their SLR, a place to make the oral objections as required by ORS
125.075(2); and b) post legal services information required by ORS 125.070.
Several judicial districts do not address these issues in their SLR.
VOTE
Motion 70 to conditionally approve the proposed rule: pass by consensus.
The proposed amendment is as follows:
9.080 ORAL OBJECTIONS IN PROTECTIVE PROCEEDINGS AND NOTICE OF FREE AND LOW-COST LEGAL SERVICES
(1) Every court must promulgate an SLR designating a place where oral objections may be made under ORS 125.075 to petitions in protective proceedings. SLR number 9.081 is reserved for this purpose. (2) Every court shall post, at the place where oral objections may be made pursuant to subsection (1) of this rule, information regarding any free or low-cost legal services available in the area sufficient to satisfy the requirements of ORS 125.070. ACTION TAKEN
Conditionally approve.
REASON
Some judicial districts have SLR detailing how to select an arbitrator and how to
set an arbitration hearing. The committee felt that the better place for this
information would be in the Notice of Assignment to Arbitration that is sent to all
parties in cases that are subject to mandatory arbitration. This helps streamline
the SLRs and provides the necessary information in the location most readily
available to the parties.
VOTE
Motion 105 to conditionally approve the proposed amendment: pass by
consensus.
The proposed amendment is as follows:
13.080 ASSIGNMENT TO ARBITRATOR
(1) * * *
(2) At the time of giving notice of the assignment to arbitration, the trial court administrator shall furnish a list of proposed arbitrators [and shall give notice] as well as a copy of the procedures for the selection of arbitrators and for setting an arbitration hearing. [Such] The procedures for selection of arbitrators shall be established by the arbitration commission.
(3) * * *
ACTION TAKEN.
No motion was made, leaving the proposal conditionally disapproved (from
agenda item B.3. and pages 910-912 of the fall meeting materials).
REASON.
This proposal was raised in a letter to the committee from the Honorable
Rudy M. Murgo. He proposed replacing notice by standard postal service with
notice by e-mail. A subcommittee was formed to study this issue (see
Section D.1. in the "Other Actions Taken by the Committee" section below).
VOTE.
No motion.
No draft language for this proposal was submitted.
ACTION TAKEN
No motion was made, leaving the proposal conditionally disapproved.
REASON
This proposal was presented by Member Deras. The committee chose to take
no action on this proposal at this time.
VOTE
No motion.
The proposed amendment is as follows:
1.050 PROMULGATION OF SLR; REVIEW OF SLR; ENFORCEABILITY OF LOCAL PRACTICES
(1) Promulgation of SLR[(3) Enforceability of Local Practices Not Contained in SLR(a) * * *
(b) A court must incorporate into its SLR any local practice, procedure, form, or other requirement ("local practice") with which the court expects or requires parties and attorneys to comply. A court may not adopt SLR that duplicate or conflict with the constitutions, statutes, ORCP, UTCR, disciplinary rules for lawyers, judicial canons, or ORAP. A court may not adopt SLR that establish internal operating procedures of the court or trial court administrator that neither create requirements for nor have potential consequences for parties or attorneys.(c) * * *
* * * * *
When any local practice is not contained in a court's SLR, the court may not enforce such local practice or impose any sanction therefore, unless the court has first afforded the party or attorney a reasonable opportunity to cure the violation by complying with the local practice.
]ACTION TAKEN
No motion was made, leaving the proposal conditionally disapproved (from
agenda item B.4. and pages 910-912 of the fall meeting materials).
REASON
This proposal was raised in a letter to the committee from the Honorable
Rudy M. Murgo. His concern was that the filing of original documents is not
possible during video hearings, and so he suggested the alternative of allowing
filing to be by video or fax. He pointed out that this arises in video criminal
hearings where waiver of jury, waiver of extradition, and change of plea must all
be done on a written form and filed with the court. A subcommittee was formed
to study this issue (see Section D.1. in the "Other Actions Taken by the
Committee" section below).
VOTE
No motion.
No draft language for this amendment was submitted.
ACTION TAKEN
No motion was made, leaving the proposal conditionally disapproved .
REASON
This proposal arose during the committee's general discussion on UTCR 2.010.
The committee found it difficult to define which pages should be stapled together
in the context of determining what constitutes a "document." The committee
chose to take no action on this proposal at this time.
VOTE
No motion.
No draft language for this amendment was submitted.
ACTION TAKEN
No motion was made, leaving the proposal conditionally disapproved .
REASON
This proposal arose during the committee's general discussion on UTCR 2.010.
The committee was concerned this involved internal operating procedure and
might disrupt valid local diversity of practice. The committee chose to take no
action on this proposal at this time.
VOTE
No motion.
No draft language for this amendment was submitted.
ACTION TAKEN
No motion was made, leaving the proposal conditionally disapproved .
REASON
This proposal arose during the committee's general discussion on UTCR 2.010.
The committee was concerned about costs for firms that use preprinted pleading
paper. The proposal would seem to require separate pleading paper for each
attorney. They were also concerned about safety and privacy issues involved
with requiring disclosure of e-mail addresses, especially for district attorneys.
These e-mail addresses would become public record once a pleading was filed.
The committee chose to take no action on this proposal at this time.
VOTE
No motion.
No draft language for this amendment was submitted.
ACTION TAKEN
No motion was made, leaving the proposal conditionally disapproved .
REASON
This proposal arose during the committee's general discussion on UTCR 2.010.
The committee had the same concerns for this proposal as for the proposal in
Section C.6. above. The committee chose to take no action on this proposal at
this time.
VOTE
No motion.
No draft language for this amendment was submitted.
ACTION TAKEN
No motion was made, leaving the proposal conditionally disapproved .
REASON
This proposal arose during the committee's general discussion on UTCR 2.010.
The committee felt that a fax would cease to be a prominent communication
medium in the near future and so felt there was no reason to create
requirements involving a fax. The committee chose to take no action on this
proposal at this time.
VOTE
No motion.
No draft language for this amendment was submitted.
ACTION TAKEN
No motion was made, leaving the proposal conditionally disapproved (from
agenda item B.6. and pages 910-912 of the fall meeting materials).
REASON
This proposal was raised in a letter to the committee from the Honorable
Rudy M. Murgo. He was concerned with the situation where district attorneys
raise issues and facts at hearings on motions to suppress evidence without
having filed written opposition. This proposal was submitted in conjunction with
the proposal in section C.10. below. The committee chose to take no action on
this proposal at this time.
VOTE
No motion.
No draft language for this amendment was submitted.
ACTION TAKEN
No motion was made, leaving the proposal conditionally disapproved (from
agenda item B.6. and pages 910-912 of the fall meeting materials).
REASON
This proposal was raised in a letter to the committee from the Honorable
Rudy M. Murgo. He was concerned with the situation where district attorneys
raise issues and facts at hearings on motions to suppress evidence without
having filed written opposition. This proposal was submitted in conjunction with
the proposal in section C.9. above. The committee chose to take no action on
this proposal at this time.
VOTE
No motion.
The proposed amendment is as follows:
4.060 MOTION TO SUPPRESS EVIDENCE
(1) * * *
* * * * *
(4) Failure to file a written response shall [not] preclude a hearing on the merits.
* * * * *
ACTION TAKEN
No motion was made, leaving the proposal conditionally disapproved (from
agenda item C.3. and pages 932-997 of the fall meeting materials).
REASON
The UTCR Reporter suggested the committee might want to consider adopting a
new rule in Chapter 8 that would set out in the appendix a standardized form on
parenting and visitation plans for use by all judicial districts. Specifically, he drew
the committee's attention to forms, with various alternatives, created jointly by
the Office of the State Court Administrator and the State Family Law Advisory
Committee, and set out in their "Parenting Plan Guide for Parents," that could be
used for this purpose. The committee chose to take no action on this proposal
at this time.
VOTE
No motion.
No draft language for this amendment was submitted.
ACTION TAKEN
Conditionally disapprove (from agenda item C.6. and pages 998-999 and 1010-1011of the fall meeting materials).
REASON
This proposal was submitted by attorney Paul Heatherman on behalf of the OSB
Procedure and Practice Committee. The proposal was received by the
committee shortly before the fall meeting, and the committee felt that the
amendment needed more work before the committee could consider it for
conditional approval. The committee's intention is to preliminarily disapprove the
proposal, but requests all those interested in this issue to submit public comment
to the committee before the UTCR spring 2002 meeting. The issue will be
preserved on the agenda for that meeting and will be reconsidered at that time.
The committee encourages the OSB Procedure and Practice Committee to do
further work on this proposal and make a presentation at the UTCR spring
meeting.
VOTE
Motion 117 to conditionally disapprove the proposed amendment: pass by
consensus.
The proposed amendment is as follows:
13.120 COMPENSATION OF ARBITRATOR
(1) The arbitration commission, upon conferring with the Presiding Judge of each judicial district, shall establish a compensation schedule for arbitrators. The schedule shall be published in the Supplementary Local Rules, or if there are no Supplementary Local Rules, made available at the courthouse within each judicial district. If the arbitrator suggests that extraordinary conditions justify a different fee, and the parties concur, the fee may be adjusted accordingly. If the parties, or any of them, do not concur, the [arbitrator shall direct an inquiry to the court for determination of the appropriate fee] party may raise the issue in a confidential memorandum to the presiding judge, who shall render a decision and notify the arbitrator. The identity of the party that raised the issue shall not be disclosed to the arbitrator.
(2) * * *
* * * * *
ACTION TAKEN
Conditionally disapprove (from agenda item C.6. and pages 1016-1017of the fall
meeting materials).
REASON
This proposal was submitted by the Honorable Jack Mattison. The committee
approved the addition of out-of-cycle rule 13.121 to the Lane County SLRs. That
SLR contains the same provisions set out in this proposal to amend the UTCR.
The committee's concern with recommending this as a UTCR was that other
counties might prefer other procedures for dealing with this problem. The
committee felt it was appropriate to see how this process works out in Lane
County and then perhaps reconsider the idea as a uniform rule sometime in the
future.
VOTE
Motion 119 to conditionally disapprove the proposed amendment: pass by
consensus.
The proposed amendment is as follows:
13.120 COMPENSATION OF ARBITRATOR
(1) * * *
* * * * *
(4) Any dispute as to the amount of the arbitrator's fee must be submitted to
the court in the form of a Motion to Determine Arbitrator's Fee within
seven (7) days of receipt by the complaining party of the arbitrator's
itemized statement required by (2) above. The motion shall be
supported by an affidavit(s) and a memorandum supporting the
party's position.
The arbitrator shall file a response, supported by an affidavit, within
seven (7) days of receipt of the motion, and the dispute will be
resolved by the court in a summary fashion without further
argument. If seven (7) days after the court's determination the arbitrator's fee
has not been paid in full, or funds on deposit with the arbitrator in
excess of the fee determined to be reasonable have not been
refunded to the party(ies), the party/arbitrator to whom money is
owed may file a request with the court for the entry of an
appropriate judgment by way of a Supplemental Judgment in the
case.
(5) * * *
ACTION TAKEN
A subcommittee was appointed consisting of Judge Crain, Judge Reynolds,
Nancy Lamvik, and Fred Lenzser to look at issues surrounding electronic filing
and notice with an eye toward UTCR amendments to address these issues.
REASON
The committee received proposals on these issues, but felt they should be
explored further before the committee takes action on them. The committee
recognizes the tremendous impact of electronic communication and wishes to
study ways in which the courts and the legal community can best use these
evolving technologies.
VOTE
Motion 45: pass by consensus.
ACTION TAKEN
A subcommittee was appointed consisting of Judge Henry and David Williams to
review the SLR for sanctions provisions and to make recommendations for
consolidating and unifying sanctions permissible under the UTCR and SLRs
(from agenda item A.2.).
REASON
This was to be a topic for discussion at the fall 2001 meeting, but the committee
felt a subcommittee review would be helpful and so the matter was continued to
the spring 2002 meeting. The committee welcomes public comment on issues
concerning sanctions as they exist in the UTCR and SLR.
VOTE
Motion 110A: pass by consensus.
ACTION TAKEN
The committee agreed to recommend to the Chief Justice that the Oregon
Appellate Courts Advance Sheets regularly publish the addresses for all of the
courts' websites as well as the address for the Oregon Judicial Department
website which contains links for the courts' websites.
REASON
As part of its discussions on electronic filings, notice and communication, and on
the best ways to publicize information concerning the courts, the committee
concluded that the Advance Sheets should include these website addresses.
VOTE
Motion 7: pass by consensus.
ACTION TAKEN
Agenda item C.2., a proposed discussion on juror privacy issues, was continued
to the spring 2002 meeting. The committee may consider possible UTCR on this
issue at that time. The committee was provided materials to review in the interim
(pages 923-931 of the fall meeting materials).
REASON
An article given the committee ("Safeguarding Juror Privacy" by Paula L.
Hannaford, Judicature vol. 85, no. 1, July-August 2001) included discussion of
rules under consideration in other states establishing anonymous juries, limiting
voir dire, limiting juror record retention, and other means of ensuring juror
privacy. The Reporter provided the article to the committee to see if the
committee wished to explore this topic.
ACTION TAKEN
The committee will hold a meeting on February 8, 2002, to conduct a general
discussion on committee procedure, planning, and purpose (from agenda item
C.4.).
REASON
It has been a number of years since the committee discussed its procedures,
goals, and objectives, and the committee felt it was time for such a discussion.
There is a possibility the Chief Justice will attend part of the meeting.
ACTION TAKEN
Member Shipsey, whose subcommittee is addressing this issue, was unable to
attend the fall 2001 meeting, therefore this item was continued to the spring
2002 meeting (from agenda item D.1.)
ACTION TAKEN
The committee asked the Reporter to review and reorganize the UTCR to
ensure: a) all UTCR forms are located in the appendix, rather than in the body
of the rules, b) the forms in the appendix are organized by chapter and rule
number, and c) there are cross-references between each form and the
applicable UTCR.
This was an effort by the committee to make the UTCR comply with the same requirement that is being proposed for SLR forms. See section A.2. set out above.
ACTION TAKEN
UTCR 3.170 has been amended out of cycle by Supreme Court Order
No. 01-127, dated December 5, 2001, and effective January 1, 2002, in
response to section 1, chapter 223, Oregon Laws 2001 amending ORS 9.241.
This amendment authorizes the Oregon State Bar (OSB) to undertake the
preliminary collection of information on out-of-state attorneys who have applied
to appear in Oregon courts pro hac vice. The OSB will collect fees, process
applications, and maintain centralized data that will be available to the Supreme
Court.
The amended rule is as follows:
3.170 ASSOCIATION OF OUT-OF-STATE COUNSEL (PRO HAC VICE)
(1) An attorney authorized to practice law before the highest court of record in any state or country ("out-of-state attorney") may appear on behalf of a party in any action, suit, or proceeding pending in this state before a court or administrative body even though that attorney is not licensed to practice law in this state, if the attorney satisfies all of the following requirements:
(a) [The out-of-state attorney must provide a certificate showing] Show that the attorney is an attorney in good standing in another state or country.
(b) [The out-of-state attorney must certify] Certify that the attorney is not subject to pending disciplinary proceedings in any other jurisdiction or provide a description of the nature and status of any pending disciplinary proceedings.
(c) [The out-of-state attorney must associate] Associate with an active member in good standing of the Oregon State Bar ("local attorney") who must participate meaningfully in the matter.
(d) [The out-of-state attorney must certify] Certify that the attorney will: comply with applicable statutes, law, and procedural rules of the state of Oregon; be familiar with and comply with the disciplinary rules of the Oregon State Bar; and submit to the jurisdiction of the Oregon courts and the Oregon State Bar with respect to acts and omissions occurring during the out-of-state attorney's admission under this rule.
(e) [An out-of-state attorney] If the attorney will engage in the private practice of law [must] in this state, provide a certificate of insurance covering the attorney's activities in this state and providing professional liability insurance substantially equivalent to the Oregon State Bar Professional Liability Fund plan.
(f) [The out-of-state attorney must agree] Agree, as a continuing obligation under this rule, to notify the trial court or administrative body promptly of any changes in the out-of-state attorney's insurance or status.
(g) [The out-of-state attorney must submit proof that any fees provided by law for appearance under this rule have been paid] If application will be for an appearance before a court, pay any fees required by subsection (6) below for appearance under this rule. No fee is required if application will be for an appearance before an administrative body.
(2) The information required by subsection (1) of this rule must be presented as follows:
(a) If application will be for an appearance before a court , to the Oregon State Bar (Bar) in a form established by the Bar. The Bar may accomplish the submission of information by requiring a certificate with attachments or other means administratively convenient to the Bar. Upon receipt of all information necessary under subsection (1) of this section and receipt of the fee required by subsection (6) below, the Bar will acknowledge receipt in a form determined by the Bar. In making the acknowledgment, the Bar may attach copies or comment on any submitted material the Bar finds may be appropriate for a court to consider with an application under this section. The local attorney must then submit the Bar's acknowledgment with any information the Bar includes to the court by motion signed by the local attorney [accompanied by the affidavit of the out-of-state attorney] requesting the court to grant application under this section. The court may rely on the acknowledgment of the Bar as a basis to conclude that all information required to be submitted and fees required to be paid for granting an application under this section have been submitted and paid. Bar records on materials it receives under this section will be available to a court on request for two years or such longer period as the Bar considers administratively convenient. (b) If the application is for an appearance before an administrative body, to the administrator of the agency before which the proceeding will occur or that person's designee or to any other appropriate officer, employee or designee of that agency as set forth by procedures or rules established by that agency. Application may be accomplished by an application certificate with attachments or other means administratively convenient to and established by the agency. Agency records on materials the agency or designee receives under this section will be available to the Bar on request for two years or such longer period as the agency considers administratively convenient.
(3) The court or administrative body shall grant the application by order if the application satisfies the requirements of this rule, unless the court or administrative body determines for good cause shown that granting the application would not be in the best interest of the court or administrative body or the parties. At any time and upon good cause shown, the court or administrative body may revoke the out-of-state attorney's permission to appear in the matter.
(4) Each time a court or administrative body grants an application under this rule [is granted] or revokes an out-of-state attorney's permission to appear in a matter, the local attorney must provide a [copy of the order] notice to the [Oregon Supreme Court and to the Oregon State] Bar of such occurrence in a manner and within the time determined by the Bar.
(5) This rule applies to all judicial and administrative proceedings in this state[, and the term "court" shall be construed to include administrative agencies]. When a court or administrative body grants an application for approval to appear under this rule, the authorization allows that individual attorney to appear in all proceedings for a single case that occur within a year after the application is granted. Applications will not be granted for firms. There must be separate application and approval for any of the following: appearance by another out-of-state attorney representing the same or any other party; representation by the same out-of-state attorney in this state on another matter; any appearance that occurs later than that one-year period. The Bar or an administrative body may establish such abbreviated procedures and requirements as Bar or body finds administratively convenient to limit unnecessary submission of duplicate information by an attorney who has already had application granted to appear in one proceeding and is seeking to appear in other proceedings or to renew an application at the end of a current one-year grant for a case.
(6) Except as otherwise provided in this rule, for each application under this rule to appear before a court, the applicant must pay to the Bar a fee of $ 250 at the time of submission of information under subsection (2) of this section, including when application is sought to renew an application at the end of a current one-year grant for a case. The fee will not be refundable.
(7) Subject to the following, the Bar or any administrative agency acting under this section may use electronic means to accomplish acts required or authorized under this section:
(a) The Bar shall provide acknowledgment under paragraph (2)(a) of this rule for court purposes by electronic means only upon approval of the State Court Administrator.
(b) No administrative agency may provide electronic means of notifying the Bar of a grant of application or revocation under this section without prior approval of the Bar.
(8) An applicant is not required to pay the fee established by subsection (6) of this section if the applicant establishes to the satisfaction of the Bar that the applicant is employed by a government body and will be representing that government body in an official capacity in the proceeding that will be the subject of the application.
ACTION TAKEN
UTCR 5.070 has been repealed out of cycle by the Chief Justice in Chief Justice
Order No. 01-129, dated and effective December 11, 2001. The 71st Legislative
Assembly repealed, effective July 17, 2001, ORS 18.425 which required the use
of civil action data forms (chapter 779, 2001 Regular Session Laws). Because of
this repeal, there is no longer a need for UTCR 5.070.
ACTION TAKEN
Court fee waivers again became an issue after the fall UTCR Committee
meeting. Although not presented for committee consideration, the Chief Justice
approved the issue being sent out for public comment. Publication with other
proposed changes to the UTCR from the committee was the earliest time this
proposed UTCR change could be published for public comment.
To help clarify the issue for public comment, the UTCR Reporter (without review by others because of time limitations) prepared the draft amendment to UTCR below as a basis for comment and to highlight considerations about this issue (without claiming to have thought of everything). You may comment on the below draft or suggest alternatives, considerations missed, or practical problems. Please do not feel bound by the draft below in commenting on the issue.
The issue relates to state budgets. The Chief Justice hopes it will be possible for the UTCR Committee to review public comment on this issue at their spring 2002 meeting for problems and recommendations. But, because of the looming state budget issues, a proposal of this type may be considered for out-of-cycle adoption, possibly before the spring UTCR meeting. Early comment about this issue is very important.
REASON
Throughout this fall the Oregon Judicial Department and the Oregon Legislature
have discussed court and state budget issues. Lack of a uniform approach to
deferral and waiver of court filing fees and costs was raised as an issue.
Currently courts often make a ruling on a request for a waiver of fees at the
beginning of a case. Yet, a party requesting a waiver may receive sufficient
means to pay fees and costs as a result of the outcome of the case (after the
waiver has generally occurred) or by passage of time. The current mechanism
to recoup waived fees and costs results in additional time and expense for
courts.
A preferable approach is to grant a deferral, rather than a waiver, to qualified persons at the beginning of the case. Their ability to pay will then be reviewed at the conclusion of the case when sufficient information is available to determine whether to waive the fee obligation permanently. The proposal is not meant to create a situation where courts grant deferrals as a matter of course just to postpone consideration. Rather, deferrals should only occur where a waiver would ordinarily be granted. The delay in appropriate cases gives courts an opportunity to consider any court, jury, or settlement award in deciding whether to grant permanent waiver of fees and costs.
Some arguments for the proposal are that it creates uniform practice on the issue and it creates some economic predictability. A rule on this issue could be adopted both under ORS 1.002 and the specific provisions concerning fee and cost waiver and deferral of ORS 21.605(5).
The proposed rule is as follows:
5.110 PROCESS FOR GRANTING REQUESTS FOR FEE/COST WAIVERS
(1) A court may deny an application for waiver or deferral of court fees and costs or rescind a deferral thereof at any time the court determines waiver or deferral to not be appropriate under law. A court will grant application for waiver of fees or court costs only as part of the court's final determination and disposition of the case in order to consider the following:
(a) Any award made to a party seeking a waiver;
(b) Whether another party should be made responsible for the fees and costs of a party seeking a waiver;
(c) Other circumstances appropriate to ruling on the request for waiver.
(2) If a court determines waiver of fees or costs may be appropriate in a specific case, the court will issue an order deferring payment until the court rules on the waiver under subsection (1) of this rule.
(3) Except as otherwise provided by the court in a specific case or required by law:
(a) Dismissal of a case for any reason, including for want of prosecution, is not a waiver of any fees or costs that are due or may have been deferred in the case. In a notice to dismiss a case, courts will include notice that all fees or costs owing or deferred in that case are due within 30 days after the notice and that the court will enter a judgment for the same at that time unless subsequent, alternate action is requested and taken by the court on good cause.
(b) Referral of a case to any form of alternative dispute resolution, including, but not limited to, arbitration, mediation, settlement conference, is not a waiver or deferral of any fees or costs for a case.
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