71st OREGON LEGISLATIVE ASSEMBLY--2001 Regular Session
Enrolled
Senate Bill 145
Printed pursuant to Senate Interim Rule 213.28 by order of the
President of the Senate in conformance with presession filing
rules, indicating neither advocacy nor opposition on the part
of the President (at the request of Joint Interim Judiciary
Committee)
CHAPTER ................
AN ACT
Relating to public defense services; creating new provisions;
amending ORS 1.851, 19.370, 21.410, 33.035, 33.055, 33.065,
34.355, 45.275, 45.285, 107.425, 109.119, 135.045, 135.050,
135.055, 135.405, 136.602, 136.603, 137.071, 137.463, 137.595,
137.769, 137.771, 138.310, 138.480, 138.490, 138.500, 138.590,
144.337, 151.010, 151.430, 151.450, 151.460, 151.480, 151.485,
151.487, 151.489, 151.491, 151.493, 151.495, 151.505, 161.327,
161.346, 161.365, 161.385, 161.665, 173.029, 181.010, 192.502,
192.559, 417.839, 419A.098, 419A.170, 419B.115, 419B.195,
419B.198, 419B.201, 419B.205, 419B.208, 419B.320, 419B.518,
419C.200, 419C.203, 419C.206, 419C.209, 419C.245, 419C.285,
419C.408, 420A.203, 420A.206, 426.100, 426.135, 426.250,
426.301, 426.307, 427.265, 427.275, 427.295, 433.019, 436.265
and 436.315 and section 2, chapter 472, Oregon Laws 2001
(Enrolled House Bill 2337), section 6, chapter 480, Oregon Laws
2001 (Enrolled House Bill 2336), section 6, chapter 622, Oregon
Laws 2001 (Enrolled House Bill 2611), and sections 5, 8 and 9,
chapter ___, Oregon Laws 2001 (Enrolled House Bill 2348);
repealing ORS 138.490, 151.210, 151.220, 151.230, 151.240,
151.250, 151.260, 151.270, 151.280, 151.290, 151.430, 151.450,
151.460, 151.465 and 151.480 and sections 1, 2, 3 and 5,
chapter 1033, Oregon Laws 1999, sections 3, 5, 7 and 8, chapter
472, Oregon Laws 2001 (Enrolled House Bill 2337), and sections
3 and 4, chapter ___, Oregon Laws 2001 (Enrolled House Bill
2348); appropriating money; and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + For purposes of sections 1 to 4 of this 2001
Act:
(1) 'Bar member' means an individual who is an active member of
the Oregon State Bar.
(2) 'Chief Justice' means the Chief Justice of the Oregon
Supreme Court.
(3) 'Commission' means the Public Defense Services Commission.
(4) 'Director' means the public defense services executive
director appointed under section 3 of this 2001 Act.
(5) 'Office of public defense services' means the office
established by the commission under the director to handle the
Enrolled Senate Bill 145 (SB 145-B) Page 1
cases assigned and to carry out the administrative policies and
procedures for the public defense system. + }
SECTION 2. { + (1) The Public Defense Services Commission is
established in the judicial branch of state government. Except
for the appointment or removal of commission members, the
commission and employees of the commission are not subject to the
exercise of administrative authority and supervision by the Chief
Justice of the Supreme Court as the administrative head of the
Judicial Department.
(2) The commission consists of seven members appointed by order
of the Chief Justice. In addition to the seven appointed members,
the Chief Justice serves as a nonvoting, ex officio member. The
Chief Justice shall appoint at least two persons who are not bar
members, at least one person who is a bar member and who is
engaged in criminal defense representation but is not primarily
engaged in representing persons at state expense and at least one
person who is a former Oregon state prosecutor. Except for the
Chief Justice, a member may not serve concurrently as a judge, a
prosecuting attorney or an employee of a law enforcement agency.
(3) The term of a member is four years beginning on the
effective date of the order of the Chief Justice appointing the
member. A member is eligible for reappointment if qualified for
membership at the time of reappointment. A member may be removed
from the commission by order of the Chief Justice. If a vacancy
occurs for any cause before the expiration of the term of a
member, the Chief Justice shall make an appointment to become
immediately effective for the unexpired term.
(4) A chairperson and a vice chairperson shall be appointed by
order of the Chief Justice every two years with such functions as
the commission may determine. A member is eligible for
reappointment as chairperson or vice chairperson.
(5) A majority of the voting members constitutes a quorum for
the transaction of business.
(6) A member of the commission is not entitled to compensation
for services as a member, but is entitled to expenses as provided
in ORS 292.495 (2). + }
SECTION 3. { + (1) The Public Defense Services Commission
shall:
(a) Plan for the establishment of a public defense system that
ensures the provision of public defense services in the most
cost-efficient manner consistent with the Oregon Constitution,
the United States Constitution and Oregon and national standards
of justice.
(b) Establish and maintain a public defense system for criminal
and probation violation appeals, the responsibility for which is
transferred by section 7 of this 2001 Act.
(c) Establish an office of public defense services and appoint
a public defense services executive director who serves at the
pleasure of the commission.
(d) Submit the budget of the commission and the office of
public defense services to the Legislative Assembly after the
budget is submitted to the commission by the director and
approved by the commission. The Chief Justice of the Supreme
Court and the chairperson of the commission shall present the
budget to the Legislative Assembly.
(e) Review and approve any public defense services contract
negotiated by the director before the contract can become
effective.
(f) Adopt a compensation plan for the office of public defense
services that is commensurate with other state agencies.
Enrolled Senate Bill 145 (SB 145-B) Page 2
(g) Adopt rules regarding:
(A) Procedures for the contracting of public defense services;
and
(B) Any other matters necessary to carry out the duties of the
commission.
(2) Rules adopted by the commission supersede any conflicting
rules, policies or procedures of the Public Defender Committee,
State Court Administrator, circuit courts, the Court of Appeals,
the Supreme Court and the Psychiatric Security Review Board
related to the exercise of the commission's administrative
responsibilities under this section and transferred duties,
functions and powers as they occur.
(3) The commission may accept gifts, grants or contributions
from any source, whether public or private. However, the
commission may not accept a gift, grant or contribution if
acceptance would create a conflict of interest. Moneys accepted
under this subsection shall be deposited in the Public Defense
Services Account created in section 5 of this 2001 Act and
expended for the purposes for which given or granted.
(4) The commission may not:
(a) Make any decision regarding the handling of any individual
case;
(b) Have access to any case file; or
(c) Interfere with the director or any member of the staff of
the director in carrying out professional duties involving the
legal representation of public defense clients. + }
SECTION 4. { + (1) The public defense services executive
director shall:
(a) Recommend to the Public Defense Services Commission how to
establish and maintain, in a cost-effective manner, the delivery
of legal services to persons entitled to, and financially
eligible for, appointed counsel at state expense under Oregon
statutes, the Oregon Constitution, the United States Constitution
and consistent with Oregon and national standards of justice.
(b) Implement and ensure compliance with contracts, policies,
procedures, rules and standards adopted by the commission or
required by statute.
(c) Prepare and submit to the commission for its approval the
biennial budget of the commission and the office of public
defense services.
(d) Negotiate contracts, as appropriate, for providing legal
services to persons financially eligible for appointed counsel at
state expense. No contract so negotiated is binding or
enforceable until the contract has been reviewed and approved by
the commission as provided in section 3 of this 2001 Act.
(e) Employ personnel or contract for services as necessary to
carry out the responsibilities of the director and the office of
public defense services.
(f) Supervise the personnel, operation and activities of the
office of public defense services.
(g) Provide services, facilities and materials necessary for
the performance of the duties, functions and powers of the Public
Defense Services Commission.
(h) Pay the expenses of the commission and the office of public
defense services.
(i) Prepare and submit to the commission and the Legislative
Assembly an annual report of the activities of the office of
public defense services.
(j) Provide for legal representation, advice and consultation
for the commission, its members, the director and staff of the
Enrolled Senate Bill 145 (SB 145-B) Page 3
office of public defense services who require such services or
who are named as defendants in lawsuits arising from their
duties, functions and responsibilities. If requested by the
director, the Attorney General may also provide for legal
representation, advice and consultation for the commission, its
members, the director and staff of the office of public defense
services in litigation.
(2) The director may designate persons as representatives of
the director for the purposes of determining and paying bills
submitted to the office of public defense services. + }
SECTION 5. { + (1) There is created a Public Defense Services
Account in the General Fund. The Public Defense Services Account
is continuously appropriated to the Public Defense Services
Commission to pay compensation of counsel and other expenses in
connection with the legal representation of persons for which the
commission is responsible by law.
(2) All moneys appropriated to the commission to pay
compensation of counsel and other expenses in connection with the
legal representation of persons for which the commission is
responsible by law shall be deposited in the Public Defense
Services Account.
(3) All gifts, grants or contributions accepted by the
commission under section 3 of this 2001 Act shall be deposited in
a separate subaccount created in the Public Defense Services
Account to be used by the commission for the purpose for which
the gift, grant or contribution was given or granted.
(4) As used in this section, 'other expenses in connection with
the legal representation of persons for which the commission is
responsible by law' includes expenses incurred in the
administration of the public defense system. + }
SECTION 6. { + The Public Defender Committee and the office of
the Public Defender are abolished. The tenure of office of the
Public Defender and of the members of the Public Defender
Committee is terminated. + }
SECTION 7. { + There are imposed upon, transferred to and
vested in the Public Defense Services Commission all the duties,
functions and powers of the Public Defender Committee and the
Public Defender. + }
SECTION 8. { + Notwithstanding the transfer of duties,
functions and powers by section 7 of this 2001 Act, the lawfully
adopted rules, procedures, standards, schedules and guidelines of
the Public Defender Committee in effect on October 1, 2001,
continue in effect until lawfully superseded or repealed by
rules, procedures, standards, schedules and guidelines of the
Public Defense Services Commission. References in rules of the
Public Defender Committee or to the Public Defender Committee or
an officer or employee thereof are considered to be references to
the commission or to an officer or employee thereof. + }
SECTION 9. { + The transfer of duties, functions and powers to
the Public Defense Services Commission under section 7 of this
2001 Act does not affect any action, suit, proceeding or
prosecution involving or with respect to such duties, functions
and powers begun before and pending at the time of the transfer,
except that the commission shall be substituted for the Public
Defender Committee or the Public Defender in such action, suit,
proceeding or prosecution. + }
SECTION 10. { + (1) Nothing in sections 1 to 13 of this 2001
Act relieves a person of an obligation with respect to a tax,
fee, fine, charge, interest, penalty, forfeiture or other
liability, duty or obligation accruing under or with respect to
Enrolled Senate Bill 145 (SB 145-B) Page 4
the duties, functions and powers transferred by section 7 of this
2001 Act. The Public Defense Services Commission may undertake
the collection or enforcement of any such tax, fee, fine, charge,
interest, penalty, forfeiture or other liability, duty or
obligation.
(2) The rights and obligations of the Public Defender Committee
or the Public Defender legally incurred under contracts, leases
and business transactions, executed, entered into or begun before
October 1, 2001, are transferred to the commission. For the
purpose of succession to these rights and obligations, the
commission is considered to be a continuation of the Public
Defender Committee and not a new authority, and the commission
shall exercise such rights and fulfill such obligations as if
they had not been transferred. + }
SECTION 11. { + There are transferred to the Public Defense
Services Commission:
(1) All the supplies, materials, equipment, records, books,
papers and facilities of the Public Defender Committee and the
Public Defender.
(2) All the employees of the Public Defender Committee and the
office of the Public Defender, subject to the right of the
commission to abolish positions and change duties to the extent
that the commission finds it desirable for the sound, efficient
and economical administration and enforcement of the duties,
functions and powers transferred by section 7 of this 2001 Act.
However, subject to the right of the commission to abolish
positions and change duties under this subsection, in the case of
any transfer of personnel made under this subsection, an employee
occupying a classified position under the State Personnel
Relations Law who is so transferred shall retain the same salary
classification and civil service status insofar as possible. + }
SECTION 12. { + (1) The unexpended balances of amounts as of
October 1, 2001, authorized to be expended for the biennium
beginning July 1, 2001, from revenues dedicated, continuously
appropriated, appropriated or otherwise made available for the
purpose of administering and enforcing the duties, functions and
powers transferred by section 7 of this 2001 Act, are
appropriated and transferred to and are available for expenditure
by the Public Defense Services Commission, to the extent provided
in subsection (2) of this section, for the biennium beginning
July 1, 2001.
(2) For the purpose of administering and enforcing the duties,
functions and powers transferred by section 7 of this 2001 Act
and for the payment of expenses lawfully incurred by the Public
Defender Committee or the Public Defender with respect to the
administration and enforcement of such duties, functions and
powers, the commission may expend the money that is authorized to
be expended by the Public Defender Committee or the Public
Defender for administering and enforcing the duties, functions
and powers transferred by section 7 of this 2001 Act and that is
unexpended on October 1, 2001. The commission shall assume and
pay all outstanding obligations lawfully incurred by the Public
Defender Committee or the Public Defender before October 1, 2001,
that are properly charged against amounts authorized by this
section to be expended by the commission. The expenditure
classifications, if any, established by Acts authorizing or
limiting expenditures remain applicable to expenditures by the
commission under this section. + }
SECTION 13. { + The Public Defender Committee, Public
Defender, State Court Administrator, indigent defense services
Enrolled Senate Bill 145 (SB 145-B) Page 5
director, Attorney General and any state agencies involved in the
justice systems in which public defense services are mandated
shall cooperate with the commission in providing information
reasonably necessary for the commission to execute its
duties. + }
SECTION 14. { + (1) Any reference in the statutes to the
Public Defender Committee shall be considered a reference to the
Public Defense Services Commission.
(2) For the purpose of harmonizing and clarifying statute
sections published in Oregon Revised Statutes, the Legislative
Counsel may substitute for words designating the Public Defender
Committee, wherever they occur in Oregon Revised Statutes, words
designating the Public Defense Services Commission. + }
SECTION 15. { + (1) Sections 6 to 12 and 14 of this 2001 Act,
the amendments to statutes by sections 28, 31, 104 and 107 to 113
of this 2001 Act and the repeal of statutes by section 114 of
this 2001 Act become operative on October 1, 2001.
(2) Except as otherwise specifically provided in sections 16 to
23 of this 2001 Act, sections 16 to 23 of this 2001 Act, the
amendments to statutes by sections 24 to 27, 29, 29a, 30 and 32
to 103 of this 2001 Act, the amendments to sections 3, 4 and 5 of
this 2001 Act by sections 106, 106a and 106b of this 2001 Act and
the repeal of statutes by section 115 of this 2001 Act become
operative on October 1, 2003. + }
SECTION 16. { + All statutory and administrative duties,
functions and powers of the State Court Administrator relating to
indigent defense program management are transferred to the Public
Defense Services Commission. + }
SECTION 17. { + The State Court Administrator shall deliver to
the Public Defense Services Commission all necessary and relevant
records, files, documents and information within the jurisdiction
of the State Court Administrator that relate to the duties,
functions and powers so transferred and shall transfer the
position authority and associated costs for those employees
engaged in the exercise of the statutory duties, functions and
powers so transferred. The commission shall take charge of and
employ those employees who are employed exclusively in the
exercise of duties, functions and powers assigned or transferred
by section 16 of this 2001 Act, without reduction of compensation
but subject to the right of the commission to abolish positions
and change duties to the extent that the commission finds it
desirable for the sound, efficient and economical administration
and enforcement of the duties, functions and powers transferred
by section 16 of this 2001 Act. However, subject to the right of
the commission to abolish positions and change duties under this
section, in the case of any transfer of personnel made under this
section, an employee occupying a classified position under the
State Personnel Relations Law who is so transferred shall retain
the same salary classification and civil service status insofar
as possible. + }
SECTION 18. { + (1) The unexpended balances of amounts as of
October 1, 2003, authorized to be expended for the biennium
beginning July 1, 2003, from revenues dedicated, continuously
appropriated, appropriated or otherwise made available for the
purpose of administering and enforcing the duties, functions and
powers transferred by section 16 of this 2001 Act, are
appropriated and transferred to and are available for expenditure
by the Public Defense Services Commission, to the extent provided
in subsection (2) of this section, for the biennium beginning
July 1, 2003.
Enrolled Senate Bill 145 (SB 145-B) Page 6
(2) For the purpose of administering and enforcing the duties,
functions and powers transferred by section 16 of this 2001 Act
and for the payment of the expenses lawfully incurred by the
State Court Administrator with respect to the administration and
enforcement of such duties, functions and powers, the commission
may expend the money that is authorized to be expended by the
State Court Administrator for administering and enforcing the
duties, functions and powers transferred by section 16 of this
2001 Act and that is unexpended on October 1, 2003. The
commission shall assume and pay all outstanding obligations
lawfully incurred by the State Court Administrator before October
1, 2003, that are properly charged against amounts authorized by
this section to be expended by the commission. The expenditure
classifications, if any, established by Acts authorizing or
limiting expenditures remain applicable to expenditures by the
commission under this section. + }
SECTION 19. { + Any proceeding, action, prosecution or other
business or matter undertaken or commenced before October 1,
2003, by the State Court Administrator, with respect to the
duties, functions and powers transferred to the Public Defense
Services Commission by section 16 of this 2001 Act, and still
pending on October 1, 2003, may be conducted and completed by the
commission in the same manner, under the same terms and
conditions and with the same effect as though undertaken,
conducted or completed by the State Court Administrator before
the transfer. + }
SECTION 20. { + Nothing in sections 16 to 23 of this 2001 Act
relieves a person of any obligation with respect to a tax, fee,
fine, charge, interest, penalty, forfeiture or other liability,
duty or obligation accruing under or with respect to the duties,
functions and powers transferred by section 16 of this 2001 Act.
The Public Defense Services Commission may undertake the
collection or enforcement of any such tax, fee, fine, charge,
interest, penalty, forfeiture or other liability, duty or
obligation. + }
SECTION 21. { + The Public Defense Services Commission is
considered to be a continuation of the State Court Administrator
with respect to duties, functions and powers relating to indigent
defense program management, and not a new authority, for the
purpose of succession to all rights and obligations of the State
Court Administrator as constituted at the time of such assignment
or transfer, except as otherwise provided by sections 16 to 23 of
this 2001 Act, with the same force and effect as if such duties,
functions and powers had not been assigned or transferred. + }
SECTION 22. { + (1) Whenever, in any law or resolution of the
Legislative Assembly or in any rule, document, record or
proceeding authorized thereby, reference is made to the State
Court Administrator, or employee thereof, whose duties, functions
or powers are assigned or transferred by section 16 of this 2001
Act, except as otherwise provided in sections 16 to 23 of this
2001 Act, such reference is considered to describe the Public
Defense Services Commission or employee thereof that by sections
16 to 23 of this 2001 Act is charged with carrying out such
duties, functions and powers.
(2) The lawful rules, procedures, standards, schedules and
guidelines of the State Court Administrator with respect to
duties, functions or powers assigned or transferred by section 16
of this 2001 Act continue in effect until superseded or rescinded
by rules, procedures, standards, schedules and guidelines
lawfully adopted by the commission. + }
Enrolled Senate Bill 145 (SB 145-B) Page 7
SECTION 23. { + The transfer of duties, functions, powers,
rights, records, employees or moneys by section 16 of this 2001
Act does not become operative until October 1, 2003, except as
necessary to allow an orderly transition and only with the
express written approval of the State Court Administrator. Until
then the State Court Administrator shall continue to exercise and
perform such duties, functions, powers and rights and to have
charge of such records, employees and moneys. + }
SECTION 24. ORS 135.045, as amended by section 1, chapter 472,
Oregon Laws 2001 (Enrolled House Bill 2337), is amended to read:
135.045. (1)(a) If the defendant in a criminal action appears
without counsel at arraignment or thereafter, the court shall
determine whether the defendant wishes to be represented by
counsel.
(b) If the defendant does wish to be represented by counsel,
the court, in accordance with ORS 135.050, shall appoint counsel
to represent the defendant.
(c) If the defendant wishes to waive counsel, the court shall
determine whether the defendant has made a knowing and voluntary
waiver of counsel. The court shall accept the waiver of counsel
if the defendant is not charged with a capital offense. The court
may decline to accept the waiver of counsel if the defendant is
charged with a capital offense.
(d) If the court accepts a defendant's waiver of counsel, the
court may allow an attorney to serve as the defendant's legal
advisor and may, in accordance with ORS 135.050, appoint an
attorney as the defendant's legal advisor.
(2) Appointment of counsel, including a legal advisor, under
this section { - : - }
{ - (a) - } is subject to ORS 135.050, 135.055 and 151.430
to 151.495 { - ; and - }
{ - (b) Shall be made in compliance with the terms of
applicable contracts executed by the State Court Administrator
under ORS 151.460 - } .
SECTION 25. ORS 135.050 is amended to read:
135.050. (1) Suitable counsel for a defendant shall be
appointed by a { + municipal, county or justice + } court if:
(a) The defendant is before a court on a matter described in
subsection { - (4) - } { + (5) + } of this section;
(b) The defendant requests aid of counsel;
(c) The defendant provides to the court a written and verified
financial statement; and
(d) It appears to the court that the defendant is financially
unable to retain adequate representation without substantial
hardship in providing basic economic necessities to the defendant
or the defendant's dependent family.
{ + (2) Suitable counsel for a defendant shall be appointed
by a circuit court if:
(a) The defendant is before the court on a matter described in
subsection (5) of this section;
(b) The defendant requests aid of counsel;
(c) The defendant provides to the court a written and verified
financial statement; and
(d)(A) The defendant is determined to be financially eligible
under ORS 151.485 and the standards established by the Public
Defense Services Commission under section 3 of this 2001 Act; or
(B) The court finds, on the record, substantial and compelling
reasons why the defendant is financially unable to retain
adequate representation without substantial hardship in providing
basic economic necessities to the defendant or the defendant's
Enrolled Senate Bill 145 (SB 145-B) Page 8
dependent family despite the fact that the defendant does not
meet the financial eligibility standards established by the
commission. + }
{ - (2) - } { + (3) + } Appointed counsel shall not be
denied to any defendant merely because the defendant's friends or
relatives have resources adequate to retain counsel or because
the defendant has deposited or is capable of depositing security
for release. However, appointed counsel may be denied to a
defendant if the defendant's spouse has adequate resources which
the court determines should be made available to retain counsel.
{ - (3) - } { + (4) + } The defendant's financial statement
under subsection (1) { + or (2) + } of this section shall
include, but not be limited to:
(a) A list of bank accounts in the name of defendant or
defendant's spouse, and the balance in each;
(b) A list of defendant's interests in real property and those
of defendant's spouse;
(c) A list of automobiles and other personal property of
significant value belonging to defendant or defendant's spouse;
(d) A list of debts in the name of defendant or defendant's
spouse, and the total of each; and
(e) A record of earnings and other sources of income in the
name of defendant or defendant's spouse, and the total of each.
{ - (4) - } { + (5) + } Counsel must be appointed for a
defendant who meets the requirements of subsection (1) { + or
(2) + } of this section and who is before a court on any of the
following matters:
(a) Charged with a crime.
(b) For a hearing to determine whether an enhanced sentence
should be imposed when such proceedings may result in the
imposition of a felony sentence.
(c) For extradition proceedings under the provisions of the
Uniform Criminal Extradition Act.
(d) For any proceeding concerning an order of probation,
including but not limited to the revoking or amending thereof.
{ - (5) - } { + (6) + } Unless otherwise ordered by the
court, the appointment of counsel under this section shall
continue during all criminal proceedings resulting from the
defendant's arrest through acquittal or the imposition of
punishment. The court having jurisdiction of the case may
substitute one appointed counsel for another at any stage of the
proceedings when the interests of justice require such
substitution.
{ - (6) - } { + (7) + } If, at any time after the
appointment of counsel, the court having jurisdiction of the case
finds that the defendant is financially able to obtain counsel,
the court may terminate the appointment of counsel. If, at any
time during criminal proceedings, the court having jurisdiction
of the case finds that the defendant is financially unable to pay
counsel whom the defendant has retained, the court may appoint
counsel as provided in this section.
{ - (7) - } { + (8) + } The court may order the defendant
{ + in a circuit court + } to pay to the { - State Court
Indigent Defense - } { + Public Defense Services + } Account in
the General Fund { + , through the clerk of the court, + } in
full or in part the administrative costs of determining the
eligibility of the defendant for appointed counsel and the costs
of the legal and other services that are related to the provision
of appointed counsel under ORS 151.487, 151.505 or 161.665.
Enrolled Senate Bill 145 (SB 145-B) Page 9
{ - (8) - } { + (9) + } In addition to any criminal
prosecution, a civil proceeding may be initiated by any public
body which has expended moneys for the defendant's legal
assistance within two years of judgment if the defendant was not
qualified in accordance with subsection (1) { + or (2) + } of
this section for legal assistance.
{ - (9) - } { + (10) + } The civil proceeding shall be
subject to the exemptions from execution as provided for by law.
SECTION 26. ORS 135.055, as amended by section 107 of this 2001
Act, is amended to read:
135.055. (1) Counsel appointed pursuant to ORS 135.045 or
135.050 { - , if other than counsel provided pursuant to ORS
151.010 or 151.460, shall, upon certification by the court, - }
{ + shall + } be paid fair compensation for representation in
the case:
(a) By the county, subject to the approval of the governing
body of the county, in a proceeding in a county or justice court.
(b) By the { - State Court Administrator - } { + public
defense services executive director + } from funds available for
the purpose, in a proceeding in a circuit court.
(2) Except for counsel appointed pursuant to contracts or
counsel employed by the public defense services executive
director, compensation payable to appointed counsel under
subsection (1) of this section:
(a) In a proceeding in a county or justice court shall not be
less than $30 per hour.
(b) In a proceeding in a circuit court shall be subject to the
applicable compensation established under { - ORS 151.430
(5) - } { + section 3 of this 2001 Act + }.
(3)(a) A person determined to be eligible for appointed counsel
is entitled to necessary and reasonable expenses for
investigation, preparation and presentation of the case. The
person or the counsel for the person may upon written request,
which shall not be disclosed to the district attorney prior to
conclusion of the case, secure approval and preauthorization of
payment of such expenses { - as - } { + that are not routine
to representation but + }are necessary and proper in the
investigation, preparation and presentation of the case,
including but not limited to travel, { - telephone calls, - }
photocopying or other reproduction of { + nonroutine + }
documents, necessary costs associated with obtaining the
attendance of witnesses for the defense, { + investigator fees
and expenses, + } expert witness fees { + and expenses + } and
fees for interpreters and assistive communication devices
necessary for the purpose of communication between counsel and a
client or witness in the case.
(b) In a county or justice court, the request shall be in the
form of a motion to the court. The motion must be accompanied by
a supporting affidavit which sets out in detail the purpose of
the requested expenditure, the name of the service provider or
other recipient of the funds, the dollar amount of the requested
expenditure which may not be exceeded without additional
authorization and the date or dates during which the service will
be rendered or events will occur for which the expenditure is
requested.
(c) In a circuit court, the request shall be in the form and
contain the information that is required by { - policies of the
State Court Administrator - } { + rules of the Public Defense
Services Commission + }.
Enrolled Senate Bill 145 (SB 145-B) Page 10
(d) Entitlement under this subsection to payment for expenses
{ + in circuit court + } is subject to { - policies and
procedures established by the State Court Administrator,
including, but not limited to, cost guidelines and standards
established under ORS 151.430 - } { + rules adopted under
section 3 of this 2001 Act + }. Entitlement to payment of
{ - extraordinary - } { + nonroutine + } expenses is dependent
upon obtaining preauthorization from the court, if the case is in
county or justice court, or from the { - State Court
Administrator - } { + public defense services executive
director + }, if the case is in circuit court, except as
otherwise provided in { - the policies and procedures
established by the State Court Administrator. The presiding judge
or trial judge has ultimate authority for approval of expenses
under this paragraph - } { + rules adopted under section 3 of
this 2001 Act + }. Approved and authorized expenses shall be
paid:
(A) By the county, in respect to a proceeding in a county or
justice court.
(B) By the { - State Court Administrator - } { + public
defense services executive director + } from funds available for
the purpose, in respect to a proceeding in a circuit court.
(C) By the city, in respect to a proceeding in municipal court.
(4) Upon completion of all services by the counsel of a person
determined to be eligible for appointed counsel, the counsel
shall submit { - to the court - } a statement of all
reasonable fees and expenses of investigation, preparation,
presentation and, if counsel was appointed by the court,
representation paid or incurred, supported by appropriate
receipts or vouchers and certified by the counsel to be true and
accurate. The counsel, at that time, may request payment or
reimbursement for any such expenses for which payment has not yet
been approved and authorized.
(5) { + In a county or justice court, + } the total fees and
expenses payable under this section shall be { + submitted to
the court and shall be + } subject to the review of the
{ - presiding judge for the judicial district - } { +
court + }. The { - presiding judge - } { + court + } shall
certify that such amount is fair reimbursement for fees and
expenses for representation in the case as provided in subsection
(6) of this section. Upon certification and any verification as
provided under subsection (6) of this section, the amount of the
fees and expenses approved by the court and not already paid
shall be paid { - : - }
{ - (a) - } by the county { - , in respect to a proceeding
in a county or justice court. - }
{ - (b) By the State Court Administrator from funds available
for the purpose, in respect to a proceeding in a circuit
court - } .
(6) { - (a) The presiding judge - } { + In a county or
justice court, the court + } shall certify to the administrative
authority responsible for paying fees and expenses under this
section that the amount for payment is reasonable and that the
amount is properly payable out of public funds.
{ - (b) With any certification by the court of fees or
expenses that the State Court Administrator is to pay for counsel
or other costs of indigent representation under ORS 33.015 to
33.155, 135.045, 135.055, 135.705, 144.317, 144.343, 151.430,
151.450, 151.460, 151.505, 161.346, 161.365, 161.665, 163.105,
419B.195, 419B.201, 419B.205, 419B.518, 419C.200, 419C.206,
Enrolled Senate Bill 145 (SB 145-B) Page 11
426.255 and 426.307, the court shall include any information
identified and requested by the State Court Administrator as
needed for audit, statistical or any other purpose pertinent to
insure the proper disbursement of state funds or pertinent to the
provision of appointed counsel compensated at state expense. - }
{ - (c) The presiding judge may authorize the trial court
administrator to make the certification required under this
section in some or all cases where the amount for payment meets
the policies and procedures established by the State Court
Administrator under ORS 151.430 (5) and (6). The authorization
must be in writing and must specify the types of cases to which
the authorization applies. - }
{ + (7) In a circuit court, the total fees and expenses
payable under this section shall be submitted to and subject to
review by the public defense services executive director. The
public defense services executive director shall determine
whether the amount is fair reimbursement for fees and expenses
for representation in the case as provided by rules of the Public
Defense Services Commission. The public defense services
executive director shall pay the amount of the fees and expenses
approved and not already paid. The court shall provide any
information identified and requested by the public defense
services executive director as needed for audit, statistical or
any other purpose pertinent to ensure the proper disbursement of
state funds or pertinent to the provision of appointed counsel
compensated at state expense. + }
{ - (7) - } { + (8) + } As used in this section unless the
context requires otherwise, 'counsel' includes a legal advisor
appointed under ORS 135.045.
SECTION 27. ORS 136.603 is amended to read:
136.603. (1)(a) Whenever any person attends any court, grand
jury or committing magistrate as a witness on behalf of the
prosecution or of any person accused of a crime upon request of
the district attorney or city attorney or pursuant to subpoena,
or by virtue of a recognizance for that purpose, and it appears
that the witness has come from outside the state or that the
witness is indigent, the court may, by an order entered in its
records, direct payment to the witness of such sum of money as
the court considers reasonable for the expenses of the witness.
The order of the court, so entered, is sufficient authority for
the payment.
(b) Except as otherwise specifically provided by law, if a
witness who is to be paid expenses pursuant to this subsection:
(A) Attends a grand jury, a circuit court or judge thereof, a
judge of a county court or a justice of the peace, on behalf of
the prosecution, payment shall be made by the county.
(B) Attends a municipal court or judge thereof on behalf of the
prosecution, payment shall be made by the city.
(C) Attends a circuit court or judge thereof on behalf of
{ - an indigent - } { + a financially eligible + } defendant,
payment shall be made by the { - State Court Administrator - }
{ + public defense services executive director + }.
(D) Attends a judge of the county court or a justice of the
peace on behalf of { - an indigent - } { + a financially
eligible + } defendant, payment shall be made by the county.
(E) Attends a municipal court or judge thereof on behalf of
{ - an indigent - } { + a financially eligible + } defendant,
payment shall be made by the city.
(F) Attends any court on behalf of a defendant who is not
Enrolled Senate Bill 145 (SB 145-B) Page 12
{ - indigent - } { + financially eligible + }, payment shall
be made by the defendant, and the court shall so order.
(2) In the case of a prisoner of a jurisdiction outside of this
state who is required to attend as a witness in this state,
whether for the prosecution or the defense, the sheriff shall be
responsible for transporting the witness to the proper court of
this state, and the sheriff shall assume any costs incurred in
connection with the witness while the witness is in the custody
of the sheriff. However, the sheriff and not the witness shall be
entitled to the witness fees, mileage and expenses to which the
witness would otherwise be entitled under this section and ORS
136.627 or other applicable law.
SECTION 28. ORS 138.480 is amended to read:
138.480. The Supreme Court or the Court of Appeals may, in its
discretion, at the request of an individual who is deprived of
liberty by a judgment, is without means to retain an attorney and
is without the aid of an attorney, direct the Public
{ - Defender to represent - } { + Defense Services Commission
to provide representation for + }the individual in a proceeding
before it to test the validity of that judgment.
SECTION 29. ORS 138.500, as amended by section 108 of this 2001
Act, is amended to read:
138.500. (1) If a defendant in a criminal action or a
petitioner in a proceeding pursuant to ORS 138.510 to 138.680
wishes to appeal from an appealable adverse final order or
judgment of a circuit court and if the person is without funds to
employ suitable counsel possessing skills and experience
commensurate with the nature and complexity of the case for the
appeal, the person may request the circuit court from which the
appeal is or would be taken to appoint counsel to represent the
person on appeal. The following apply to a request under this
subsection:
(a) The request shall be in writing and shall be made within
the time during which an appeal may be taken or, if the notice of
appeal has been filed, at any time thereafter. The request shall
include a brief statement of the assets, liabilities and income
in the previous year of the person unless the court already
determined the person to be { - indigent - } { + financially
eligible for appointed counsel at state expense + } for purposes
of the specific case, in which instance, the written request need
only so indicate. However, if a request relies on a court's
previous determination that the person is { - indigent - }
{ + financially eligible + }, the court, in its discretion, may
require the person to submit a new statement of assets,
liabilities and income.
(b) If, based upon a request under paragraph (a) of this
subsection, the court finds that petitioner or defendant
previously received the services of appointed counsel or
currently is without funds to employ suitable counsel for an
appeal, the court shall appoint counsel to represent petitioner
or defendant on the appeal { - , subject to applicable contracts
entered into by the State Court Administrator under ORS
151.460 - } .
{ - (c) Under paragraph (b) of this subsection, the court, in
its discretion, may appoint counsel who represented petitioner or
defendant in the court in the case, or if counsel employed or
compensated by the Public Defense Services Commission is able to
serve, the court may appoint, in a criminal action, such counsel
to serve as counsel on appeal. - }
Enrolled Senate Bill 145 (SB 145-B) Page 13
(2)(a) Notwithstanding subsection (1) of this section, when a
defendant has been sentenced to death, the request for appointed
counsel shall be made to the Supreme Court. The Supreme Court
shall appoint suitable counsel to represent the defendant on the
appeal.
(b) After the notice of appeal has been filed, the Court of
Appeals has concurrent authority to appoint or substitute counsel
or appoint or substitute a legal advisor for the defendant under
section 2, chapter 472, Oregon Laws 2001 (Enrolled House Bill
2337).
(c) The Supreme Court has concurrent authority to appoint or
substitute counsel or appoint or substitute a legal advisor for
the defendant under section 2, chapter 472, Oregon Laws 2001
(Enrolled House Bill 2337), in connection with review of a Court
of Appeals decision under ORS 2.520.
(3) Whenever a defendant in a criminal action or a petitioner
in a proceeding pursuant to ORS 138.510 to 138.680 has filed a
notice of appeal from an appealable adverse final order or
judgment of a circuit court and the person is without funds to
pay for a transcript, or portion thereof, necessary to present
adequately the case upon appeal, the person may request the
{ - circuit court to order - } { + public defense services
executive director to have + } the transcript, or portion
thereof, furnished to the person. The following apply to a
request under this subsection:
(a) The request shall be in writing and, shall include a brief
statement of the assets, liabilities and income in the previous
year of the person { - unless the court already determined the
person to be indigent for purposes of the specific case, in which
instance, the written request need only so indicate. However, if
the request relies on the court's previous determination that the
person is indigent, the court, in its discretion, may require the
person to submit a new statement of assets, liabilities and
income - } .
(b) If, based upon a request under paragraph (a) of this
subsection, the { - court - } { + public defense services
executive director + } finds that the person is unable to pay for
the transcript, the
{ - court shall order - } { + public defense services
executive director shall have + } furnished to the person that
portion of the transcript as may be material to the decision on
appeal, if the { - court - } { + public defense services
executive director + } finds that the transcript or portion
thereof is necessary.
(c) The cost of the transcript under paragraph (b) of this
subsection shall be in the amount prescribed in ORS 21.470 and
paid for as provided { - in subsection (4) of this section - }
{ + by the rules of the Public Defense Services Commission + }.
(4) After oral argument on the appeal or, if there is no oral
argument, after submission of the appeal to the court for
decision, the { - Court of Appeals shall certify - } { +
public defense services executive director shall determine + }
the cost of briefs and any other expenses of appellant, except
transcripts, necessary to appellate review and { - shall
determine and certify - } a reasonable amount of compensation
for counsel appointed under this section.
{ - The circuit court shall certify the cost of the transcript
furnished pursuant to subsection (3) of this section, except that
when a defendant has been sentenced to death, the Supreme Court
shall certify the cost of the transcript. - } Compensation
Enrolled Senate Bill 145 (SB 145-B) Page 14
payable to appointed counsel shall { - not be less than the
applicable minimum compensation set forth in the schedule - }
{ + be as + } established under
{ - ORS 151.430 (5). A statement of the costs and expenses and
a request to certify compensation of counsel shall be filed after
the date of oral argument, or if there is no oral argument, after
the date of submission of the appeal to the court for decision,
but not later than the 21st day after the date of the decision of
the appeal by the court or such further time as may be allowed by
the court. Except as the court may otherwise provide by rule,
only one statement and request for certification may be filed - }
{ + section 3 of this 2001 Act + }. On any review by the
Supreme Court of the judgment of the Court of Appeals a person
for whom counsel has been appointed shall by similar procedure
recover the cost of briefs, any other expense of the review and
compensation for counsel.
(5) Costs, expenses and compensation { - certified by the
Supreme Court or by the Court of Appeals - } { + determined by
the public defense services executive director + } under
subsection (4) of this section shall be paid by the
{ - state - } { + public defense services executive
director + } from funds for that purpose. { - The Supreme Court
or Court of Appeals shall certify to the administrative authority
responsible for paying costs, expenses and compensation under
this section that the amount of payment is reasonable and
properly payable out of public funds. - }
{ - (6) A court certifying costs, expenses and compensation
for payment by the State Court Administrator shall supply any
information requested by the State Court Administrator for the
purpose of audits, statistical analysis or other activities
relating to the proper disbursement of state funds or the payment
of appointed counsel. - }
{ - (7) - } { + (6) + } The provisions of this section
shall apply in favor of the defendant in a criminal action or the
petitioner in a proceeding pursuant to ORS 138.510 to 138.680
when the person is respondent in an appeal taken by the state in
a criminal action or by the defendant in a proceeding pursuant to
ORS 138.510 to 138.680.
{ - (8) If appointed counsel on appeal is counsel employed or
compensated by the Public Defense Services Commission or counsel
who is under contract to provide services for the appeal pursuant
to ORS 151.460, the appellate court shall not allow compensation
for that appointed counsel. In all other cases, counsel shall be
compensated as provided in this section. - }
{ - (9) The Chief Justice of the Supreme Court may authorize
one or more employees of the Judicial Department to make the
certification required under subsection (4) of this section. The
authorization may apply to some or all appeals before the Court
of Appeals and Supreme Court. The authorization must be in
writing and must specify the types of cases to which the
authorization applies. A certification made by an employee of the
Judicial Department pursuant to an authorization under this
subsection must be based on the cost guidelines and standards
established pursuant to ORS 151.430 (5) and (6). Upon motion of
the attorney seeking compensation, or upon the court's own
motion, the court may increase or decrease any amount certified
by an employee of the Judicial Department pursuant to an
authorization made under the provisions of this subsection. - }
{ - (10) - } { + (7) + } As used in { - subsections - }
{ + subsection + } (4) { - and (8) - } of this section,
Enrolled Senate Bill 145 (SB 145-B) Page 15
'counsel' includes a legal advisor appointed under section 2,
chapter 472, Oregon Laws 2001 (Enrolled House Bill 2337).
SECTION 29a. Section 2, chapter 472, Oregon Laws 2001 (Enrolled
House Bill 2337), is amended to read:
{ + Sec. 2. + } (1) If the defendant wishes to waive counsel
in the appeal of a criminal action to the Court of Appeals or on
review of a criminal action by the Supreme Court, the court shall
determine whether the defendant has made a knowing and voluntary
waiver of counsel. The court shall accept the waiver of counsel
if the defendant is not charged with a capital offense. The court
may decline to accept the waiver of counsel if the defendant is
charged with a capital offense.
(2) If the court accepts a defendant's waiver of counsel, the
court may allow an attorney to serve as the defendant's legal
advisor and, if the defendant is { - indigent - } { +
financially eligible for appointed counsel at state expense + },
may appoint an attorney as the defendant's legal advisor.
(3) If the court declines to accept a defendant's waiver of
counsel under subsection (1) of this section, the court shall
give the defendant a reasonable opportunity, as prescribed by
order or rule of the court, to file a brief on the defendant's
own behalf.
SECTION 30. ORS 138.590 is amended to read:
138.590. (1) Any petitioner who is unable to pay the expenses
of a proceeding pursuant to ORS 138.510 to 138.680 or to employ
suitable counsel possessing skills and experience commensurate
with the nature of the conviction and complexity of the case for
{ - such a - } { + the + } proceeding may proceed as { - an
indigent - } { + a financially eligible + } person pursuant to
this section upon order of the circuit court in which the
petition is filed.
(2) If the petitioner wishes to proceed as { - an
indigent - } { + a financially eligible + } person, the person
shall file with the petition an affidavit stating inability to
pay the expenses of a proceeding pursuant to ORS 138.510 to
138.680, including, but not limited to, the filing fee required
by ORS 138.560, or to employ suitable counsel for such a
proceeding. The affidavit shall contain a brief statement of the
petitioner's assets and liabilities and income during the
previous year. If the circuit court is satisfied that the
petitioner is unable to pay such expenses or to employ suitable
counsel, it shall order that the petitioner proceed as { - an
indigent - } { + a financially eligible + } person. If the
court finds that a petitioner who has been sentenced to death is
not competent to decide whether to accept or reject the
appointment of counsel, the court shall appoint counsel to
represent the petitioner. However, when the Circuit Court for
Marion County orders petitioner's case transferred to another
circuit court as provided in ORS 138.560 (4), the matter of
petitioner's proceeding as { - an indigent - } { + a
financially eligible + } person shall be determined by the latter
court.
(3) If a petitioner who has been sentenced to death qualifies
for the appointment of counsel under this section but rejects the
appointment, the court shall determine, after a hearing if
necessary, whether the petitioner rejected the offer of counsel
and made the decision with an understanding of its legal
consequences. The court shall make appropriate findings on the
record.
Enrolled Senate Bill 145 (SB 145-B) Page 16
(4) In the order to proceed as { - an indigent - } { + a
financially eligible + } person, the circuit court shall appoint
suitable counsel to represent petitioner. Counsel so appointed
shall represent petitioner throughout the proceedings in the
circuit court.
(5) If counsel appointed by the circuit court determines that
the petition as filed by petitioner is defective, either in form
or in substance, or both, counsel may move to amend the petition
within 15 days following counsel's appointment, or within
{ - such - } { + a + } further period as the court may allow.
{ - Such - } { + The + } amendment shall be permitted as of
right at any time during this period. If appointed counsel
believes that the original petition cannot be construed to state
a ground for relief under ORS 138.510 to 138.680, and cannot be
amended to state { - such - } a ground { + for relief + },
counsel shall, in lieu of moving to amend the petition, inform
the petitioner and notify the circuit court of { - such - }
{ + counsel's + } belief by filing an affidavit stating
{ - such - } { + the + } belief and the reasons therefor with
the clerk of the circuit court. This affidavit { - shall - }
{ + does + } not constitute a ground for denying the petition
prior to a hearing upon its sufficiency, but the circuit court
may consider { - such - } { + the + } affidavit in deciding
upon the sufficiency of the petition at the hearing.
(6) When a petitioner has been ordered to proceed as { - an
indigent - } { + a financially eligible + } person, the
expenses which are necessary for the proceedings upon the
petition in the circuit court and the compensation to appointed
counsel for petitioner as provided in this subsection shall be
paid by the { - state - } { + public defense services
executive director + } from funds available for the purpose. At
the conclusion of proceedings on a petition pursuant to ORS
138.510 to 138.680, the { - circuit court - } { + public
defense services executive director + } shall determine and
{ - allow - } { + pay + }, as provided { - in ORS
135.055 - } { + by rules of the Public Defense Services
Commission + }, the amount of expenses of petitioner and
compensation for the services of appointed counsel in the
proceedings in the circuit court. { - The expenses and
compensation determined by the circuit court shall be certified
to and paid by the state. - }
{ - (7) If appointed counsel is under contract to provide
services for the proceeding pursuant to ORS 151.460, the court
shall not allow compensation for that appointed counsel. In all
other cases, counsel shall be compensated as provided in this
section. - }
{ - (8)(a) - } { + (7)(a) + } When a petitioner has been
{ - ordered - } { + authorized + } to proceed as { - an
indigent - } { + a financially eligible + } person, all court
fees in the circuit court, except for the filing fee required by
ORS 138.560, are waived.
(b) When a petitioner is allowed to file a petition without
payment of the fee required by ORS 138.560 due to inability to
pay, the fee is not waived but may be drawn from, or charged
against, the petitioner's trust account if the petitioner is an
inmate in a correctional facility.
{ - (9) - } { + (8) + } Notwithstanding any other provision
of this chapter, a court may not appoint as counsel for a
petitioner who has been sentenced to death a counsel who
previously represented the petitioner at trial or on automatic
Enrolled Senate Bill 145 (SB 145-B) Page 17
and direct review in the case resulting in the death sentence
unless the petitioner and the counsel expressly request continued
representation.
SECTION 31. ORS 144.337 is amended to read:
144.337. Persons petitioning for review under ORS 144.335 shall
be represented by { - the - } { + a + } public
{ - Defender - } { + defense services counsel + } pursuant to
the terms of { - ORS 151.210 to 151.290 - } { + sections 3
and 4 of this 2001 Act + }.
SECTION 32. ORS 151.010 is amended to read:
151.010. (1) The governing body of a county, on behalf of the
county, may contract with an attorney, group of attorneys or
full-time not-for-profit public defender organization for the
provision by the attorney, group of attorneys or organization of
services as counsel for { - indigents - } { + financially
eligible persons + } in proceedings in which a court or
magistrate has the power to appoint counsel to represent { - an
indigent - } { + a financially eligible person + } and the
county is required to pay compensation for that representation.
{ - If a contract is with an attorney or group of attorneys,
each attorney who will provide services under the contract shall
satisfy the standards of eligibility established under ORS
151.430 (3)(a). If a contract is with a public defender
organization, the organization shall satisfy the standards of
eligibility established under ORS 151.430 (3)(b). - }
(2) A court or magistrate may appoint an attorney who is, or an
attorney member of a public defender organization that is, under
a contract with a county as provided in this section to represent
{ - an indigent - } { + a financially eligible person + } in
any proceeding in which the court or magistrate has the power to
appoint counsel to represent { - an indigent - } { + a
financially eligible person + } and the county is required to pay
compensation for that representation.
SECTION 33. ORS 151.485 is amended to read:
151.485. (1) For purposes of determining the financial
eligibility for { - court-appointed - } { + appointed + }
counsel of persons with a constitutional or statutory right to
counsel in matters before the state courts and whose counsel is
authorized to be paid by the { - State Court Administrator
under ORS 151.450 - } { + public defense services executive
director under section 4 of this 2001 Act + }, a person is
{ - indigent - } { + financially eligible for appointed
counsel + } if the person is determined to be financially unable
to retain adequate counsel without substantial hardship in
providing basic economic necessities to the person or the
person's dependent family { + under standards established by the
Public Defense Services Commission under section 3 of this 2001
Act + }.
(2) A determination of { - indigence - } { + financial
eligibility + } shall be made upon the basis of information
contained in a detailed financial statement submitted by the
person for whom counsel is requested or appointed or, in an
appropriate case, by the person's parent, guardian or custodian.
The financial statement shall be in the form prescribed by the
{ - State Court Administrator and approved by the Supreme
Court - } { + Public Defense Services Commission + }. The form
shall contain a full disclosure of all assets, liabilities,
current income, dependents and other information required by ORS
135.050 { - (3) - } { + (4) + } and, in addition, any
information required by the { - State Court Administrator - }
Enrolled Senate Bill 145 (SB 145-B) Page 18
{ + commission and state courts + } as necessary to determine
eligibility.
{ - The State Court Administrator shall promulgate and issue
uniform statewide guidelines and procedures that have been
approved by the Supreme Court and that prescribe how the form
will be used in the state courts and how the eligibility for
court-appointed counsel will be determined. - } { + The
commission shall adopt uniform statewide guidelines and
procedures that prescribe how to use the form and determine
financial eligibility for appointed counsel. + }
(3) If at any time after the appointment of counsel the court
having jurisdiction of the case finds that the defendant is
financially able to obtain counsel, the court may terminate the
appointment of counsel. If at any time during criminal
proceedings the court having jurisdiction of the case finds that
the defendant is financially unable to pay counsel whom the
defendant has retained, the court may appoint counsel as provided
in this section.
(4) In addition to any criminal prosecution, a civil proceeding
may be initiated by any public body that has expended moneys for
the defendant's legal assistance within two years of judgment if
the defendant was not qualified for legal assistance in
accordance with subsections (1) and (2) of this section. As used
in this subsection, 'legal assistance' includes legal counsel,
transcripts, witness fees and expenses and any other goods or
services required by law to be provided to { - an indigent - }
{ + a financially eligible + } person at state expense under
{ - ORS 151.450 - } { + sections 3 and 4 of this 2001 Act + }.
(5) The civil proceeding shall be subject to the exemptions
from execution as provided for by law.
SECTION 34. ORS 151.487 is amended to read:
151.487. (1) If in determining that a person is
{ + financially + } eligible for { - court-appointed - } { +
appointed + } counsel { - after applying the guidelines and
standards issued by the State Court Administrator - } under ORS
151.485, the court finds that the person has financial resources
that enable the person to pay in full or in part the
administrative costs of determining the eligibility of the person
and the costs of the legal and other services to be provided at
state expense that are related to the provision of appointed
counsel, the court shall order the person to pay to the
{ - State Court Indigent Defense - } { + Public Defense
Services + } Account in the General Fund, through the clerk of
the court, the amount that it finds the person is able to pay
without creating substantial hardship in providing basic economic
necessities to the person or the person's dependent family. The
amount that a court may order the person to pay { - shall
be - } { + is + } subject to the guidelines and procedures
issued by the { - State Court Administrator - } { + Public
Defense Services Commission + } as provided in subsection (4) of
this section.
(2) Failure to obey an order under this section { - shall not
be - } { + is not + } grounds for contempt or grounds for
withdrawal by the appointed attorney, but any part of the amount
ordered under this section and not paid may be:
(a) Enforced against the person as if the order is a civil
judgment; or
(b) Enforced as otherwise permitted by law.
(3) Except as authorized in this section, no person,
organization or governmental agency may request or accept a
Enrolled Senate Bill 145 (SB 145-B) Page 19
payment or promise of payment for assisting in the representation
of a person by { - court - } appointment.
(4) The { - State Court Administrator - } { +
commission + } shall promulgate and issue guidelines and
procedures { - that have been approved by the Supreme Court - }
:
(a) For the determination of persons provided with
{ - court-appointed - } { + appointed + } counsel who have
some financial resources to pay in full or in part the
administrative, legal and other costs under subsection (1) of
this section; and
(b) Regarding the amounts persons may be required to pay by a
court under subsection (1) of this section.
(5) The determination that a person is able to pay or partially
able to pay, or that a person no longer has the ability to pay
the amount ordered in subsection (1) of this section,
{ - shall be - } { + is + } subject to review at any time by
the court.
SECTION 35. ORS 151.489 is amended to read:
151.489. For the purpose of aiding courts in { - implementing
indigency eligibility - } { + making + } determinations { + of
financial eligibility for appointed counsel at state expense + }
under ORS 151.485 and 151.487, the State Court Administrator may
locate
{ - indigency - } { + eligibility + } verification and
screening { - positions - } { + personnel or otherwise arrange
for such services + } in the state trial and appellate courts
{ + or other locations + } and { - may - } { + shall + }
prescribe the policies and procedures for their use.
SECTION 36. ORS 151.491 is amended to read:
151.491. (1) { - The - } State { - Court Administrator - }
{ + courts + } or authorized { - designee who conducts - }
{ + designees who conduct + } the verification of the financial
statement submitted by a person seeking or having appointed
counsel payable at state expense under
{ - ORS 151.450 shall have the authority to - } { + sections
3 and 4 of this 2001 Act may + } require the person to execute
and deliver any written requests or authorizations as may be
necessary under applicable law to provide the state court
{ - Administrator - } or authorized designee with access to
records of public or private source, otherwise confidential, as
may be needed to evaluate eligibility.
(2) In performing the verification duties under subsection (1)
of this section, the state { - Court Administrator or
authorized designee is - } { + courts are + } authorized to
obtain information from any public record office of the state or
of any subdivision or agency of the state upon request and
without payment of any fees ordinarily required by law.
SECTION 37. ORS 151.493 is amended to read:
151.493. (1) Notwithstanding any other provision of law, any
state agency as defined in ORS 192.410 that receives a request
for release of information from the state { - Court
Administrator - } { + courts + } for the purpose of verifying
the { - indigency - } { + financial eligibility + } of a
person under ORS 151.430 to 151.495 shall release all requested
information to the state court { - Administrator - } . The
{ - administrator - } { + court + } shall forward to the
state agency a certification signed by the person about whom the
requested information is sought that authorizes the release of
the information.
Enrolled Senate Bill 145 (SB 145-B) Page 20
(2) Upon { + its own motion or + } motion of the { - State
Court Administrator - } { + public defense services executive
director + }, a court that has appointed counsel for a person by
reason of { - indigency - } { + financial eligibility + } may
order the release of any information relating to the person's
financial situation held by any other person.
SECTION 38. ORS 151.495 is amended to read:
151.495. (1) All information supplied by a person seeking
{ - court-appointed - } { + appointed + } counsel and all
information collected by the state { - Court Administrator - }
{ + courts + } for purposes of determining { + financial + }
eligibility for { - court-appointed - } { + appointed + }
counsel under ORS 151.430 to 151.495 is confidential and shall
not be used for any purpose other than determining
{ + financial + } eligibility.
(2) Notwithstanding subsection (1) of this section, information
supplied by a person seeking { - court-appointed - }
{ + appointed + } counsel and information collected by the state
{ - Court Administrator - } { + courts + } for purposes of
determining { + financial + } eligibility may be:
(a) Introduced in a proceeding, criminal or civil, arising out
of a determination that a person is not { + financially + }
eligible for { - court-appointed - } { + appointed + }
counsel;
(b) Introduced in a proceeding, criminal or civil, arising as a
result of an allegation that a person has supplied false
information in seeking { - court-appointed - } { +
appointed + } counsel;
(c) Used by the court in a sentencing proceeding resulting from
the defendant's conviction on the matter for which the
information was provided or collected; and
(d) Used by the court, the Department of Revenue, or the
assignees of the court or the Department of Revenue, for the
purpose of collecting delinquent amounts owed to this state by
the person.
SECTION 39. ORS 151.505 is amended to read:
151.505. (1) At the conclusion of a case or matter in which the
first accusatory instrument or petition in the trial court was
filed after January 1, 1998, and in which the court appointed
counsel to represent a person, a trial or appellate court may
include in its judgment an order that the person repay in full or
in part the administrative costs of determining the eligibility
of the person for appointed counsel and the costs of the legal
and other services that are related to the provision of appointed
counsel.
(2) Costs repayable under this section include a reasonable
attorney fee for counsel appointed to represent the person and a
reasonable amount for expenses authorized under ORS 135.055. A
reasonable attorney fee is presumed to be a reasonable number of
hours at the hourly rate authorized by the { - State Court
Administrator under ORS 151.430 - } { + Public Defense Services
Commission under section 3 of this 2001 Act. For purposes of this
subsection, compensation of counsel shall be determined by
reference to a schedule of compensation established by the
commission + }.
(3) Costs repayable under this section do not include costs
imposed and paid under a previous order under ORS 151.487, but
may include costs imposed under an order under ORS 151.487 that
are unpaid at the time the judgment is filed.
Enrolled Senate Bill 145 (SB 145-B) Page 21
(4) The court may not order a person to pay costs under this
section unless the person is or may be able to pay the costs. In
determining the amount and method of payment of costs, the court
shall take account of the financial resources of the person and
the nature of the burden that payment of costs will impose. The
determination of the ability of a person to pay costs and the
amount of costs to be paid shall be subject to the guidelines and
procedures issued by the { - State Court Administrator - }
{ + commission + } under ORS 151.487.
(5) A person who has been ordered to pay costs under this
section and who is not in contumacious default in the payment of
the costs may at any time petition the court for remission of the
payment of costs or any unpaid portion of the costs. If it
appears to the satisfaction of the court that payment of the
amount due will impose manifest hardship on the person ordered to
repay or on the immediate family of the person, the court may
remit all or part of the amount due or modify the method of
payment.
(6) Except for moneys payable under subsection (1) of this
section pursuant to an order under ORS 151.487, all moneys
collected or paid under this section shall be paid into the
General Fund and credited to the Criminal Fine and Assessment
Account.
(7) Any part of the costs ordered to be paid under this section
that is not paid may be enforced against the person as provided
in ORS 137.450 if the judgment is a judgment in a criminal action
or in the same manner as unpaid costs may be enforced under ORS
151.487.
SECTION 40. ORS 161.346 is amended to read:
161.346. (1) The { + Psychiatric Security Review + } Board
shall conduct hearings upon any application for discharge,
conditional release, commitment or modification filed pursuant to
ORS 161.336, 161.341 or 161.351 and as otherwise required by ORS
161.336 to 161.351 and shall make findings on the issues before
it which may include:
(a) If the board finds that the person is no longer affected by
mental disease or defect, or, if so affected, no longer presents
a substantial danger to others, the board shall order the person
discharged from commitment or from conditional release.
(b) If the board finds that the person is still affected by a
mental disease or defect and is a substantial danger to others,
but can be controlled adequately if conditionally released with
treatment as a condition of release, the board shall order the
person conditionally released as provided in ORS 161.336.
(c) If the board finds that the person has not recovered from
the mental disease or defect and is a substantial danger to
others and cannot adequately be controlled if conditionally
released on supervision, the board shall order the person
committed to, or retained in, a state hospital designated by the
Mental Health and Developmental Disability Services Division for
care, custody and treatment.
(2) At any time, the board may appoint a psychiatrist or
licensed psychologist to examine the person and to submit a
report to the board. Reports filed with the board pursuant to the
examination shall include, but need not be limited to, an opinion
as to the mental condition of the person and whether the person
presents a substantial danger to others, and whether the person
could be adequately controlled with treatment as a condition of
release. To facilitate the examination of the person, the board
Enrolled Senate Bill 145 (SB 145-B) Page 22
may order the person placed in the temporary custody of any state
hospital or other suitable facility.
(3) The board may make the determination regarding discharge or
conditional release based upon the written reports submitted
pursuant to this section. If any member of the board desires
further information from the examining psychiatrist or licensed
psychologist who submitted the report, these persons shall be
summoned by the board to give testimony. The board shall consider
all evidence available to it which is material, relevant and
reliable regarding the issues before the board. Such evidence may
include but is not limited to the record of trial, the
information supplied by the attorney representing the state or by
any other interested party, including the person, and information
concerning the person's mental condition and the entire
psychiatric and criminal history of the person. All evidence of a
type commonly relied upon by reasonably prudent persons in the
conduct of their serious affairs shall be admissible at hearings.
Testimony shall be taken upon oath or affirmation of the witness
from whom received. The officer presiding at the hearing shall
administer oaths or affirmations to witnesses.
(4) The board shall furnish to the person about whom the
hearing is being conducted, the attorney representing the person,
the Attorney General, the district attorney and the court or
department of the county from which the person was committed
written notice of any hearing pending under this section within a
reasonable time prior to the hearing. The notice shall include:
(a) The time, place and location of the hearing.
(b) The nature of the hearing and the specific action for which
a hearing has been requested, the issues to be considered at the
hearing and a reference to the particular sections of the
statutes and rules involved.
(c) A statement of the authority and jurisdiction under which
the hearing is to be held.
(d) A statement of all rights under subsection (6) of this
section.
(5) Prior to the commencement of a hearing, the board or
presiding officer shall inform each party as provided in ORS
183.413 (2).
(6) At the hearing, the person about whom the hearing is being
held shall have the right:
(a) To appear at all proceedings held pursuant to this section,
except board deliberations.
(b) To cross-examine all witnesses appearing to testify at the
hearing.
(c) To subpoena witnesses and documents as provided in ORS
161.395.
(d) To be represented by suitable legal counsel possessing
skills and experience commensurate with the nature and complexity
of the case, to consult with counsel prior to the hearing and, if
{ - indigent - } { + financially eligible + }, to have
suitable counsel
{ - provided without cost - } { + appointed at state
expense + }.
(e) To examine all information, documents and reports which the
board considers. If then available to the board, the information,
documents and reports shall be disclosed to the person so as to
allow examination prior to the hearing.
(7) A record shall be kept of all hearings before the board,
except board deliberations.
Enrolled Senate Bill 145 (SB 145-B) Page 23
(8) Upon request of any party before the board, or on its own
motion, the board may continue a hearing for a reasonable period
not to exceed 60 days to obtain additional information or
testimony or for other good cause shown.
(9) Within 15 days following the conclusion of the hearing, the
board shall provide to the person, the attorney representing the
person, the Attorney General or other attorney representing the
state, if any, written notice of the board's decision.
(10) The burden of proof on all issues at hearings of the board
shall be by a preponderance of the evidence.
(11) If the board determines that the person about whom the
hearing is being held is { - indigent - } { + financially
eligible + }, the board shall appoint suitable counsel to
represent the person. Counsel so appointed shall be an attorney
who satisfies the { + professional qualification + } standards
{ - of eligibility - } established by the { - State Court
Administrator under ORS 151.430. The State Court
Administrator - } { + Public Defense Services Commission under
section 3 of this 2001 Act. The public defense services executive
director + } shall determine and allow fair compensation for
counsel appointed under this subsection and the reasonable
expenses of the person in respect to the hearing. Compensation
payable to appointed counsel shall not be less than { - $30 an
hour - } { + the applicable compensation level established
under section 3 of this 2001 Act + }. The compensation and
expenses so allowed shall be paid by the { - administrator - }
{ + public defense services executive director + } from funds
available for the purpose. { - If appointed counsel is under
contract to provide services for the proceeding under ORS
151.460, compensation shall be as provided by the contract. - }
(12) The Attorney General may represent the state at contested
hearings before the board unless the district attorney of the
county from which the person was committed elects to represent
the state. The district attorney of the county from which the
person was committed shall cooperate with the Attorney General in
securing the material necessary for presenting a contested
hearing before the board. If the district attorney elects to
represent the state, the district attorney shall give timely
written notice of such election to the Attorney General, the
board and the attorney representing the person.
SECTION 41. ORS 161.665, as amended by section 113 of this 2001
Act, is amended to read:
161.665. (1) Except as provided in ORS 151.505, the court, only
in the case of a defendant for whom it enters a judgment of
conviction, may include in its sentence thereunder a provision
that the convicted defendant shall pay as costs expenses
specially incurred by the state in prosecuting the defendant.
Costs include a reasonable attorney fee for counsel appointed
pursuant to ORS 135.045 or 135.050 and a reasonable amount for
expenses approved under ORS 135.055. A reasonable attorney fee is
presumed to be a reasonable number of hours at the hourly rate
authorized by the
{ - State Court Administrator under ORS 151.430 - } { +
Public Defense Services Commission under section 3 of this 2001
Act + }. Costs
{ - shall - } { + do + } not include expenses inherent in
providing a constitutionally guaranteed jury trial or
expenditures in connection with the maintenance and operation of
government agencies that must be made by the public irrespective
of specific violations of law.
Enrolled Senate Bill 145 (SB 145-B) Page 24
(2) Except as provided in ORS 151.505, the court, after the
conclusion of an appeal of its initial judgment of conviction,
may include in its final judgment or modify the judgment to
include a requirement that a convicted defendant pay as costs a
reasonable attorney fee for counsel appointed pursuant to ORS
138.500, including counsel who is appointed under section 3 of
this 2001 Act or counsel who is under contract to provide
services for the
{ - appeal pursuant to ORS 151.460 - } { + proceeding under
section 4 of this 2001 Act + }, and other costs and expenses
allowed by the
{ - appellate court - } { + public defense services executive
director + } under ORS 138.500 (4). A reasonable attorney fee is
presumed to be a reasonable number of hours at the hourly rate
authorized by the
{ - State Court Administrator under ORS 151.430 - } { +
commission under section 3 of this 2001 Act + }.
{ + (3) For purposes of subsections (1) and (2) of this
section, compensation of counsel shall be determined by reference
to a schedule of compensation established by the commission under
section 3 of this 2001 Act. + }
{ - (3) - } { + (4) + } The court shall not sentence a
defendant to pay costs under this section unless the defendant is
or may be able to pay them. In determining the amount and method
of payment of costs, the court shall take account of the
financial resources of the defendant and the nature of the burden
that payment of costs will impose.
{ - (4) - } { + (5) + } A defendant who has been sentenced
to pay costs under this section and who is not in contumacious
default in the payment thereof may at any time petition the court
which sentenced the defendant for remission of the payment of
costs or of any unpaid portion thereof. If it appears to the
satisfaction of the court that payment of the amount due will
impose manifest hardship on the defendant or the immediate family
of the defendant, the court may remit all or part of the amount
due in costs, or modify the method of payment under ORS 161.675.
{ - (5) - } { + (6) + } All moneys collected or paid under
this section shall be paid into the General Fund and credited to
the Criminal Fine and Assessment Account.
SECTION 42. ORS 181.010, as amended by section 60, chapter 104,
Oregon Laws 2001 (Enrolled House Bill 2609), is amended to read:
181.010. As used in ORS 181.010 to 181.560 and 181.715 to
181.730, unless the context requires otherwise:
(1) 'Bureau' means the Department of State Police Bureau of
Criminal Identification.
(2) 'Criminal justice agency' means:
(a) The Governor;
(b) Courts of criminal jurisdiction;
(c) The Attorney General;
(d) District attorneys, city attorneys with criminal
prosecutive functions { + , attorney employees of the office of
public defense services + } and { + nonprofit + } public
defender organizations established under { - ORS chapter
151 - } { + contract with the Public Defense Services
Commission + };
(e) Law enforcement agencies;
(f) The Department of Corrections;
(g) The State Board of Parole and Post-Prison Supervision;
(h) The Department of Public Safety Standards and Training; and
Enrolled Senate Bill 145 (SB 145-B) Page 25
(i) Any other state or local agency with law enforcement
authority designated by order of the Governor.
(3) 'Criminal offender information' includes records and
related data as to physical description and vital statistics,
fingerprints received and compiled by the bureau for purposes of
identifying criminal offenders and alleged offenders, records of
arrests and the nature and disposition of criminal charges,
including sentencing, confinement, parole and release.
(4) 'Department' means the Department of State Police
established under ORS 181.020.
(5) 'Deputy superintendent' means the Deputy Superintendent of
State Police.
(6) 'Designated agency' means any state, county or municipal
government agency where Oregon criminal offender information is
required to implement a federal or state statute, executive order
or administrative rule that expressly refers to criminal conduct
and contains requirements or exclusions expressly based on such
conduct or for agency employment purposes, licensing purposes or
other demonstrated and legitimate needs when designated by order
of the Governor.
(7) 'Disposition report' means a form or process prescribed or
furnished by the bureau, containing a description of the ultimate
action taken subsequent to an arrest.
(8) 'Law enforcement agency' means county sheriffs, municipal
police departments, State Police, other police officers of this
and other states and law enforcement agencies of the federal
government.
(9) 'State Police' means the members of the state police force
appointed under ORS 181.250.
(10) 'Superintendent' means the Superintendent of State Police.
SECTION 43. ORS 419B.195 is amended to read:
419B.195. (1) If the child, the parent or guardian requests
counsel for the child but is without sufficient financial means
to employ suitable counsel possessing skills and experience
commensurate with the nature of the petition and the complexity
of the case, the court may appoint suitable counsel to represent
the child { + at state expense if the child is determined to be
financially eligible under rules of the Public Defense Services
Commission + }. Whenever requested to do so, the court shall
appoint counsel to represent the child in { - every - } { +
a + } case filed pursuant to ORS 419B.100.
(2) Upon presentation of the order of appointment under this
section by the attorney for the child, any agency, hospital,
school organization, division or department of the state, doctor,
nurse or other health care provider, psychologist, psychiatrist,
police department or mental health clinic shall permit the
attorney to inspect and copy any records of the child or children
involved in the case, without the consent of the child or
children or parents. This subsection does not apply to records of
a police agency relating to an ongoing investigation prior to
charging.
SECTION 44. ORS 419B.198 is amended to read:
419B.198. (1) { - Where - } { + When + } the court appoints
counsel to represent { - the - } { + a + } child, it may
{ - require - } { + order + } the parent, if able, or guardian
of the estate, if the estate is able, to pay to the { - State
Court Indigent - } { + Public + } Defense { + Services + }
Account in the General Fund { + , through the clerk of the
court, + } in full or in part the administrative costs of
determining the ability of the parents or estate to pay for legal
Enrolled Senate Bill 145 (SB 145-B) Page 26
services and the costs of the legal and other services that are
related to the provision of appointed counsel.
(2) The test of the parent's or estate's ability to pay costs
under subsection (1) of this section { - shall be - } { +
is + } the same test as applied to appointment of counsel for
defendants under ORS 135.050 { + or under the rules adopted
under section 3 of this 2001 Act + }. If counsel is provided at
state expense, the court shall apply this test in accordance with
the { - rules of the State Court Administrator adopted under
ORS 151.487 - } { + guidelines adopted by the Public Defense
Services Commission under ORS 151.485 + }.
(3) If counsel is provided at state expense, the court shall
determine the amount the parents or estate { - shall be - }
{ + is + } required to pay for the costs of administrative,
legal and other services related to the provision of appointed
counsel in the same manner as this amount is determined under ORS
151.487.
(4) The court's order of payment { - shall be - } { +
is + } enforceable in the same manner as an order of support
under ORS 419B.408.
SECTION 45. ORS 419B.201 is amended to read:
419B.201. { - Where - } { + When + } the court appoints
counsel for the child and the child { - , - } { + is
determined to be entitled to, and financially eligible for,
appointment of counsel at state expense, and the + } parent or
guardian is without sufficient financial means to employ counsel,
the compensation for counsel and reasonable expenses of
investigation, preparation and presentation paid or incurred
shall be allowed and paid as provided in ORS 135.055.
SECTION 46. ORS 419B.205 is amended to read:
419B.205. Counsel shall be appointed for the parent or legal
guardian whenever the nature of the proceedings and due process
so require, and when the parent or legal guardian has been
determined by the court { + to be + } eligible to receive
{ - court-appointed - } { + appointed + } counsel under the
standard in ORS 135.050 { + or the rules adopted under section 3
of this 2001 Act + }. In deciding whether to appoint counsel
under this section, the court shall consider the following
factors:
(1) The duration and degree of invasiveness of the interference
with the parent-child relationship that possibly could result
from the proceeding;
(2) The complexity of the issues and evidence;
(3) The nature of allegations and evidence contested by the
parent or legal guardian; and
(4) The effect the facts found or the disposition in the
proceeding may have on later proceedings or events, including but
not limited to termination of parental rights or criminal
proceedings.
SECTION 47. ORS 419B.208 is amended to read:
419B.208. Appointment of counsel for the child or parent is
subject to ORS 135.055 { - , 151.430 to 151.480 and applicable
contracts entered into by the State Court Administrator under ORS
151.460 - } { + and sections 3 and 4 of this 2001 Act + }.
SECTION 48. ORS 419B.320 is amended to read:
419B.320. Witnesses subpoenaed to give testimony shall receive
the same fees as are paid in criminal cases. Except as provided
by this subsection, responsibility for the per diem and mileage
fees of any witness, and travel expenses if so ordered by the
court, shall be borne by the party who subpoenas the witness or
Enrolled Senate Bill 145 (SB 145-B) Page 27
requests the court to subpoena the witness. If the witness was
subpoenaed to appear on behalf of the State Office for Services
to Children and Families, responsibility for per diem, mileage
fees and travel expenses shall be borne by the county. If the
witness was subpoenaed by more than one party, the witness shall
be paid by the party who first subpoenas the witness. The court
may then, thereafter, order that the costs be distributed equally
among all parties who subpoenaed the witness and that the
original payor of the costs be reimbursed accordingly. When the
witness has been subpoenaed on behalf of { - an indigent - }
{ + a + } party who is represented by { - court-appointed - }
{ + appointed + } counsel, the fees and costs allowed for that
witness shall be paid pursuant to ORS 135.055.
SECTION 49. ORS 419C.200 is amended to read:
419C.200. (1) If the youth, the parent or guardian requests
counsel for the youth but is without sufficient financial means
to employ suitable counsel possessing skills and experience
commensurate with the nature of the petition and the complexity
of the case, the court may appoint suitable counsel to represent
the youth { + at state expense if the youth is determined to be
financially eligible under rules of the Public Defense Services
Commission + }. Whenever requested to do so, the court shall
appoint counsel to represent the youth in every case filed
pursuant to ORS 419C.005 in which the youth would be entitled to
{ - court-appointed - } { + appointed + } counsel if the youth
were an adult charged with the same offense.
(2) Upon presentation of the order of appointment under this
section by the attorney for the youth, any agency, hospital,
school organization, division or department of the state, doctor,
nurse or other health care provider, psychologist, psychiatrist,
police department or mental health clinic shall permit the
attorney to inspect and copy any records of the youth or youths
involved in the case, without the consent of the youth or youths
or parents. This subsection does not apply to records of a police
agency relating to an ongoing investigation prior to charging.
SECTION 50. ORS 419C.203 is amended to read:
419C.203. (1) { - Where - } { + When + } the court appoints
counsel to represent { - the - } { + a + } youth, it may
{ - require - } { + order + } the youth, if able, parent, if
able, or guardian of the estate, if the estate is able, to pay to
the { - State Court Indigent - } { + Public + } Defense
{ + Services + } Account in the General Fund { + , through the
clerk of the court, + } in full or in part the administrative
costs of determining the ability of the youth, parents or estate
to pay for legal services and the costs of the legal and other
services that are related to the provision of appointed counsel.
(2) The test of the youth's, parent's or estate's ability to
pay costs under subsection (1) of this section { - shall be - }
{ + is + } the same test as applied to appointment of counsel
for defendants under ORS 135.050 { + or under the rules adopted
under section 3 of this 2001 Act + }. If counsel is provided at
state expense, the court shall apply this test in accordance with
the { - rules of the State Court Administrator adopted under
ORS 151.487 - } { + guidelines adopted by the Public Defense
Services Commission under ORS 151.485 + }.
(3) If counsel is provided at state expense, the court shall
determine the amount the youth, parents or estate { - shall
be - } { + is + } required to pay for the costs of
administrative, legal and other services related to the provision
Enrolled Senate Bill 145 (SB 145-B) Page 28
of appointed counsel in the same manner as this amount is
determined under ORS 151.487.
(4) In determining whether to order the youth to pay costs
under subsection (1) of this section, the court shall also
consider the reformative effect of having the youth pay. The
court may order that a portion of any moneys earned by the youth
in juvenile work projects be used to pay costs ordered under
subsection (1) of this section.
(5) The court's order of payment { - shall be - } { +
is + } enforceable in the same manner as an order of support
under ORS 419C.600.
SECTION 51. ORS 419C.206 is amended to read:
419C.206. { - Where - } { + When + } the court appoints
counsel for the youth and the youth { - , - } { + is
determined to be entitled to, and financially eligible for,
appointment of counsel at state expense and the + } parent or
guardian is without sufficient financial means to employ counsel,
the compensation for counsel and reasonable expenses of
investigation, preparation and presentation paid or incurred
shall be allowed and paid as provided in ORS 135.055.
SECTION 52. ORS 419C.209 is amended to read:
419C.209. Appointment of counsel for the youth or parent is
subject to ORS 135.055 { - , 151.430 to 151.480 and applicable
contracts entered into by the State Court Administrator under ORS
151.460 - } { + and sections 3 and 4 of this 2001 Act + }.
SECTION 53. ORS 419C.408 is amended to read:
419C.408. Witnesses subpoenaed to give testimony shall receive
the same fees as are paid in criminal cases. Except as provided
by this section, responsibility for the per diem and mileage fees
of any witness, and travel expenses if so ordered by the court,
shall be borne by the party who subpoenas the witness or requests
the court to subpoena the witness. If the witness was subpoenaed
to appear on behalf of the Oregon Youth Authority, responsibility
for per diem, mileage fees and travel expenses shall be borne by
the county. If the witness was subpoenaed by more than one party,
the witness shall be paid by the party who first subpoenas the
witness. The court may then, thereafter, order that the costs be
distributed equally among all parties who subpoenaed the witness
and that the original payor of the costs be reimbursed
accordingly. When the witness has been subpoenaed on behalf of
{ - an indigent - } { + a + } party who is represented by
{ - court-appointed - } { + appointed + } counsel, the fees
and costs allowed for that witness shall be paid pursuant to ORS
135.055.
SECTION 54. Section 6, chapter 622, Oregon Laws 2001 (Enrolled
House Bill 2611), is amended to read:
{ + Sec. 6. + } (1) A summons under section 5 { + , chapter
622, Oregon Laws 2001 (Enrolled House Bill 2611), + } { - of
this 2001 Act - } shall be entitled 'In the matter of ___, a
child' and must contain:
(a) The name of the person to be served, the address at which
the summons and petition may be served and the post office
address at which the papers may be served by mail.
(b) The date and time for the hearing on the petition, which
must be fixed at a reasonable time, not less than 24 hours for a
jurisdictional adjudication and not less than 10 days for a
termination adjudication after the service or final publication
of the summons. If the summons is posted, the purpose of the
proceeding must be stated in the summons.
Enrolled Senate Bill 145 (SB 145-B) Page 29
(c) A direction to the served person to personally appear
before the court and, if the person has physical custody of the
child, to bring the child before the court as directed in the
summons.
(d) A notice that if the person named in the summons fails to
appear at the time and place specified therein the court may
proceed without the person and:
(A) If the petition seeks to establish jurisdiction over the
child, that the court may take jurisdiction, and make such
further orders and take such action as may be authorized by law.
(B) If the petition seeks termination of parental rights, a
statement that the rights of the parent are proposed to be
terminated in the proceeding, that the court may immediately
terminate parental rights and make such further orders and take
any other action that is authorized by law. The summons must
contain a statement that the termination of parental rights
hearing may not be held less than 10 days after service of the
summons.
(C) If the petition seeks guardianship or any other disposition
of the child, that the court may grant such disposition and make
such further orders and take such action as may be authorized by
law.
(e) A notice that the served person has a right to be
represented by an attorney and, if the person is { - an
indigent - } { + a financially eligible + } child in any
proceeding or if the person is
{ - an indigent - } { + a financially eligible + } parent in
a termination of parental rights proceeding, that the person has
a right to have an attorney appointed at state expense or, if the
person is { - an indigent - } { + a financially eligible + }
parent or { - indigent - } { + financially eligible + }
guardian in any proceeding, the person may be entitled to have an
attorney appointed at state expense.
(f) A notice that no later than 30 days after the petition is
filed each person about whom allegations have been made shall
admit or deny the allegations. The admission or denial may be
made orally at the hearing or filed with the court in writing.
(g) If the petition alleges that the child has been physically
or sexually abused, a notice that the court, at the hearing, may
enter an order requiring the alleged perpetrator of the abuse to
move from the household in which the child resides.
(h) A notice that the parent or other person legally obligated
to support the child may be required to pay at some future date
for all or a portion of the support of the child, including the
cost of out-of-home placement, depending upon the ability of the
parent or other person to pay support.
(2) The summons must be signed by the petitioner, petitioner's
attorney or a representative of the juvenile department, the
district attorney's office, the attorney general's office or the
State Office for Services to Children and Families and must be
served with a true copy of the petition.
SECTION 55. ORS 419B.518 is amended to read:
419B.518. If the parents are determined to be { - indigent by
the court - } { + financially eligible + }, and request the
assistance of appointed counsel, the court shall appoint an
attorney to represent them at state expense. Appointment of
counsel under this section is subject to ORS 135.055 { - and
151.430 to 151.480 and to applicable contracts entered into under
ORS 151.460 - } { + and sections 3 and 4 of this 2001 Act + }.
Enrolled Senate Bill 145 (SB 145-B) Page 30
SECTION 56. Section 6, chapter 480, Oregon Laws 2001 (Enrolled
House Bill 2336), is amended to read:
{ + Sec. 6. + } (1) If the child, parent or guardian is
{ - shown to be without sufficient financial means to employ
suitable counsel possessing skills and experience commensurate
with the nature and complexity of the case to represent the
person - } { + determined to be entitled to, and financially
eligible for, appointment of counsel at state expense + } in an
appeal as provided in ORS 419A.200 and section 5 { + , chapter
480, Oregon Laws 2001 (Enrolled House Bill 2336), + } { - of
this 2001 Act, - } the court, upon request of the person or upon
its own motion, shall appoint suitable counsel to represent the
person. Counsel appointed by the court shall be paid compensation
determined by the { - appellate court - } { + public defense
services executive director + } as provided in ORS 135.055 if the
circuit court is the appellate court or as provided in ORS
138.500 if the Court of Appeals or the Supreme Court is the
appellate court.
(2)(a) When the court appoints counsel to represent the child,
it may { - require - } { + order + } the parent, if able, or
guardian of the estate, if the estate is able, to pay to the
{ - State Court Indigent - } { + Public + } Defense
{ + Services + } Account in the General Fund { + , through the
clerk of the court, + } in full or in part the administrative
costs of determining the ability of the parents or estate to pay
for legal services and the costs of the legal and other services
that are related to the provision of appointed counsel.
(b) The test of the parent's or estate's ability to pay costs
under paragraph (a) of this subsection { - shall be - }
{ + is + } the same test as applied to appointment of counsel
for defendants under { - ORS 135.050 - } { + section 3 of
this 2001 Act + }. If counsel is provided at state expense, the
court shall apply this test in accordance with the { - rules of
the State Court Administrator adopted under ORS 151.487 - } { +
guidelines adopted by the Public Defense Services Commission
under ORS 151.485 + }.
(c) If counsel is provided at state expense, the court shall
determine the amount the parents or estate { - shall be - }
{ + is + } required to pay for the costs of administrative,
legal and other services related to the provision of appointed
counsel in the same manner as this amount is determined under ORS
151.487.
(d) The court's order of payment { - shall be - }
{ + is + } enforceable in the same manner as an order of support
under ORS 419B.408 and 419C.600.
(3) When the court appoints counsel and the child, parent or
guardian { - is without sufficient financial means to employ
counsel - } { + has been determined to be entitled to, and
financially eligible for, appointed counsel at state expense + },
the compensation for counsel and costs and expenses necessary to
the appeal shall be
{ - allowed - } { + determined + } and paid as provided in
ORS 135.055 if the circuit court is the appellate court or as
provided in ORS 138.500 if the Court of Appeals or the Supreme
Court is the appellate court.
SECTION 57. ORS 426.100 is amended to read:
426.100. (1) At the time the allegedly mentally ill person is
brought before the court, the court shall advise the person of
the following:
(a) The reason for being brought before the court;
Enrolled Senate Bill 145 (SB 145-B) Page 31
(b) The nature of the proceedings;
(c) The possible results of the proceedings;
(d) The right to subpoena witnesses; and
(e) The person's rights regarding representation by or
appointment of counsel.
(2) Subsection (3) of this section establishes the rights of
allegedly mentally ill persons in each of the following
circumstances:
(a) When the person is held by warrant of detention issued
under ORS 426.070.
(b) In commitment hearings under ORS 426.095.
(c) When the person is detained as provided under ORS 426.228,
426.232 or 426.233.
(d) In recommitment hearings under ORS 426.307.
(3) When provided under subsection (2) of this section, an
allegedly mentally ill person has the following rights relating
to representation by or appointment of counsel:
(a) The right to obtain suitable legal counsel possessing
skills and experience commensurate with the nature of the
allegations and complexity of the case during the proceedings.
(b) If the person { - does not have funds with which to
retain legal counsel - } { + is determined to be financially
eligible for appointed counsel at state expense + }, the court
will appoint legal counsel to represent the person { - without
cost - } . If a person is
{ - unable to afford legal counsel - } { + appointed counsel
at state expense + }, payment of expenses and compensation
relating to legal counsel shall be made as provided under ORS
426.250.
(c) If the allegedly mentally ill person does not request legal
counsel, the legal guardian, relative or friend may request the
assistance of suitable legal counsel on behalf of the person.
(d) If no request for legal counsel is made, the court shall
appoint suitable legal counsel unless counsel is expressly,
knowingly and intelligently refused by the person.
(e) If the person is being involuntarily detained before a
hearing on the issue of commitment, the right under paragraph (a)
of this subsection to contact an attorney or under paragraph (b)
of this subsection to have an attorney appointed may be exercised
as soon as reasonably possible.
(f) In all cases suitable legal counsel shall be present at the
hearing and may be present at examination and may examine all
witnesses offering testimony, and otherwise represent the person.
(4) The responsibility for representing the state's interest in
commitment proceedings, including, but not limited to,
preparation of the state's case and appearances at commitment
hearings is as follows:
(a) The Attorney General's office shall have the responsibility
relating to proceedings initiated by state hospital staff that
are any of the following:
(A) Recommitment proceedings under ORS 426.307; or
(B) Proceedings under ORS 426.228, 426.232 or 426.233.
(b) The district attorney if requested to do so by the
governing body of the county.
(c) In lieu of the district attorney under paragraph (b) of
this subsection, a counsel designated by the governing body of a
county shall take the responsibility. A county governing body may
designate counsel to take responsibility under this paragraph
either for single proceedings or for all such proceedings the
county will be obligated to pay for under ORS 426.250. If a
Enrolled Senate Bill 145 (SB 145-B) Page 32
county governing body elects to proceed under this paragraph, the
county governing body shall so notify the district attorney. The
expenses of an attorney appointed under this paragraph shall be
paid as provided under ORS 426.250.
SECTION 58. ORS 426.135 is amended to read:
426.135. If a person determined to be mentally ill as provided
in ORS 426.130 appeals the determination or disposition based
thereon, and is { - unable to afford suitable legal counsel
possessing skills and experience commensurate with the nature and
complexity of the case to represent the person on appeal, the
court - } { + determined to be financially eligible for
appointed counsel at state expense + }, upon request of the
person or upon its own motion, { + the court + } shall appoint
suitable legal counsel to represent the person. The compensation
for legal counsel and costs and expenses necessary to the appeal
shall be determined and
{ - allowed by the appellate court - } { + paid by the public
defense services executive director + } as provided in ORS
135.055 if the circuit court is the appellate court or as
provided in ORS 138.500 if the Court of Appeals or Supreme Court
is the appellate court. The compensation, costs and expenses
{ - so allowed - } shall be paid as provided in ORS 138.500.
SECTION 59. ORS 426.250 is amended to read:
426.250. The following is a nonexclusive list of
responsibilities for payment of various costs related to
commitment proceedings under this chapter and ORS 430.397 to
430.401 as described:
(1) Any physician or qualified person recommended by the Mental
Health and Developmental Disability Services Division who is
employed under ORS 426.110 to make an examination as to the
mental condition of a person alleged to be mentally ill shall be
allowed a fee as the court in its discretion determines
reasonable for the examination.
(2) Witnesses subpoenaed to give testimony shall receive the
same fees as are paid in criminal cases, and are subject to
compulsory attendance in the same manner as provided in ORS
136.567 to 136.603. The attendance of out-of-state witnesses may
be secured in the same manner as provided in ORS 136.623 to
136.637. The party who subpoenas the witness or requests the
court to subpoena the witness is responsible for payment of the
cost of the subpoena and payment for the attendance of the
witness at a hearing. When the witness has been subpoenaed on
behalf of an allegedly mentally ill person who is represented by
{ - court-appointed - } { + appointed + } counsel, the fees
and costs allowed for that witness shall be paid pursuant to ORS
135.055. If the costs of witnesses subpoenaed by the allegedly
mentally ill person are paid as provided under this subsection,
the procedure for subpoenaing witnesses shall comply with ORS
136.570.
(3) If a person with a right to a counsel under ORS 426.100 is
{ - unable to afford counsel, the court - } { + determined to
be financially eligible for appointed counsel at state expense,
the public defense services executive director + } shall
determine and
{ - allow - } { + pay + }, as provided in ORS 135.055, the
reasonable expenses { + related to the representation + } of
the person and compensation for legal counsel. The expenses and
compensation so allowed shall be paid by the { - state - }
{ + public defense services executive director + } from funds
available for the purpose.
Enrolled Senate Bill 145 (SB 145-B) Page 33
(4) The Mental Health and Developmental Disability Services
Division shall pay the costs of expenses incurred under ORS
426.100 by the Attorney General's office. Any costs for district
attorneys or other counsel appointed to assume responsibility for
presenting the state's case shall be paid by the county where the
commitment hearing is held, subject to reimbursement under ORS
426.310.
(5) All costs incurred in connection with a proceeding under
ORS 426.200, including the costs of transportation, commitment
and delivery of the person, shall be paid by the county of which
the person is a resident; or, if the person is not a resident of
this state, then by the county from which the emergency admission
was made.
(6) All costs incurred in connection with a proceeding under
ORS 426.180 for the commitment of a person from a reservation for
land-based tribes of Native Americans, including the cost of
transportation, commitment and delivery of the person, shall be
paid by the ruling body of the reservation of which the person is
a resident.
SECTION 60. ORS 426.301 is amended to read:
426.301. (1) At the end of the 180-day period of commitment,
any person whose status has not been changed to voluntary shall
be released unless the Mental Health and Developmental Disability
Services Division certifies to the court in the county where the
treating facility is located that the person is still mentally
ill and in need of further treatment. The division, pursuant to
its rules, may delegate to the director of the treating facility
the responsibility for making the certification. The director of
the treating facility shall consult with the community mental
health and developmental disabilities program director of the
county of residence prior to making the certification. If the
certification is made, the person will not be released, but the
director of the treating facility shall immediately issue a copy
of the certification to the person and to the community mental
health and developmental disabilities program director of the
county of residence.
(2) The certification shall be served upon the person by the
director of the facility wherein the person is confined or the
designee of the director. The director of the facility shall
inform the court in writing that service has been made and the
date thereof.
(3) The certification shall advise the person of all the
following:
(a) That the division or facility has requested that commitment
be continued for an additional period of time.
(b) That the person may consult with legal counsel and that
legal counsel will be provided for the person without cost if the
person is unable to afford legal counsel.
(c) That the person may protest this further commitment within
14 days, and if the person does not commitment will be continued
for an indefinite period of time up to 180 days.
(d) That if the person does protest a further period of
commitment, the person is entitled to a hearing before the court
on whether commitment should be continued.
(e) That the person may protest either orally or in writing by
signing the form accompanying the certification; that the person
is entitled to have a physician or other qualified person as
recommended by the division, other than a member of the staff at
the facility where the person is confined, examine the person and
report to the court the results of the examination.
Enrolled Senate Bill 145 (SB 145-B) Page 34
(f) That the person may subpoena witnesses and offer evidence
on behalf of the person at the hearing.
(g) That if the person is without funds to retain legal counsel
or an examining physician or qualified person as recommended by
the division, the court will appoint legal counsel, a physician
or other qualified person { - at no cost to the person - } .
(4) Nothing in subsection (3) of this section requires the
giving of the warning under ORS 426.123.
(5) The person serving the certification shall read and deliver
the certification to the person and ask whether the person
protests a further period of commitment. The person may protest
further commitment either orally or by signing a simple protest
form to be given to the person with the certification. If the
person does not protest a further period of commitment within 14
days of service of the certification, the division or facility
shall so notify the court and the court shall, without further
hearing, order the commitment of the person for an additional
indefinite period of time up to 180 days.
SECTION 61. ORS 426.307 is amended to read:
426.307. If the person requests a hearing under ORS 426.301 or
if the court proceeds under ORS 426.275 (5), the following
provisions apply as described:
(1) The hearing shall be conducted as promptly as possible and
at a time and place as the court may direct.
(2) If the person requests a continuance in order to prepare
for the hearing or to obtain legal counsel to represent the
person, the court may grant postponement and detention during
postponement as provided under ORS 426.095.
(3) The person has the right to representation by or
appointment of counsel as provided under ORS 426.100 subject to
ORS 135.055 { - , 151.430 to 151.480 and applicable contracts
entered into under ORS 151.460 - } { + and sections 3 and 4 of
this 2001 Act + }.
(4) If the person requests an examination by a physician or
other qualified person as recommended by the Mental Health and
Developmental Disability Services Division and is without funds
to retain a physician or other qualified person for purposes of
the examination, the court shall appoint a physician or other
qualified person, other than a member of the staff from the
facility where the person is confined, to examine the person at
no expense to the person and to report to the court the results
of the examination.
(5) The provisions of ORS 40.230, 40.235, 40.240 and 40.250 do
not apply to the use of medical records from the current period
of commitment or to testimony related to such records or period
of commitment in connection with hearings under this section. The
court may consider as evidence such reports and testimony.
(6) The court shall then conduct a hearing and after hearing
the evidence and reviewing the recommendations of the treating
and examining physicians or other qualified persons, the court
shall determine whether the person is still a mentally ill person
and in need of further treatment. If in the opinion of the court
the individual is still a mentally ill person by clear and
convincing evidence and in need of further treatment, the court
may order commitment to the division for an additional indefinite
period of time up to 180 days.
(7) At the end of the 180-day period, the person shall be
released unless the division or facility again certifies to the
committing court that the person is still a mentally ill person
Enrolled Senate Bill 145 (SB 145-B) Page 35
and in need of further treatment, in which event the procedures
set forth in ORS 426.301 to 426.307 shall be followed.
SECTION 62. ORS 19.370 is amended to read:
19.370. (1) If a transcript is prepared from audio records by a
person other than the reporter, then the reporter shall certify
the audio records and the transcript shall be certified by the
person preparing it. In all other cases the transcript shall be
certified by the reporter or the trial judge. The transcript
shall be filed by the reporter with the trial court administrator
within 30 days after the filing of the notice of appeal { - or
within 30 days after the entry of an order granting a transcript
under ORS 138.500 (3) - } . The reporter shall give immediate
notice in writing to the parties that the transcript has been
filed. Except as provided in subsection (2) of this section the
reporter shall serve the respondent with a copy of the transcript
and shall, at the time of filing the original transcript, file
proof of such service with the trial court administrator, and
with the clerk of the court to which the appeal is made.
(2) If there are two or more parties in addition to the
appellant who have appeared in the trial court and who are
represented by different attorneys, the reporter shall at the
time of filing the original transcript deposit a copy thereof
with the trial court administrator for use by all such other
parties. The reporter shall serve notice of such deposit upon all
such parties and file proof of such service with the trial court
administrator and with the clerk of the court to which the appeal
is made.
(3) Within 15 days after the transcript is filed, any party may
move the trial court for an order to correct any errors appearing
in the transcript or, where the interests of justice require, to
have additional parts of the proceedings included in the
transcript. A copy of any such motion shall be filed with the
court to which the appeal is made. The trial court shall direct
the making of such corrections and the adding of such matter as
may be appropriate and shall fix the time within which such
corrections or additions shall be made.
(4) Upon the denial of a motion to correct or add to the
transcript, or upon the making of such corrections or additions
as may be ordered, whichever last occurs, the trial court shall
enter an order settling the transcript and send copies thereof to
each of the parties or their attorneys and to the State Court
Administrator. In the absence of a motion to correct or add to
the transcript, the transcript shall be deemed automatically
settled 15 days after it is filed.
SECTION 63. ORS 33.035 is amended to read:
33.035. Whenever ORS 33.015 to 33.155 provide for
{ - court-appointed - } { + appointed + } counsel,
appointment of counsel and payment of counsel and related
expenses shall be made as follows:
(1) For contempt of a circuit court, the Oregon Tax Court, the
Court of Appeals or the Supreme Court, appointment and payment of
counsel shall be made as provided in ORS { - 135.050, - }
135.055 and
{ - 151.430 to 151.480 and applicable contracts entered into by
the State Court Administrator under ORS 151.460 - } { +
sections 3 and 4 of this 2001 Act + }.
(2) For contempt of a justice court, municipal court or other
public body not described in subsection (1) of this section,
payment for and appointment of counsel shall be made as otherwise
provided by law for the court or public body.
Enrolled Senate Bill 145 (SB 145-B) Page 36
SECTION 64. ORS 34.355 is amended to read:
34.355. If counsel is appointed by a court to represent, in an
initial proceeding by habeas corpus or on appeal as provided in
ORS 34.710, a person who is imprisoned or otherwise restrained of
liberty by virtue of a charge or conviction of crime and who is
{ - unable to afford counsel, the court - } { + determined to
be financially eligible for appointed counsel at state expense,
the public defense services executive director + } shall
determine { - and allow - } compensation for counsel and costs
and expenses of the person in the proceeding or on appeal.
Compensation for counsel and expenses of the person in an initial
proceeding or in a circuit court on appeal shall be determined
and { - allowed - } { + paid + } as provided in ORS 135.055.
Compensation for counsel and costs and expenses of the person on
appeal to the Court of Appeals or on review by the Supreme Court
shall be determined and { - allowed - } { + paid + } as
provided in ORS 138.500. The compensation and expenses so allowed
in an initial proceeding in a county court shall be paid by the
county in which the person was charged or convicted of crime.
{ - The compensation and expenses so allowed in an initial
proceeding in a circuit court or on appeal shall be paid by the
state from funds available for the purpose. - }
SECTION 65. ORS 45.275 is amended to read:
45.275. (1) The court shall appoint a qualified interpreter in
a civil or criminal proceeding whenever it is necessary:
(a) To interpret the proceedings to a non-English-speaking
party;
(b) To interpret the testimony of a non-English-speaking party
or witness; or
(c) To assist the court in performing the duties and
responsibilities of the court.
(2) No fee shall be charged to any person for the appointment
of an interpreter to interpret testimony of a
non-English-speaking party or witness, or to assist the court in
performing the duties and responsibilities of the court. No fee
shall be charged to an indigent party for the appointment of an
interpreter to interpret the proceedings to the indigent
non-English-speaking party. No fee shall be charged to any person
for the appointment of an interpreter if appointment is made to
determine whether the person is indigent or non-English-speaking
for the purposes of this section.
(3) A party shall be considered indigent for the purposes of
this section if:
(a) The party makes a verified statement and provides other
information in writing under oath showing financial inability to
pay for a qualified interpreter, and provides any other
information required by the court concerning the inability to pay
for such an interpreter; and
(b) It appears to the court that the party is in fact indigent
and unable to pay for a qualified interpreter.
(4) Fair compensation for the services of an interpreter
appointed under this section shall be paid:
(a) By the county, subject to the approval of the terms of the
contract by the governing body of the county, in a proceeding in
a county or justice court.
(b) By the city, subject to the approval of the terms of the
contract by the governing body of the city, in a proceeding in a
municipal court.
(c) By the state in a proceeding in a circuit court. Amounts
payable by the state shall be from funds available to the court
Enrolled Senate Bill 145 (SB 145-B) Page 37
other than the { - State Court Indigent Defense Account
established by ORS 151.465 - } { + Public Defense Services
Account established by section 5 of this 2001 Act + }, except
that fees of an interpreter necessary for the purpose of
communication between appointed counsel and a client or witness
in a criminal case shall be payable from that account.
(5) Where a party or witness is dissatisfied with the
interpreter selected by the court, the party or witness may use
any certified interpreter. However, if the substitution of
another interpreter will delay the proceeding, good cause must be
shown for the substitution. Any party may object to use of any
interpreter for good cause. Unless the court has substituted
interpreters for cause, the party using any interpreter other
than the interpreter originally appointed by the court shall bear
any additional costs beyond the amount required to pay the
original interpreter.
(6) A court may allow as costs reasonable expenses incurred by
a party in employing the services of an interpreter in civil
proceedings in the manner provided by ORCP 68.
(7) Any person serving as an interpreter for the court in a
civil or criminal proceeding shall state or submit the person's
qualifications on the record unless waived or otherwise
stipulated to by the parties or counsel for the parties. An
interpreter for the court shall swear or affirm under oath to
make a true and impartial translation of the proceedings in an
understandable manner using the interpreter's best skills and
judgment in accordance with the standards and ethics of the
interpreter profession.
(8) For the purposes of this section:
(a) 'Non-English-speaking person' means a person who, by reason
of place of birth or culture, speaks a language other than
English and does not speak English with adequate ability to
communicate effectively in the proceedings.
(b) 'Qualified interpreter' means a person who is readily able
to communicate with the non-English-speaking person, translate
the proceedings and accurately repeat and translate the
statements of the non-English-speaking person into oral English,
and the statements of other persons into the language spoken by
the non-English-speaking person. 'Qualified interpreter' does not
include any person who is unable to interpret or translate
fluently the dialect, slang or specialized vocabulary used by the
party or witness.
SECTION 66. ORS 45.275, as amended by section 4, chapter 1041,
Oregon Laws 1999, is amended to read:
45.275. (1) The court shall appoint a qualified interpreter in
a civil or criminal proceeding, and a hearing officer or the
designee of a hearing officer shall appoint a qualified
interpreter in an adjudicatory proceeding, whenever it is
necessary:
(a) To interpret the proceedings to a non-English-speaking
party;
(b) To interpret the testimony of a non-English-speaking party
or witness; or
(c) To assist the court, agency or hearing officer in
performing the duties and responsibilities of the court, agency
or hearing officer.
(2) No fee shall be charged to any person for the appointment
of an interpreter to interpret testimony of a
non-English-speaking party or witness, or to assist the court,
agency or hearing officer in performing the duties and
Enrolled Senate Bill 145 (SB 145-B) Page 38
responsibilities of the court, agency or hearing officer. No fee
shall be charged to a non-English-speaking party who is unable to
pay for the appointment of an interpreter to interpret the
proceedings to the non-English-speaking party. No fee shall be
charged to any person for the appointment of an interpreter if
appointment is made to determine whether the person is unable to
pay or non-English- speaking for the purposes of this section.
(3) A non-English-speaking party shall be considered unable to
pay for an interpreter for the purposes of this section if:
(a) The party makes a verified statement and provides other
information in writing under oath showing financial inability to
pay for a qualified interpreter, and provides any other
information required by the court or agency concerning the
inability to pay for such an interpreter; and
(b) It appears to the court or agency that the party is in fact
unable to pay for a qualified interpreter.
(4) Fair compensation for the services of an interpreter
appointed under this section shall be paid:
(a) By the county, subject to the approval of the terms of the
contract by the governing body of the county, in a proceeding in
a county or justice court.
(b) By the city, subject to the approval of the terms of the
contract by the governing body of the city, in a proceeding in a
municipal court.
(c) By the state in a proceeding in a circuit court. Amounts
payable by the state shall be from funds available to the court
other than the { - State Court Indigent Defense Account
established by ORS 151.465 - } { + Public Defense Services
Account established by section 5 of this 2001 Act + }, except
that fees of an interpreter necessary for the purpose of
communication between appointed counsel and a client or witness
in a criminal case shall be payable from that account.
(d) By the agency in an adjudicatory proceeding.
(5) Where a party or witness is dissatisfied with the
interpreter selected by the court, the hearing officer or the
designee of the hearing officer, the party or witness may use any
certified interpreter. However, if the substitution of another
interpreter will delay the proceeding, good cause must be shown
for any substitution other than a substitution made by the judge
or hearing officer. Any party may object to use of any
interpreter for good cause. Unless the court, hearing officer or
the designee of the hearing officer has substituted interpreters
for cause, the party using any interpreter other than the
interpreter originally appointed by the court, hearing officer or
the designee of the hearing officer shall bear any additional
costs beyond the amount required to pay the original interpreter.
(6) A court may allow as costs reasonable expenses incurred by
a party in employing the services of an interpreter in civil
proceedings in the manner provided by ORCP 68.
(7) Any person serving as an interpreter for the court or
agency shall state or submit the person's qualifications on the
record unless waived or otherwise stipulated to by the parties or
counsel for the parties. An interpreter for the court or in an
adjudicatory proceeding shall swear or affirm under oath to make
a true and impartial interpretation of the proceedings in an
understandable manner using the interpreter's best skills and
judgment in accordance with the standards and ethics of the
interpreter profession.
(8) For the purposes of this section:
Enrolled Senate Bill 145 (SB 145-B) Page 39
(a) 'Non-English-speaking person' means a person who, by reason
of place of birth or culture, speaks a language other than
English and does not speak English with adequate ability to
communicate effectively in the proceedings.
(b) 'Qualified interpreter' means a person who is readily able
to communicate with the non-English-speaking person and who can
orally transfer the meaning of statements to and from English and
the language spoken by the non-English-speaking person. A
qualified interpreter must be able to interpret in a manner that
conserves the meaning, tone, level, style and register of the
original statement, without additions or omissions. 'Qualified
interpreter' does not include any person who is unable to
interpret the dialect, slang or specialized vocabulary used by
the party or witness.
SECTION 67. ORS 45.285 is amended to read:
45.285. (1) In any civil or criminal proceeding, including a
court-ordered deposition if no other person is responsible for
providing an interpreter, in which a disabled person is a party
or witness, the court shall appoint a qualified interpreter and
make available appropriate assistive communication devices
whenever it is necessary to interpret the proceedings to the
disabled person, or to interpret the testimony of the disabled
person.
(2) No fee shall be charged to the disabled person for the
appointment of an interpreter or use of an assistive
communication device under this section. No fee shall be charged
to any person for the appointment of an interpreter or the use of
an assistive communication device if appointment or use is made
to determine whether the person is disabled for the purposes of
this section.
(3) Fair compensation for the services of an interpreter or the
cost of an assistive communication device under this section
shall be paid:
(a) By the county, subject to the approval of the terms of the
contract by the governing body of the county, in a proceeding in
a county or justice court.
(b) By the city, subject to the approval of the terms of the
contract by the governing body of the city, in a proceeding in a
municipal court.
(c) By the state in a proceeding in a circuit court. Amounts
payable by the state shall be from funds available to the court
other than the { - State Court Indigent Defense Account
established by ORS 151.465 - } { + Public Defense Services
Account established by section 5 of this 2001 Act + }, except
that fees of an interpreter necessary for the purpose of
communication between appointed counsel and a client or witness
in a criminal case shall be payable from that account.
(4) For the purposes of this section:
(a) 'Assistive communication device' means any equipment
designed to facilitate communication by a disabled person.
(b) 'Disabled person' means a person who cannot readily
understand the proceedings because of deafness or a physical
hearing impairment, or cannot communicate in the proceedings
because of a physical speaking impairment.
(c) 'Qualified interpreter' means a person who is readily able
to communicate with the disabled person, interpret the
proceedings and accurately repeat and interpret the statements of
the disabled person to the court.
SECTION 68. ORS 45.285, as amended by section 5, chapter 1041,
Oregon Laws 1999, is amended to read:
Enrolled Senate Bill 145 (SB 145-B) Page 40
45.285. (1) In any civil action, adjudicatory proceeding or
criminal proceeding, including a court-ordered deposition if no
other person is responsible for providing an interpreter, in
which a disabled person is a party or witness, the court, hearing
officer or the designee of the hearing officer shall appoint a
qualified interpreter and make available appropriate assistive
communication devices whenever it is necessary to interpret the
proceedings to the disabled person, or to interpret the testimony
of the disabled person.
(2) No fee shall be charged to the disabled person for the
appointment of an interpreter or use of an assistive
communication device under this section. No fee shall be charged
to any person for the appointment of an interpreter or the use of
an assistive communication device if appointment or use is made
to determine whether the person is disabled for the purposes of
this section.
(3) Fair compensation for the services of an interpreter or the
cost of an assistive communication device under this section
shall be paid:
(a) By the county, subject to the approval of the terms of the
contract by the governing body of the county, in a proceeding in
a county or justice court.
(b) By the city, subject to the approval of the terms of the
contract by the governing body of the city, in a proceeding in a
municipal court.
(c) By the state in a proceeding in a circuit court. Amounts
payable by the state shall be from funds available to the court
other than the { - State Court Indigent Defense Account
established by ORS 151.465 - } { + Public Defense Services
Account established by section 5 of this 2001 Act + }, except
that fees of an interpreter necessary for the purpose of
communication between appointed counsel and a client or witness
in a criminal case shall be payable from that account.
(d) By the agency in an adjudicatory proceeding.
(4) For the purposes of this section:
(a) 'Assistive communication device' means any equipment
designed to facilitate communication by a disabled person.
(b) 'Disabled person' means a person who cannot readily
understand the proceedings because of deafness or a physical
hearing impairment, or cannot communicate in the proceedings
because of a physical speaking impairment.
(c) 'Qualified interpreter' means a person who is readily able
to communicate with the disabled person, interpret the
proceedings and accurately repeat and interpret the statements of
the disabled person to the court.
SECTION 69. ORS 138.310 is amended to read:
138.310. { - If the appellate court certifies - } { + When
the public defense services executive director pays + } costs,
expenses or compensation under ORS 138.500 (4) on appeal in a
criminal action, the { - appellate court - } { + public
defense services executive director + } shall notify the court
below of the costs, expenses and compensation { - certified - }
{ + paid + } in order that the court below may exercise its
discretion under ORS 151.505 or 161.665 (2).
SECTION 70. ORS 161.385 is amended to read:
161.385. (1) There is hereby created a Psychiatric Security
Review Board consisting of five members appointed by the Governor
and subject to confirmation by the Senate under section 4,
Article III of the Oregon Constitution.
Enrolled Senate Bill 145 (SB 145-B) Page 41
(2) The membership of the board shall not include any district
attorney, deputy district attorney or public defender, but
{ - , - } the membership shall be composed of:
(a) A psychiatrist experienced in the criminal justice system
and not otherwise employed on a full-time basis by the Mental
Health and Developmental Disability Services Division or a
community mental health and developmental disabilities program;
(b) A licensed psychologist experienced in the criminal justice
system and not otherwise employed on a full-time basis by the
Mental Health and Developmental Disability Services Division or a
community mental health and developmental disabilities program;
(c) A member with substantial experience in the processes of
parole and probation;
(d) A member of the general public; and
(e) A lawyer with substantial experience in criminal trial
practice.
(3) The term of office of each member is four years. The
Governor at any time may remove any member for inefficiency,
neglect of duty or malfeasance in office. Before the expiration
of the term of a member, the Governor shall appoint a successor
whose term begins on July 1 next following. A member is eligible
for reappointment. If there is a vacancy for any cause, the
Governor shall make an appointment to become immediately
effective for the unexpired term.
(4) A member of the board not otherwise employed full time by
the state, shall be paid on a per diem basis an amount equal to
$212, adjusted according to the executive pay plan for the
biennium, for each day during which the member is engaged in the
performance of official duties, including necessary travel time.
In addition, subject to ORS 292.220 to 292.250 regulating travel
and other expenses of state officers and employees, the member
shall be reimbursed for actual and necessary travel and other
expenses incurred in the performance of official duties.
(5) Subject to any applicable provision of the State Personnel
Relations Law, the board may hire employees to aid it in
performing its duties.
(6)(a) The board shall select one of its members as chairperson
to serve for a one-year term with such duties and powers as the
board determines.
(b) A majority of the voting members of the board constitutes a
quorum for the transaction of business.
(7) The board shall meet at least twice every month, unless the
chairperson determines that there is not sufficient business
before the board to warrant a meeting at the scheduled time. The
board shall also meet at other times and places specified by the
call of the chairperson or of a majority of the members of the
board.
(8)(a) When a person over whom the board exercises its
jurisdiction is adversely affected or aggrieved by a final order
of the board, the person is entitled to judicial review of the
final order. The person { - shall be - } { + is + } entitled
on judicial review to suitable counsel possessing skills and
experience commensurate with the nature and complexity of the
case. If the person is
{ - indigent - } { + financially eligible + }, suitable
counsel shall be appointed by the reviewing court in the manner
provided in ORS 138.500 (1). If the person is { - indigent, the
reviewing court - } { + financially eligible, the public defense
services executive director + } shall determine and
{ - allow - } { + pay + }, as provided in ORS 138.500, the
Enrolled Senate Bill 145 (SB 145-B) Page 42
cost of briefs, any other expenses of the person necessary to the
review and compensation for counsel appointed for the person. The
costs, expenses and compensation so allowed shall be paid as
provided in ORS 138.500.
(b) The order and the proceedings underlying the order are
subject to review by the Court of Appeals upon petition to that
court filed within 60 days of the order for which review is
sought. The board shall submit to the court the record of the
proceeding or, if the person agrees, a shortened record. The
record may include a certified true copy of a tape recording of
the proceedings at a hearing in accordance with ORS 161.346. A
copy of the record transmitted shall be delivered to the person
by the board.
(c) The court may affirm, reverse or remand the order on the
same basis as provided in ORS 183.482 (8).
(d) The filing of the petition shall not stay the board's
order, but the board or the Court of Appeals may order a stay
upon application on such terms as are deemed proper.
SECTION 71. ORS 427.265 is amended to read:
427.265. (1) At the time the allegedly mentally retarded person
is brought before the court, the court shall advise the person of
the reason for being brought before the court, the nature of the
proceedings and the possible results of the proceedings. The
court shall also advise the allegedly mentally retarded person of
the right to subpoena witnesses and to suitable legal counsel
possessing skills and experience commensurate with the nature of
the allegations and complexity of the case during the
proceedings, and that if the person does not have funds with
which to retain suitable legal counsel, the court shall appoint
such legal counsel to represent the person { - without cost - }
. If the allegedly mentally retarded person does not request
legal counsel, the legal guardian, relative or friend may request
the assistance of legal counsel on behalf of the person.
(2) If no request for legal counsel is made, the court shall
appoint suitable legal counsel.
(3) If the person is unable to afford legal counsel, the
court { + , if the matter is before a county or justice court, or
the public defense services executive director, if the matter is
before the circuit court, + } shall determine and allow, as
provided in ORS 135.055, the reasonable expenses of the person
and compensation for legal counsel. The expenses and compensation
so allowed by a county court shall be paid by the county of
residence of the allegedly mentally retarded person. The expenses
and compensation { - so allowed by a circuit court - } { +
determined by the public defense services executive director + }
shall be paid by the
{ - state - } { + public defense services executive
director + } from funds available for the purpose. In all cases
legal counsel shall be present at the hearing and may examine all
witnesses offering testimony, and otherwise represent the person.
(4) If the allegedly mentally retarded person, the legal
counsel, parent, guardian, an examiner or the court requests, the
court may, for good cause, postpone the hearing for not more than
72 hours in order to allow preparation for the hearing. The court
may, for good cause, order the continuation of detention
authorized under ORS 427.255, during a postponement.
SECTION 72. ORS 427.275 is amended to read:
427.275. (1) Any physician or psychologist employed by the
judge to make a diagnostic evaluation of a person alleged to be
mentally retarded shall be allowed a fee as the court in its
Enrolled Senate Bill 145 (SB 145-B) Page 43
discretion determines reasonable for the evaluation. The costs of
the evaluation shall be paid by the county of residence of the
person or, if the person has no residence within the state, by
the county in which the person is taken into custody. The county
shall not be held responsible for the costs of prior examinations
or tests reported to the court, or of diagnostic evaluations
performed or arranged by the community mental health and
developmental disabilities program or division.
(2) Witnesses subpoenaed to give testimony shall receive the
same fees as are paid in criminal cases and are subject to
compulsory attendance in the same manner as provided in ORS
136.567 to 136.603. The attendance of out-of-state witnesses may
be secured in the same manner as provided in ORS 136.623 to
136.637. The party who subpoenas the witness or requests the
court to subpoena the witness is responsible for payment of the
cost of the subpoena and payment for the attendance of the
witness at a hearing. When the witness has been subpoenaed on
behalf of an
{ - indigent - } allegedly mentally retarded person who is
represented by { - court-appointed - } { + appointed + }
counsel, the fees and costs allowed for that witness shall be
paid pursuant to ORS 135.055.
SECTION 73. ORS 427.295 is amended to read:
427.295. If a person determined by a court to be mentally
retarded appeals the determination or disposition based thereon,
and is { - unable to afford suitable legal counsel possessing
skills and experience commensurate with the nature and complexity
of the case to represent the person on appeal - } { +
determined to be financially eligible for appointed counsel at
state expense + }, the court, upon request of the person or upon
its own motion, shall appoint suitable legal counsel to represent
the person. The compensation for legal counsel and costs and
expenses necessary to the appeal shall be determined and
{ - allowed by the appellate court - } { + paid by the public
defense services executive director + } as provided in ORS
135.055 if the circuit court is the appellate court or as
provided in ORS 138.500 if the Court of Appeals or Supreme Court
is the appellate court. The compensation, costs and expenses so
allowed shall be paid as provided in ORS 138.500.
SECTION 74. ORS 433.019 is amended to read:
433.019. (1) As used in this section, 'subject of the petition'
means the person or the property upon which the public health
measure is sought to be imposed.
(2) Except as provided in ORS 433.022, proceedings for imposing
a public health measure shall be initiated by filing a petition
in the circuit court for the county in which the subject of the
petition is located. If the property which is the subject of the
petition is in more than one county, then the petition may be
filed in the circuit court for any one of those counties. The
petition shall name as the respondent, the person who is the
subject of the petition or the person who possesses the property
which is the subject of the petition. The petition shall be
accompanied by an affidavit or affidavits based upon the
investigation of the assistant director or the local public
health administrator supporting the allegations in the petition.
The petition shall describe the public health measure requested
and shall allege:
(a)(A) The subject of the petition has, or contains persons or
property having, an infectious agent of a communicable disease
designated a reportable disease by the Health Division; or
Enrolled Senate Bill 145 (SB 145-B) Page 44
(B) The subject of the petition is contaminated with or
contains property contaminated with a toxic substance;
(b) The subject of the petition poses a substantial threat to
public health;
(c) The respondent is unable or unwilling to behave or to
control the subject of the petition so as not to expose other
persons to danger of infection or contamination; and
(d) The public health measure requested is necessary and the
least restrictive alternative measure under the circumstances to
protect or preserve the public health.
(3) If the court, upon the basis of the affidavits, concludes
that there is probable cause for the allegations in the petition,
it shall issue a citation as provided in subsection (11) of this
section. The court shall also issue a warrant of detention to the
sheriff of the county or counties, directing the sheriff or the
sheriff's designee to place the subject of the petition under
custody.
(4) At the time the subject of the petition is placed under
custody, the respondent shall be served certified copies of the
warrant of detention, the citation and petition. The sheriff or
designee shall also read the citation to the respondent and
inform the respondent that a request for hearing may be made
within 14 days by signing and filing with the petitioner a simple
request form to be given to the respondent with the citation:
(a) If the respondent does not file a signed request for a
hearing within 14 days of service of the citation, the petitioner
shall so notify the court and the court shall have the respondent
brought before it or communicate with the respondent by
telephone. If the court then determines that the respondent does
not request a hearing, it may, without hearing, order imposition
of the requested public health measure effective for a period of
time not to exceed 60 days or, if substantial medical evidence
indicates that the condition is spread by the airborne route and
either that it cannot be rendered noninfectious within 60 days or
that it may recur after the public health measure is
discontinued, for a period not to exceed 180 days. However, if at
the time of inquiry by the court it determines that the
respondent does request a hearing, one shall be conducted at a
time and place the court may direct consistent with subsection
(6) of this section.
(b) If the respondent files a signed request for a hearing
within 14 days of service of the citation, the petitioner shall
immediately notify the court and the court shall have the
respondent brought before it or communicate with the respondent,
or if represented the respondent's counsel, by telephone. If the
request for hearing is confirmed, one shall be conducted at a
time and place the court may direct consistent with subsection
(6) of this section. If at the time of inquiry by the court it is
determined that the respondent does not request a hearing, it may
without hearing, order imposition of the requested public health
measure effective for a period of time not to exceed 60 days or,
if substantial medical evidence indicates that the condition is
spread by the airborne route and either that it cannot be
rendered noninfectious within 60 days or that it may recur after
the public health measure is discontinued, for a period not to
exceed 180 days.
(5) A person placed under custody under subsection (4) of this
section may as appropriate and as directed by the court be held
in a residence or in a health care or other facility consistent
with the requirements of subsection (19) of this section and
Enrolled Senate Bill 145 (SB 145-B) Page 45
receive the care, custody and treatment required for mental and
physical health and safety. The treating physician shall report
any care, custody and treatment to the court as required in
subsection (9) of this section. All methods of treatment,
including the prescription and administration of drugs, shall be
the sole responsibility of the treating physician. Property
placed under custody shall be detained as described by the court
either under the possession of the respondent or under the
possession of the sheriff, or the sheriff's designee. Property
detained under the possession of the sheriff will be provided
care and treatment which is reasonable under the circumstances.
(6) The hearing may be held in the place where the subject of
the petition is being held in custody or in some other place
convenient to the court and the respondent. The hearing shall be
held within three judicial days of the respondent's initial
appearance before the court requesting a hearing. The court may
for good cause, allow the person or property to be detained up to
an additional 72 hours if additional time is requested by the
respondent or the legal counsel of the respondent. The court may
make any orders for the care and custody of the subject of the
petition as it deems necessary.
(7) The petitioner shall prepare or cause to be prepared an
investigative report setting forth the evidence on which the
petition is based. A copy of the investigative report shall be
provided upon request to the respondent and to the respondent's
counsel. Copies shall likewise be provided to counsel assisting
the court, to the examiners and to the court for the use in
questioning witnesses in a hearing under this section.
(8) The provisions of ORS 40.230 to 40.240 shall not apply in a
hearing under this section insofar as the information is relevant
to the proceeding. Such evidence shall be disclosed only to the
court, the examiners, the parties and their attorneys or persons
authorized by the court and shall not be disclosed to the public.
(9) In a hearing under this section, the court shall be fully
advised by the treating physician of all drugs and other
treatment known to have been administered to the subject of the
petition, which may be pertinent to the subject's infectious or
contaminated state. The medical record of treatment shall be made
available in order that the examiners may review the medical
record of treatment and have an opportunity to inquire of the
medical personnel concerning the treatment of the respondent
during the detention period prior to the hearing. Such record
shall be made available to counsel for said respondent at least
24 hours prior to the hearing.
(10) The person serving a warrant of detention, citation and
petition provided for by subsection (4) of this section shall,
immediately after service thereof, make a return showing the
time, place and manner of such service and file it with the clerk
of the court. In executing the warrant of detention, the person
has all the powers provided by ORS 133.235 and 161.235 to 161.245
and may require the assistance of any peace officer or other
person.
(11) The citation issued to the respondent shall state the
nature of the proceedings and the public health measure requested
in the petition. The citation shall further contain a notice that
the respondent may file a request with the petitioner for a court
hearing on the petition within 14 days and, if the respondent
does not do so, the court will order imposition of the public
health measure requested in the petition. The citation shall also
notify of the right to legal counsel, the right to have legal
Enrolled Senate Bill 145 (SB 145-B) Page 46
counsel appointed if the respondent is unable to afford legal
counsel, and, if requested, to have legal counsel immediately
appointed, the right to subpoena witnesses in behalf of the
respondent to the hearing and other information as the court may
direct. The respondent shall have an opportunity to consult with
legal counsel when requested.
(12) In a hearing under this section, the respondent shall have
the right to cross-examine all witnesses, the person conducting
the investigation, the examining physicians or other qualified
persons who have examined the subject of the petition.
(13) At the time the respondent appears before the court, the
court shall advise the respondent of the nature of the
proceedings and the possible results of the proceedings. The
court shall also advise respondent of the right to subpoena
witnesses and to obtain suitable legal counsel possessing skills
and experience commensurate with the nature of the allegations
and complexity of the case during the proceedings, and if the
respondent is an individual in custody under subsection (4) of
this section and does not have funds with which to retain legal
counsel, the court shall appoint legal counsel to represent the
respondent { - without cost - } . If the respondent is an
individual in custody under subsection (4) of this section and
does not request legal counsel, the legal guardian, relative or
friend may request the assistance of suitable legal counsel on
behalf of the respondent.
(a) If no request for legal counsel is made by an individual in
custody, the court shall appoint suitable legal counsel therefor
unless counsel is expressly, knowingly and intelligently refused
by the respondent.
(b) If the respondent is an individual in custody and is unable
to afford legal counsel, the { - court - } { + public defense
services executive director + } shall determine and
{ - allow - } { + pay + }, as provided in ORS 135.055, the
reasonable expenses of the person and compensation for legal
counsel. { - The expenses and compensation so allowed shall be
paid by the county if the petition was filed by the local public
health administrator and by the state if the petition was filed
by the assistant director. - } In such cases suitable legal
counsel shall be present at the hearing and examination and may
examine all witnesses offering testimony, and otherwise represent
the respondent and may be present in other cases.
(c) The governing body of the county shall designate either the
district attorney or counsel appointed pursuant to ORS 203.145 to
assist the court in the conduct of the hearing if the court
requests assistance. If the person so designated has a conflict
of interest in a particular case, the court may appoint private
counsel to render such assistance.
(d) If the respondent, the legal counsel or guardian, or
examiners request, the court may, for good cause, postpone the
hearing for not more than 72 hours in order to allow preparation
for the hearing. The court may make orders for the care and
custody of the subject of the petition during a postponement as
it deems necessary.
(14)(a) In the case where it is alleged that the subject of the
petition has or contains an infectious agent of a communicable
disease, when a hearing is requested the court shall appoint at
least one competent physician, licensed by the Board of Medical
Examiners for the State of Oregon and expert in the field of
infectious diseases or public health to examine the respondent as
to the matters alleged in the petition. The person appointed may
Enrolled Senate Bill 145 (SB 145-B) Page 47
be the county health officer or other person recommended by the
local public health administrator.
(b) In the case where it is alleged that the subject of the
petition is contaminated with a toxic substance, when a hearing
is requested the court shall appoint an expert on the particular
subject, who may be the county health officer or other person
recommended by the local public health administrator, to examine
the subject of the petition as to the matters alleged in the
petition.
(c) If the respondent requests in writing that one additional
examining physician or qualified person be appointed, or, in the
absence of such request by the respondent, if such request is
made by the legal guardian, relative or friend of the respondent,
the court shall appoint an additional physician or other
qualified person.
(15) The persons appointed to conduct the examination shall
make their separate report in writing, under oath, to the court.
The reports shall be filed immediately with the clerk of the
court. If the examining persons find, and show by their reports,
that the allegations described in subsection (2)(a) to (c) of
this section are true, the reports shall include a recommendation
as to whether the allegations described under subsection (2)(d)
of this section are true or as to alternative measures that would
satisfy subsection (2)(d) of this section.
(16) After hearing all of the evidence and reviewing the
findings of the examining persons, the court shall determine the
truth of the allegations contained in the petition and the need
for the requested public health measure. If, based upon clear and
convincing evidence, it is the opinion of the court that the
allegations are true, the court shall order the requested order
or such other measure the court deems appropriate to satisfy
subsection (2)(d) of this section.
(17) The order shall be effective for a period of time not to
exceed 60 days or, if substantial medical evidence indicates that
the condition is spread by the airborne route and either that it
cannot be rendered noninfectious within 60 days or that it may
recur after the public health measure is discontinued, for a
period not to exceed 180 days.
(18) If a respondent who is an individual in custody under
subsection (4) of this section appeals the determination or
disposition based thereon, and is { - unable to afford suitable
legal counsel possessing skills and experience commensurate with
the nature and complexity of the case to represent the respondent
on appeal - } { + determined to be financially eligible for
appointed counsel at state expense + }, the court, upon request
of the respondent in custody or upon its own motion, shall
appoint suitable legal counsel to represent the respondent. The
compensation for legal counsel and costs and expenses necessary
to the appeal shall be determined and { - allowed by the
appellate court as provided in ORS 138.500 and the compensation,
costs and expenses so allowed shall be - } paid as provided in
ORS 138.500.
(19)(a) Any person who is not incarcerated upon a criminal
charge and is the subject of a petition under this section, shall
not be confined in any prison, jail or other enclosure where
those charged with a crime or a violation of a municipal
ordinance are incarcerated, unless the person represents an
immediate and serious danger to staff or physical facilities of a
hospital or other facility to which committed, or unless the
Enrolled Senate Bill 145 (SB 145-B) Page 48
person has been found in contempt of court because of failure to
obey a court order or other public health measure.
(b) Any respondent who is the subject of a petition and has
been taken into custody shall not be confined, either before or
after the hearing, without an attendant in direct charge of the
person. If the respondent is not confined in a health care
facility, the sheriff having the person in custody shall select
some suitable person to act as attendant in quarters suitable for
the comfortable, safe and humane confinement of the person and
approved by the assistant administrator or local public health
administrator.
(20)(a) Upon receipt of the order of the court, the sheriff or
the sheriff's designee shall take the subject of the petition
into custody or continue custody, and insure the safekeeping and
proper care of the subject until delivery is made to an assigned
facility or other location. During custody of the subject, the
sheriff or sheriff's designee or the representative of the
facility has all the powers provided by ORS 133.225 and 161.255
and may require the assistance of any peace officer or other
person.
(b) The court may authorize the guardian, custodian, friend or
relative to transport the subject of the petition to the
designated facility or location when the court determines that
the means of transportation would not be detrimental to the
welfare of the subject or to the public.
(21) The judge shall cause to be recorded and filed in the
court records a full account of proceedings had at all hearings
and examinations conducted pursuant to this section together with
the judgments and orders of the court and a copy of the orders
issued. If the respondent is the subject of the petition, the
court clerk shall seal the record and it shall not be disclosed
to any person except:
(a) The assistant administrator or local public health
administrator;
(b) As provided in subsection (22) of this section;
(c) Upon request of the respondent, the legal representatives
or the attorney of the person; or
(d) Pursuant to court order.
(22) If the subject of the petition is ordered committed to a
facility, a copy of the judgment and orders of the court, medical
records and such other information as the court deems necessary,
certified by the court clerk shall be given to the sheriff, for
delivery to the director of the facility to which such person is
committed.
(23) The petitioner shall, by filing a written certificate with
the ordering court, discharge the subject of the petition except
when the subject is being held, upon an order of a court or judge
having criminal jurisdiction, in an action or proceeding arising
out of a criminal offense, when in the petitioner's opinion the
matters alleged in the petition are no longer true.
(24)(a) At the end of the 60-day or 180-day period, the subject
of the petition shall be released from an order imposing a public
health measure under this section unless the petitioner certifies
to the ordering court that the order should be continued. If the
certification is made, the subject shall not be released from the
order but the petitioner shall immediately issue a copy of the
certification to the respondent.
(b) The certification shall be served upon the respondent by
the sheriff or the sheriff's designee. The sheriff shall inform
Enrolled Senate Bill 145 (SB 145-B) Page 49
the court in writing that service has been made and the date
thereof.
(c) The certification shall advise the respondent:
(A) That the petitioner has requested that the order be
continued for an additional period of time;
(B) That the respondent may consult with legal counsel and that
legal counsel shall be provided for the respondent who is an
individual in custody without cost if the respondent is unable to
afford legal counsel;
(C) That the respondent may protest this further extension of
the order within 14 days and, if the respondent does not, it
shall be continued for an indefinite period of time up to 60
days;
(D) That, if the respondent does protest a further extension of
the order, the respondent is entitled to a hearing before the
court on whether the order should be continued;
(E) That the respondent may protest in writing by signing a
simple protest form accompanying the certification by filing it
with the petitioner within 14 days;
(F) That the respondent is entitled to have a physician or
other qualified person examine the subject of the petition and
report to the court the results of the examination;
(G) That the respondent may subpoena witnesses and offer
evidence on behalf of the respondent at the hearing; and
(H) That, if the respondent is an individual in custody and is
without funds to retain legal counsel or an examining physician
or qualified person, the court shall appoint legal counsel, a
physician or other qualified person { - at no cost to the
respondent - } .
(25) The person serving the certification shall read and
deliver the certification to the respondent. If the respondent
does not file a protest of the extension of order within 14 days,
the procedures in subsection (4)(a) of this section shall be
followed before ordering an extension of the order. If the
respondent files a protest of the extension of order, the
procedures in subsection (4)(b) of this section shall be followed
before setting a hearing on the extension of the order.
(26) If, at the time of inquiry by the court, it is determined
that no hearing is requested by the respondent the court, without
hearing, may order an extension of the order effective for a
period of time not to exceed 60 days.
(27) If at the time of inquiry the respondent requests a
hearing, the hearing shall be conducted as promptly as possible
and at a time and place the court may direct. If the respondent
requests a continuance in order to prepare for the hearing or to
obtain legal counsel to represent the respondent, the court may
grant a continuance for up to 72 hours for this purpose. In the
event the respondent is an individual in custody and requests the
appointment of legal counsel and is without funds to retain legal
counsel, the court shall appoint legal counsel to represent
{ + the + } respondent { - at no cost to the respondent - } .
If no request for legal counsel is made, the court shall appoint
legal counsel to represent a respondent who is an individual in
custody unless legal counsel is expressly, knowingly and
intelligently refused by the respondent. If such respondent
requests an examination by a physician or other qualified person
and is without funds to retain a physician or other qualified
person for purposes of the examination, the court shall appoint a
physician or other qualified person, other than a member of the
staff from the facility where the respondent may be confined, to
Enrolled Senate Bill 145 (SB 145-B) Page 50
examine the respondent at no expense to the respondent and to
report to the court the results of the examination. The court
shall then conduct a hearing and after hearing the evidence and
reviewing the recommendations of the treating and examining
physician or other qualified person, the court shall determine
whether the order should be continued. If in the opinion of the
court the allegations of the original petition are still
applicable to the subject of the petition by clear and convincing
evidence the court may continue the order for an additional
indefinite period of time up to 60 days or may order such other
measure to satisfy subsection (2)(d) of this section. At the end
of the 60-day period, the subject of the petition shall be
released unless the assistant director or local public health
administrator again certifies to the committing court that the
order should be extended in which event the procedures set forth
in subsections (24) to (27) of this section shall be followed.
(28) Neither the assistant director or any local public health
administrator, sheriff, peace officer, physician, attorney, judge
or other person or entity shall in any way be held criminally or
civilly liable for actions pursuant to this section and ORS
433.022 provided the actions are taken in good faith, without
malice and based on reasonable belief.
(29) Failure to obey a court order or other public health
measure issued under this section shall subject the individual in
violation of the order or measure to contempt proceedings.
SECTION 75. ORS 436.265 is amended to read:
436.265. (1) If the respondent requests counsel but is
{ - without sufficient financial means to employ suitable
counsel possessing skills and experience commensurate with the
nature of the petition and the complexity of the case - } { +
determined to be financially eligible for appointed counsel at
state expense + }, the court shall appoint suitable counsel to
represent the respondent { + at state expense + }.
(2) If the respondent is not represented by counsel and appears
to be unable to request counsel, the court shall appoint suitable
counsel to represent the respondent.
(3) Counsel appointed by the court shall be paid compensation
{ - determined - } , as provided in ORS 135.055 { - , by the
court - } . { - Where - } { + When + } the court appoints
counsel and the respondent is without sufficient financial means
to employ counsel, the compensation for counsel and reasonable
expenses of investigation, preparation and presentation paid or
incurred shall be { - allowed - } { + determined + } and paid
as provided in ORS 135.055.
SECTION 76. ORS 436.315 is amended to read:
436.315. If the respondent is { - shown to be without
sufficient financial means to employ suitable counsel possessing
skills and experience commensurate with the nature and complexity
of the case to represent the person in an appeal - } { +
determined to be financially eligible for appointed counsel at
state expense + }, the court, upon the request of the person or
upon its own motion, shall appoint suitable counsel to represent
the respondent { + on appeal + }. Counsel appointed by the court
shall be paid compensation { - determined - } , as provided in
ORS 138.500 { - , by the Court of Appeals - } . Compensation for
counsel and costs and expenses necessary shall be
{ - allowed - } { + determined + } and paid as provided in ORS
138.500.
SECTION 77. ORS 33.055 is amended to read:
Enrolled Senate Bill 145 (SB 145-B) Page 51
33.055. (1) Except as otherwise provided in ORS 161.685,
proceedings to impose remedial sanctions for contempt shall be
conducted as provided in this section.
(2) The following persons may initiate the proceeding or, with
leave of the court, participate in the proceeding, by filing a
motion requesting that defendant be ordered to appear:
(a) A party aggrieved by an alleged contempt of court;
(b) A district attorney;
(c) A city attorney;
(d) The Attorney General; or
(e) Any other person specifically authorized by statute to seek
imposition of sanctions for contempt.
(3) A motion to initiate a proceeding under this section shall
be filed in the proceeding to which the contempt is related, if
there is a related proceeding.
(4) The person initiating a proceeding under this section shall
file supporting documentation or affidavits sufficient to give
defendant notice of the specific acts alleged to constitute
contempt.
(5)(a) The court may issue an order directing the defendant to
appear. Except as otherwise provided in paragraph (b) of this
subsection, the defendant shall be personally served with the
order to appear in the manner provided in ORCP 7 and 9. The court
may order service by a method other than personal service or
issue an arrest warrant if, based upon motion and supporting
affidavit, the court finds that the defendant cannot be
personally served.
(b) The defendant shall be served by substituted service if
personal service is waived under ORS 107.835. If personal service
is waived under ORS 107.835, the defendant shall be served by the
method specified in the waiver.
(6) The court may impose a remedial sanction only after
affording the defendant opportunity for a hearing tried to the
court. The defendant may waive the opportunity for a hearing by
stipulated order filed with the court.
(7) A defendant has no right to a jury trial and, except as
provided in this section, has only those rights accorded to a
defendant in a civil action.
(8) A defendant is entitled to be represented by counsel. A
court shall not impose on a defendant a remedial sanction of
confinement unless, before the hearing is held, the defendant is:
(a) Informed that such sanction may be imposed; and
(b) Afforded the same right to { - court-appointed - } { +
appointed + } counsel required in proceedings for the imposition
of an equivalent punitive sanction of confinement.
(9) If the defendant is not represented by counsel when coming
before the court, the court shall inform the defendant of the
right to counsel, and of the right to appointed counsel if the
defendant is entitled to { + , and financially eligible for, + }
appointed counsel under subsection (8) of this section.
(10) Inability to comply with an order of the court is an
affirmative defense.
(11) In any proceeding for imposition of a remedial sanction
other than confinement, proof of contempt shall be by clear and
convincing evidence. In any proceeding for imposition of a
remedial sanction of confinement, proof of contempt shall be
beyond a reasonable doubt.
(12) Proceedings under this section are subject to rules
adopted under ORS 33.145. Proceedings under this section are not
subject to the Oregon Rules of Civil Procedure except as provided
Enrolled Senate Bill 145 (SB 145-B) Page 52
in subsection (5) of this section or as may be provided in rules
adopted under ORS 33.145.
SECTION 78. ORS 33.065 is amended to read:
33.065. (1) Except as otherwise provided in ORS 161.685,
proceedings to impose punitive sanctions for contempt shall be
conducted as provided in this section.
(2) The following persons may initiate the proceeding by an
accusatory instrument charging a person with contempt of court
and seeking a punitive sanction:
(a) A city attorney.
(b) A district attorney.
(c) The Attorney General.
(3) If a city attorney, district attorney or Attorney General
who regularly appears before the court declines to prosecute a
contempt, and the court determines that remedial sanctions would
not provide an effective alternative remedy, the court may
appoint an attorney who is authorized to practice law in this
state, and who is not counsel for an interested party, to
prosecute the contempt. The court shall allow reasonable
compensation for the appointed attorney's attendance, to be paid
by:
(a) The Oregon Department of Administrative Services, if the
attorney is appointed by the Supreme Court, the Court of Appeals
or the Oregon Tax Court;
(b) The city where the court is located, if the attorney is
appointed by a municipal court; and
(c) The county where the prosecution is initiated, in all other
cases.
(4) The prosecutor may initiate proceedings on the prosecutor's
own initiative, on the request of a party to an action or
proceeding or on the request of the court. After the prosecutor
files an accusatory instrument, the court may issue any order or
warrant necessary to compel the appearance of the defendant.
(5) Except as otherwise provided by this section, the
accusatory instrument is subject to the same requirements and
laws applicable to an accusatory instrument in a criminal
proceeding, and all proceedings on the accusatory instrument
shall be in the manner prescribed for criminal proceedings.
(6) Except for the right to a jury trial, the defendant is
entitled to the constitutional and statutory protections,
including the right to { - court-appointed - } { +
appointed + } counsel, that a defendant would be entitled to in a
criminal proceeding in which the fine or term of imprisonment
that could be imposed is equivalent to the punitive sanctions
sought in the contempt proceeding. This subsection does not
affect any right to a jury that may otherwise be created by
statute.
(7) Inability to comply with an order of the court is an
affirmative defense. If the defendant proposes to rely in any way
on evidence of inability to comply with an order of the court,
the defendant shall, not less than five days before the trial of
the cause, file and serve upon the city attorney, district
attorney or Attorney General prosecuting the contempt a written
notice of intent to offer that evidence. If the defendant fails
to file and serve the notice, the defendant shall not be
permitted to introduce evidence of inability to comply with an
order of the court at the trial of the cause unless the court, in
its discretion, permits such evidence to be introduced where just
cause for failure to file the notice, or to file the notice
within the time allowed, is made to appear.
Enrolled Senate Bill 145 (SB 145-B) Page 53
(8) The court may impose a remedial sanction in addition to or
in lieu of a punitive sanction.
(9) In any proceeding for imposition of a punitive sanction,
proof of contempt shall be beyond a reasonable doubt.
SECTION 79. ORS 135.405 is amended to read:
135.405. (1) In cases in which it appears that the interest of
the public in the effective administration of criminal justice
would thereby be served, and in accordance with the criteria set
forth in ORS 135.415, the district attorney may engage in plea
discussions for the purpose of reaching a plea agreement.
(2) The district attorney shall engage in plea discussions or
reach a plea agreement with the defendant only through defense
counsel, except when, as a matter of record, the defendant has
effectively waived the right of the defendant to counsel or, if
the defendant is not eligible for { - court-appointed - } { +
appointed + } counsel, has not retained counsel.
(3) The district attorney in reaching a plea agreement may
agree to, but is not limited to, one or more of the following, as
required by the circumstances of the individual case:
(a) To make or not to oppose favorable recommendations as to
the sentence which should be imposed if the defendant enters a
plea of guilty or no contest to the offense charged;
(b) To seek or not to oppose dismissal of the offense charged
if the defendant enters a plea of guilty or no contest to another
offense reasonably related to the defendant's conduct; or
(c) To seek or not to oppose dismissal of other charges or to
refrain from bringing potential charges if the defendant enters a
plea of guilty or no contest to the offense charged.
(4) Similarly situated defendants should be afforded equal plea
agreement opportunities.
SECTION 80. ORS 192.502 is amended to read:
192.502. The following public records are exempt from
disclosure under ORS 192.410 to 192.505:
(1) Communications within a public body or between public
bodies of an advisory nature to the extent that they cover other
than purely factual materials and are preliminary to any final
agency determination of policy or action. This exemption shall
not apply unless the public body shows that in the particular
instance the public interest in encouraging frank communication
between officials and employees of public bodies clearly
outweighs the public interest in disclosure.
(2) Information of a personal nature such as but not limited to
that kept in a personal, medical or similar file, if the public
disclosure thereof would constitute an unreasonable invasion of
privacy, unless the public interest by clear and convincing
evidence requires disclosure in the particular instance. The
party seeking disclosure shall have the burden of showing that
public disclosure would not constitute an unreasonable invasion
of privacy.
(3)(a) Public body employee or volunteer addresses, dates of
birth and telephone numbers contained in personnel records
maintained by the public body that is the employer or the
recipient of volunteer services. This exemption does not apply:
(A) To such employees or volunteers if they are elected
officials, except that a judge or district attorney subject to
election may seek to exempt the judge's or district attorney's
address or telephone number, or both, under the terms of ORS
192.445;
(B) To such employees or volunteers to the extent that the
party seeking disclosure shows by clear and convincing evidence
Enrolled Senate Bill 145 (SB 145-B) Page 54
that the public interest requires disclosure in a particular
instance; or
(C) To a substitute teacher as defined in ORS 342.815 when
requested by a professional education association of which the
substitute teacher may be a member.
(b) Nothing in this subsection exempting employee records from
disclosure relieves a public employer of any duty under ORS
243.650 to 243.782.
(4) Information submitted to a public body in confidence and
not otherwise required by law to be submitted, where such
information should reasonably be considered confidential, the
public body has obliged itself in good faith not to disclose the
information, and when the public interest would suffer by the
disclosure.
(5) Information or records of the Department of Corrections,
including the State Board of Parole and Post-Prison Supervision,
to the extent that disclosure thereof would interfere with the
rehabilitation of a person in custody of the department or
substantially prejudice or prevent the carrying out of the
functions of the department, if the public interest in
confidentiality clearly outweighs the public interest in
disclosure.
(6) Records, reports and other information received or compiled
by the Director of the Department of Consumer and Business
Services in the administration of ORS chapters 723 and 725 not
otherwise required by law to be made public, to the extent that
the interests of lending institutions, their officers, employees
and customers in preserving the confidentiality of such
information outweighs the public interest in disclosure.
(7) Reports made to or filed with the court under ORS 137.077
or 137.530.
(8) Any public records or information the disclosure of which
is prohibited by federal law or regulations.
(9) Public records or information the disclosure of which is
prohibited or restricted or otherwise made confidential or
privileged under Oregon law.
(10) Public records or information described in this section,
furnished by the public body originally compiling, preparing or
receiving them to any other public officer or public body in
connection with performance of the duties of the recipient, if
the considerations originally giving rise to the confidential or
exempt nature of the public records or information remain
applicable.
(11) Records of the Energy Facility Siting Council concerning
the review or approval of security programs pursuant to ORS
469.530.
(12) Employee and retiree address, telephone number and other
nonfinancial membership records and employee financial records
maintained by the Public Employees Retirement System pursuant to
ORS chapter 238 and ORS 238.410.
(13) Records submitted by private persons or businesses to the
State Treasurer or the Oregon Investment Council relating to
proposed acquisition, exchange or liquidation of public
investments under ORS chapter 293 may be treated as exempt from
disclosure when and only to the extent that disclosure of such
records reasonably may be expected to substantially limit the
ability of the Oregon Investment Council to effectively compete
or negotiate for, solicit or conclude such transactions. Records
which relate to concluded transactions are not subject to this
exemption.
Enrolled Senate Bill 145 (SB 145-B) Page 55
(14) The monthly reports prepared and submitted under ORS
293.761 and 293.766 concerning the Public Employees Retirement
Fund and the Industrial Accident Fund may be uniformly treated as
exempt from disclosure for a period of up to 90 days after the
end of the calendar quarter.
(15) Reports of unclaimed property filed by the holders of such
property to the extent permitted by ORS 98.352.
(16) The following records, communications and information
submitted to the Oregon Economic and Community Development
Commission, the Economic and Community Development Department,
the State Department of Agriculture, the Oregon Resource and
Technology Development Account or the Oregon Resource and
Technology Development Account Board, the Port of Portland or
other ports, as defined in ORS 777.005, by applicants for
investment funds, loans or services including, but not limited
to, those described in ORS 285A.224:
(a) Personal financial statements.
(b) Financial statements of applicants.
(c) Customer lists.
(d) Information of an applicant pertaining to litigation to
which the applicant is a party if the complaint has been filed,
or if the complaint has not been filed, if the applicant shows
that such litigation is reasonably likely to occur; this
exemption does not apply to litigation which has been concluded,
and nothing in this paragraph shall limit any right or
opportunity granted by discovery or deposition statutes to a
party to litigation or potential litigation.
(e) Production, sales and cost data.
(f) Marketing strategy information that relates to applicant's
plan to address specific markets and applicant's strategy
regarding specific competitors.
(17) Records, reports or returns submitted by private concerns
or enterprises required by law to be submitted to or inspected by
a governmental body to allow it to determine the amount of any
transient lodging tax payable and the amounts of such tax payable
or paid, to the extent that such information is in a form which
would permit identification of the individual concern or
enterprise. Nothing in this subsection shall limit the use which
can be made of such information for regulatory purposes or its
admissibility in any enforcement proceedings. The public body
shall notify the taxpayer of the delinquency immediately by
certified mail. However, in the event that the payment or
delivery of transient lodging taxes otherwise due to a public
body is delinquent by over 60 days, the public body shall
disclose, upon the request of any person, the following
information:
(a) The identity of the individual concern or enterprise that
is delinquent over 60 days in the payment or delivery of the
taxes.
(b) The period for which the taxes are delinquent.
(c) The actual, or estimated, amount of the delinquency.
(18) All information supplied by a person under ORS
{ - 151.430 to 151.491 - } { + 151.485 + } for the purpose of
requesting
{ - court-appointed - } { + appointed + } counsel, and all
information supplied to the { - State Court Administrator - }
{ + court + } from whatever source for the purpose of verifying
{ - indigency - } { + the financial eligibility + } of a
person pursuant to ORS { - 151.430 to 151.491 - } { +
151.485 + }.
Enrolled Senate Bill 145 (SB 145-B) Page 56
(19) Workers' compensation claim records of the Department of
Consumer and Business Services, except in accordance with rules
adopted by the Director of the Department of Consumer and
Business Services, in any of the following circumstances:
(a) When necessary for insurers, self-insured employers and
third party claim administrators to process workers' compensation
claims.
(b) When necessary for the director, other governmental
agencies of this state or the United States to carry out their
duties, functions or powers.
(c) When the disclosure is made in such a manner that the
disclosed information cannot be used to identify any worker who
is the subject of a claim.
(d) When a worker or the worker's representative requests
review of the worker's claim record.
(20) Sensitive business records or financial or commercial
information of the Oregon Health Sciences University that is not
customarily provided to business competitors.
(21) Records of Oregon Health Sciences University regarding
candidates for the position of president of the university.
(22) The records of a library, including circulation records,
showing use of specific library material by a named person or
consisting of the name of a library patron together with the
address or telephone number, or both, of the patron.
(23) The following records, communications and information
submitted to the Housing and Community Services Department by
applicants for and recipients of loans, grants and tax credits:
(a) Personal and corporate financial statements and
information, including tax returns.
(b) Credit reports.
(c) Project appraisals.
(d) Market studies and analyses.
(e) Articles of incorporation, partnership agreements and
operating agreements.
(f) Commitment letters.
(g) Project pro forma statements.
(h) Project cost certifications and cost data.
(i) Audits.
(j) Project tenant correspondence requested to be confidential.
(k) Tenant files relating to certification.
(L) Housing assistance payment requests.
(24) Raster geographic information system (GIS) digital
databases, provided by private forestland owners or their
representatives, voluntarily and in confidence to the State
Forestry Department, that is not otherwise required by law to be
submitted.
(25) Sensitive business, commercial or financial information
furnished to or developed by a public body engaged in the
business of providing electricity or electricity services, if the
information is directly related to a transaction described in ORS
261.348, or if the information is directly related to a bid,
proposal or negotiations for the sale or purchase of electricity
or electricity services, and disclosure of the information would
cause a competitive disadvantage for the public body or its
retail electricity customers. This subsection does not apply to
cost-of-service studies used in the development or review of
generally applicable rate schedules.
(26) Sensitive business, commercial or financial information
furnished to or developed by the City of Klamath Falls, acting
solely in connection with the ownership and operation of the
Enrolled Senate Bill 145 (SB 145-B) Page 57
Klamath Cogeneration Project, if the information is directly
related to a transaction described in ORS 225.085 and disclosure
of the information would cause a competitive disadvantage for the
Klamath Cogeneration Project. This subsection does not apply to
cost-of-service studies used in the development or review of
generally applicable rate schedules.
(27) Personally identifiable information about customers of a
municipal electric utility or a people's utility district. The
utility or district may, however, release such information to a
third party if the customer consents in writing or
electronically, if the disclosure is necessary to render utility
or district services to the customer, or if the disclosure is
required pursuant to a court order. The utility or district may
charge as appropriate for the costs of providing such
information. The utility or district may make customer records
available to third party credit agencies on a regular basis in
connection with the establishment and management of customer
accounts or in the event such accounts are delinquent.
(28) A record of the street and number of an employee's address
submitted to a special district to obtain assistance in promoting
an alternative to single occupant motor vehicle transportation.
(29) Except under the provisions of section 8 (2), chapter
1059, Oregon Laws 1999, pesticide sales or use reporting data
obtained by the State Department of Agriculture exclusively under
the provisions of sections 2 to 9, chapter 1059, Oregon Laws
1999, that would reveal the identity or specific location of the
owner or lessee of a specific property where a pesticide has been
applied for a private agriculture or forestry production
operation, or other nonpublic facility on private property.
Nothing in this subsection shall limit the use that may be made
of such information for regulatory purposes or its admissibility
in any enforcement proceedings.
(30) Sensitive business records, capital development plans or
financial or commercial information of Oregon Corrections
Enterprises that is not customarily provided to business
competitors.
SECTION 81. ORS 192.502, as amended by section 16, chapter
1059, Oregon Laws 1999, is amended to read:
192.502. The following public records are exempt from
disclosure under ORS 192.410 to 192.505:
(1) Communications within a public body or between public
bodies of an advisory nature to the extent that they cover other
than purely factual materials and are preliminary to any final
agency determination of policy or action. This exemption shall
not apply unless the public body shows that in the particular
instance the public interest in encouraging frank communication
between officials and employees of public bodies clearly
outweighs the public interest in disclosure.
(2) Information of a personal nature such as but not limited to
that kept in a personal, medical or similar file, if the public
disclosure thereof would constitute an unreasonable invasion of
privacy, unless the public interest by clear and convincing
evidence requires disclosure in the particular instance. The
party seeking disclosure shall have the burden of showing that
public disclosure would not constitute an unreasonable invasion
of privacy.
(3)(a) Public body employee or volunteer addresses, dates of
birth and telephone numbers contained in personnel records
maintained by the public body that is the employer or the
recipient of volunteer services. This exemption does not apply:
Enrolled Senate Bill 145 (SB 145-B) Page 58
(A) To such employees or volunteers if they are elected
officials, except that a judge or district attorney subject to
election may seek to exempt the judge's or district attorney's
address or telephone number, or both, under the terms of ORS
192.445;
(B) To such employees or volunteers to the extent that the
party seeking disclosure shows by clear and convincing evidence
that the public interest requires disclosure in a particular
instance; or
(C) To a substitute teacher as defined in ORS 342.815 when
requested by a professional education association of which the
substitute teacher may be a member.
(b) Nothing in this subsection exempting employee records from
disclosure relieves a public employer of any duty under ORS
243.650 to 243.782.
(4) Information submitted to a public body in confidence and
not otherwise required by law to be submitted, where such
information should reasonably be considered confidential, the
public body has obliged itself in good faith not to disclose the
information, and when the public interest would suffer by the
disclosure.
(5) Information or records of the Department of Corrections,
including the State Board of Parole and Post-Prison Supervision,
to the extent that disclosure thereof would interfere with the
rehabilitation of a person in custody of the department or
substantially prejudice or prevent the carrying out of the
functions of the department, if the public interest in
confidentiality clearly outweighs the public interest in
disclosure.
(6) Records, reports and other information received or compiled
by the Director of the Department of Consumer and Business
Services in the administration of ORS chapters 723 and 725 not
otherwise required by law to be made public, to the extent that
the interests of lending institutions, their officers, employees
and customers in preserving the confidentiality of such
information outweighs the public interest in disclosure.
(7) Reports made to or filed with the court under ORS 137.077
or 137.530.
(8) Any public records or information the disclosure of which
is prohibited by federal law or regulations.
(9) Public records or information the disclosure of which is
prohibited or restricted or otherwise made confidential or
privileged under Oregon law.
(10) Public records or information described in this section,
furnished by the public body originally compiling, preparing or
receiving them to any other public officer or public body in
connection with performance of the duties of the recipient, if
the considerations originally giving rise to the confidential or
exempt nature of the public records or information remain
applicable.
(11) Records of the Energy Facility Siting Council concerning
the review or approval of security programs pursuant to ORS
469.530.
(12) Employee and retiree address, telephone number and other
nonfinancial membership records and employee financial records
maintained by the Public Employees Retirement System pursuant to
ORS chapter 238 and ORS 238.410.
(13) Records submitted by private persons or businesses to the
State Treasurer or the Oregon Investment Council relating to
proposed acquisition, exchange or liquidation of public
Enrolled Senate Bill 145 (SB 145-B) Page 59
investments under ORS chapter 293 may be treated as exempt from
disclosure when and only to the extent that disclosure of such
records reasonably may be expected to substantially limit the
ability of the Oregon Investment Council to effectively compete
or negotiate for, solicit or conclude such transactions. Records
which relate to concluded transactions are not subject to this
exemption.
(14) The monthly reports prepared and submitted under ORS
293.761 and 293.766 concerning the Public Employees Retirement
Fund and the Industrial Accident Fund may be uniformly treated as
exempt from disclosure for a period of up to 90 days after the
end of the calendar quarter.
(15) Reports of unclaimed property filed by the holders of such
property to the extent permitted by ORS 98.352.
(16) The following records, communications and information
submitted to the Oregon Economic and Community Development
Commission, the Economic and Community Development Department,
the State Department of Agriculture, the Oregon Resource and
Technology Development Account or the Oregon Resource and
Technology Development Account Board, the Port of Portland or
other ports, as defined in ORS 777.005, by applicants for
investment funds, loans or services including, but not limited
to, those described in ORS 285A.224:
(a) Personal financial statements.
(b) Financial statements of applicants.
(c) Customer lists.
(d) Information of an applicant pertaining to litigation to
which the applicant is a party if the complaint has been filed,
or if the complaint has not been filed, if the applicant shows
that such litigation is reasonably likely to occur; this
exemption does not apply to litigation which has been concluded,
and nothing in this paragraph shall limit any right or
opportunity granted by discovery or deposition statutes to a
party to litigation or potential litigation.
(e) Production, sales and cost data.
(f) Marketing strategy information that relates to applicant's
plan to address specific markets and applicant's strategy
regarding specific competitors.
(17) Records, reports or returns submitted by private concerns
or enterprises required by law to be submitted to or inspected by
a governmental body to allow it to determine the amount of any
transient lodging tax payable and the amounts of such tax payable
or paid, to the extent that such information is in a form which
would permit identification of the individual concern or
enterprise. Nothing in this subsection shall limit the use which
can be made of such information for regulatory purposes or its
admissibility in any enforcement proceedings. The public body
shall notify the taxpayer of the delinquency immediately by
certified mail. However, in the event that the payment or
delivery of transient lodging taxes otherwise due to a public
body is delinquent by over 60 days, the public body shall
disclose, upon the request of any person, the following
information:
(a) The identity of the individual concern or enterprise that
is delinquent over 60 days in the payment or delivery of the
taxes.
(b) The period for which the taxes are delinquent.
(c) The actual, or estimated, amount of the delinquency.
Enrolled Senate Bill 145 (SB 145-B) Page 60
(18) All information supplied by a person under ORS
{ - 151.430 to 151.491 - } { + 151.485 + } for the purpose of
requesting
{ - court-appointed - } { + appointed + } counsel, and all
information supplied to the { - State Court Administrator - }
{ + court + } from whatever source for the purpose of verifying
{ - indigency - } { + the financial eligibility + } of a
person pursuant to ORS { - 151.430 to 151.491 - } { +
151.485 + }.
(19) Workers' compensation claim records of the Department of
Consumer and Business Services, except in accordance with rules
adopted by the Director of the Department of Consumer and
Business Services, in any of the following circumstances:
(a) When necessary for insurers, self-insured employers and
third party claim administrators to process workers' compensation
claims.
(b) When necessary for the director, other governmental
agencies of this state or the United States to carry out their
duties, functions or powers.
(c) When the disclosure is made in such a manner that the
disclosed information cannot be used to identify any worker who
is the subject of a claim.
(d) When a worker or the worker's representative requests
review of the worker's claim record.
(20) Sensitive business records or financial or commercial
information of the Oregon Health Sciences University that is not
customarily provided to business competitors.
(21) Records of Oregon Health Sciences University regarding
candidates for the position of president of the university.
(22) The records of a library, including circulation records,
showing use of specific library material by a named person or
consisting of the name of a library patron together with the
address or telephone number, or both, of the patron.
(23) The following records, communications and information
submitted to the Housing and Community Services Department by
applicants for and recipients of loans, grants and tax credits:
(a) Personal and corporate financial statements and
information, including tax returns.
(b) Credit reports.
(c) Project appraisals.
(d) Market studies and analyses.
(e) Articles of incorporation, partnership agreements and
operating agreements.
(f) Commitment letters.
(g) Project pro forma statements.
(h) Project cost certifications and cost data.
(i) Audits.
(j) Project tenant correspondence requested to be confidential.
(k) Tenant files relating to certification.
(L) Housing assistance payment requests.
(24) Raster geographic information system (GIS) digital
databases, provided by private forestland owners or their
representatives, voluntarily and in confidence to the State
Forestry Department, that is not otherwise required by law to be
submitted.
(25) Sensitive business, commercial or financial information
furnished to or developed by a public body engaged in the
business of providing electricity or electricity services, if the
information is directly related to a transaction described in ORS
261.348, or if the information is directly related to a bid,
Enrolled Senate Bill 145 (SB 145-B) Page 61
proposal or negotiations for the sale or purchase of electricity
or electricity services, and disclosure of the information would
cause a competitive disadvantage for the public body or its
retail electricity customers. This subsection does not apply to
cost-of-service studies used in the development or review of
generally applicable rate schedules.
(26) Sensitive business, commercial or financial information
furnished to or developed by the City of Klamath Falls, acting
solely in connection with the ownership and operation of the
Klamath Cogeneration Project, if the information is directly
related to a transaction described in ORS 225.085 and disclosure
of the information would cause a competitive disadvantage for the
Klamath Cogeneration Project. This subsection does not apply to
cost-of-service studies used in the development or review of
generally applicable rate schedules.
(27) Personally identifiable information about customers of a
municipal electric utility or a people's utility district. The
utility or district may, however, release such information to a
third party if the customer consents in writing or
electronically, if the disclosure is necessary to render utility
or district services to the customer, or if the disclosure is
required pursuant to a court order. The utility or district may
charge as appropriate for the costs of providing such
information. The utility or district may make customer records
available to third party credit agencies on a regular basis in
connection with the establishment and management of customer
accounts or in the event such accounts are delinquent.
(28) A record of the street and number of an employee's address
submitted to a special district to obtain assistance in promoting
an alternative to single occupant motor vehicle transportation.
(29) Sensitive business records, capital development plans or
financial or commercial information of Oregon Corrections
Enterprises that is not customarily provided to business
competitors.
SECTION 82. ORS 192.559 is amended to read:
192.559. (1) Upon the request of { - the State Court
Administrator - } { + a state court + } and the receipt of the
certification required under subsection (2) of this section, a
financial institution shall advise whether a person has one or
more accounts with the financial institution and, if so, the
balance on deposit in each such account on the date this
information is provided and a record of the account's activity
for at least the prior 30 days, which may include the current and
previous account statement period.
(2) In requesting information under subsection (1) of this
section, the { - administrator - } { + state court + } shall
specify the name and social security number of the person about
whom the account information is sought, and shall certify to the
financial institution in writing, signed by an agent of the
{ - administrator - } { + state court + }, that the person
about whom account information is sought has requested
{ - court-appointed - } { + appointed + } counsel or that
{ - court-appointed - } { + appointed + } counsel has been
provided for the person. In addition, the { - administrator - }
{ + state court + } shall forward to the financial institution
a certification signed by the person about whom account
information is sought that authorizes the release of the account
information.
Enrolled Senate Bill 145 (SB 145-B) Page 62
(3) Any financial institution supplying account information
under this section shall be reimbursed for reasonable costs
incurred.
(4) No financial institution that supplies account information
to { - the administrator - } { + a state court + } pursuant
to this section { - shall be - } { + is + } liable to any
person for any loss, damage or injury arising out of or in any
way pertaining to the disclosure of account information under
this section.
(5) Each financial institution that is requested to supply
account information under this section may specify to the
{ - administrator - } { + state court + } that requests for
account information and responses from the financial institution
shall be submitted in written, tape or electronic format. The
financial institution shall respond to the request within three
business days.
(6) The { - administrator shall - } { + state court may + }
seek account information only with respect to persons who have
requested
{ - court-appointed - } { + appointed + } counsel or who have
had counsel appointed by the court.
{ - (7) As used in this section, 'administrator' means the
State Court Administrator. - }
SECTION 83. ORS 419B.115 is amended to read:
419B.115. (1) Parties to proceedings in the juvenile court
under ORS 419B.100 and 419B.500 are:
(a) The minor child;
(b) The legal parents or guardian of the child;
(c) The state;
(d) The juvenile department;
(e) A court appointed special advocate, if appointed;
(f) The State Office for Services to Children and Families or
other child-caring agency if the agency has temporary custody of
the child; and
(g) An intervenor who petitions or files a motion on the basis
of a child-parent relationship under ORS 109.119.
(2) The rights of the parties include, but are not limited to:
(a) The right to notice of the proceeding and copies of the
pleadings;
(b) The right to appear with counsel and to have counsel
appointed as otherwise provided by law;
(c) The right to call witnesses, cross-examine witnesses and
participate in hearings;
(d) The right of appeal; and
(e) The right to request a hearing.
(3)(a) Persons who are not parties under subsection (1) of this
section may petition the court for rights of limited
participation. The petition must be filed and served on all
parties no later than two weeks before a proceeding in the case
in which participation is sought. The petition must state:
(A) The reason the participation is sought;
(B) How the person's involvement is in the best interest of the
child or the administration of justice;
(C) Why the parties cannot adequately present the case; and
(D) What specific relief is being sought.
(b) If the court finds that the petition is well founded, the
court may grant rights of limited participation as specified by
the court.
Enrolled Senate Bill 145 (SB 145-B) Page 63
(c) Persons petitioning for rights of limited participation are
not entitled to { - court-appointed - } { + appointed + }
counsel.
(4) If a foster parent, preadoptive parent or relative is
currently providing care for a child, the State Office for
Services to Children and Families shall give the foster parent,
preadoptive parent or relative notice of a hearing concerning the
child and the court shall give the person an opportunity to be
heard. Except as provided in subsection (1) of this section, the
foster parent, preadoptive parent or relative providing care for
the child shall not be considered a party to the juvenile court
proceeding solely because of notice and an opportunity to be
heard.
SECTION 84. ORS 419C.245 is amended to read:
419C.245. The juvenile department counselor shall inform
{ - the - } { + a + } youth and the youth's parents or
guardian of the youth's right to counsel and to
{ - court-appointed - } { + appointed + } counsel { + at
state expense + }, if the youth is { - indigent - } { +
determined to be financially eligible under rules of the Public
Defense Services Commission + }. The right to counsel shall
attach prior to the youth's entering into a formal accountability
agreement.
SECTION 85. ORS 419C.285 is amended to read:
419C.285. (1) At the adjudication stage of a delinquency
proceeding, the parties to the proceeding are the youth and the
state, represented by the district attorney or the juvenile
department. At the dispositional stage of a delinquency
proceeding, the following are also parties:
(a) The parents or guardian of the youth;
(b) A court appointed special advocate, if appointed;
(c) The Oregon Youth Authority or other child care agency, if
the youth is temporarily committed to the agency; and
(d) An intervenor who petitions or files a motion on the basis
of a child-parent relationship under ORS 109.119.
(2) The rights of the parties include, but are not limited to:
(a) The right to notice of the proceeding and copies of the
pleadings;
(b) The right to appear with counsel and to have counsel
appointed if otherwise provided by law;
(c) The right to call witnesses, cross-examine witnesses and
participate in hearings;
(d) The right to appeal; and
(e) The right to request a hearing.
(3)(a) Persons who are not parties under subsection (1) of this
section may petition the court for rights of limited
participation. The petition must be filed and served on all
parties no later than two weeks before a proceeding in the case
in which participation is sought. The petition must state:
(A) The reason the participation is sought;
(B) How the person's involvement is in the best interest of the
youth or the administration of justice;
(C) Why the parties cannot adequately present the case; and
(D) What specific relief is being sought.
(b) If the court finds that the petition is well founded, the
court may grant rights of limited participation as specified by
the court.
(c) Persons petitioning for rights of limited participation are
not entitled to { - court-appointed - } { + appointed + }
counsel.
Enrolled Senate Bill 145 (SB 145-B) Page 64
SECTION 86. ORS 21.410 is amended to read:
21.410. (1) The sheriff of a county shall collect the following
fees in civil actions, suits and proceedings for each case
delivered to the office of the sheriff:
(a) For serving summons, subpoena, citation, order, notice or
similar documents, including small claims or writ of execution,
directed to not more than two different parties at the same
address, not less than $20 and not more than $25; otherwise not
less than $20 and not more than $25 for each party for which
service is requested. The fee authorized by this paragraph shall
not be charged to the state in civil actions, suits and
proceedings where one party is { - an indigent - } { + a + }
person who has been appointed counsel at state expense.
(b) For serving notice of seizure and sale of personal or real
property, notice of restitution, or other seizure under writ of
attachment or execution, or other process or proceeding, $20.
(c) For seizure and sale of personal or real property,
enforcement of writ of execution of judgment of restitution, or
other enforcement or seizure under writ of attachment or
execution, or other process or proceeding, $47, and, in addition,
such sums as may be reasonable and necessary to secure each
keeper or custodian of property in custody, the expense of
inventory of property in custody and expense incurred in
newspaper advertising required by law in the execution of
process.
(d) For making a conveyance of real property sold on any
process, $15, to be paid by, or for, the grantee.
(e) For making a copy of any process, order, notice or other
instrument in writing, when necessary to complete the service
thereof, for each folio, $3; but no charge shall be made for copy
of complaint or other paper not actually made by the sheriff.
(f) For entering and processing distraint warrants for state
agencies, $6.25 each.
(2) Persons other than a sheriff serving process and other
documents may charge any fee agreed to between the server and the
person requesting service.
(3) Fees collected for service by the sheriff shall be retained
for the benefit of the county where the party to be served cannot
be found.
(4) No mileage or commission shall be collected by a sheriff
for service of any document or process but in any service
involving travel in excess of 75 miles round trip an additional
fee not to exceed $25 may be billed and collected by a sheriff.
Mileage shall be measured from the location at which the service
is made to the circuit court in that county.
(5) Amounts paid for service of process and other documents may
be recovered as costs and disbursements to the extent provided by
ORS 20.115.
(6) A sheriff may not collect a fee under this section for
serving a foreign restraining order or an order that only grants
relief under ORS 107.095 (1)(c).
(7) As used in this section:
(a) 'Folio' means 100 words, counting two figures as one word.
Any portion of a folio, when the whole paper contains less than a
folio, or when such portion is an excess over the last folio,
shall be deemed a folio.
(b) 'Foreign restraining order' has the meaning given that term
in ORS 24.185.
SECTION 87. ORS 136.602 is amended to read:
Enrolled Senate Bill 145 (SB 145-B) Page 65
136.602. (1) Except as otherwise specifically provided by law,
the per diem fees and mileage and any expenses allowed under ORS
136.603 due to any witness in a grand jury proceeding, or any
prosecution witness in a criminal action or proceeding in a
circuit or justice court or before a committing magistrate shall
be paid by the county in which the grand jury proceeding or
criminal action or proceeding is held. Payment shall be made upon
a claim verified by the witness, showing the number of days
attended and the number of miles traveled, and a certified
statement, prepared by the district attorney, justice of the
peace or committing magistrate, showing the amounts due the
witness.
(2) The per diem fees and mileage due to any defense witness in
a criminal action or proceeding in a circuit or justice court, or
before a committing magistrate, and any expenses allowed the
witness under ORS 136.603, shall be paid by the defendant. In the
case of { - an indigent - } { + a + } defendant { +
determined to be financially eligible for appointed counsel at
state expense + }, these amounts may be paid pursuant to ORS
135.055.
SECTION 88. ORS 137.071 is amended to read:
137.071. This section establishes requirements for judgments in
actions and proceedings resulting from a person being accused and
tried for the commission of an offense. The judge shall assure
the creation and filing of a judgment that complies with this
section in such action or proceedings. On appeal, the appellate
court may give leave as provided in ORS 19.270 for entry of a
judgment that complies with this section but may not reverse or
set aside a judgment, determination or disposition on the sole
ground that the document fails to comply with this section. No
particular form of words is required, but every judgment in a
criminal action or proceeding must comply with all the following:
(1) It must be in writing, plainly titled as a judgment and set
forth in a separate document.
(2) It must clearly identify the court and file number or other
identifier used by the court for that case.
(3) It must clearly identify the defendant.
(4) It must clearly identify all of the following:
(a) The attorney for the state; { - and - }
(b) The attorney, if any, for the defendant { - , - } { + ;
(c) + } Whether the { - court determined the - } defendant
{ + was determined + } to be { - indigent - } { +
financially eligible + } for purposes of
{ - court - } appointed counsel in the case { + ; + } { - ,
and, if so, - }
{ + (d) + } Whether the court appointed counsel for the
defendant in the case { + ; and + } { - . - }
{ + (e) + } If there is no attorney for the defendant,
{ - it must specify - } whether the defendant knowingly waived
any right to an attorney after having been informed of that
right.
(5) It must include the identity of the recorder or reporter
for the proceeding or action who is to be served under ORS
138.081.
(6) It must include any information specifically required by
statute or by court rule.
(7) It must specify clearly the court's determination for each
charge in the information, indictment or complaint.
(8) It must specify clearly the court's disposition, including
all legal consequences the court establishes or imposes. If the
Enrolled Senate Bill 145 (SB 145-B) Page 66
determination is one of conviction, it must include any
suspension of sentence, forfeiture, imprisonment, cancellation of
license, removal from office, monetary obligation, probation,
conditions of probation, discharge, restitution, community
service and all other sentences and legal consequences imposed by
the court. Nothing in this subsection requires the judgment to
specify any consequences that may result from the determination
but are not established or imposed by the court.
(9) Any money judgment must comply with this subsection and
subsection (10) of this section. A judgment that does not comply
with this subsection and subsection (10) of this section is
subject to not being docketed in the judgment docket as provided
under ORS 137.180 until it is amended to become a money judgment
and to so comply. A money judgment must include all the
following:
(a) The identity of the judgment creditor.
(b) The identity of the judgment debtor.
(c) If restitution or compensatory fine is ordered, the name
and address of the person to whom the court should disburse
payments. This paragraph does not require the name and address of
the victim, but may include other persons designated by the
victim who will pass the restitution or fine on to the victim
without requiring the victim's name and address to be a public
record.
(d) The amount of the money judgment. The following apply to
the amount of the money judgment:
(A)(i) Except as otherwise provided in sub-subparagraph (ii) of
this subparagraph, this paragraph requires both the total amount
of the money judgment, excluding any amount that is suspended,
and a listing of amounts and identification for the fines,
assessments, costs, restitution and any other monetary
obligations imposed in the sentence as part of the money
judgment.
(ii) When the court is unable to determine the full amount of
restitution at the time of sentencing, the court may include the
amount that can be determined or establish a maximum amount based
on a recommendation by the district attorney subject to
modification under ORS 137.107.
(B) Except as provided in ORS 137.107, money required to be
paid as a condition of probation:
(i) Is a money judgment that survives and remains payable after
revocation of probation if the amount is included in the money
judgment section.
(ii) Is not a money judgment or docketable in the judgment
docket and does not survive revocation of probation if not
included in the money judgment section, even if the amount is
included in another part of the judgment, unless the money
judgment is amended under ORS 137.107.
(e) If other than immediate payment is permitted, the specific
terms of payment imposed or allowed by the court.
(f) A statement specifying whether all or any part of any
monetary obligation is suspended. This paragraph does not require
a response that no monetary obligation was suspended if that is
the case. In those instances where there is no statement that any
monetary obligation is suspended, it shall be deemed that no
monetary obligation or any part is suspended.
(10) The requirements of subsection (9) of this section must be
presented in the following manner:
(a) The information must be presented in a separate, discrete
section immediately above the judge's signature.
Enrolled Senate Bill 145 (SB 145-B) Page 67
(b) The separate section must be clearly labeled at its
beginning as a money judgment.
(c) The information required under subsection (9) of this
section must be presented in the same order as set forth in that
subsection.
(d) The separate section must contain no other provisions
except what is specifically required by this subsection and
subsection (9) of this section and shall not include requirements
to pay money that are not part of the money judgment.
(11) It must be signed by the judge rendering the judgment and
dated as of the date of signature.
SECTION 89. ORS 161.327 is amended to read:
161.327. (1) Following the entry of a judgment pursuant to ORS
161.319 and the dispositional determination under ORS 161.325, if
the court finds that the person would have been guilty of a
felony, or of a misdemeanor during a criminal episode in the
course of which the person caused physical injury or risk of
physical injury to another, and if the court finds by a
preponderance of the evidence that the person is affected by
mental disease or defect and presents a substantial danger to
others requiring commitment to a state mental hospital designated
by the Mental Health and Developmental Disability Services
Division or conditional release, the court shall order the person
placed under the jurisdiction of the Psychiatric Security Review
Board for care and treatment. The period of jurisdiction of the
board shall be equal to the maximum sentence provided by statute
for the crime for which the person was found guilty except for
insanity.
(2) The court shall determine whether the person should be
committed to a state hospital designated by the Mental Health and
Developmental Disability Services Division or conditionally
released pending any hearing before the board as follows:
(a) If the court finds that the person presents a substantial
danger to others and is not a proper subject for conditional
release, the court shall order the person committed to a state
hospital designated by the Mental Health and Developmental
Disability Services Division for custody, care and treatment
pending hearing before the board in accordance with ORS 161.341
to 161.351.
(b) If the court finds that the person presents a substantial
danger to others but that the person can be adequately controlled
with supervision and treatment if conditionally released and that
necessary supervision and treatment are available, the court may
order the person conditionally released, subject to those
supervisory orders of the court as are in the best interests of
justice, the protection of society and the welfare of the person.
The court shall designate a person or state, county or local
agency to supervise the person upon release, subject to those
conditions as the court directs in the order for conditional
release. Prior to the designation, the court shall notify the
person or agency to whom conditional release is contemplated and
provide the person or agency an opportunity to be heard before
the court. After receiving an order entered under this paragraph,
the person or agency designated shall assume supervision of the
person pursuant to the direction of the Psychiatric Security
Review Board. The person or agency designated as supervisor shall
be required to report in writing no less than once per month to
the board concerning the supervised person's compliance with the
conditions of release.
Enrolled Senate Bill 145 (SB 145-B) Page 68
(3) For purposes of this section, a person affected by a mental
disease or defect in a state of remission is considered to have a
mental disease or defect requiring supervision when the disease
may, with reasonable medical probability, occasionally become
active and, when active, render the person a danger to others.
(4) In determining whether a person should be conditionally
released, the court may order evaluations, examinations and
compliance as provided in ORS 161.336 (4) and 161.346 (2).
(5) In determining whether a person should be committed to a
state hospital or conditionally released, the court shall have as
its primary concern the protection of society.
(6) Upon placing a person on conditional release, the court
shall notify the board in writing of the court's conditional
release order, the supervisor appointed, and all other conditions
of release, and the person shall be on conditional release
pending hearing before the board in accordance with ORS 161.336
to 161.351. Upon compliance with this subsection and subsections
(1) and (2) of this section, the court's jurisdiction over the
person is terminated and the board assumes jurisdiction over the
person.
(7) An order of the court under this section is a final order
appealable by the person found guilty except for insanity in
accordance with ORS 19.205 (4). Notwithstanding ORS 19.255,
notice of an appeal under this section shall be served and filed
within 90 days after the order appealed from is entered in the
register. The person shall be entitled on appeal to suitable
counsel possessing skills and experience commensurate with the
nature and complexity of the case. If the person is
{ - indigent - } { + financially eligible + }, suitable
counsel shall be appointed in the manner provided in ORS 138.500
(1), and the compensation for counsel and costs and expenses of
the person necessary to the appeal shall be determined { - ,
allowed - } and paid as provided in ORS 138.500.
(8) Upon placing a person under the jurisdiction of the board,
the court shall notify the person of the right to appeal and the
right to a hearing before the board in accordance with ORS
161.336 (7) and 161.341 (4).
SECTION 90. ORS 161.365 is amended to read:
161.365. (1) Whenever the court has reason to doubt the
defendant's fitness to proceed by reason of incapacity as defined
in ORS 161.360, the court may call to its assistance in reaching
its decision any witness and may appoint a psychiatrist or
psychologist to examine the defendant and advise the court.
(2) If the court determines the assistance of a psychiatrist or
psychologist would be helpful, the court may order the defendant
to be committed to a state mental hospital designated by the
Mental Health and Developmental Disability Services Division for
the purpose of an examination for a period not exceeding 30 days.
The report of each examination shall include, but is not
necessarily limited to, the following:
(a) A description of the nature of the examination;
(b) A statement of the mental condition of the defendant; and
(c) If the defendant suffers from a mental disease or defect,
an opinion as to whether the defendant is incapacitated within
the definition set out in ORS 161.360.
(3) Except where the defendant and the court both request to
the contrary, the report shall not contain any findings or
conclusions as to whether the defendant as a result of mental
disease or defect was subject to the provisions of ORS 161.295 or
161.300 at the time of the criminal act charged.
Enrolled Senate Bill 145 (SB 145-B) Page 69
(4) If the examination by the psychiatrist or psychologist
cannot be conducted by reason of the unwillingness of the
defendant to participate therein, the report shall so state and
shall include, if possible, an opinion as to whether such
unwillingness of the defendant was the result of mental disease
or defect affecting capacity to proceed.
(5) The report of the examination shall be filed in triplicate
with the clerk of the court, who shall cause copies to be
delivered to the district attorney and to counsel for defendant.
(6) When upon motion of the court or { - indigent - } { + a
financially eligible + } defendant, the court has ordered a
psychiatric or psychological examination of the
{ - indigent - } defendant, a { + county or + } justice court
shall order the county to pay, and a circuit court shall order
the { - State Court Administrator - } { + public defense
services executive director + } to pay from funds available for
the purpose:
(a) A reasonable fee if the examination of the defendant is
conducted by a psychiatrist or psychologist in private practice;
and
(b) All costs including transportation of the defendant if the
examination is conducted by a psychiatrist or psychologist in the
employ of the Mental Health and Developmental Disability Services
Division or a community mental health and developmental
disabilities program established under ORS 430.610 to 430.670.
(7) When such an examination is ordered at the request or with
the acquiescence of a defendant who is determined not to be
{ - indigent - } { + financially eligible + }, the
examination shall be performed at the defendant's expense. When
such an examination is ordered at the request of the prosecution,
the county shall pay for the expense of the examination.
SECTION 91. ORS 419A.170 is amended to read:
419A.170. (1) In every case involving an abused or neglected
child that results in a judicial proceeding in juvenile court,
the court shall appoint a court appointed special advocate. The
court appointed special advocate shall be deemed a party in these
proceedings, and in the furtherance thereof, may be represented
by counsel, file pleadings and request hearings and may subpoena,
examine and cross-examine witnesses. If the court appointed
special advocate is represented by counsel, counsel shall be paid
from funds available to the Court Appointed Special Advocate
Volunteer Program. No funds from the { - State Indigent - }
{ + Public + } Defense { - Fund - } { + Services Account + }
or Judicial Department operating funds shall be used for this
purpose.
(2) Subject to the direction of the court, the duties of the
court appointed special advocate shall be to:
(a) Investigate all relevant information about the case;
(b) Advocate for the child, ensuring that all relevant facts
are brought before the court;
(c) Facilitate and negotiate to ensure that the court, State
Office for Services to Children and Families, if applicable, and
the child's attorney, if any, fulfill their obligations to the
child in a timely fashion; and
(d) Monitor all court orders to ensure compliance and to bring
to the court's attention any change in circumstances that may
require a modification of the court's order.
(3) If a juvenile court does not have available to it a CASA
Volunteer Program, or a sufficient number of qualified CASA
volunteers, the court may, in fulfillment of the requirements of
Enrolled Senate Bill 145 (SB 145-B) Page 70
this section, appoint a juvenile department employee or other
suitable person to represent the child's interest in court
pursuant to ORS 419A.012 or 419B.195.
(4) Any person appointed as a court appointed special advocate
in any judicial proceeding on behalf of the child shall be immune
from any liability for defamation or statements made in good
faith by that person, orally or in writing, in the course of the
case review or judicial proceeding.
(5) Any person appointed as a court appointed special advocate,
CASA Volunteer Program director, CASA Volunteer Program employee
or member of the board of directors or trustees of any CASA
Volunteer Program shall be immune from any liability for acts or
omissions or errors in judgment made in good faith in the course
or scope of that person's duties or employment as part of a CASA
Volunteer Program.
(6) Whenever the court appoints a court appointed special
advocate or other person under subsections (1) to (3) of this
section to represent the child, it may require a parent, if able,
or guardian of the estate, if the estate is able, to pay, in
whole or in part, the reasonable costs of CASA services including
reasonable attorney fees. The court's order of payment shall be
enforceable in the same manner as an order of support under ORS
419B.408.
(7) Upon presentation of the order of appointment by the court
appointed special advocate, any agency, hospital, school
organization, division, office or department of the state,
doctor, nurse or other health care provider, psychologist,
psychiatrist, police department or mental health clinic shall
permit the court appointed special advocate to inspect and copy
any records relating to the child or children involved in the
case, without the consent of the child or children or parents.
(8) All records and information acquired or reviewed by a court
appointed special advocate during the course of official duties
shall be deemed confidential under ORS 419A.255.
(9) For the purposes of a Child Abuse Prevention and Treatment
Act (42 U.S.C. 5101 et seq.) grant to this state under Public Law
No. 93-247, or any related state or federal legislation, a court
appointed special advocate or other person appointed pursuant to
subsections (1) to (3) of this section shall be deemed a guardian
ad litem to represent the interests of the minor in proceedings
before the court. Any provisions of this section and ORS 419B.035
and 419B.045 that shall cause this state to lose federal funding
shall be considered null and void.
(10) There is created a Court Appointed Special Advocate (CASA)
Fund in the General Fund. The fund shall consist of all moneys
credited thereto. Moneys appropriated to the Court Appointed
Special Advocate Fund by this section and ORS 419B.035 and
419B.045 may be used only to carry out the purposes of this
section. The State Commission on Children and Families may apply
for and receive funds from federal and private sources for
carrying out the provisions of this section and ORS 419B.035 and
419B.045.
(11) The state commission may expend moneys from the Court
Appointed Special Advocate Fund directly or indirectly through
contracts or grants for the creation, supervision and operation
of CASA Volunteer Programs statewide in accordance with the
provisions of ORS 419A.044 to 419A.048. The commission may also
expend moneys from the Court Appointed Special Advocate Fund to
pay the reasonable costs of its administration of the Court
Appointed Special Advocate Fund. The commission shall adopt rules
Enrolled Senate Bill 145 (SB 145-B) Page 71
for carrying out its responsibilities under this section and ORS
419B.035 and 419B.045.
SECTION 92. ORS 420A.206 is amended to read:
420A.206. (1)(a) If, after the hearing required by ORS
420A.203, the court determines that conditional release is the
appropriate disposition, the court shall direct the Department of
Corrections to prepare a proposed release plan. The Department of
Corrections shall submit the release plan no later than 45 days
after completion of the hearing. The Department of Corrections
shall incorporate any conditions recommended by the court and
shall consider any recommendations made by the Oregon Youth
Authority. The release plan submitted to the court must include:
(A) A description of support services and program opportunities
available to the person;
(B) The recommended conditions of the release and supervision;
(C) The level of supervision required;
(D) Conditions or requirements that provide for the safety of
the victim, the victim's family and the community;
(E) For persons whose sentences include a requirement to make
restitution or to pay compensatory fines or attorney fees and who
have not yet made full payment, a payment schedule;
(F) Any conditions reasonably necessary to further the reform
and rehabilitation of the person and to ensure compliance with
the other conditions imposed; and
(G) Any special conditions necessary because of the person's
individual circumstances.
(b) If the court does not approve the proposed release plan,
the court shall return the plan to the Department of Corrections
with recommended modifications and additions. The Department of
Corrections shall submit a revised plan to the court no later
than 15 days after receipt of the court's recommended
modifications and additions.
(c) If the court does not approve the revised plan, the court
shall make any changes that the court deems appropriate and
prepare the final release plan. The final release plan must
require, in addition to any other conditions, that the person:
(A) Comply with the conditions of post-release supervision;
(B) Be under the supervision of the Department of Corrections
and its representatives and follow the direction and counsel of
the Department of Corrections and its representatives;
(C) Answer all reasonable inquiries of the court or the
supervisory authority of the Department of Corrections;
(D) Report to the supervision officer as directed by the court
or the supervisory authority of the Department of Corrections;
(E) Not own, possess or be in control of any dangerous weapon
or deadly weapon, as those terms are defined in ORS 161.015, or
any dangerous animal;
(F) Respect and obey all municipal, county, state and federal
laws;
(G) Participate in a victim impact treatment program; and
(H) Pay any restitution, compensatory fine or attorney fees
ordered and regularly perform any community service ordered.
(2) When the court has approved a final release plan, the court
shall enter an order conditionally releasing the person. The
order of conditional release shall:
(a) State the conditions of release;
(b) Require the person to comply fully with all of the
conditions of release;
(c) Confirm that the person has been given a copy of the
conditions of release;
Enrolled Senate Bill 145 (SB 145-B) Page 72
(d) Continue the person's commitment to the legal custody of
the Department of Corrections;
(e) Provide that the Department of Corrections or its designee
shall supervise the person;
(f) Provide that the period of supervision is the entire
remainder of the sentence of imprisonment imposed, taking into
account any reduction in the sentence under ORS 421.121 or any
other statute, unless the conditional release is revoked or
suspended; and
(g) Require that the Department of Corrections or its designee
submit a report to the court no later than 90 days after the
person is conditionally released and at least every 180 days
thereafter informing the court of the person's circumstances and
progress on conditional release.
(3)(a) A person conditionally released under this section
remains within the jurisdiction of the sentencing court for the
period of the conditional release.
(b) At any time after the entry of an order of conditional
release, the court, on its own motion or on motion of the
Department of Corrections, may amend the conditional release
order to modify the conditions of the person's release and
supervision, providing that the modifications are consistent with
the requirements for conditions of release in subsections (1) and
(2) of this section. Before entering an amended order under this
paragraph, the court shall provide the Department of Corrections
and the person with a reasonable amount of time to comment on the
proposed modifications. The court shall serve the Department of
Corrections and the person with a copy of the amended order at
least 15 days before the order takes effect.
(c) The Department of Corrections and the supervisory authority
may adjust the level of the person's supervision as is
appropriate to the person's progress and conduct in the
community.
(4)(a) If an officer of the Department of Corrections or the
supervisory authority or a law enforcement officer has reasonable
grounds to believe that a person released under this section has
violated a condition of the release, the officer may take the
person into custody and detain the person pending a hearing on
the alleged violation as provided in paragraph (c) of this
subsection. No later than 24 hours after a person is taken into
custody under this subsection, the Department of Corrections or
the supervisory authority shall file a notice and affidavit with
the court as provided in paragraph (b) of this subsection and
serve a copy of the notice and affidavit on the person.
(b) When a notice and affidavit is filed under paragraph (a) of
this subsection and if the court finds that the notice and
affidavit state reasonable grounds to believe the person has
violated a condition of the release, the court shall issue an
order that the person appear and show cause why the conditional
release should not be revoked or suspended as a sanction for the
alleged violation. When a court issues an order under this
paragraph, the court shall:
(A) Serve a copy of the order to show cause on the person and
the district attorney; and
(B) Provide the person with written notice containing the
following information:
(i) The time, place and purpose of the hearing;
(ii) That the person has the right to have adverse witnesses
present at the hearing for purpose of confrontation and
Enrolled Senate Bill 145 (SB 145-B) Page 73
cross-examination unless the court determines that good cause
exists for not permitting confrontation;
(iii) That the person has the right to subpoena witnesses and
present documentary evidence and testimony of witnesses;
(iv) That the person has the right to be represented by counsel
and, if { - indigent - } { + financially eligible + }, to
have counsel appointed at state expense as provided in paragraph
(d) of this subsection; and
(v) The possible sanction authorized if the court determines
that the person has violated the conditions of release.
(c) The court shall hold the hearing no more than 15 days after
issuing the order to appear and show cause. The court may order
the person to be detained pending the hearing and disposition.
(d) In a hearing under this subsection:
(A) The person has the right to be represented by counsel and,
if { - indigent - } { + financially eligible + }, to have
counsel appointed at state expense if the court determines, after
request, that the request is based on a timely and colorable
claim that:
(i) The person has not committed the alleged violation of the
release conditions;
(ii) Even if the violation is a matter of public record or is
uncontested, there are substantial reasons that justify or
mitigate the violation and make revocation inappropriate and the
reasons are complex or otherwise difficult to develop or present;
or
(iii) The person, in doubtful cases, appears to be incapable of
speaking effectively on the person's own behalf;
(B) The Department of Corrections or the supervisory authority
has the burden of proving the alleged violation by a
preponderance of the evidence;
(C) The state is a party and is represented by the district
attorney;
(D) The standards for the introduction and admissibility of
evidence in contested case hearings under ORS 183.450 (1) and (2)
apply in the hearing;
(E) If the court finds that the person has violated the
conditions of release and that subsection (5) of this section
does not apply, the person has the burden of establishing good
cause why the conditional release should not be revoked or
suspended; and
(F) At the conclusion of the hearing, the court shall enter an
order containing findings of fact and, if the court finds that
the person violated a condition of release, stating what
sanctions are imposed.
(e) Except as provided in subsection (5) of this section, when
the court finds that the person has violated a condition of
release, the court shall impose one or more of the following
sanctions:
(A) Adjustments to the level of supervision;
(B) Modifications of the conditions of release;
(C) Any appropriate available local sanctions including, but
not limited to, community service work, house arrest, electronic
surveillance, restitution centers, work release centers or day
centers;
(D) Suspension of conditional release for up to 180 days; or
(E) Revocation of conditional release.
(5) At the conclusion of the hearing, the court shall revoke
the person's conditional release and order the person committed
to the physical custody of the Department of Corrections to be
Enrolled Senate Bill 145 (SB 145-B) Page 74
confined for the entire remainder of the sentence of imprisonment
imposed, taking into account any reduction in the sentence under
ORS 421.121 or any other statute, if the court finds that:
(a) The person has been convicted of a new criminal offense;
(b) The person has violated the condition prohibiting
ownership, possession or control of a dangerous weapon or deadly
weapon, as those terms are defined in ORS 161.015, or a dangerous
animal; or
(c) The person's conditional release has been suspended twice
under this section within the past 18 months.
(6)(a) The state, the Department of Corrections or the person
may appeal from an order of conditional release under this
section. The appellate court's review is limited to claims that
the court failed to comply with the requirements of law in
ordering the conditional release.
(b) The state, the Department of Corrections or the person may
appeal from an order of the court entered under subsection (4) or
(5) of this section. The appellate court's review is limited to
claims that:
(A) The disposition is not authorized under this section;
(B) The court failed to comply with the requirements of law;
and
(C) The finding of the court that the person did or did not
violate a condition of release is not supported by substantial
evidence in the record.
SECTION 93. ORS 137.595 is amended to read:
137.595. (1) The Department of Corrections shall adopt rules to
carry out the purposes of chapter 680, Oregon Laws 1993, by
establishing a system of structured, intermediate probation
violation sanctions that may be imposed by the Department of
Corrections or a county community corrections agency, taking into
consideration the severity of the violation behavior, the prior
violation history, the severity of the underlying criminal
conviction, the criminal history of the offender, protection of
the community, deterrence, the effective capacity of the state
prisons and the availability of appropriate local sanctions
including, but not limited to, jail, community service work,
house arrest, electronic surveillance, restitution centers, work
release centers, day reporting centers or other local sanctions.
(2) Rules adopted by the Department of Corrections under this
section shall establish:
(a) A system of structured, intermediate probation violation
sanctions that may be imposed by the Department of Corrections or
a county community corrections agency on a probationer who waives
in writing a probation violation hearing, admits or affirmatively
chooses not to contest the violations alleged in a probation
violation report and consents to the sanctions;
(b) Procedures to provide a probationer with written notice of
the probationer's right to a hearing before the court to
determine whether the probationer violated the conditions of
probation alleged in a probation violation report, and if so,
whether to continue the probationer on probation subject to the
same or modified conditions, or order sanctions for any
violations and the right to be represented by counsel at the
hearing if the probationer is { - indigent - } { +
financially eligible + };
(c) Procedures for a probationer to waive in writing a
probation violation hearing, admit or not contest the violations
alleged in the probation violation report and consent to the
imposition of structured, intermediate sanctions by the
Enrolled Senate Bill 145 (SB 145-B) Page 75
Department of Corrections or a county community corrections
agency;
(d) The level and type of sanctions that may be imposed by
probation officers and by supervisory personnel;
(e) The level and type of violation behavior warranting a
recommendation to the court that probation be revoked;
(f) Procedures for notifying district attorneys and the courts
of probation violations admitted by probationers and the
sanctions imposed by the Department of Corrections or county
community corrections agencies; and
(g) Such other policies or procedures as are necessary to carry
out the purposes of chapter 680, Oregon Laws 1993.
(3) Jail confinement imposed as a custodial sanction by the
Department of Corrections or a county community corrections
agency pursuant to rules adopted under this section shall not
exceed 60 days per violation report. The total number of days of
jail confinement for all violation reports per conviction shall
not exceed the maximum number of available jail custody units
under rules adopted by the Oregon Criminal Justice Commission.
(4) Nonjail confinement imposed as a custodial sanction by the
Department of Corrections or a county community corrections
agency pursuant to rules adopted under this section shall not
exceed the maximum number of available nonjail custody units
under rules adopted by the Oregon Criminal Justice Commission.
SECTION 94. ORS 417.839 is amended to read:
417.839. The authority of Deschutes County under ORS 417.830
(1) is subject to the following limitations:
(1) Unless specifically authorized by the Superintendent of
Public Instruction, Deschutes County shall not assume
responsibility for any services provided or obtained by the
Department of Education.
(2) Unless specifically authorized by the State Court
Administrator, Deschutes County shall not assume responsibility
for any services provided or obtained by the Judicial Department
or any court, division or agency within the Judicial Department.
{ - The State Court Administrator shall not delegate authority
to execute contracts for indigent defense services to anyone
other than a Judicial Department officer or employee. - }
SECTION 95. ORS 419A.098 is amended to read:
419A.098. The Chief Justice, in consultation with the Supreme
Court, shall adopt rules under ORS 1.002 that may include any
procedures for the administration of the local citizen review
board program regarding:
(1) Removal of members of local citizen review boards;
(2) The time, content and manner in which case plans and case
progress reports shall be provided by the State Office for
Services to Children and Families or other agency or individual
directly responsible for the care of the child to the local
citizen review board. These rules may require that such
information be provided in shorter time periods than those
contained in ORS 419B.443, and that information in addition to
that specified by ORS 419B.443 be provided;
(3) Procedures for providing written notice of the review to
the office, any other agency directly responsible for the care or
placement of the child, the parents or their attorneys, foster
parents, surrogate parents, mature children or their attorneys,
the { - court-appointed - } { + appointed + } attorney or
court appointed special advocate of any child, any district
attorney or attorney general actively involved in the case and
other interested persons. The notice shall include advice that
Enrolled Senate Bill 145 (SB 145-B) Page 76
persons receiving a notice may participate in the hearing and be
accompanied by a representative;
(4) Procedures for securing or excusing the presence at the
review of caseworkers and other employees of the office or other
agencies directly responsible for the care of the child;
(5) Procedures by which boards can remove cases from review
when such review is not required under federal law;
(6) Grounds for removal of members;
(7) Terms of board members; and
(8) Organization of individual boards.
SECTION 96. ORS 137.463 is amended to read:
137.463. (1) When a sentence of death is pronounced, the clerk
of the court shall deliver a copy of the judgment of conviction
and sentence of death to the sheriff of the county. The sheriff
shall deliver the defendant within 20 days from the date the
judgment is entered to the correctional institution designated by
the Director of the Department of Corrections pending the
determination of the automatic and direct review by the Supreme
Court under ORS 138.012.
(2) If the Supreme Court affirms the sentence of death, a death
warrant hearing shall take place in the court in which the
judgment was rendered within 30 days after the effective date of
the appellate judgment or, upon motion of the state, on a later
date. The following apply to a death warrant hearing under this
subsection:
(a) The defendant must be present; and
(b) The defendant may be represented by counsel. If the
defendant was represented by appointed counsel on automatic and
direct review, that counsel's appointment continues for purposes
of the death warrant hearing and any related matters. If that
counsel is unavailable, the court shall appoint counsel pursuant
to the procedure in ORS 135.050 and 135.055.
(3)(a) If the defendant indicates the wish to waive the right
to counsel for the purpose of the death warrant hearing, the
court shall inquire of the defendant on the record to ensure that
the waiver is competent, knowing and voluntary.
(b) If the court finds that the waiver is competent, knowing
and voluntary, the court shall discharge counsel.
(c) If the court finds on the record that the waiver of the
right to counsel granted by this section is not competent,
knowing or voluntary, the court shall continue the appointment of
counsel.
(d) Notwithstanding the fact that the court finds on the record
that the defendant competently, knowingly and voluntarily waives
the right to counsel, the court may continue the appointment of
counsel as advisor only for the purposes of the death warrant
hearing.
(4) At the death warrant hearing, the court:
(a) After appropriate inquiry, shall make findings on the
record whether the defendant suffers from a mental condition that
prevents the defendant from comprehending the reasons for the
death sentence or its implication. The defendant has the burden
of proving by a preponderance of the evidence that the defendant
suffers from a mental condition that prevents the defendant from
comprehending the reasons for the death sentence or its
implication.
(b) Shall advise the defendant that the defendant is entitled
to counsel in any post-conviction proceeding and that counsel
will be appointed if the defendant is { - indigent - }
Enrolled Senate Bill 145 (SB 145-B) Page 77
{ + financially eligible for appointed counsel at state
expense + }.
(c) Shall determine whether the defendant intends to pursue any
challenges to the sentence or conviction. If the defendant states
on the record that the defendant does not intend to challenge the
sentence or conviction, the court after advising the defendant of
the consequences shall make a finding on the record whether the
defendant competently, knowingly and voluntarily waives the right
to pursue:
(A) A petition for certiorari to the United States Supreme
Court;
(B) Post-conviction relief under ORS 138.510 to 138.680; and
(C) Federal habeas corpus review under 28 U.S.C. 2254.
(5) Following the death warrant hearing, a death warrant,
signed by the trial judge of the court in which the judgment was
rendered and attested by the clerk of that court, shall be drawn
and delivered to the superintendent of the correctional
institution designated by the Director of the Department of
Corrections. The death warrant shall specify a day on which the
sentence of death is to be executed and shall authorize and
command the superintendent to execute the judgment of the court.
The trial court shall specify the date of execution of the
sentence, taking into consideration the needs of the Department
of Corrections. The trial court shall specify a date not less
than 90 days nor more than 120 days following the effective date
of the appellate judgment.
(6)(a) Notwithstanding any other provision in this section, if
the court finds that the defendant suffers from a mental
condition that prevents the defendant from comprehending the
reasons for the sentence of death or its implications, the court
may not issue a death warrant until such time as the court, after
appropriate inquiries, finds that the defendant is able to
comprehend the reasons for the sentence of death and its
implications.
(b)(A) If the court does not issue a death warrant because it
finds that the defendant suffers from a mental condition that
prevents the defendant from comprehending the reasons for the
sentence of death or its implications, the court shall conduct
subsequent hearings on the issue on motion of the district
attorney or the defendant's counsel or on the court's own motion,
upon a showing that there is substantial reason to believe that
the defendant's condition has changed.
(B) The court may hold a hearing under this paragraph no more
frequently than once every six months.
(C) The state and the defendant may obtain an independent
medical, psychiatric or psychological examination of the
defendant in connection with a hearing under this paragraph.
(D) In a hearing under this paragraph, the defendant has the
burden of proving by a preponderance of the evidence that the
defendant continues to suffer from a mental condition that
prevents the defendant from comprehending the reasons for the
sentence of death or its implications.
(7) If for any reason a sentence of death is not executed on
the date appointed in the death warrant, and the sentence of
death remains in force and is not stayed under ORS 138.686 or
otherwise by a court of competent jurisdiction, the court that
issued the initial death warrant, on motion of the state and
without further hearing, shall issue a new death warrant
specifying a new date on which the sentence is to be executed.
The court shall specify a date for execution of the sentence,
Enrolled Senate Bill 145 (SB 145-B) Page 78
taking into consideration the needs of the Department of
Corrections. The court shall specify a date not more than 20 days
after the date on which the state's motion was filed.
(8) No appeal may be taken from an order issued pursuant to
this section.
SECTION 97. ORS 137.769 is amended to read:
137.769. (1) When a defendant is examined under ORS 137.767,
the defendant may retain a psychiatrist, psychologist or other
expert to perform an examination on the defendant's behalf. A
psychiatrist, psychologist or other expert retained by the
defendant must be provided reasonable access to:
(a) The defendant for the purpose of the examination; and
(b) All relevant medical and psychological records and reports.
(2) If the defendant is { - indigent - } { + financially
eligible for appointed counsel at state expense + }, the
defendant may request approval and preauthorization of the
payment of the expenses of a psychiatrist, psychologist or other
expert as provided in ORS 135.055 (3).
SECTION 98. ORS 137.771 is amended to read:
137.771. (1) No sooner than 10 years after a person sentenced
under ORS 137.765 is released to post-prison supervision, the
person may petition the sentencing court for a resentencing
hearing requesting that the judgment be modified to terminate
post-prison supervision. The district attorney of the county must
be named and served as a respondent in the petition. The district
attorney may file a response either in support of or in
opposition to the petition.
(2) Upon filing the petition, the court may order an
examination as provided in ORS 137.767. If the court orders an
examination and the petitioner is { - indigent - } { +
financially eligible for appointed counsel at state expense + },
the court may appoint counsel for the petitioner, as provided in
ORS 135.050, if the court determines that there are substantial
or complex issues involved and the petitioner appears incapable
of self-representation.
(3) The court shall review the petition and may hold a hearing
on the petition. However, if the state opposes the petition, the
court shall hold a hearing on the petition. In determining
whether to amend the judgment, the court shall consider:
(a) The nature of the crime for which the petitioner was
sentenced to lifetime post-prison supervision;
(b) The degree of violence involved in the crime;
(c) The age of the victim;
(d) The petitioner's prior history of sexual assault;
(e) Whether the petitioner continues to have psychopathic
personality features or sexually deviant arousal patterns or
interests;
(f) Other criminal and relevant noncriminal behavior of the
petitioner before and after conviction;
(g) The period of time during which the petitioner has not
reoffended;
(h) Whether the petitioner has successfully completed a
court-approved sex offender treatment program; and
(i) Any other relevant factors.
(4) If the court finds by clear and convincing evidence that
the petitioner does not present a substantial probability of
committing a crime listed in ORS 137.765 (3), the court shall
amend the judgment and impose a lesser sentence.
Enrolled Senate Bill 145 (SB 145-B) Page 79
(5) The sentencing court retains authority to modify its
judgment and sentence to reflect the results of a resentencing
hearing ordered under this section.
(6) Not less than five years after the denial of a petition
under this section, a person sentenced under ORS 137.765 may
petition again for a resentencing hearing under subsections (1)
to (5) of this section.
SECTION 99. ORS 420A.203 is amended to read:
420A.203. (1)(a) This section and ORS 420A.206 apply only to
persons who were under 18 years of age at the time of the
commission of the offense for which the persons were sentenced to
a term of imprisonment, who committed the offense on or after
June 30, 1995, and who were:
(A) Sentenced to a term of imprisonment of at least 24 months
following waiver under ORS 419C.349, 419C.352, 419C.364 or
419C.370; or
(B) Sentenced to a term of imprisonment of at least 24 months
under ORS 137.707 (5)(b)(A) or (7)(b).
(b) When a person described in paragraph (a) of this subsection
has served one-half of the sentence imposed, the sentencing court
shall determine what further commitment or disposition is
appropriate as provided in this section. As used in this
subsection and subsection (2) of this section, 'sentence imposed'
means the total period of mandatory incarceration imposed for all
convictions resulting from a single prosecution or criminal
proceeding not including any reduction in the sentence under ORS
421.121 or any other statute.
(2)(a) No more than 120 days and not less than 60 days before
the date on which a person has served one-half of the sentence
imposed, the Oregon Youth Authority or the Department of
Corrections, whichever has physical custody of the person, shall
file in the sentencing court a notice and request that the court
set a time and place for the hearing required under this section.
The youth authority or department shall serve the person with a
copy of the notice and request for hearing on or before the date
of filing.
(b) Upon receiving the notice and request for a hearing under
paragraph (a) of this subsection, the sentencing court shall
schedule a hearing for a date not more than 30 days after the
date on which the person will have served one-half of the
sentence imposed or such later date as is agreed upon by the
parties.
(c) The court shall notify the following of the time and place
of the hearing:
(A) The person and the person's parents;
(B) The records supervisor of the correctional institution in
which the person is incarcerated; and
(C) The district attorney who prosecuted the case.
(d) The court shall make reasonable efforts to notify the
following of the time and place of the hearing:
(A) The victim and the victim's parents or legal guardian; and
(B) Any other person who has filed a written request with the
court to be notified of any hearing concerning the transfer,
discharge or release of the person.
(3) In a hearing under this section:
(a) The person and the state are parties to the proceeding.
(b) The person has the right to appear with counsel. If the
person requests that the court appoint counsel and the court
determines that the person { - meets the eligibility standards
of ORS 135.050 - } { + is financially eligible for appointed
Enrolled Senate Bill 145 (SB 145-B) Page 80
counsel at state expense + }, the court shall order that counsel
be appointed.
(c) The district attorney represents the state.
(d) The court shall determine admissibility of evidence as if
the hearing were a sentencing proceeding.
(e) The court may consider, when relevant, written reports of
the Oregon Youth Authority, the Department of Corrections and
qualified experts, in addition to the testimony of witnesses.
Within a reasonable time before the hearing, as determined by the
court, the person must be given the opportunity to examine all
reports and other documents concerning the person that the state,
the Oregon Youth Authority or the Department of Corrections
intends to submit for consideration by the court at the hearing.
(f) Except as otherwise provided by law or by order of the
court based on good cause, the person must be given access to the
records maintained in the person's case by the Oregon Youth
Authority and the Department of Corrections.
(g) The person may examine all of the witnesses called by the
state, may subpoena and call witnesses to testify on the person's
behalf and may present evidence and argument. The court may
permit witnesses to appear by telephone or other two-way
electronic communication device.
(h) The hearing must be recorded.
(i) The hearing and the record of the hearing are open to the
public.
(j) The question to be decided is which of the dispositions
provided in subsection (4) of this section should be ordered in
the case.
(k) The person has the burden of proving by clear and
convincing evidence that the person has been rehabilitated and
reformed, and if conditionally released, the person would not be
a threat to the safety of the victim, the victim's family or the
community and that the person would comply with the release
conditions.
(4)(a) At the conclusion of the hearing and after considering
and making findings regarding each of the factors in paragraph
(b) of this subsection, the court shall order one of the
following dispositions:
(A) Order that the person serve the entire remainder of the
sentence of imprisonment imposed, taking into account any
reduction in the sentence under ORS 421.121 or any other statute,
with the person's physical custody determined under ORS 137.124,
420.011 and 420A.200.
(B) Order that the person be conditionally released under ORS
420A.206 at such time as the court may order, if the court finds
that the person:
(i) Has been rehabilitated and reformed;
(ii) Is not a threat to the safety of the victim, the victim's
family or the community; and
(iii) Will comply with the conditions of release.
(b) In making the determination under this section, the court
shall consider:
(A) The experiences and character of the person before and
after commitment to the Oregon Youth Authority or the Department
of Corrections;
(B) The person's juvenile and criminal records;
(C) The person's mental, emotional and physical health;
(D) The gravity of the loss, damage or injury caused or
attempted, during or as part of the criminal act for which the
person was convicted and sentenced;
Enrolled Senate Bill 145 (SB 145-B) Page 81
(E) The manner in which the person committed the criminal act
for which the person was convicted and sentenced;
(F) The person's efforts, participation and progress in
rehabilitation programs since the person's conviction;
(G) The results of any mental health or substance abuse
treatment;
(H) Whether the person demonstrates accountability and
responsibility for past and future conduct;
(I) Whether the person has made and will continue to make
restitution to the victim and the community;
(J) Whether the person will comply with and benefit from all
conditions that will be imposed if the person is conditionally
released;
(K) The safety of the victim, the victim's family and the
community;
(L) The recommendations of the district attorney, the Oregon
Youth Authority and the Department of Corrections; and
(M) Any other relevant factors or circumstances raised by the
state, the Oregon Youth Authority, the Department of Corrections
or the person.
(5) The court shall provide copies of its disposition order
under subsection (4) of this section to the parties, to the
records supervisor of the correctional institution in which the
person is incarcerated and to the manager of the
institution-based records office of the Department of
Corrections.
(6) The person or the state may appeal an order entered under
this section. On appeal, the appellate court's review is limited
to claims that:
(a) The disposition is not authorized under this section;
(b) The court failed to comply with the requirements of this
section in imposing the disposition; or
(c) The findings of the court are not supported by substantial
evidence in the record.
SECTION 100. ORS 1.851 is amended to read:
1.851. (1) The presiding judge of each judicial district shall
establish a local criminal justice advisory council, unless one
already exists, in each county in the judicial district.
Membership of the council shall include, but is not limited to,
representatives of the following:
(a) The presiding judge;
(b) The district attorney;
(c) The local correctional administrator;
(d) { - Indigent - } { + Public + } defense service
providers;
(e) The county bar association;
(f) Local law enforcement; and
(g) State law enforcement.
(2) In addition to the persons listed in subsection (1) of this
section, the judge may invite the participation of any other
persons involved in the criminal justice system whose
participation would be of benefit.
(3) The local criminal justice advisory council shall meet
regularly to consider and address methods of coordinating court,
{ - indigent - } { + public + } defense and related services
and resources in the most efficient and cost-effective manner
that complies with the constitutional and statutory mandates and
responsibilities of all participants.
Enrolled Senate Bill 145 (SB 145-B) Page 82
(4) To assist the council in these efforts, council
participants shall provide the council with proposed budget
information and caseload and workload projections.
SECTION 101. ORS 107.425 is amended to read:
107.425. (1) In suits or proceedings described in subsection
(2) of this section in which there are minor children involved,
the court may cause an investigation to be made as to the
character, family relations, past conduct, earning ability and
financial worth of the parties for the purpose of protecting the
children's future interest. The court may defer the entry of a
final judgment until the court is satisfied that its judgment in
such suit or proceeding will properly protect the welfare of such
children. The investigative findings shall be offered as and
subject to all rules of evidence. Costs of the investigation may
be charged against one or more of the parties or as a cost in the
proceedings but shall not be charged against funds appropriated
for { - indigent - } { + public + } defense services.
(2) The provisions of subsection (1) of this section apply
when:
(a) A person files a domestic relations suit, as defined in ORS
107.510;
(b) A motion to modify an existing decree in a domestic
relations suit is before the court;
(c) A parent of a child born out of wedlock initiates a civil
proceeding to determine custody or support under ORS 109.103;
(d) A person petitions or files a motion for intervention under
ORS 109.119;
(e) A child's grandparent petitions for visitation rights under
ORS 109.121;
(f) A person or state agency files a petition under ORS 109.125
to establish paternity and paternity is established; or
(g) A habeas corpus proceeding is before the court.
(3) The court, on its own motion or on the motion of a party,
may order an independent physical, psychological, psychiatric or
mental health examination of a party or the children and may
require any party and the children to appear and to testify as
witnesses during this investigation and to be interviewed,
evaluated and tested by an expert. The court may also authorize
the expert to interview other persons and to request other
persons to make available to the expert records deemed by the
court or the expert to be relevant to the evaluation. The court
may order the parties to authorize the disclosure of such
records. In the event the parties are unable to stipulate to the
selection of the psychologist, psychiatrist or registered
clinical social worker to conduct the investigation, the court
shall choose such expert from a list of three submitted to the
court by each party with a statement of the experts'
qualifications and fees for the investigation. The court shall
direct one or more of the parties to pay for the investigation in
the absence of an agreement between the parties as to the
responsibility for payment but shall not direct that the expenses
be charged against funds appropriated for { - indigent - }
{ + public + } defense services. If more than one party is
directed to pay, the court may determine the amount that each
party will pay based on financial ability.
(4) The court, on its own motion or the motion of a party, may
appoint counsel for the children. However, if requested to do so
by one or more of the children, the court shall appoint counsel
for the child or children. A reasonable fee for an attorney so
appointed may be charged against one or more of the parties or as
Enrolled Senate Bill 145 (SB 145-B) Page 83
a cost in the proceedings but shall not be charged against funds
appropriated for { - indigent - } { + public + } defense
services.
(5) Prior to the entry of an order, the court on its own motion
or upon the motion of a party may take testimony from or confer
with the child or children of the marriage and may exclude from
the conference the parents and other persons if the court finds
that such action would be likely to be in the best interests of
the child or children. However, the court shall permit an
attorney for each party to attend the conference and question the
child, and the conference shall be reported.
SECTION 101a. { + If Senate Bill 167 becomes law, section 101
of this 2001 Act (amending ORS 107.425) is repealed and ORS
107.425, as amended by section 1, chapter ___, Oregon Laws 2001
(Enrolled Senate Bill 167), is amended to read: + }
107.425. (1) In suits or proceedings described in subsection
(4) of this section in which there are minor children involved,
the court may cause an investigation to be made as to the
character, family relations, past conduct, earning ability and
financial worth of the parties for the purpose of protecting the
children's future interest. The court may defer the entry of a
final judgment until the court is satisfied that its judgment in
such suit or proceeding will properly protect the welfare of such
children. The investigative findings shall be offered as and
subject to all rules of evidence. Costs of the investigation may
be charged against one or more of the parties or as a cost in the
proceedings but shall not be charged against funds appropriated
for { - indigent - } { + public + } defense services.
(2) The court, on its own motion or on the motion of a party,
may order an independent physical, psychological, psychiatric or
mental health examination of a party or the children and may
require any party and the children to be interviewed, evaluated
and tested by an expert or panel of experts. The court may also
authorize the expert or panel of experts to interview other
persons and to request other persons to make available to the
expert or panel of experts records deemed by the court or the
expert or panel of experts to be relevant to the evaluation. The
court may order the parties to authorize the disclosure of such
records. In the event the parties are unable to stipulate to the
selection of an expert or panel of experts to conduct the
examination or evaluation, the court shall appoint a qualified
expert or panel of experts. The court shall direct one or more of
the parties to pay for the examination or evaluation in the
absence of an agreement between the parties as to the
responsibility for payment but shall not direct that the expenses
be charged against funds appropriated for { - indigent - }
{ + public + } defense services. If more than one party is
directed to pay, the court may determine the amount that each
party will pay based on financial ability.
(3)(a) In addition to an investigation, examination or
evaluation under subsections (1) and (2) of this section, the
court may appoint an individual or a panel or may designate a
program to assist the court in creating parenting plans or
resolving disputes regarding parenting time and to assist parents
in creating and implementing parenting plans. The services
provided to the court and to parents under this section may
include:
(A) Gathering information;
(B) Monitoring compliance with court orders;
Enrolled Senate Bill 145 (SB 145-B) Page 84
(C) Providing the parents, their attorneys, if any, and the
court with recommendations for new or modified parenting time
provisions; and
(D) Providing parents with problem solving, conflict management
and parenting time coordination services or other services
approved by the court.
(b) Services provided under this section may require the
provider to possess and utilize mediation skills, but the
services are not comprised exclusively of mediation services
under ORS 107.755 to 107.785. If only mediation services are
provided, the provisions of ORS 107.755 to 107.785 apply.
(c) The court may order one or more of the parties to pay for
services provided under this subsection, if the parties are
unable to agree on their respective responsibilities for payment.
The court may not order that expenses be charged against funds
appropriated for { - indigent - } { + public + } defense
services.
(d) The presiding judge of each judicial district shall
establish qualifications for the appointment and training of
individuals and panels and the designation of programs under this
section. In establishing qualifications, a presiding judge shall
take into consideration any guidelines recommended by the
statewide family law advisory committee.
(4) The provisions of this section apply when:
(a) A person files a domestic relations suit, as defined in ORS
107.510;
(b) A motion to modify an existing decree in a domestic
relations suit is before the court;
(c) A parent of a child born out of wedlock initiates a civil
proceeding to determine custody or support under ORS 109.103;
(d) A person petitions or files a motion for intervention under
ORS 109.119;
(e) A child's grandparent petitions for visitation rights under
ORS 109.121;
(f) A person or state agency files a petition under ORS 109.125
to establish paternity and paternity is established; or
(g) A habeas corpus proceeding is before the court.
(5) Application of the provisions of subsection (1), (2) or (3)
of this section to the proceedings under subsection (4) of this
section does not prevent initiation, entry or enforcement of an
order of support.
(6) The court, on its own motion or on the motion of a party,
may appoint counsel for the children. However, if requested to do
so by one or more of the children, the court shall appoint
counsel for the child or children. A reasonable fee for an
attorney so appointed may be charged against one or more of the
parties or as a cost in the proceedings but shall not be charged
against funds appropriated for { - indigent - }
{ + public + } defense services.
(7) Prior to the entry of an order, the court on its own motion
or on the motion of a party may take testimony from or confer
with the child or children of the marriage and may exclude from
the conference the parents and other persons if the court finds
that such action would be likely to be in the best interests of
the child or children. However, the court shall permit an
attorney for each party to attend the conference and question the
child, and the conference shall be reported.
SECTION 102. ORS 109.119 is amended to read:
109.119. (1) Any person, including but not limited to a related
or nonrelated foster parent, stepparent or relative by blood or
Enrolled Senate Bill 145 (SB 145-B) Page 85
marriage who has established emotional ties creating a
child-parent relationship or an ongoing personal relationship
with a child, or any legal grandparent may petition or file a
motion for intervention with the court having jurisdiction over
the custody, placement, guardianship or wardship of that child,
or if no such proceedings are pending, may petition the court for
the county in which the minor child resides for an order
providing for relief under subsection (3) of this section.
(2) In any proceeding under this section, the court may cause
an investigation to be made under ORS 107.425.
(3)(a) If the court determines that a child-parent relationship
exists and if the court determines by a preponderance of the
evidence that custody, guardianship, right of visitation, or
other generally recognized right of a parent or person in loco
parentis, is appropriate in the case, the court shall grant such
custody, guardianship, right of visitation or other right to the
person, if to do so is in the best interest of the child. The
court may determine temporary custody of the child or temporary
visitation rights under this paragraph pending a final order.
(b) If the court determines that an ongoing personal
relationship exists and if the court determines by clear and
convincing evidence that visitation or contact rights are
appropriate in the case, the court shall grant visitation or
contact rights to the person having the ongoing personal
relationship if to do so is in the best interest of the child.
The court may order temporary visitation rights under this
paragraph pending a final order.
(4) In addition to the rights granted under subsection (1) or
(3) of this section, a stepparent with a child-parent
relationship who is a party in a dissolution proceeding may
petition the court having jurisdiction for custody or visitation
or may petition the court for the county in which the minor child
resides for adoption of the child. The stepparent may also file
for post decree modification of a decree relating to child
custody.
(5)(a) A motion for intervention filed by a person other than a
legal grandparent may be denied or a petition may be dismissed on
the motion of any party or on the court's own motion if the
petition does not state a prima facie case of emotional ties
creating a child-parent relationship or ongoing personal
relationship or does not allege facts that the intervention is in
the best interests of the child.
(b) A motion for intervention filed by a legal grandparent may
be granted upon a finding by clear and convincing evidence that
the intervention is in the best interests of the child.
(6) As used in this section:
(a) 'Child-parent relationship' means a relationship that
exists or did exist, in whole or in part, within the six months
preceding the filing of an action under this section, and in
which relationship a person having physical custody of a child or
residing in the same household as the child supplied, or
otherwise made available to the child, food, clothing, shelter
and incidental necessaries and provided the child with necessary
care, education and discipline, and which relationship continued
on a day-to-day basis, through interaction, companionship,
interplay and mutuality, that fulfilled the child's psychological
needs for a parent as well as the child's physical needs.
However, a relationship between a child and a person who is the
nonrelated foster parent of the child is not a child-parent
Enrolled Senate Bill 145 (SB 145-B) Page 86
relationship under this section unless the relationship continued
over a period exceeding 18 months.
(b) 'Legal grandparent' means the legal parent of the child's
legal parent.
(c) 'Legal parent' means a parent as defined in ORS 419A.004
whose rights have not been terminated under ORS 419B.500 to
419B.524.
(d) 'Ongoing personal relationship' means a relationship with
substantial continuity for at least one year, through
interaction, companionship, interplay and mutuality.
(7) In no event shall costs for the representation of an
intervenor under this section be charged against funds
appropriated for { - indigent - } { + public + } defense
services.
(8) In a proceeding under this section, the court may assess
against any party a reasonable attorney fee and costs for the
benefit of any other party.
SECTION 103. ORS 173.029 is amended to read:
173.029. (1) For any measure introduced in the Legislative
Assembly the effect of which is to create a new crime or increase
the period of incarceration allowed or required for an existing
crime, the Legislative Fiscal Officer, with the aid of the Oregon
Department of Administrative Services, Legislative Revenue
Officer, state agencies and affected local governmental units,
shall prepare a fiscal impact statement describing the fiscal
impact that the measure would, if enacted, have on the state as
well as on local governmental units.
(2) In particular and to the extent practicable, the
Legislative Fiscal Officer shall determine and describe in the
statement the following:
(a) The fiscal impact on state and local law enforcement
agencies, including an estimate of the increase in anticipated
number of arrests annually;
(b) The fiscal impact on state and local courts, including an
estimate of the increase in the anticipated number of trials
annually;
(c) The fiscal impact on district attorney offices, including
an estimate of the increase in the anticipated number of
prosecutions annually;
(d) The fiscal impact on { - indigent - } { + public + }
defense resources, including an estimate of the increase in the
anticipated number of cases annually; and
(e) The fiscal impact on state and local corrections resources,
including resources supporting parole and probation supervision,
and also including an estimate of the increase in the anticipated
number of bed-days to be used annually at both the state and
local level as a result of the passage of the measure.
SECTION 104. ORS 138.490 is amended to read:
138.490. (1) When an attorney has been appointed by a court or
magistrate other than the Supreme Court or Court of Appeals under
ORS 135.045, 135.050, 419B.195, 419B.205, 419C.200 or 426.100,
and the case later is taken to a court { - by the Public
Defender - } on an appeal or on a post-conviction proceeding,
and that attorney previously appointed is consulted or joined by
{ - the Public Defender under ORS 151.240 (1)(d) - } { +
counsel appointed on the appeal or post-conviction
proceeding + }, the circuit court from which or to which the case
is taken:
(a) May certify an amount that the attorney be paid as
reasonable compensation, determined and allowed as provided in
Enrolled Senate Bill 145 (SB 145-B) Page 87
ORS 135.055 for a proceeding in a circuit court, for those
services not compensated pursuant to an earlier certification for
payment in the case; and
(b) May certify an amount that the attorney be reimbursed for
reasonable and necessary expenses incurred in connection with the
consultation or joinder.
(2) The state shall pay the attorney, from funds available for
the purpose, the sum certified under this section and verified as
provided in ORS 135.055.
SECTION 105. { + Notwithstanding the term of office specified
by section 2 of this 2001 Act, of the members first appointed to
the Public Defense Services Commission:
(1) One shall serve for a term of one year;
(2) Two shall serve for a term of two years;
(3) Two shall serve for a term of three years; and
(4) Two shall serve for a term of four years. + }
SECTION 106. Section 3 of this 2001 Act is amended to read:
{ + Sec. 3. + } (1) The Public Defense Services Commission
shall:
(a) { - Plan for the establishment of a public defense system
that ensures the provision of public defense services in the most
cost-efficient manner consistent with the Oregon Constitution,
the United States Constitution and Oregon and national standards
of justice. - } { + Establish and maintain a public defense
system that ensures the provision of public defense services in
the most cost-efficient manner consistent with the Oregon
Constitution, the United States Constitution and Oregon and
national standards of justice. + }
{ - (b) Establish and maintain a public defense system for
criminal and probation violation appeals the responsibility for
which is being transferred by section 7 of this 2001 Act. - }
{ - (c) - } { + (b) + } Establish an office of public
defense services and appoint a public defense services executive
director who serves at the pleasure of the commission.
{ - (d) - } { + (c) + } Submit the budget of the commission
and the office of public defense services to the Legislative
Assembly after the budget is submitted to the commission by the
director and approved by the commission. The Chief Justice of the
Supreme Court and the chairperson of the commission shall present
the budget to the Legislative Assembly.
{ - (e) - } { + (d) + } Review and approve any public
defense services contract negotiated by the director before the
contract can become effective.
{ - (f) - } { + (e) + } Adopt a compensation plan for the
office of public defense services that is commensurate with other
state agencies.
{ - (g) - } { + (f) + } Adopt rules regarding:
{ + (A) The determination of financial eligibility of persons
entitled to be represented by appointed counsel at state expense;
(B) The appointment of counsel;
(C) The fair compensation of counsel appointed to represent a
person financially eligible for appointed counsel at state
expense;
(D) Appointed counsel compensation disputes;
(E) Any other costs associated with the representation of a
person by appointed counsel in the state courts that are required
to be paid by the state under ORS 34.355, 135.055, 138.500,
138.590, 161.365, 419B.201, 419B.208, 419B.320, 419B.518,
419C.206, 419C.209, 419C.408, 426.100, 426.135, 426.250, 426.307,
427.265, 427.295, 436.265 or 436.315 or section 6, chapter 480,
Enrolled Senate Bill 145 (SB 145-B) Page 88
Oregon Laws 2001 (Enrolled House Bill 2336), or any other
provision of law that expressly provides for payment of such
compensation, costs or expenses by the commission;
(F) Professional qualification standards for counsel appointed
to represent public defense clients;
(G) Performance standards for legal representation; + }
{ - (A) - } { + (H) + } Procedures for the contracting of
public defense services; and
{ - (B) - } { + (I) + } Any other matters necessary to
carry out the duties of the commission.
{ + (g) Reimburse the State Court Administrator from funds
deposited in the subaccount established under section 106b of
this 2001 Act for the costs of personnel and other costs
associated with location of eligibility verification and
screening personnel pursuant to ORS 151.489 by the State Court
Administrator. + }
(2) Rules adopted by the commission supersede any conflicting
rules, policies or procedures of the Public Defender Committee,
State Court Administrator, circuit courts, the Court of Appeals,
the Supreme Court and the Psychiatric Security Review Board
related to the exercise of the commission's administrative
responsibilities under this section and transferred duties,
functions and powers as they occur.
(3) The commission may accept gifts, grants or contributions
from any source, whether public or private. However, the
commission may not accept a gift, grant or contribution if
acceptance would create a conflict of interest. Moneys accepted
under this subsection shall be deposited in the Public Defense
Services Account created in section 5 of this 2001 Act and
expended for the purposes for which given or granted.
(4) The commission may not:
(a) Make any decision regarding the handling of any individual
case;
(b) Have access to any case file; or
(c) Interfere with the director or any member of the staff of
the director in carrying out professional duties involving the
legal representation of public defense clients.
SECTION 106a. Section 4 of this 2001 Act is amended to read:
{ + Sec. 4. + } (1) The public defense services executive
director shall:
(a) Recommend to the Public Defense Services Commission how to
establish and maintain, in a cost-effective manner, the delivery
of legal services to persons entitled to, and financially
eligible for, appointed counsel at state expense under Oregon
statutes, the Oregon Constitution, the United States Constitution
and consistent with Oregon and national standards of justice.
(b) Implement and ensure compliance with contracts, policies,
procedures, rules and standards adopted by the commission or
required by statute.
(c) Prepare and submit to the commission for its approval the
biennial budget of the commission and the office of public
defense services.
(d) Negotiate contracts, as appropriate, for providing legal
services to persons financially eligible for appointed counsel at
state expense. No contract so negotiated is binding or
enforceable until the contract has been reviewed and approved by
the commission as provided in section 3 of this 2001 Act.
(e) Employ personnel or contract for services as necessary to
carry out the responsibilities of the director and the office of
public defense services.
Enrolled Senate Bill 145 (SB 145-B) Page 89
(f) Supervise the personnel, operation and activities of the
office of public defense services.
(g) Provide services, facilities and materials necessary for
the performance of the duties, functions and powers of the Public
Defense Services Commission.
(h) Pay the expenses of the commission and the office of public
defense services.
(i) Prepare and submit to the commission and the Legislative
Assembly an annual report of the activities of the office of
public defense services.
(j) Provide for legal representation, advice and consultation
for the commission, its members, the director and staff of the
office of public defense services who require such services or
who are named as defendants in lawsuits arising from their
duties, functions and responsibilities. If requested by the
director, the Attorney General may also provide for legal
representation, advice and consultation for the commission, its
members, the director and staff of the office of public defense
services in litigation.
(2) The director may designate persons as representatives of
the director for the purposes of determining and paying bills
submitted to the office of public defense services { + and
determining preauthorization of expenses under ORS 135.055 + }.
SECTION 106b. Section 5 of this 2001 Act is amended to read:
{ + Sec. 5. + } (1) There is created a Public Defense
Services Account in the General Fund. The Public Defense Services
Account is continuously appropriated to the Public Defense
Services Commission to pay compensation of counsel and other
expenses in connection with the legal representation of persons
for which the commission is responsible by law.
(2) All moneys appropriated to the commission to pay
compensation of counsel and other expenses in connection with the
legal representation of persons for which the commission is
responsible by law shall be deposited in the Public Defense
Services Account.
{ + (3) All moneys received by the Judicial Department under
ORS 135.050 (8), 151.487 (1), 151.505 (3), 419B.198 (1) or
419C.203 (1) or section 6, chapter 480, Oregon Laws 2001
(Enrolled House Bill 2336), shall be deposited in a separate
subaccount created in the Public Defense Services Account to be
used by the public defense services executive director to
reimburse the actual costs and expenses, including personnel
expenses, incurred in administration and support of the public
defense system. + }
{ - (3) - } { + (4) + } All gifts, grants or contributions
accepted by the commission under section 3 of this 2001 Act shall
be deposited in a separate subaccount created in the Public
Defense Services Account to be used by the commission for the
purpose for which the gift, grant or contribution was given or
granted.
{ - (4) - } { + (5) + } As used in this section, 'other
expenses in connection with the legal representation of persons
for which the commission is responsible by law' includes expenses
incurred in the administration of the public defense system.
SECTION 107. { + Section 5, chapter 472, Oregon Laws 2001
(Enrolled House Bill 2337) (amending ORS 135.055), is repealed
and ORS 135.055 is amended to read: + }
135.055. (1) Counsel appointed pursuant to ORS 135.045 or
135.050, if other than counsel provided pursuant to ORS 151.010
Enrolled Senate Bill 145 (SB 145-B) Page 90
or 151.460, shall, upon certification by the court, be paid fair
compensation for representation in the case:
(a) By the county, subject to the approval of the governing
body of the county, in a proceeding in a county or justice court.
(b) By the State Court Administrator from funds available for
the purpose, in a proceeding in a circuit court.
(2) Except for counsel appointed pursuant to contracts or
counsel employed by the { - Public Defender - } { + public
defense services executive director + }, compensation payable to
appointed counsel under subsection (1) of this section:
(a) In a proceeding in a county or justice court shall not be
less than $30 per hour.
(b) In a proceeding in a circuit court shall be subject to the
applicable compensation established under ORS 151.430 (5).
(3)(a) A person determined to be eligible for appointed counsel
is entitled to necessary and reasonable expenses for
investigation, preparation and presentation of the case. The
person or the counsel for the person may upon written request,
which shall not be disclosed to the district attorney prior to
conclusion of the case, secure approval and preauthorization of
payment of such expenses as are necessary and proper in the
investigation, preparation and presentation of the case,
including but not limited to travel, telephone calls,
photocopying or other reproduction of documents, necessary costs
associated with obtaining the attendance of witnesses for the
defense, expert witness fees and fees for interpreters and
assistive communication devices necessary for the purpose of
communication between counsel and a client or witness in the
case.
(b) In a county or justice court, the request shall be in the
form of a motion to the court. The motion must be accompanied by
a supporting affidavit which sets out in detail the purpose of
the requested expenditure, the name of the service provider or
other recipient of the funds, the dollar amount of the requested
expenditure which may not be exceeded without additional
authorization and the date or dates during which the service will
be rendered or events will occur for which the expenditure is
requested.
(c) In a circuit court, the request shall be in the form and
contain the information that is required by policies of the State
Court Administrator.
(d) Entitlement under this subsection to payment for expenses
is subject to policies and procedures established by the State
Court Administrator, including, but not limited to, cost
guidelines and standards established under ORS 151.430.
Entitlement to payment of extraordinary expenses is dependent
upon obtaining preauthorization from the court, if the case is in
county or justice court, or from the State Court Administrator,
if the case is in circuit court, except as otherwise provided in
the policies and procedures established by the State Court
Administrator. The presiding judge or trial judge has ultimate
authority for approval of expenses under this paragraph. Approved
and authorized expenses shall be paid:
(A) By the county, in respect to a proceeding in a county or
justice court.
(B) By the State Court Administrator from funds available for
the purpose, in respect to a proceeding in a circuit court.
(C) By the city, in respect to a proceeding in municipal court.
(4) Upon completion of all services by the counsel of a person
determined to be eligible for appointed counsel, the counsel
Enrolled Senate Bill 145 (SB 145-B) Page 91
shall submit to the court a statement of all reasonable fees and
expenses of investigation, preparation, presentation and, if
counsel was appointed by the court, representation paid or
incurred, supported by appropriate receipts or vouchers and
certified by the counsel to be true and accurate. The counsel, at
that time, may request payment or reimbursement for any such
expenses for which payment has not yet been approved and
authorized.
(5) The total fees and expenses payable under this section
shall be subject to the review of the presiding judge for the
judicial district. The presiding judge shall certify that such
amount is fair reimbursement for fees and expenses for
representation in the case as provided in subsection (6) of this
section. Upon certification and any verification as provided
under subsection (6) of this section, the amount of the fees and
expenses approved by the court and not already paid shall be
paid:
(a) By the county, in respect to a proceeding in a county or
justice court.
(b) By the State Court Administrator from funds available for
the purpose, in respect to a proceeding in a circuit court.
(6)(a) The presiding judge shall certify to the administrative
authority responsible for paying fees and expenses under this
section that the amount for payment is reasonable and that the
amount is properly payable out of public funds.
(b) With any certification by the court of fees or expenses
that the State Court Administrator is to pay for counsel or other
costs of indigent representation under ORS 33.015 to 33.155,
135.045, 135.055, 135.705, 144.317, 144.343, 151.430, 151.450,
151.460, 151.505, 161.346, 161.365, 161.665, 163.105, 419B.195,
419B.201, 419B.205, 419B.518, 419C.200, 419C.206, 426.255 and
426.307, the court shall include any information identified and
requested by the State Court Administrator as needed for audit,
statistical or any other purpose pertinent to insure the proper
disbursement of state funds or pertinent to the provision of
appointed counsel compensated at state expense.
(c) The presiding judge may authorize the { - clerk of
the - } { + trial + } court { + administrator + } to make the
certification required under this section in some or all cases
where the amount for payment meets the policies and procedures
established by the State Court Administrator under ORS 151.430
(5) and (6). The authorization must be in writing and must
specify the types of cases to which the authorization applies.
{ + (7) As used in this section unless the context requires
otherwise, 'counsel' includes a legal advisor appointed under ORS
135.045. + }
SECTION 108. { + Section 3, chapter 472, Oregon Laws 2001
(Enrolled House Bill 2337) (amending ORS 138.500), is repealed
and ORS 138.500 is amended to read: + }
138.500. (1) If a defendant in a criminal action or a
petitioner in a proceeding pursuant to ORS 138.510 to 138.680
wishes to appeal from an appealable adverse final order or
judgment of a circuit court and if the person is without funds to
employ suitable counsel possessing skills and experience
commensurate with the nature and complexity of the case for the
appeal, the person may request the circuit court from which the
appeal is or would be taken to appoint counsel to represent the
person on appeal. The following apply to a request under this
subsection:
Enrolled Senate Bill 145 (SB 145-B) Page 92
(a) The request shall be in writing and shall be made within
the time during which an appeal may be taken or, if the notice of
appeal has been filed, at any time thereafter. The request shall
include a brief statement of the assets, liabilities and income
in the previous year of the person unless the court already
determined the person to be indigent for purposes of the specific
case, in which instance, the written request need only so
indicate. However, if a request relies on a court's previous
determination that the person is indigent, the court, in its
discretion, may require the person to submit a new statement of
assets, liabilities and income.
(b) If, based upon a request under paragraph (a) of this
subsection, the court finds that petitioner or defendant
previously received the services of appointed counsel or
currently is without funds to employ suitable counsel for an
appeal, the court shall appoint counsel to represent petitioner
or defendant on the appeal, subject to applicable contracts
entered into by the State Court Administrator under ORS 151.460.
(c) Under paragraph (b) of this subsection, the court, in its
discretion, may appoint counsel who represented petitioner or
defendant in the court in the case, or if { - the Public
Defender - } { + counsel employed or compensated by the Public
Defense Services Commission + }is able to serve, { - it - }
{ + the court + } may appoint, in a criminal action, { - the
Public Defender - } { + such counsel to serve + } as counsel on
appeal.
(2) { + (a) + } Notwithstanding subsection (1) of this section,
when a defendant has been sentenced to death, the request for
appointed counsel shall be made to the Supreme Court. The Supreme
Court shall appoint suitable counsel to represent the defendant
on the appeal.
{ + (b) After the notice of appeal has been filed, the Court
of Appeals has concurrent authority to appoint or substitute
counsel or appoint or substitute a legal advisor for the
defendant under section 2, chapter 472, Oregon Laws 2001
(Enrolled House Bill 2337).
(c) The Supreme Court has concurrent authority to appoint or
substitute counsel or appoint or substitute a legal advisor for
the defendant under section 2, chapter 472, Oregon Laws 2001
(Enrolled House Bill 2337), in connection with review of a Court
of Appeals decision under ORS 2.520. + }
(3) Whenever a defendant in a criminal action or a petitioner
in a proceeding pursuant to ORS 138.510 to 138.680 has filed a
notice of appeal from an appealable adverse final order or
judgment of a circuit court and the person is without funds to
pay for a transcript, or portion thereof, necessary to present
adequately the case upon appeal, the person may request the
circuit court to order the transcript, or portion thereof,
furnished to the person. The following apply to a request under
this subsection:
(a) The request shall be in writing and, shall include a brief
statement of the assets, liabilities and income in the previous
year of the person unless the court already determined the person
to be indigent for purposes of the specific case, in which
instance, the written request need only so indicate. However, if
the request relies on the court's previous determination that the
person is indigent, the court, in its discretion, may require the
person to submit a new statement of assets, liabilities and
income.
Enrolled Senate Bill 145 (SB 145-B) Page 93
(b) If, based upon a request under paragraph (a) of this
subsection, the court finds that the person is unable to pay for
the transcript, the court shall order furnished to the person
that portion of the transcript as may be material to the decision
on appeal, if the court finds that the transcript or portion
thereof is necessary.
(c) The cost of the transcript under paragraph (b) of this
subsection shall be in the amount prescribed in ORS 21.470 and
paid for as provided in subsection (4) of this section.
(4) After oral argument on the appeal or, if there is no oral
argument, after submission of the appeal to the court for
decision, the Court of Appeals shall certify the cost of briefs
and any other expenses of appellant, except transcripts,
necessary to appellate review and shall determine and certify a
reasonable amount of compensation for counsel appointed under
this section. The circuit court shall certify the cost of the
transcript furnished pursuant to subsection (3) of this section,
except that when a defendant has been sentenced to death, the
Supreme Court shall certify the cost of the transcript.
Compensation payable to appointed counsel shall not be less than
the applicable minimum compensation set forth in the schedule
established under ORS 151.430 (5). A statement of the costs and
expenses and a request to certify compensation of counsel shall
be filed after the date of oral argument, or if there is no oral
argument, after the date of submission of the appeal to the court
for decision, but not later than the 21st day after the date of
the decision of the appeal by the court or such further time as
may be allowed by the court. Except as the court may otherwise
provide by rule, only one statement and request for certification
may be filed. On any review by the Supreme Court of the judgment
of the Court of Appeals a person for whom counsel has been
appointed shall by similar procedure recover the cost of briefs,
any other expense of the review and compensation for counsel.
(5) Costs, expenses and compensation certified by the Supreme
Court or by the Court of Appeals under subsection (4) of this
section shall be paid by the state from funds for that purpose.
The Supreme Court or Court of Appeals shall certify to the
administrative authority responsible for paying costs, expenses
and compensation under this section that the amount of payment is
reasonable and properly payable out of public funds.
(6) A court certifying costs, expenses and compensation for
payment by the State Court Administrator shall supply any
information requested by the State Court Administrator for the
purpose of audits, statistical analysis or other activities
relating to the proper disbursement of state funds or the payment
of appointed counsel.
(7) The provisions of this section shall apply in favor of the
defendant in a criminal action or the petitioner in a proceeding
pursuant to ORS 138.510 to 138.680 when the person is respondent
in an appeal taken by the state in a criminal action or by the
defendant in a proceeding pursuant to ORS 138.510 to 138.680.
(8) If appointed counsel on appeal is { - the Public Defender
established by ORS 151.280 - } { + counsel employed or
compensated by the Public Defense Services Commission + } or
counsel who is under contract to provide services for the appeal
pursuant to ORS 151.460, the appellate court shall not allow
compensation for that appointed counsel. In all other cases,
counsel shall be compensated as provided in this section.
(9) The Chief Justice of the Supreme Court may authorize one or
more employees of the Judicial Department to make the
Enrolled Senate Bill 145 (SB 145-B) Page 94
certification required under subsection (4) of this section. The
authorization may apply to some or all appeals before the Court
of Appeals and Supreme Court. The authorization must be in
writing and must specify the types of cases to which the
authorization applies. A certification made by an employee of the
Judicial Department pursuant to an authorization under this
subsection must be based on the cost guidelines and standards
established pursuant to ORS 151.430 (5) and (6). Upon motion of
the attorney seeking compensation, or upon the court's own
motion, the court may increase or decrease any amount certified
by an employee of the Judicial Department pursuant to an
authorization made under the provisions of this subsection.
{ + (10) As used in subsections (4) and (8) of this section,
' counsel' includes a legal advisor appointed under section 2,
chapter 472, Oregon Laws 2001 (Enrolled House Bill 2337). + }
SECTION 109. ORS 151.430 is amended to read:
151.430. (1) The State Court Administrator shall conduct a
continuing study and evaluation of various methods for the
provision of appointed counsel compensated at state expense to
represent persons in the state courts.
(2) The State Court Administrator shall develop, evaluate and
modify as appropriate for each judicial district a plan for the
provision of appointed counsel compensated by the state to
represent persons in proceedings in the circuit court in the
judicial district and in appeals therefrom. A plan may apply to
one judicial district or two or more adjoining judicial
districts.
(3) The State Court Administrator shall establish professional
qualification standards for:
(a) Appointed counsel compensated at public expense to
represent persons in the state courts; and
(b) Full-time not-for-profit public defender organizations
whose attorney members serve as appointed counsel compensated at
public expense to represent persons in the state courts.
(4) The State Court Administrator shall provide copies of
professional qualification standards established under subsection
(3) of this section to all judges or other entities who have the
power to appoint counsel referred to in subsection (3) of this
section.
(5) The State Court Administrator shall establish a schedule of
fair compensation payable to appointed counsel compensated by the
state to represent persons in the state courts. No compensation
set forth in the schedule shall be less than $30 per hour if the
compensation is paid on an hourly basis.
(6) The State Court Administrator shall establish policies and
procedures including, but not limited to, cost guidelines and
standards for the approval and payment of compensation and
expenses incurred in the defense of persons whose legal counsel
is required to be paid by the State Court Administrator pursuant
to ORS 151.450. { + Notwithstanding ORS 135.055, the State Court
Administrator may authorize payment for fees and expenses
pursuant to established policies and procedures. + }
(7) Subsections (2), (3) and (5) of this section do not apply
to { - the Public Defender established by ORS 151.280 or
deputies of the defender - } { + appointed counsel employed or
compensated by the Public Defense Services Commission + }.
(8) The State Court Administrator shall establish standards and
procedures for contracting for services of counsel under ORS
151.460.
Enrolled Senate Bill 145 (SB 145-B) Page 95
(9) The State Court Administrator may delegate the
administration of services required under ORS 135.055 to court
employees and may contract for performance of the services when
the administrator determines it is efficient and effective to do
so. Any delegation or contract under this subsection must be in
accordance with established written policies and procedures.
Funds from the State Court Indigent Defense Account may be
expended for purposes of contracts entered into under this
subsection.
SECTION 110. { + Section 4, chapter ___, Oregon Laws 2001
(Enrolled House Bill 2348) (amending ORS 151.450), is repealed
and ORS 151.450 is amended to read: + }
151.450. The State Court Administrator shall:
(1) Pay the compensation for counsel, other than { - the
Public Defender established by ORS 151.280 - } { + counsel
employed or compensated by the Public Defense Services
Commission + }, appointed to represent indigents in the state
courts, { + including in cases seeking judicial review under ORS
144.335 when appointed counsel employed or compensated by the
Public Defense Services Commission cannot provide representation
due to a conflict of interest, + } and other costs and expenses
of that representation that are required to be paid by the state
under ORS 33.015 to 33.155, 34.355, 135.055, { - 138.490, - }
138.500, 138.590, 161.327, 161.365, 161.385, 419A.200, 419B.195,
419B.201, 419B.205, 419B.518, 419C.200, 419C.206, 426.100,
426.135, 426.275, 426.307, 427.265, 427.295, 436.265 or 436.315
or any other provisions of law that expressly provide for payment
of such compensation costs or expenses by the State Court
Administrator.
(2) Develop a system for conducting financial and performance
audits of indigent defense contracts.
SECTION 111. ORS 151.460 is amended to read:
151.460. (1) The State Court Administrator, on behalf of the
state, may contract with an attorney, group of attorneys or
full-time not-for-profit public defender organization for the
provision by the attorney, group of attorneys or organization of
services as counsel for indigents in proceedings in which a court
or magistrate has the power to appoint counsel to represent an
indigent and the state is required to pay compensation for that
representation. If a contract is with an attorney or group of
attorneys, each attorney who will provide services under the
contract shall satisfy the professional qualification standards
established under ORS 151.430 (3)(a). If a contract is with a
public defender organization, the organization shall satisfy the
professional qualification standards established under ORS
151.430 (3)(b). A contract entered into under this subsection may
be for the provision of services to indigents in appellate
proceedings.
(2) A court or magistrate may appoint an attorney who is, or an
attorney member of a public defender organization that is, under
a contract with the state as provided in this section to
represent an indigent in any proceeding in which the court or
magistrate has the power to appoint counsel to represent an
indigent and the state is required to pay compensation for that
representation.
(3) This section does not apply to proceedings in which
{ - the Public Defender established by ORS 151.280 - } { +
counsel employed or compensated by the Public Defense Services
Commission + } is authorized, able and appointed to provide
services as counsel for indigents.
Enrolled Senate Bill 145 (SB 145-B) Page 96
SECTION 112. ORS 151.480 is amended to read:
151.480. When a court or magistrate has the power to appoint
counsel to represent an indigent in a proceeding in a circuit,
county, justice or municipal court or in an appeal therefrom and
the state, a county or a city is required to pay compensation for
that representation, and the court or magistrate does not appoint
{ - the Public Defender established by ORS 151.280 - }
{ + counsel employed or compensated by the Public Defense
Services Commission + } or counsel who is under contract to
provide services for the proceeding or appeal pursuant to ORS
151.010 or 151.460, the court or magistrate shall appoint as
counsel:
(1) An attorney who, in the opinion of the court or magistrate,
satisfies the standards of eligibility established under ORS
151.430 (3)(a); or
(2) An attorney member of a full-time not-for-profit public
defender organization that, in the opinion of the court or
magistrate, satisfies the standards of eligibility established
under ORS 151.430 (3)(b).
SECTION 113. ORS 161.665 is amended to read:
161.665. (1) Except as provided in ORS 151.505, the court, only
in the case of a defendant for whom it enters a judgment of
conviction, may include in its sentence thereunder a provision
that the convicted defendant shall pay as costs expenses
specially incurred by the state in prosecuting the defendant.
Costs include a reasonable attorney fee for counsel appointed
pursuant to ORS 135.045 or 135.050 and a reasonable amount for
expenses approved under ORS 135.055. A reasonable attorney fee is
presumed to be a reasonable number of hours at the hourly rate
authorized by the State Court Administrator under ORS 151.430.
Costs shall not include expenses inherent in providing a
constitutionally guaranteed jury trial or expenditures in
connection with the maintenance and operation of government
agencies that must be made by the public irrespective of specific
violations of law.
(2) Except as provided in ORS 151.505, the court, after the
conclusion of an appeal of its initial judgment of conviction,
may include in its final judgment or modify the judgment to
include a requirement that a convicted defendant pay as costs a
reasonable attorney fee for counsel appointed pursuant to ORS
138.500, including counsel who is { - the Public Defender
established by ORS 151.280 - } { + appointed under section 3 of
this 2001 Act + } or counsel who is under contract to provide
services for the appeal pursuant to ORS 151.460, and other costs
and expenses allowed by the appellate court under ORS 138.500
(4). A reasonable attorney fee is presumed to be a reasonable
number of hours at the hourly rate authorized by the State Court
Administrator under ORS 151.430.
(3) The court shall not sentence a defendant to pay costs under
this section unless the defendant is or may be able to pay them.
In determining the amount and method of payment of costs, the
court shall take account of the financial resources of the
defendant and the nature of the burden that payment of costs will
impose.
(4) A defendant who has been sentenced to pay costs under this
section and who is not in contumacious default in the payment
thereof may at any time petition the court which sentenced the
defendant for remission of the payment of costs or of any unpaid
portion thereof. If it appears to the satisfaction of the court
that payment of the amount due will impose manifest hardship on
Enrolled Senate Bill 145 (SB 145-B) Page 97
the defendant or the immediate family of the defendant, the court
may remit all or part of the amount due in costs, or modify the
method of payment under ORS 161.675.
(5) All moneys collected or paid under this section shall be
paid into the General Fund and credited to the Criminal Fine and
Assessment Account.
SECTION 113a. { + Sections 1, 2, 3 and 5, chapter 1033, Oregon
Laws 1999, are repealed. + }
SECTION 114. { + ORS 151.210, 151.220, 151.230, 151.240,
151.250, 151.260, 151.270, 151.280 and 151.290 and sections 7
(amending ORS 151.210) and 8 (amending ORS 151.250), chapter 472,
Oregon Laws 2001 (Enrolled House Bill 2337), and section 3,
chapter ___, Oregon Laws 2001 (Enrolled House Bill 2348)
(amending ORS 151.250), are repealed. + }
SECTION 115. { + ORS 138.490, 151.430, 151.450, 151.460,
151.465 and 151.480 are repealed. + }
SECTION 116. Section 5, chapter ___, Oregon Laws 2001 (Enrolled
House Bill 2348), is amended to read:
{ + Sec. 5. + } The amendments to ORS 34.330 { - , - } { +
and + } 144.335 { - , 151.250 and 151.450 - } by sections 1
{ - to 4 of this 2001 Act - } { + and 2, chapter ___, Oregon
Laws 2001 (Enrolled House Bill 2348), and the amendments to ORS
151.450 by section 110 of this 2001 Act + } apply only to final
orders of the State Board of Parole and Post-Prison Supervision
mailed on or after { - the effective date of this 2001 Act - }
{ + January 1, 2002 + }.
SECTION 116a. Section 8, chapter ___, Oregon Laws 2001
(Enrolled House Bill 2348), is amended to read:
{ + Sec. 8. + } In addition to and not in lieu of any other
appropriation, there is appropriated to the State Board of Parole
and Post-Prison Supervision, for the biennium beginning July 1,
2001, out of the General Fund, the amount of $286,609, which may
be expended for the duties imposed by the amendments to ORS
34.330 { - , - } { + and + } 144.335 { - , 151.250 and
151.450 - } by sections 1 { - to 4 of this 2001 Act - } { +
and 2, chapter ___, Oregon Laws 2001 (Enrolled House Bill 2348),
and by the amendments to ORS 151.450 by section 110 of this 2001
Act + }.
SECTION 116b. Section 9, chapter ___, Oregon Laws 2001
(Enrolled House Bill 2348), is amended to read:
{ + Sec. 9. + } In addition to and not in lieu of any other
appropriation, there is appropriated to the { - Public
Defender - } { + Public Defense Services Commission + }, for
the biennium beginning July 1, 2001, out of the General Fund, the
amount of $174,088, which may be expended for the duties imposed
by the amendments to ORS 34.330 { - , - } { + and + } 144.335
{ - , 151.250 and 151.450 - } by sections 1 { - to 4 of this
2001 Act - } { + and 2, chapter ___, Oregon Laws 2001 (Enrolled
House Bill 2348), and by the amendments to ORS 151.450 by section
110 of this 2001 Act + }.
SECTION 116c. { + The amendments to sections 5, 8 and 9,
chapter ___, Oregon Laws 2001 (Enrolled House Bill 2348), by
sections 116 to 116b of this 2001 Act become operative on January
1, 2002. + }
SECTION 117. { + This 2001 Act being necessary for the
immediate preservation of the public peace, health and safety, an
emergency is declared to exist, and this 2001 Act takes effect on
its passage. + }
----------
Enrolled Senate Bill 145 (SB 145-B) Page 98
Passed by Senate July 5, 2001
...........................................................
Secretary of Senate
...........................................................
President of Senate
Passed by House July 5, 2001
...........................................................
Speaker of House
Enrolled Senate Bill 145 (SB 145-B) Page 99
Received by Governor:
......M.,............., 2001
Approved:
......M.,............., 2001
...........................................................
Governor
Filed in Office of Secretary of State:
......M.,............., 2001
...........................................................
Secretary of State
Enrolled Senate Bill 145 (SB 145-B) Page 100