72nd OREGON LEGISLATIVE ASSEMBLY--2003 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 1095-1
A-Engrossed
Senate Bill 887
Ordered by the Senate May 2
Including Senate Amendments dated May 2
Sponsored by COMMITTEE ON RULES (at the request of Oregon Law
Commission)
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure.
Provides for affirmative defense of mental disease or defect in
juvenile delinquency proceedings. Establishes disposition for
juveniles who successfully use affirmative defense and have
serious mental condition or present substantial danger to others.
Increases number of members on Psychiatric Security Review Board.
Divides board into two panels. Appropriates moneys to board.
Declares emergency, effective July 1, 2003.
A BILL FOR AN ACT
Relating to juveniles; creating new provisions; amending ORS
21.010, 40.015, 137.290, 137.712, 151.216, 161.375, 161.385,
181.595, 181.607, 419A.004, 419B.100, 419C.005, 419C.285,
419C.400, 419C.411, 419C.501, 419C.626 and 419C.656;
appropriating money; and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 419A.004 is amended to read:
419A.004. As used in this chapter and ORS chapters 419B and
419C, unless the context requires otherwise:
(1) 'CASA Volunteer Program' means a program approved or
sanctioned by the juvenile court to recruit, train and supervise
volunteer persons to serve as court appointed special advocates.
(2) 'Child' means a person within the jurisdiction of the
juvenile court as provided in ORS 419B.100.
(3) 'Child care center' means a residential facility for the
care and supervision of children that is licensed under the
provisions of ORS 418.240.
(4) 'Community service' has the meaning given that term in ORS
137.126.
(5) 'Conflict of interest' means a person appointed to a local
citizen review board who has a personal or pecuniary interest in
a case being reviewed by that board.
(6) 'Counselor' means a juvenile department counselor.
(7) 'Court' means the juvenile court.
(8) 'Court appointed special advocate' or 'CASA' means a person
appointed by the court pursuant to a CASA Volunteer Program to
act as special advocate for a child pursuant to ORS 419A.170.
(9) 'Court facility' has the meaning given that term in ORS
166.360.
(10) 'Department' means the Department of Human Services.
(11) 'Detention' or 'detention facility' means a facility
established under ORS 419A.010 to 419A.020 and 419A.050 to
419A.063 for the detention of dependent children or delinquent
youth pursuant to a judicial commitment or order.
(12) 'Director' means the director of a juvenile department
established under ORS 419A.010 to 419A.020 and 419A.050 to
419A.063.
(13) 'Guardian' means guardian of the person and not guardian
of the estate.
(14) 'Indian child' means any unmarried person less than 18
years of age who is:
(a) A member of an Indian tribe; or
(b) Eligible for membership in an Indian tribe and is the
biological child of a member of an Indian tribe.
(15) 'Juvenile court' means the court having jurisdiction of
juvenile matters in the several counties of this state.
(16) 'Local citizen review board' means the board specified by
ORS 419A.090 and 419A.092.
{ + (17) 'Mental disease or defect' does not include an
abnormality:
(a) Manifested only by repeated criminal or otherwise
antisocial conduct;
(b) Constituting solely a personality disorder; or
(c) Constituting solely a conduct disorder. + }
{ - (17) - } { + (18) + } 'Parent' means the biological or
adoptive mother of the child and the legal or adoptive father of
the child. A legal father includes:
(a) A nonimpotent, nonsterile man who was cohabiting with his
wife, who is the mother of the child, at the time of conception;
(b) A man married to the mother of the child at the time of
birth, where there is no decree of separation and the presumption
of paternity has not been disputed;
(c) A biological father who marries the mother of the child
after the birth of the child;
(d) A biological father who has established or declared
paternity through filiation proceedings or under ORS 416.400 to
416.470; and
(e) A biological father who has, with the mother, established
paternity through a voluntary acknowledgment of paternity under
ORS 109.070.
{ - (18) - } { + (19) + } 'Permanent foster care' means an
out-of-home placement in which there is a long-term contractual
foster care agreement between the foster parents and the
department that is approved by the juvenile court and in which
the foster parents commit to raise a foster child until the age
of majority.
{ - (19) - } { + (20) + } 'Planned permanent living
arrangement' means an out-of-home placement other than by
adoption, placement with a relative or placement with a legal
guardian that is consistent with the case plan and in the best
interests of the child.
{ - (20) - } { + (21) + } 'Public building' has the meaning
given that term in ORS 166.360.
{ - (21) - } { + (22) + } 'Reasonable time' means a period
of time that is reasonable given a child's emotional and
developmental needs and ability to form and maintain lasting
attachments.
{ - (22) - } { + (23) + } 'Records' means any information
in written form, pictures, photographs, charts, graphs,
recordings or documents pertaining to a case.
{ - (23) - } { + (24) + } 'Resides' or 'residence,' when
used in reference to the residence of a child or youth, means the
place where the child or youth is actually living or the
jurisdiction in which wardship of the child or youth has been
established.
{ - (24) - } { + (25) + } 'Restitution' has the meaning
given that term in ORS 137.103.
{ + (26) 'Serious mental condition' means a condition that
requires supervision and treatment services for the safety of
others and is:
(a) A mental illness of major depression;
(b) A mental illness of bipolar disorder;
(c) A mental illness of psychotic disorder; or
(d) A mental defect manifesting in significantly subaverage
general intellectual functioning that is accompanied by
significant limitations in adaptive functioning in at least two
areas or characterized by severe and pervasive impairment
manifested during the developmental period. + }
{ - (25) - } { + (27) + } 'Serious physical injury' means:
(a) A serious physical injury as defined in ORS 161.015; or
(b) A physical injury that:
(A) Has a permanent or protracted significant effect on a
child's daily activities;
(B) Results in substantial and recurring pain; or
(C) In the case of a child under 10 years of age, is a broken
bone.
{ - (26) - } { + (28) + } 'Shelter care' means a home or
other facility suitable for the safekeeping of a child who is
taken into temporary custody pending investigation and
disposition where the circumstances are such that the child does
not need to be kept in secure custody.
{ - (27) - } { + (29) + } 'Short-term detention facility'
means a facility established under ORS 419A.050 (3) for holding
youths pending further placement.
{ - (28) - } { + (30) + } 'Substitute care' means an
out-of-home placement directly supervised by the department or
other agency, including placement in a foster family home, group
home or other child caring institution or facility. 'Substitute
care' does not include care in:
(a) A detention facility, forestry camp or youth correction
facility;
(b) A family home which the court has approved as a child's
permanent placement, where a private child caring agency has been
appointed guardian of the child and where the child's care is
entirely privately financed; or
(c) In-home placement subject to conditions or limitations.
{ - (29) - } { + (31) + } 'Surrogate' means a person
appointed by the court to protect the right of the child to
receive procedural safeguards with respect to the provision of
free appropriate public education.
{ - (30) - } { + (32) + } 'Tribal court' means a court with
jurisdiction over child custody proceedings and that is either a
Court of Indian Offenses, a court established and operated under
the code of custom of an Indian tribe or any other administrative
body of a tribe that is vested with authority over child custody
proceedings.
{ + (33) 'Young person' means a person who has been found
responsible except for insanity under ORS 419C.411 and placed
under the jurisdiction of the Psychiatric Security Review
Board. + }
{ - (31) - } { + (34) + } 'Youth' means a person under 18
years of age who is alleged to have committed an act that is a
violation, or, if done by an adult would constitute a violation,
of a law or ordinance of the United States or a state, county or
city.
{ - (32) - } { + (35) + } 'Youth care center' has the
meaning given that term in ORS 420.855.
{ - (33) - } { + (36) + } 'Youth offender' means a person
at least 12 years of age who has been found to be within the
jurisdiction of the juvenile court under ORS 419C.005 for an act
committed when the person was under 18 years of age.
SECTION 2. { + Sections 3 to 5 of this 2003 Act are added to
and made a part of ORS chapter 419C. + }
SECTION 3. { + Mental disease or defect constituting insanity
under ORS 419C.411 (2) is an affirmative defense. + }
SECTION 4. { + (1) A youth may not introduce evidence on the
issue of a mental disease or defect defense, set forth in section
3 of this 2003 Act, unless the youth gives notice of intent to do
so in the manner provided in subsection (2) of this section.
(2) A youth who is required under subsection (1) of this
section to give notice must do so by filing a written notice of
intent. A youth who is not in detention must file the notice of
intent no later than 60 days after the petition is filed unless
the court finds good cause to extend the time. If the youth fails
to file notice timely, the youth may not introduce evidence for
the establishment of a mental disease or defect defense unless
the court permits the evidence to be introduced when just cause
for failure to file the notice is shown.
(3) Just cause for failure to file notice timely exists if the
youth was not represented by counsel until after the filing
period.
(4) The filing of a notice of intent under this section by a
youth in detention constitutes express consent of the youth for
continued detention under ORS 419C.150. + }
SECTION 5. { + Upon the filing of a notice of intent or the
introduction of evidence by the youth as provided in section 4 of
this 2003 Act, the state may have at least one psychiatrist
certified, or eligible to be certified, by the Board of Medical
Examiners in child psychiatry or licensed psychologist with
expertise in child psychology of its selection examine the youth.
Unless the court finds good cause to extend the time, the state
must obtain an examination under this section no later than 60
days after the notice of intent was filed or the evidence was
introduced. The state shall file notice with the court of its
intention to have the youth examined. Upon filing of the notice,
the court shall order the youth to participate in an examination.
If the youth objects to the examiner chosen by the state, the
court for good cause shown may direct the state to select a
different examiner. The examiner shall provide a copy of the
report generated from the examination to the state. A report
generated from an examination under this section is a report
relating to the youth's history and prognosis under ORS 419A.255
(2). + }
SECTION 6. ORS 419C.005 is amended to read:
419C.005. (1) Except as otherwise provided in ORS 137.707, the
juvenile court has exclusive original jurisdiction in any case
involving a person who is under 18 years of age and who has
committed an act { - which - } { + that + } is a violation,
or { - which - } { + that + } if done by an adult would
constitute a violation, of a law or ordinance of the United
States or a state, county or city.
(2) The provisions of subsection (1) of this section do not
prevent a court of competent jurisdiction from entertaining a
civil action or suit involving a youth.
(3) The court { - shall have - } { + has + } no further
jurisdiction as provided in subsection (1) of this section after
a minor has been emancipated pursuant to ORS 419B.550 to
419B.558.
(4) The court's wardship over a person found to be within the
court's jurisdiction under this section or ORS 419C.067
continues, and the person is subject to the court's jurisdiction,
until one of the following occurs:
(a) The court dismisses a petition filed under this chapter or
waives the case under ORS 419C.340. If wardship is based on a
previous adjudication, then dismissal or waiver of a later case
does not terminate wardship under the previous case unless the
court so orders.
(b) The court transfers jurisdiction of the case as provided in
ORS 419C.053, 419C.056 and 419C.059.
(c) The court enters an order terminating wardship.
(d) The person becomes 25 years of age.
{ + (e) The court places the person under the jurisdiction of
the Psychiatric Security Review Board as provided in section 13
of this 2003 Act. If the court also has jurisdiction over the
person based on a previous adjudication under this chapter or ORS
chapter 419B, placing a person under the jurisdiction of the
board in a later case does not terminate wardship under the
previous case unless the court so orders. + }
SECTION 7. 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 { + ; and
(f) The right to notice of any proceeding before the
Psychiatric Security Review Board + }.
(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 counsel.
(4) In all delinquency proceedings, interpreters shall be
appointed in the manner specified by ORS 45.275 and 45.285 for
the parties to the proceeding, any person granted rights of
limited participation, and any parent or guardian of the child
without regard to whether the parent or guardian is a party to
the proceeding.
SECTION 8. ORS 419C.285, as amended by section 85, chapter 962,
Oregon Laws 2001, 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 { + ; and
(f) The right to notice of any proceeding before the
Psychiatric Security Review Board + }.
(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 appointed counsel.
(4) In all delinquency proceedings, interpreters shall be
appointed in the manner specified by ORS 45.275 and 45.285 for
the parties to the proceeding, any person granted rights of
limited participation, and any parent or guardian of the child
without regard to whether the parent or guardian is a party to
the proceeding.
SECTION 9. ORS 419C.400 is amended to read:
419C.400. (1) The hearing shall be held by the court without a
jury and may be continued from time to time.
(2) The facts alleged in the petition showing the youth to be
within the jurisdiction of the court as provided in ORS 419C.005,
unless admitted, must be established beyond a reasonable doubt.
{ + (3) If the youth files written notice of intent to rely
on the mental disease or defect defense set forth in section 3 of
this 2003 Act, the youth has the burden of proving the defense by
a preponderance of the evidence. + }
{ - (3) - } { + (4) + } For the purpose of determining
proper disposition of the youth, testimony, reports or other
material relating to the youth's mental, physical and social
history and prognosis may be received by the court without regard
to their competency or relevancy under the rules of evidence.
{ - (4) - } { + (5) + } An adjudication by a juvenile court
that a youth is within its jurisdiction is not a conviction of a
crime or offense.
SECTION 10. ORS 419C.411 is amended to read:
419C.411. (1) At the termination of the hearing or hearings in
the proceeding or after entry of an order under ORS 419C.067, the
court shall enter an appropriate order directing the disposition
to be made of the case.
{ + (2) The court shall find a youth responsible except for
insanity if:
(a) The youth asserted mental disease or defect as a defense as
provided in section 4 of this 2003 Act; and
(b) The court determined by a preponderance of the evidence
that, as a result of mental disease or defect at the time the
youth committed the act alleged in the petition, the youth lacked
substantial capacity either to appreciate the nature and quality
of the act or to conform the youth's conduct to the requirements
of law. + }
{ - (2) - } { + (3) Except as otherwise provided in
subsections (6) and (7) of this section, + } in determining the
disposition of the case, the court shall consider each of the
following:
(a) The gravity of the loss, damage or injury caused or
attempted during, or as part of, the conduct that is the basis
for jurisdiction under ORS 419C.005;
(b) Whether the manner in which the youth engaged in the
conduct was aggressive, violent, premeditated or willful;
(c) Whether the youth was held in detention under ORS 419C.145
and, if so, the reasons for the detention;
(d) The immediate and future protection required by the victim,
the victim's family and the community; and
(e) The youth's juvenile court record and response to the
requirements and conditions imposed by previous juvenile court
orders.
{ - (3) - } { + (4) + } In addition to the factors listed
in subsection
{ - (2) - } { + (3) + } of this section, the court may
consider the following:
(a) Whether the youth has made any efforts toward reform or
rehabilitation or making restitution;
(b) The youth's educational status and school attendance
record;
(c) The youth's past and present employment;
(d) The disposition proposed by the youth;
(e) The recommendations of the district attorney and the
juvenile court counselor and the statements of the victim and the
victim's family;
(f) The youth's mental, emotional and physical health and the
results of the mental health or substance abuse treatment; and
(g) Any other relevant factors or circumstances raised by the
parties.
{ - (4) - } { + (5) + } The court's consideration of
matters under this section may be addressed on appeal only if
raised by a party at a dispositional hearing or by a motion to
modify or set aside under ORS 419C.610.
{ + (6) When a youth is found responsible except for
insanity, the court shall order a disposition under section 13 of
this 2003 Act if the court finds by a preponderance of the
evidence that, at the time of disposition, the youth:
(a) Has a serious mental condition; or
(b) Has a mental disease or defect other than a serious mental
condition and presents a substantial danger to others.
(7) When a youth is found responsible except for insanity and
the court does not make a finding described in subsection (6) of
this section, the court may:
(a) Enter an order finding the youth to be within the court's
jurisdiction under 419B.100 and make any disposition authorized
by ORS chapter 419B;
(b) Initiate civil commitment proceedings; or
(c) Enter an order of discharge. + }
SECTION 11. ORS 419C.501 is amended to read:
419C.501. (1) { + The court shall fix + } the duration of any
disposition made pursuant to this chapter { - shall be fixed by
the court - } and { + the duration + } may be for an indefinite
period. Any placement in the legal custody of the Department of
Human Services or the Oregon Youth Authority under ORS 419C.478
{ + or placement under the jurisdiction of the Psychiatric
Security Review Board under section 13 of this 2003 Act + } shall
be for an indefinite period. However, { - in cases under ORS
419C.005, - } the period of institutionalization or commitment
may not exceed:
(a) The period of time specified in the statute defining the
crime for an act that would constitute an unclassified
misdemeanor if committed by an adult;
(b) Thirty days for an act that would constitute a Class C
misdemeanor if committed by an adult;
(c) Six months for an act that would constitute a Class B
misdemeanor if committed by an adult;
(d) One year for an act that would constitute a Class A
misdemeanor if committed by an adult;
(e) Five years for an act that would constitute a Class C
felony if committed by an adult;
(f) Ten years for an act that would constitute a Class B felony
if committed by an adult; { - and - }
(g) Twenty years for an act that would constitute a Class A
felony if committed by an adult { - . - } { + ; and
(h) Life for a young person who was found to have committed an
act that, if committed by an adult, would constitute murder or
any aggravated form of murder under ORS 163.095 or 163.115. + }
(2) { + Except as otherwise provided in subsection (1)(h) of
this section, + } the period of any disposition may not extend
beyond the date on which the { + young person or the + } youth
offender becomes 25 years of age.
SECTION 12. { + Sections 13 to 20 of this 2003 Act are added
to and made a part of ORS chapter 419C. + }
SECTION 13. { + (1) After the entry of a jurisdictional order
under ORS 419C.411 (2), if the court finds by a preponderance of
the evidence that the young person, at the time of disposition,
has a serious mental condition or has a mental disease or defect
other than a serious mental condition and presents a substantial
danger to others, requiring conditional release or commitment to
a hospital or facility designated by the Department of Human
Services, the court shall order the young person placed under the
jurisdiction of the Psychiatric Security Review Board.
(2) The court shall determine whether the young person should
be committed to a hospital or facility designated by the
department or conditionally released pending a hearing before the
juvenile panel of the Psychiatric Security Review Board as
follows:
(a) If the court finds that the young person is not a proper
subject for conditional release, the court shall order the young
person committed to a hospital or facility designated by the
department for custody, supervision and treatment pending a
hearing before the juvenile panel in accordance with sections 15,
16, 17, 18 and 19 of this 2003 Act and shall order the young
person placed under the jurisdiction of the board.
(b) If the court finds that the young person can be adequately
controlled with supervision and treatment services if
conditionally released and that necessary supervision and
treatment services are available, the court may order the young
person conditionally released, subject to those supervisory
orders of the court that are in the best interests of justice and
the young person. The court shall designate a qualified mental
health or developmental disabilities treatment provider or state,
county or local agency to supervise the young person on release,
subject to those conditions as the court directs in the order for
conditional release. Prior to the designation, the court shall
notify the qualified mental health or developmental disabilities
treatment provider or agency to whom conditional release is
contemplated and provide the qualified mental health or
developmental disabilities treatment provider or agency an
opportunity to be heard before the court. After receiving an
order entered under this paragraph, the qualified mental health
or developmental disabilities treatment provider or agency
designated shall assume supervision of the young person subject
to the direction of the juvenile panel. The qualified mental
health or developmental disabilities treatment provider or agency
designated as supervisor shall report in writing no less than
once per month to the juvenile panel concerning the supervised
young person's compliance with the conditions of release.
(c) For purposes of determining whether to order commitment to
a hospital or facility or conditional release, the primary
concern of the court is the protection of society.
(3) In determining whether a young person should be
conditionally released, the court may order examinations or
evaluations deemed necessary.
(4) Upon placing a young person on conditional release and
ordering the young person placed under the jurisdiction of the
board, the court shall notify the juvenile panel in writing of
the court's conditional release order, the supervisor designated
and all other conditions of release pending a hearing before the
juvenile panel in accordance with sections 15, 16, 17, 18 and 19
of this 2003 Act.
(5) When making an order under this section, the court shall:
(a) Determine whether the parent or guardian of the young
person is able and willing to assist the young person in
obtaining necessary mental health or developmental disabilities
services and is willing to acquiesce in the decisions of the
juvenile panel. If the court finds that the parent or guardian:
(A) Is able and willing to do so, the court shall order the
parent or guardian to sign an irrevocable consent form in which
the parent agrees to any placement decision made by the juvenile
panel.
(B) Is unable or unwilling to do so, the court shall order that
the young person be placed in the legal custody of the Department
of Human Services for the purpose of obtaining necessary mental
health or developmental disabilities services.
(b) Make specific findings on whether there is a victim and, if
so, whether the victim wishes to be notified of any board
hearings concerning the young person and of any conditional
release, discharge or escape of the young person.
(c) Include in the order a list of the persons who wish to be
notified of any board hearing concerning the young person.
(d) Determine on the record the act committed by the young
person for which the young person was found responsible except
for insanity. + }
SECTION 14. { + As used in sections 13, 15, 17, 18 and 19 of
this 2003 Act, 'conditional release' includes but is not limited
to the monitoring of mental and physical health treatment. + }
SECTION 15. { + (1) The juvenile panel of the Psychiatric
Security Review Board shall conduct hearings on an application
for discharge, conditional release, commitment or modification
filed under or required by section 17, 18 or 19 of this 2003 Act,
and shall make findings on the issues before the juvenile panel.
(2) In every hearing before the juvenile panel, the juvenile
panel shall determine whether the young person:
(a) Has a serious mental condition; or
(b) Has a mental disease or defect other than a serious mental
condition and presents a substantial danger to others.
(3) The juvenile panel shall order a young person discharged
from commitment or conditional release if the juvenile panel
finds that the young person:
(a) No longer has a mental disease or defect; or
(b) Has a mental disease or defect other than a serious mental
condition but no longer presents a substantial danger to others.
(4) The juvenile panel shall order a young person conditionally
released subject to section 17 of this 2003 Act if the juvenile
panel finds that:
(a) The young person:
(A) Has a serious mental condition; or
(B) Has a mental disease or defect other than a serious mental
condition and presents a substantial danger to others;
(b) The young person can be controlled adequately if
conditionally released with treatment services as a condition of
release; and
(c) Necessary supervision and treatment services are available.
(5) The juvenile panel shall order a young person committed to,
or retained in, a hospital or facility designated by the
Department of Human Services for custody, supervision and
treatment subject to section 18 of this 2003 Act if the juvenile
panel finds that the young person:
(a)(A) Has a serious mental condition; or
(B) Has a mental disease or defect other than a serious mental
condition and presents a substantial danger to others; and
(b) Cannot be controlled adequately if conditionally released.
(6) In determining whether a young person should be committed
to or retained in a hospital or facility, conditionally released
or discharged, the primary concern of the juvenile panel is the
protection of society.
(7) In a hearing before the juvenile panel, a young person who
has a mental disease or defect in a state of remission is
considered to have a mental disease or defect if the mental
disease or defect may, with reasonable medical probability,
occasionally become active.
(8) At any time, the juvenile panel may appoint a psychiatrist
certified, or eligible to be certified, by the Board of Medical
Examiners in child psychiatry or a licensed psychologist with
expertise in child psychology to examine the young person and
submit a written report to the juvenile panel. Reports filed
with the juvenile panel pursuant to the examination must include,
but need not be limited to, an opinion as to whether the young
person:
(a)(A) Has a serious mental condition; or
(B) Has a mental disease or defect other than a serious mental
condition and presents a substantial danger to others; and
(b) Could be adequately controlled with treatment services as a
condition of release.
(9) The juvenile panel may make a determination regarding
discharge or conditional release based upon the written reports
submitted under subsection (8) of this section or section 18 (3)
of this 2003 Act. If a member of the juvenile panel desires
further information from the examining psychiatrist or licensed
psychologist who submitted the report, the juvenile panel shall
summon the psychiatrist or psychologist to give testimony.
(10) The juvenile panel shall consider all available evidence
that is material, relevant and reliable regarding the issues
before the juvenile panel. Evidence may include, but is not
limited to, the record of the juvenile court adjudication,
information supplied by the attorney representing the state or by
any other interested person, including the young person,
information concerning the young person's mental condition and
the entire psychiatric and juvenile court history of the young
person. All evidence of a type commonly relied upon by
reasonably prudent persons in the conduct of their serious
affairs is admissible at the hearings. Testimony must be taken
upon oath or affirmation of the witness from whom received. The
officer presiding at the hearing shall administer oaths and
affirmations to witnesses.
(11) The standard of proof on all issues at a hearing of the
juvenile panel is by a preponderance of the evidence.
(12)(a) The juvenile panel shall furnish written notice of any
hearing pending under this section within a reasonable time prior
to the hearing to:
(A) The young person about whom the hearing is being conducted;
(B) The attorney representing the young person;
(C) The young person's parents or guardians, if known;
(D) The person having legal custody of the young person;
(E) The Attorney General; and
(F) The district attorney and the court or juvenile department
of the county in which the young person was adjudicated.
(b) The juvenile panel shall include in the notice required by
paragraph (a) of this subsection:
(A) The time, place and location of the hearing;
(B) The nature of the hearing and the specific action for which
the 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; and
(D) A statement of all rights under subsection (13) of this
section.
(13) A young person about whom a hearing is being held has the
right:
(a) To appear at all proceedings held under this section,
except juvenile panel 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
financially eligible, to have suitable counsel appointed at state
expense.
(e) To examine all information, documents and reports that the
juvenile panel considers and, if the information, documents and
reports are available to the juvenile panel before the hearing,
to examine them prior to the hearing.
(14) Except for deliberations of the juvenile panel, the
juvenile panel shall keep a record of all hearings before the
juvenile panel.
(15) Upon request of a person listed in subsection (12)(a) of
this section or on its own motion, the juvenile panel 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.
(16) Within 15 days after the conclusion of the hearing, the
juvenile panel shall provide written notice of the juvenile
panel's decision to the young person, the attorney representing
the young person, the young person's parents or guardians, if
known, the person having legal custody of the young person, the
district attorney of the county in which the young person was
adjudicated and the Attorney General or other attorney
representing the state, if any.
(17) The juvenile panel shall maintain and keep current the
medical, social and delinquency history of all young persons. The
juvenile panel shall determine the confidentiality of records
maintained by the juvenile panel pursuant to ORS 192.501 to
192.505. + }
SECTION 16. { + (1) If the juvenile panel of the Psychiatric
Security Review Board determines that a young person about whom a
hearing under section 15 of this 2003 Act is being held is
financially eligible, the juvenile panel shall appoint suitable
counsel to represent the young person. Counsel appointed must be
an attorney who satisfies the professional qualification
standards established by the Public Defense Services Commission
under ORS 151.216. The public defense services executive director
shall determine and allow fair compensation for counsel appointed
under this subsection and the reasonable expenses of the young
person in respect to the hearing. Compensation payable to
appointed counsel may not be less than the applicable
compensation level established under ORS 151.216. The public
defense services executive director shall pay compensation and
expenses allowed from funds available for that purpose.
(2) When the juvenile panel appoints counsel to represent the
young person, the juvenile panel may order the young person, if
able, parent, if able, or guardian of the estate, if the estate
is able, to pay to the 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 young
person, parent 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. The juvenile panel's order of payment may
be entered in the County Clerk Lien Record and enforced as
provided in ORS 205.126.
(3) The test of the young person's, parent's or estate's
ability to pay costs under subsection (2) of this section is the
same test as applied to appointment of counsel for defendants
under ORS 135.050 or under the rules adopted under ORS 151.216.
If counsel is provided at state expense, the juvenile panel shall
apply this test in accordance with the guidelines adopted by the
Public Defense Services Commission under ORS 151.485.
(4) If counsel is provided at state expense, the juvenile panel
shall determine the amount the young person, parent or estate 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.
(5) The Attorney General may represent the state at contested
hearings before the juvenile panel unless the district attorney
of the county in which the young person was adjudicated elects to
represent the state. The district attorney of the county in which
the young person was adjudicated shall cooperate with the
Attorney General in securing the material necessary for
presenting a contested hearing before the juvenile panel. If the
district attorney elects to represent the state, the district
attorney shall give timely written notice to the Attorney
General, the juvenile panel and the attorney representing the
young person. + }
SECTION 17. { + (1) When the juvenile panel of the Psychiatric
Security Review Board orders a young person conditionally
released under section 15 (4) of this 2003 Act, the juvenile
panel may designate a qualified mental health or developmental
disabilities treatment provider or state, county or local agency
to supervise the young person on release subject to those
conditions as the juvenile panel directs in the order for
conditional release. Prior to the designation, the juvenile panel
shall notify the qualified mental health or developmental
disabilities treatment provider or agency to whom conditional
release is contemplated and provide the qualified mental health
or developmental disabilities treatment provider or agency an
opportunity to be heard before the juvenile panel. After
receiving an order entered under section 15 (4) of this 2003 Act,
the qualified mental health or developmental disabilities
treatment provider or agency designated shall assume supervision
of the young person pursuant to the direction of the juvenile
panel.
(2) Conditions of release contained in orders entered under
section 15 (4) of this 2003 Act may be modified from time to time
and conditional release may be terminated by order of the
juvenile panel as provided in sections 15 and 19 of this 2003
Act.
(3)(a) As a condition of release, the juvenile panel may
require the young person to report to any state, county or local
mental health or developmental disabilities facility for
evaluation. Whenever medical, psychiatric or psychological
treatment is recommended, the juvenile panel may order the young
person, as a condition of release, to cooperate with and accept
the treatment of the facility.
(b) The facility to which the young person has been referred
for evaluation shall perform the evaluation and submit a written
report of its findings to the juvenile panel. If the facility
finds that treatment of the young person is appropriate, the
facility shall include its recommendations for treatment in the
report to the juvenile panel.
(c) Whenever treatment is provided by the facility, the
facility shall furnish reports to the juvenile panel on a regular
basis concerning the progress of the young person.
(d) The facility shall comply with any other conditions of
release prescribed by order of the juvenile panel.
(4) If at any time it appears to the juvenile panel or the
chairperson of the juvenile panel that a young person has
violated the terms of conditional release or that the mental
health of the young person has changed, the juvenile panel or the
chairperson of the juvenile panel may order the young person
returned to a hospital or facility designated by the Department
of Human Services for evaluation and treatment. A written order
of the juvenile panel, or the chairperson of the juvenile panel
on behalf of the juvenile panel, is sufficient warrant for any
peace officer to take the young person into custody and transport
the young person accordingly. A peace officer shall execute the
order, and the young person shall be returned as soon as
practicable to a facility designated by the department. Within 20
days following the return of the young person to the facility
designated by the department, the juvenile panel shall conduct a
hearing. At a hearing required by this subsection, the state has
the burden of proving the young person's lack of fitness for
conditional release.
(5) The community mental health and developmental disabilities
program director, the director of the facility providing
treatment for the young person on conditional release, a peace
officer or a person responsible for the supervision of a young
person on conditional release may take a young person into
custody or request that the young person be taken into custody if
there is reasonable cause to believe the young person presents a
substantial danger to others and that the young person is in need
of immediate custody, supervision and treatment. A young person
taken into custody under this subsection must immediately be
transported to a hospital or facility designated by the
department. Within 20 days following the return of the young
person to the facility designated by the department, the juvenile
panel shall conduct a hearing. At a hearing required by this
subsection, the state has the burden of proving the young
person's lack of fitness for conditional release.
(6)(a) A young person conditionally released under section 15
(4) of this 2003 Act may apply to the juvenile panel for
discharge from or modification of an order of conditional release
on the ground that the young person no longer has a mental
disease or defect or, if affected by a mental disease or defect
other than a serious mental condition, no longer presents a
substantial danger to others and no longer requires supervision
or treatment services. Within 60 days after receiving an
application under this paragraph, the juvenile panel shall
conduct a hearing. At a hearing required by this paragraph, the
young person has the burden of proving the young person's fitness
for discharge or modification of the order of conditional
release. A young person may not apply for discharge or
modification of conditional release more often than once every
six months.
(b) Upon application by any qualified mental health or
developmental disabilities treatment provider or agency
responsible for supervision or treatment services pursuant to an
order of conditional release, the juvenile panel shall conduct a
hearing to determine if the conditions of release should be
continued, modified or terminated. The application must be
accompanied by a report setting forth the facts supporting the
application. At a hearing required by this paragraph, the state
has the burden of proving the young person's lack of fitness for
discharge or modification of the order of conditional
release. + }
SECTION 18. { + (1) The director of a hospital or facility to
which a young person was committed under section 15 (5) of this
2003 Act shall apply to the juvenile panel of the Psychiatric
Security Review Board for an order of discharge or conditional
release of the young person if, at any time after the commitment,
the director is of the opinion that the young person:
(a) No longer has a mental disease or defect;
(b) Has a mental disease or defect other than a serious mental
condition but no longer presents a substantial danger to others;
or
(c) Can be controlled with proper supervision and treatment
services if conditionally released.
(2) The director shall include in an application under
subsection (1) of this section a report setting forth the facts
that support the opinion of the director. If the application is
for conditional release, the director shall also include a
verified conditional release plan. The juvenile panel shall hold
a hearing on an application under subsection (1) of this section
within 30 days of its receipt. Not less than 10 days prior to the
hearing before the juvenile panel, copies of the report must be
sent to the Attorney General, the district attorney of the county
in which the young person was adjudicated, the young person, the
young person's attorney, the young person's parents or guardians,
if known, and the person having legal custody of the young
person.
(3) The attorney representing the state may choose a
psychiatrist certified, or eligible to be certified, by the Board
of Medical Examiners in child psychiatry or a licensed
psychologist with expertise in child psychology to examine the
young person prior to any decision of the juvenile panel on
discharge or conditional release. The results of the examination
must be in writing and filed with the juvenile panel and must
include, but need not be limited to, an opinion as to whether the
young person:
(a)(A) Has a serious mental condition; or
(B) Has a mental disease or defect other than a serious mental
condition and presents a substantial danger to others; and
(b) Could be adequately controlled with treatment services as a
condition of release.
(4) A young person who has been committed to a hospital or
facility under section 15 (5) of this 2003 Act or the young
person's parents or guardians acting on the young person's behalf
may apply to the juvenile panel for an order of discharge or
conditional release upon the grounds that the young person:
(a) No longer has a mental disease or defect;
(b) Has a mental disease or defect other than a serious mental
condition but no longer presents a substantial danger to others;
or
(c) Can be controlled with proper supervision and treatment
services if conditionally released.
(5) When an application is made under subsection (4) of this
section, the juvenile panel shall require a report from the
director of the hospital or facility. The director shall prepare
and transmit the report as provided in subsection (2) of this
section.
(6) At a hearing on an application under subsection (4) of this
section:
(a) The applicant has the burden of proving the young person's
fitness for discharge or conditional release; or
(b) If more than two years have passed since the state had the
burden of proving the young person's lack of fitness for
discharge or conditional release, the state has the burden of
proving the young person's lack of fitness for discharge or
conditional release.
(7) A person may not file an application for discharge or
conditional release under subsection (4) of this section:
(a) Sooner than 90 days after the initial juvenile panel
hearing concerning the young person.
(b) If another application for discharge or conditional release
of the young person was filed during the immediately preceding 90
days.
(8) The juvenile panel shall hold a hearing on an application
under subsection (4) of this section within 30 days after the
application is filed. + }
SECTION 19. { + (1) A young person committed by the court
under section 13 of this 2003 Act to a hospital or facility
designated by the Department of Human Services may not be held in
the hospital or facility for more than 90 days from the date of
the court's commitment order without an initial hearing before
the juvenile panel of the Psychiatric Security Review Board to
determine whether the young person should be discharged or
conditionally released.
(2) A young person may not be held pursuant to an order under
section 15 (5) of this 2003 Act for a period of time exceeding
one year without a hearing before the juvenile panel to determine
whether the young person should be discharged or conditionally
released.
(3) When a young person has spent three years on conditional
release, the juvenile panel shall bring the young person before
the juvenile panel no later than 30 days after the expiration of
the three-year period. The juvenile panel shall review the young
person's status and determine whether the young person should be
discharged from the jurisdiction of the board.
(4) Notwithstanding the fact that a young person who is brought
before the juvenile panel under subsection (3) of this section
continues to have a serious mental condition, the juvenile panel
may discharge the young person if the young person did not
exhibit behaviors that presented a substantial danger to others
during the period of conditional release and no longer requires
supervision by the juvenile panel. + }
SECTION 20. { + (1) When a young person attains 18 years of
age, the juvenile panel of the Psychiatric Security Review Board
shall transfer the young person's case to the adult panel of the
board if the act that brought the young person within the board's
jurisdiction would constitute murder or any aggravated form of
murder if committed by an adult.
(2) At any time after a young person not described in
subsection (1) of this section attains 18 years of age, the
juvenile panel of the board may hold a hearing to determine
whether it is in the young person's best interest to transfer the
young person's case to the adult panel of the board. The juvenile
panel of the board shall transfer the young person's case to the
adult panel of the board unless good cause is shown for retaining
the young person's case with the juvenile panel. + }
SECTION 21. ORS 161.385 is amended to read:
161.385. (1) There is hereby created a Psychiatric Security
Review Board consisting of { - five - } { + 10 + } members
appointed by the Governor and subject to confirmation by the
Senate under section 4, Article III of the Oregon Constitution.
(2) The membership of the board { - shall - } { + may + }
not include any district attorney, deputy district attorney or
public defender { + . + } { - , but, the membership shall be
composed of - } { + The Governor shall appoint + }:
(a) A psychiatrist experienced in the criminal justice system
and not otherwise employed on a full-time basis by the Department
of Human Services 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
Department of Human Services 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) - } { + (d) + } A lawyer with substantial
experience in criminal trial practice { + ;
(e) A psychiatrist certified, or eligible to be certified, by
the Board of Medical Examiners in child psychiatry who is
experienced in the juvenile justice system and not employed on a
full-time basis by the Department of Human Services or a
community mental health and developmental disabilities program;
(f) A licensed psychologist who is experienced in child
psychology and the juvenile justice system and not employed on a
full-time basis by the Department of Human Services or a
community mental health and developmental disabilities program;
(g) A member with substantial experience in the processes of
juvenile parole and probation;
(h) A lawyer with substantial experience in juvenile law
practice; and
(i) Two members of the general public + }.
(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 - } { + $289.22 + }, 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) The board consists of two five-member panels. The
adult panel is responsible for persons placed under the board's
jurisdiction under ORS 161.327 and section 20 of this 2003 Act
and consists of those members appointed under subsection (1)(a)
to (d) of this section and one of the public members. The
juvenile panel is responsible for young persons placed under the
board's jurisdiction under section 13 of this 2003 Act and
consists of those members appointed under subsection (1)(e) to
(h) of this section and the other public member. + }
{ - (6)(a) - } { + (7)(a) + } { - The board - } { +
Each panel + } shall select one of its members as chairperson to
serve for a one-year term with such duties and powers as the
{ - board - } { + panel + } determines.
(b) A majority of the voting members of { - the board - }
{ + a panel + } constitutes a quorum for the transaction of
business { + of the panel + }.
{ - (7) - } { + (8) + } { - The board - } { + Each
panel + } shall meet at least twice every month, unless the
chairperson determines that there is not sufficient business
before the { - board - } { + panel + } to warrant a meeting
at the scheduled time. The { - board - } { + panel + } 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 - } { + panel + }.
{ - (8)(a) - } { + (9)(a) + } When a person over whom
{ + a panel of + } the board exercises its jurisdiction is
adversely affected or aggrieved by a final order of the
{ - board - } { + panel + }, the person is entitled to
judicial review of the final order. The person shall be 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, 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 shall
determine and allow, as provided in ORS 138.500, the 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 - } { + panel + } 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 - } { + panel + }.
(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 - } { + does + }
not stay { - the board's - } { + a panel's + } order, but the
{ - board - } { + panel + } or the Court of Appeals may order
a stay upon application on such terms as are deemed proper.
SECTION 22. ORS 161.385, as amended by section 70, chapter 962,
Oregon Laws 2001, is amended to read:
161.385. (1) There is hereby created a Psychiatric Security
Review Board consisting of { - five - } { + 10 + } members
appointed by the Governor and subject to confirmation by the
Senate under section 4, Article III of the Oregon Constitution.
(2) The membership of the board { - shall - } { + may + }
not include any district attorney, deputy district attorney or
public defender { + . + } { - , but the membership shall be
composed of - } { + The Governor shall appoint + }:
(a) A psychiatrist experienced in the criminal justice system
and not otherwise employed on a full-time basis by the Department
of Human Services 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
Department of Human Services 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) - } { + (d) + } A lawyer with substantial
experience in criminal trial practice { + ;
(e) A psychiatrist certified, or eligible to be certified, by
the Board of Medical Examiners in child psychiatry who is
experienced in the juvenile justice system and not employed on a
full-time basis by the Department of Human Services or a
community mental health and developmental disabilities program;
(f) A licensed psychologist who is experienced in child
psychology and the juvenile justice system and not employed on a
full-time basis by the Department of Human Services or a
community mental health and developmental disabilities program;
(g) A member with substantial experience in the processes of
juvenile parole and probation;
(h) A lawyer with substantial experience in juvenile law
practice; and
(i) Two members of the general public + }.
(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 - } { + $289.22 + }, 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) The board consists of two five-member panels. The
adult panel is responsible for persons placed under the board's
jurisdiction under ORS 161.327 and section 20 of this 2003 Act
and consists of those members appointed under subsection (1)(a)
to (d) of this section and one of the public members. The
juvenile panel is responsible for young persons placed under the
board's jurisdiction under section 13 of this 2003 Act and
consists of those members appointed under subsection (1)(e) to
(h) of this section and the other public member. + }
{ - (6)(a) - } { + (7)(a) + } { - The board - } { +
Each panel + } shall select one of its members as chairperson to
serve for a one-year term with such duties and powers as the
{ - board - } { + panel + } determines.
(b) A majority of the voting members of { - the board - }
{ + a panel + } constitutes a quorum for the transaction of
business { + of the panel + }.
{ - (7) - } { + (8) + } { - The board - } { + Each
panel + } shall meet at least twice every month, unless the
chairperson determines that there is not sufficient business
before the { - board - } { + panel + } to warrant a meeting
at the scheduled time. The { - board - } { + panel + } 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 - } { + panel + }.
{ - (8)(a) - } { + (9)(a) + } When a person over whom
{ + a panel of + } the board exercises its jurisdiction is
adversely affected or aggrieved by a final order of the
{ - board - } { + panel + }, the person is entitled to
judicial review of the final order. The person 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 financially eligible, suitable counsel
shall be appointed by the reviewing court in the manner provided
in ORS 138.500 (1). If the person is financially eligible, the
public defense services executive director shall determine and
pay, as provided in ORS 138.500, the 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 - } { + panel + } 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 - } { + panel + }.
(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 - } { + does + }
not stay { - the board's - } { + a panel's + } order, but the
{ - board - } { + panel + } or the Court of Appeals may order
a stay upon application on such terms as are deemed proper.
SECTION 23. ORS 137.290 is amended to read:
137.290. (1) In all cases of conviction for the commission of a
crime or violation, excluding parking violations, the trial
court, whether a circuit, justice or municipal court, shall
impose upon the defendant, in addition to any other monetary
obligation imposed, a unitary assessment under this section.
{ + Except when the person successfully asserts the affirmative
defense set forth in section 3 of this 2003 Act, + } the unitary
assessment shall also be imposed by the circuit court and county
court in juvenile cases under ORS 419C.005 (1). The unitary
assessment is a penal obligation in the nature of a fine and
shall be in an amount as follows:
(a) $105 in the case of a felony.
(b) $65 in the case of a misdemeanor.
(c) $95 in the case of a conviction for driving under the
influence of intoxicants.
(d) $35 in the case of a violation as described in ORS 153.008.
(2) The unitary assessment shall include, in addition to the
amount in subsection (1) of this section:
(a) $40 if the defendant was driving a vehicle that requires a
commercial driver license to operate and the conviction was for
violating:
(A) ORS 811.100 by driving at a speed at least 10 miles per
hour greater than is reasonable and prudent under the
circumstances; or
(B) ORS 811.115 by driving at least 65 miles per hour; and
(b) $500 if the crime of conviction is a crime found in ORS
chapter 163.
(3) Subject to subsection (4) of this section, the court in any
case may waive payment of the unitary assessment, in whole or in
part, if, upon consideration, the court finds that payment of the
assessment or portion thereof would impose upon the defendant a
total monetary obligation inconsistent with justice in the case.
In making its determination under this subsection, the court
shall consider:
(a) The financial resources of the defendant and the burden
that payment of the unitary assessment will impose, with due
regard to the other obligations of the defendant; and
(b) The extent to which such burden can be alleviated by
allowing the defendant to pay the monetary obligations imposed by
the court on an installment basis or on other conditions to be
fixed by the court.
(4) If a defendant is convicted of an offense, the court may
waive all or part of the unitary assessment required under
subsections (1) and (2)(a) of this section only if the court
imposes no fine on the defendant.
SECTION 24. ORS 137.712 is amended to read:
137.712. (1)(a) Notwithstanding ORS 137.700 and 137.707, when a
person is convicted of manslaughter in the second degree as
defined in ORS 163.125, assault in the second degree as defined
in ORS 163.175 (1)(b), kidnapping in the second degree as defined
in ORS 163.225, rape in the second degree as defined in ORS
163.365, sodomy in the second degree as defined in ORS 163.395,
unlawful sexual penetration in the second degree as defined in
ORS 163.408, sexual abuse in the first degree as defined in ORS
163.427 (1)(a)(A) or robbery in the second degree as defined in
ORS 164.405, the court may impose a sentence according to the
rules of the Oregon Criminal Justice Commission that is less than
the minimum sentence that otherwise may be required by ORS
137.700 or 137.707 if the court, on the record at sentencing,
makes the findings set forth in subsection (2) of this section
and finds that a substantial and compelling reason under the
rules of the Oregon Criminal Justice Commission justifies the
lesser sentence. When the court imposes a sentence under this
subsection, the person is eligible for a reduction in the
sentence as provided in ORS 421.121 and any other statute.
(b) In order to make a dispositional departure under this
section, the court must make the following additional findings on
the record:
(A) There exists a substantial and compelling reason not relied
upon in paragraph (a) of this subsection;
(B) A sentence of probation will be more effective than a
prison term in reducing the risk of offender recidivism; and
(C) A sentence of probation will better serve to protect
society.
(2) A conviction is subject to subsection (1) of this section
only if the sentencing court finds on the record by a
preponderance of the evidence:
(a) If the conviction is for manslaughter in the second degree:
(A) That the defendant is the mother or father of the victim;
(B) That the death of the victim was the result of an injury or
illness that was not caused by the defendant;
(C) That the defendant treated the injury or illness solely by
spiritual treatment in accordance with the religious beliefs or
practices of the defendant and based on a good faith belief that
spiritual treatment would bring about the victim's recovery from
the injury or illness;
(D) That no other person previously under the defendant's care
has died or sustained significant physical injury as a result of
or despite the use of spiritual treatment, regardless of whether
the spiritual treatment was used alone or in conjunction with
medical care; and
(E) That the defendant does not have a previous conviction for
a crime listed in subsection (4) of this section or for criminal
mistreatment in the second degree.
(b) If the conviction is for assault in the second degree:
(A) That the victim was not physically injured by means of a
deadly weapon;
(B) That the victim did not suffer a significant physical
injury; and
(C) That the defendant does not have a previous conviction for
a crime listed in subsection (4) of this section.
(c) If the conviction is for kidnapping in the second degree:
(A) That the victim was at least 12 years of age at the time
the crime was committed; and
(B) That the defendant does not have a previous conviction for
a crime listed in subsection (4) of this section.
(d) If the conviction is for robbery in the second degree:
(A) That the victim did not suffer a significant physical
injury;
(B) That, if the defendant represented by words or conduct that
the defendant was armed with a dangerous weapon, the
representation did not reasonably put the victim in fear of
imminent significant physical injury;
(C) That, if the defendant represented by words or conduct that
the defendant was armed with a deadly weapon, the representation
did not reasonably put the victim in fear of imminent physical
injury; and
(D) That the defendant does not have a previous conviction for
a crime listed in subsection (4) of this section.
(e) If the conviction is for rape in the second degree, sodomy
in the second degree or sexual abuse in the first degree:
(A) That the victim was at least 12 years of age, but under 14
years of age, at the time of the offense;
(B) That the defendant does not have a prior conviction for a
crime listed in subsection (4) of this section;
(C) That the defendant has not been previously found to be
within the jurisdiction of a juvenile court for an act that would
have been a felony sexual offense if the act had been committed
by an adult;
(D) That the defendant was no more than five years older than
the victim at the time of the offense;
(E) That the offense did not involve sexual contact with any
minor other than the victim; and
(F) That the victim's lack of consent was due solely to
incapacity to consent by reason of being under 18 years of age at
the time of the offense.
(f) If the conviction is for unlawful sexual penetration in the
second degree:
(A) That the victim was 12 years of age or older at the time of
the offense;
(B) That the defendant does not have a prior conviction for a
crime listed in subsection (4) of this section;
(C) That the defendant has not been previously found to be
within the jurisdiction of a juvenile court for an act that would
have been a felony sexual offense if the act had been committed
by an adult;
(D) That the defendant was no more than five years older than
the victim at the time of the offense;
(E) That the offense did not involve sexual contact with any
minor other than the victim;
(F) That the victim's lack of consent was due solely to
incapacity to consent by reason of being under 18 years of age at
the time of the offense; and
(G) That the object used to commit the unlawful sexual
penetration was the hand or any part thereof of the defendant.
(3) In making the findings required by subsections (1) and (2)
of this section, the court may consider any evidence presented at
trial and may receive and consider any additional relevant
information offered by either party at sentencing.
(4) The crimes to which subsection (2)(a)(E), (b)(C), (c)(B),
(d)(D), (e)(B) and (f)(B) of this section refer are:
(a) A crime listed in ORS 137.700 (2) or 137.707 (4);
(b) Escape in the first degree, as defined in ORS 162.165;
(c) Aggravated murder, as defined in ORS 163.095;
(d) Criminally negligent homicide, as defined in ORS 163.145;
(e) Assault in the third degree, as defined in ORS 163.165;
(f) Criminal mistreatment in the first degree, as defined in
ORS 163.205 (1)(b)(A);
(g) Rape in the third degree, as defined in ORS 163.355;
(h) Sodomy in the third degree, as defined in ORS 163.385;
(i) Sexual abuse in the second degree, as defined in ORS
163.425;
(j) Stalking, as defined in ORS 163.732;
(k) Burglary in the first degree, as defined in ORS 164.225,
when it is classified as a person felony under the rules of the
Oregon Criminal Justice Commission;
(L) Arson in the first degree, as defined in ORS 164.325;
(m) Robbery in the third degree, as defined in ORS 164.395;
(n) Intimidation in the first degree, as defined in ORS
166.165;
(o) Promoting prostitution, as defined in ORS 167.012; and
(p) An attempt or solicitation to commit any Class A or B
felony listed in paragraphs (a) to (L) of this subsection.
(5) Notwithstanding ORS 137.545 (5)(b), if a person sentenced
to probation under this section violates a condition of probation
by committing a new crime, the court shall revoke the probation
and impose the presumptive sentence of imprisonment under the
rules of the Oregon Criminal Justice Commission.
(6) As used in this section:
(a) 'Conviction' includes, but is not limited to:
(A) A juvenile court adjudication finding a person within the
court's jurisdiction under ORS 419C.005, if the person was at
least 15 years of age at the time the person committed the
offense that brought the person within the jurisdiction of the
juvenile court. { + ' Conviction' does not include a juvenile
court adjudication described in this subparagraph if the person
successfully asserted the affirmative defense set forth in
section 3 of this 2003 Act. + }
(B) A conviction in another jurisdiction for a crime that if
committed in this state would constitute a crime listed in
subsection (4) of this section.
(b) 'Previous conviction' means a conviction that was entered
prior to imposing sentence on the current crime provided that the
prior conviction is based on a crime committed in a separate
criminal episode. 'Previous conviction' does not include a
conviction for a Class C felony, including an attempt or
solicitation to commit a Class B felony, or a misdemeanor, unless
the conviction was entered within the 10-year period immediately
preceding the date on which the current crime was committed.
(c) 'Significant physical injury' means a physical injury that:
(A) Creates a risk of death that is not a remote risk;
(B) Causes a serious and temporary disfigurement;
(C) Causes a protracted disfigurement; or
(D) Causes a prolonged impairment of health or the function of
any bodily organ.
SECTION 25. ORS 151.216, as amended by section 106, chapter
962, Oregon Laws 2001, is amended to read:
151.216. (1) The Public Defense Services Commission shall:
(a) 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 an office of public defense services and appoint
a public defense services executive director who serves at the
pleasure of the commission.
(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.
(d) Review and approve any public defense services contract
negotiated by the director before the contract can become
effective.
(e) Adopt a compensation plan for the office of public defense
services that is commensurate with other state agencies.
(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, 419A.211, 419B.201, 419B.208, 419B.518,
419B.908, 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 16 of this 2003 Act + } 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;
(H) Procedures for the contracting of public defense services;
and
(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 ORS 151.225 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 ORS 151.225 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 26. ORS 161.375 is amended to read:
161.375. (1) When a patient, who has been placed at the Oregon
State Hospital for evaluation, care, custody and treatment under
the jurisdiction of the Psychiatric Security Review Board or by
court order under ORS 161.315, 161.365 or 161.370 { + or section
5 of this 2003 Act + }, has escaped or is absent without
authorization from the Oregon State Hospital or from the custody
of any person in whose charge the superintendent has placed the
patient, the superintendent may order the arrest and detention of
the patient.
(2) The superintendent may issue an order under this section
based upon a reasonable belief that grounds exist for issuing the
order. When reasonable, the superintendent shall investigate to
ascertain whether such grounds exist.
(3) Any order issued by the superintendent as authorized by
this section constitutes full authority for the arrest and
detention of the patient and all laws applicable to warrant or
arrest apply to the order. An order issued by the superintendent
under this section expires 72 hours after being signed by the
superintendent.
(4) As used in this section, 'superintendent' means the
superintendent of the Oregon State Hospital or the
superintendent's authorized representative.
{ + NOTE: + } Section 27 was deleted by amendment. Subsequent
sections were not renumbered.
SECTION 28. ORS 40.015 is amended to read:
40.015. (1) The Oregon Evidence Code applies to all courts in
this state except for:
(a) A tax court small claims procedure or a hearing or
mediation before a magistrate of the Oregon Tax Court as provided
by ORS 305.501;
(b) The small claims department of a circuit court as provided
by ORS 46.415; and
(c) The small claims department of a justice court as provided
by ORS 55.080.
(2) The Oregon Evidence Code applies generally to civil
actions, suits and proceedings, criminal actions and proceedings
and to contempt proceedings except those in which the court may
act summarily.
(3) ORS 40.225 to 40.295 relating to privileges apply at all
stages of all actions, suits and proceedings.
(4) ORS 40.010 to 40.210 and 40.310 to 40.585 do not apply in
the following situations:
(a) The determination of questions of fact preliminary to
admissibility of evidence when the issue is to be determined by
the court under ORS 40.030.
(b) Proceedings before grand juries, except as required by ORS
132.320.
(c) Proceedings for extradition, except as required by ORS
133.743 to 133.857.
(d) Sentencing proceedings, except proceedings under ORS
138.012 and 163.150 or as required by ORS 137.090.
(e) Proceedings to revoke probation, except as required by ORS
137.090.
(f) Issuance of warrants of arrest, bench warrants or search
warrants.
(g) Proceedings under ORS chapter 135 relating to conditional
release, security release, release on personal recognizance, or
preliminary hearings, subject to ORS 135.173.
(h) Proceedings to determine proper disposition of a child in
accordance with ORS 419B.325 (2) and 419C.400 { - (3) - } { +
(4) + }.
(i) Proceedings under ORS 813.210, 813.215, 813.220, 813.230,
813.250 and 813.255 to determine whether a driving while under
the influence of intoxicants diversion agreement should be
allowed or terminated.
SECTION 29. ORS 419C.626 is amended to read:
419C.626. (1) Upon receiving any report required by ORS
419C.620, the court may hold a hearing to review the youth
offender's condition and circumstances and to determine if the
court should continue jurisdiction over the youth offender or
order modifications in the care, placement and supervision of the
youth offender. The court shall hold a hearing if requested by
the youth offender, the attorney for the youth offender, if any,
the parents or the public or private agency having guardianship
or legal custody of the youth offender within 30 days of receipt
of the notice provided in ORS 419C.629.
(2) The hearing provided in subsection (1) of this section
shall be conducted in the manner provided in ORS 419C.400 (1),
419C.405 and 419C.408, except that the court may receive
testimony and reports as provided in ORS 419C.400 { - (3) - }
{ + (4) + }. At the conclusion of the hearing, the court shall
enter findings of fact if the decision is to continue the youth
offender in substitute care. Such findings shall specifically
state:
(a) Why continued care is necessary as opposed to returning the
youth offender to the youth offender's home or prompt action to
secure another permanent placement; or
(b) The expected timetable for return or other permanent
placement.
(3) Any final decision of the court made pursuant to the
hearing provided in subsection (1) of this section is appealable
under ORS 419A.200.
SECTION 30. ORS 419C.656 is amended to read:
419C.656. (1) The court shall enter an order within 20 days
after the review hearing. Where the youth is in substitute care,
the order shall include a determination of:
(a) Whether or not the youth should be returned to the parent;
(b) Whether or not the youth should be placed for adoption;
(c) Whether the youth should continue in substitute care for a
specified period; or
(d) Whether, because of special needs or circumstances, the
youth should be placed in the permanent custody or guardianship
of a responsible relative or other individual or should continue
in substitute care on a permanent or long-term basis.
(2) If the court determines that the youth shall be placed or
continued in substitute care or placed in the custody or
guardianship of a relative or other responsible individual, the
court shall enter written findings specifying why neither
placement with parents nor adoption is appropriate. If the
current placement is not expected to be permanent, the court
shall specify a projected timetable for return home or another
permanent placement. If the timetable set forth by the court is
not met, the Oregon Youth Authority shall promptly notify the
court and parties.
(3) In the course of the dispositional review hearing, the
court may determine the adequacy of and compliance with the case
plan and case progress report. In addition to other orders, the
court may:
(a) Order the youth authority to develop or expand a case plan
or case progress report which must be submitted within 10 days
after the hearing;
(b) Set a court hearing at a specific later time;
(c) Direct the local citizen review board to review the status
of the youth prior to its next review under ORS 419A.106,
419A.108, 419A.110, 419A.112, 419A.116 and 419A.118;
(d) Order the youth authority or other agency directly
responsible for the youth to modify the care, placement and
supervision of the youth; and
(e) Determine whether the youth authority or other agency
directly responsible for the youth has made reasonable efforts to
reunify the family.
(4) The dispositional review hearing shall be conducted in the
manner provided in ORS 419C.400 (1), 419C.405 and 419C.408,
except that the court may receive testimony and reports as
provided in ORS 419C.400 { - (3) - } { + (4) + }.
(5) Any final decision of the court made pursuant to the
dispositional review hearing is appealable under ORS 419A.200.
SECTION 31. { + Section 32 of this 2003 Act is added to and
made a part of ORS chapter 419A. + }
SECTION 32. { + (1)(a) Once each month, the Department of
Human Services shall provide to each school district a list of
all young persons enrolled in a school in the school district who
are on conditional release. The department shall include in the
list the name and business telephone number of the caseworker
assigned to each case.
(b) When a young person who is on conditional release transfers
from one school district to a different school district, the
caseworker assigned to the case shall notify the superintendent
of the school district to which the young person has transferred
of the young person's status. The caseworker shall make the
notification no later than 72 hours after the caseworker knows of
the transfer.
(2) Upon request by the school district, the department shall
provide additional information, including the offense that
brought the young person within the jurisdiction of the juvenile
court and such other information that is subject to disclosure
under ORS 419A.255 (5).
(3) In addition to the general notification required by
subsection (1) of this section, the department:
(a) Shall notify the school district of the specific offense if
the act that brought the young person within the jurisdiction of
the juvenile court involved a firearm or delivery of a controlled
substance.
(b) May notify the school district of the specific offense if
the act that brought the young person within the jurisdiction of
the juvenile court involved a violation of ORS 163.355 to 163.445
or 163.465 or any other offense if the department believes the
young person represents a risk to other students or school staff.
(4) ORS 419A.015 (4) and (5) apply to persons sending or
receiving records under this section. + }
SECTION 33. ORS 181.607 is amended to read:
181.607. (1)(a) No later than 90 days after the termination of
juvenile court { + jurisdiction or, if the person was placed
under the jurisdiction of the Psychiatric Security Review Board
under section 13 of this 2003 Act, board + } jurisdiction over a
person required to report under ORS 181.595, 181.596 or 181.597,
the person may file a petition for relief from the duty to
report. The person must file the petition in the juvenile court
in which the person was adjudicated for the act that requires
reporting.
(b) The juvenile court in which a petition under this section
is filed may transfer the matter to the juvenile court of the
county that last supervised the person if the court determines
that the convenience of the parties, the victim and witnesses
require the transfer.
(c) The juvenile court has exclusive original jurisdiction in
any proceeding under this section.
(d) The person, the district attorney and the juvenile
department are parties to a hearing on a petition filed under
this section.
(2) When a person files a petition under this section, the
state has the burden of proving by clear and convincing evidence
that the person is not rehabilitated and continues to pose a
threat to the safety of the public. In determining whether the
state has met its burden of proof, the juvenile court may
consider but need not be limited to considering:
(a) The extent and impact of any physical or emotional injury
to the victim;
(b) The nature of the act that subjected the person to the duty
of reporting as a sex offender;
(c) Whether the person used or threatened to use force in
committing the act;
(d) Whether the act was premeditated;
(e) Whether the person took advantage of a position of
authority or trust in committing the act;
(f) The age of any victim at the time of the act, the age
difference between any victim and the person and the number of
victims;
(g) The vulnerability of the victim;
(h) Other acts committed by the person that would be crimes if
committed by an adult and criminal activities engaged in by the
person before and after the adjudication;
(i) Statements, documents and recommendations by or on behalf
of the victim or the parents of the victim;
(j) The person's willingness to accept personal responsibility
for the act and personal accountability for the consequences of
the act;
(k) The person's ability and efforts to pay the victim's
expenses for counseling and other trauma-related expenses or
other efforts to mitigate the effects of the act;
(L) Whether the person has participated in and satisfactorily
completed a sex offender treatment program or any other
intervention, and if so the juvenile court may also consider:
(A) The availability, duration and extent of the treatment
activities;
(B) Reports and recommendations from the providers of the
treatment;
(C) The person's compliance with court { + , board + } or
supervision requirements regarding treatment; and
(D) The quality and thoroughness of the treatment program;
(m) The person's academic and employment history;
(n) The person's use of drugs or alcohol before and after the
adjudication;
(o) The person's history of public or private indecency;
(p) The person's compliance with and success in completing the
terms of supervision;
(q) The results of psychological examinations of the person;
(r) The protection afforded the public by the continued
existence of the records; and
(s) Any other relevant factors.
(3) If the person or, if the person is less than 18 years of
age, the parent or guardian of the person requests counsel for
the person but is without sufficient financial means to employ
suitable counsel possessing skills and experience commensurate
with the nature of the petition, the court may appoint suitable
counsel to represent the person. Appointment of counsel under
this subsection is subject to ORS 419C.200, 419C.203, 419C.206
and 419C.209.
(4) When a petition is filed under this section, the state has
the right to have a psychosexual evaluation of the person
conducted. The state shall file notice with the juvenile court of
its intention to have the person evaluated. If the person objects
to the evaluator chosen by the state, the juvenile court for good
cause shown may direct the state to select a different evaluator.
(5) As soon as practicable after a petition has been filed
under this section, the district attorney shall make a reasonable
effort to notify the victim of the crime that the person has
filed a petition seeking relief under this section.
(6) When a juvenile court enters an order relieving a person of
the requirement to report under ORS 181.595, 181.596 or 181.597,
the person is responsible for sending a certified copy of the
juvenile court order to the Department of State Police.
SECTION 34. ORS 419B.100 is amended to read:
419B.100. (1) Except as otherwise provided in subsection (6) of
this section and ORS 107.726, the juvenile court has exclusive
original jurisdiction in any case involving a person who is under
18 years of age and:
(a) Who is beyond the control of the person's parents, guardian
or other person having custody of the person;
(b) Whose behavior is such as to endanger the welfare of the
person or of others;
(c) Whose condition or circumstances are such as to endanger
the welfare of the person or of others;
(d) Who is dependent for care and support on a public or
private child-caring agency that needs the services of the court
in planning for the best interest of the person;
(e) Whose parents or any other person or persons having custody
of the person have:
(A) Abandoned the person;
(B) Failed to provide the person with the care or education
required by law;
(C) Subjected the person to cruelty, depravity or unexplained
physical injury; or
(D) Failed to provide the person with the care, guidance and
protection necessary for the physical, mental or emotional
well-being of the person;
(f) Who has run away from the home of the person; { - or - }
(g) Who has filed a petition for emancipation pursuant to ORS
419B.550 to 419B.558 { + ; or
(h) For whom an order has been entered under ORS 419C.411
(7)(a) + }.
(2) The court shall have jurisdiction under subsection (1) of
this section even though the child is receiving adequate care
from the person having physical custody of the child.
(3) The practice of a parent who chooses for the parent or the
child of the parent treatment by prayer or spiritual means alone
{ - shall - } { + may + } not be construed as a failure to
provide physical care within the meaning of this chapter, but
{ - shall - } { + does + } not prevent a court of competent
jurisdiction from exercising that jurisdiction under subsection
(1)(c) of this section.
(4) The provisions of subsection (1) of this section do not
prevent a court of competent jurisdiction from entertaining a
civil action or suit involving a child.
(5) The court shall have no further jurisdiction as provided in
subsection (1) of this section after a minor has been emancipated
pursuant to ORS 419B.550 to 419B.558.
(6)(a) An Indian tribe has exclusive jurisdiction over any
child custody proceeding involving an Indian child who resides or
is domiciled within the reservation of the tribe, except where
the jurisdiction is otherwise vested in the state by existing
federal law.
(b) Upon the petition of either parent, the Indian custodian or
the Indian child's tribe, the juvenile court, absent good cause
to the contrary and absent objection by either parent, shall
transfer a proceeding for the foster care placement of, or
termination of parental rights to, an Indian child not domiciled
or residing within the reservation of the Indian child's tribe,
to the jurisdiction of the tribe.
(c) The juvenile court shall give full faith and credit to the
public acts, records and judicial proceedings of an Indian tribe
applicable to an Indian child custody proceeding to the same
extent that the juvenile court gives full faith and credit to the
public acts, records and judicial proceedings of any other
entity.
SECTION 35. ORS 21.010 is amended to read:
21.010. (1) Except as provided in subsection (2) of this
section, the appellant in an appeal or the petitioner in a
judicial review in the Supreme Court or the Court of Appeals
shall pay a filing fee of $140 in the manner prescribed by ORS
19.265. The respondent in such case, upon entering first
appearance or filing first brief in the court, shall pay to the
State Court Administrator the sum of $84. The party entitled to
costs and disbursements on such appeal shall recover from the
opponent the amount so paid.
(2) Filing and appearance fees shall not be assessed in appeals
from habeas corpus proceedings under ORS 34.710, post-conviction
relief proceedings under ORS 138.650, juvenile court under ORS
419A.200 and the involuntary commitment of allegedly mentally ill
persons under ORS 426.135 or allegedly mentally retarded persons
under ORS 427.295, or on judicial review of orders of the
Psychiatric Security Review Board under ORS 161.385 { - (8) - }
{ + (9) + } or orders of the State Board of Parole and
Post-Prison Supervision.
(3) Filing and appearance fees shall be assessed in an appeal
from an appeal to a circuit court from a justice court or
municipal court in an action alleging commission of a state
offense designated as a violation or an action alleging violation
of a city charter or ordinance, but not in an action alleging
commission of a state crime.
(4) Filing and appearance fees shall only be assessed in an
appeal in a contempt proceeding seeking imposition of remedial
sanctions under the provisions of ORS 33.055.
SECTION 36. ORS 181.595 is amended to read:
181.595. (1)(a) Except as otherwise provided in paragraph (b)
of this subsection, the agency or official to whom a person
reports under subsection (3) of this section shall complete a sex
offender registration form concerning the person when the person
reports under subsection (3) of this section.
(b) When a person who is under supervision reports to the
agency supervising the person, the supervising agency may require
the person to report instead to the Department of State Police, a
chief of police or a county sheriff and provide the supervising
agency with proof of the completed registration.
(2) Subsection (3) of this section applies to a person who:
(a) Is discharged, paroled or released on any form of
supervised or conditional release from a jail, prison or other
correctional facility or detention facility in this state at
which the person was confined as a result of:
(A) Conviction of a sex crime;
(B) Having been found guilty except for insanity of a sex
crime; or
(C) Having been found to be within the jurisdiction of the
juvenile court for having committed an act that if committed by
an adult would constitute a sex crime;
(b) Is paroled to this state under ORS 144.610 after being
convicted in another jurisdiction of a crime that would
constitute a sex crime if committed in this state;
(c) Is paroled to or otherwise placed in this state after
having been found by a court in another jurisdiction to have
committed an act while the person was under 18 years of age that
would constitute a sex crime if committed in this state by an
adult; { - or - }
{ + (d) Is discharged or placed on conditional release by the
juvenile panel of the Psychiatric Security Review Board after
having been found to be responsible except for insanity under ORS
419C.411 of an act that would constitute a sex crime if committed
by an adult; or + }
{ - (d) - } { + (e) + } Is discharged by the court under
ORS 161.329 after having been found guilty except for insanity of
a sex crime.
(3)(a) Within 10 days following discharge, release on parole,
post-prison supervision or other supervised or conditional
release, the person shall report, in person, to the Department of
State Police, a chief of police or a county sheriff or to the
supervising agency, if any. Thereafter, the person shall report,
in person:
(A) Within 10 days of a change of residence; and
(B) Once each year within 10 days of the person's birth date,
regardless of whether the person changed residence.
(b) The person shall make the reports required by paragraph
(a)(A) and (B) of this subsection to the department, a chief of
police, a county sheriff or the supervising agency, if any.
(c) If the person required to report under this subsection is a
youth offender { + or young person + }, as defined in ORS
419A.004, who is under supervision, the person shall make the
reports required by paragraph (a) of this subsection to the
agency supervising the person.
(d) The obligation to report under this section terminates if
the conviction or adjudication that gave rise to the obligation
is reversed or vacated or if the registrant is pardoned.
(4) As part of the registration requirement under this section,
the Department of State Police, the chief of police, the county
sheriff or the supervising agency:
(a) Shall photograph the person and obtain the signature of the
person; and
(b) May fingerprint the person.
SECTION 37. { + (1) The Governor shall appoint the five
members of the Psychiatric Security Review Board added to the
board by the amendments to ORS 161.385 by sections 21 and 22 of
this 2003 Act before the operative date of section 3 of this 2003
Act.
(2) Notwithstanding the terms of office specified in ORS
161.385, of the members appointed to the board under subsection
(1) of this section:
(a) One serves a term ending July 1, 2004.
(b) One serves a term ending July 1, 2005.
(c) One serves a term ending July 1, 2006.
(d) Two serve terms ending July 1, 2007. + }
SECTION 38. { + There is appropriated to the Psychiatric
Security Review Board, for the biennium beginning July 1, 2003,
out of the General Fund, the amount of $_____ for the purpose of
carrying out the duties, functions and powers of the board
relating to persons found responsible except for insanity under
ORS 419C.411. + }
SECTION 39. { + The dispositions described in section 13 of
this 2003 Act apply to any proceeding initiated by a petition
alleging jurisdiction under ORS 419C.005 for which the court has
not entered an order directing disposition of the case before the
operative date of section 3 of this 2003 Act. + }
SECTION 40. { + Sections 2 to 5, 12 to 20, 31 and 32 of this
2003 Act and the amendments to ORS 40.015, 137.290, 137.712,
151.216, 161.375, 181.595, 181.607, 419A.004, 419B.100, 419C.005,
419C.285, 419C.400, 419C.411, 419C.501, 419C.626 and 419C.656 by
sections 1, 6 to 11, 23 to 26, 28 to 30 and 33 to 36 of this 2003
Act become operative January 1, 2004. + }
SECTION 41. { + This 2003 Act being necessary for the
immediate preservation of the public peace, health and safety, an
emergency is declared to exist, and this 2003 Act takes effect
July 1, 2003. + }
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