Chapter 129
AN ACT
HB 2357
Relating to courts; creating new provisions; and amending ORS 1.002,
7.020, 7.090, 7.110, 7.250, 8.120, 8.225, 18.412, 19.500, 21.040, 21.110,
21.111, 21.114, 21.275, 21.310, 21.410, 21.480, 21.605, 46.570, 108.130 and
130.200 and ORCP 7 C, 9 A, 9 B, 9 E, 17 A, 17 C and 17 D.
Be It Enacted by the People of
the State of
SECTION 1. ORS 1.002 is amended to read:
1.002. (1) The Supreme
Court is the highest judicial tribunal of the judicial department of government
in this state. The Chief Justice of the Supreme Court is the presiding judge of
the court and the administrative head of the judicial department of government
in this state. The Chief Justice shall exercise administrative authority and
supervision over the courts of this state consistent with applicable provisions
of law and the Oregon Rules of Civil Procedure. The Chief Justice, to
facilitate exercise of that administrative authority and supervision, may:
(a) Make rules and issue
orders appropriate to that exercise.
(b) Require appropriate
reports from the judges, other officers and employees of the courts of this
state and municipal courts.
(c) Pursuant to policies
approved by the Judicial Conference of the State of
(d) Set staffing levels
for all courts of the state operating under the Judicial Department and for all
operations in the Judicial Department.
(e) Establish time
standards for disposition of cases.
(f) Establish budgets
for the Judicial Department and all courts operating under the Judicial
Department.
(g) Assign or reassign
all court staff of courts operating under the Judicial Department.
(h) Pursuant to policies
approved by the Judicial Conference of the State of
(i) Take any other
action appropriate to the exercise of the powers specified in this section and
other law, and appropriate to the exercise of
administrative authority and supervision by the Chief Justice over the courts
of this state.
(2) [Subject to all other laws governing courts
and court procedures,] The Chief Justice may make rules for the use of
electronic applications in the courts, including but not limited to rules
relating to:
(a) Applications based
on the use of the Internet and other similar technologies;
[(b) Filing of electronic documents in court proceedings in lieu of hard
copies of those documents;]
(b) The use of an
electronic document, or use of an electronic image of a paper document in lieu
of the original paper copy, for a document, process or paper that is served,
delivered, received, filed, entered or retained in any action or proceeding;
(c) The use of
electronic signatures or another form of identification for any document,
process or paper that is served, delivered, received, filed, entered or
retained in any action or proceeding and that is required by any law or rule to
be signed;
(d) The use of
electronic transmission for the service of documents in a proceeding, other
than service of a summons or service of an initial complaint or petition;
[(c)] (e) Payment of statutory or
court-ordered monetary obligations through electronic media;
[(d)] (f) Electronic storage of
court documents;
[(e)] (g) Use of electronic citations in lieu of the paper
citation forms as allowed under ORS 153.770, including use of electronic
citations for parking ordinance violations that are subject to ORS 221.333 or
810.425;
[(f)] (h) Public access through electronic means to court
documents that are required or authorized to be made available to the public by
law; and
[(g)] (i) Transmission of open court
proceedings through electronic media.
(3) Rules adopted by
the Chief Justice under subsection (2) of this section must be consistent with
the laws governing courts and court procedures, but any person who serves,
delivers, receives, files, enters or retains an electronic document, or an
electronic image of a paper document in lieu of the original paper copy, in the
manner provided by a rule of the Chief Justice under subsection (2) of this
section shall be considered to have complied with any rule or law governing
service, delivery, reception, filing, entry or retention of a paper document.
[(3)] (4) Rules made and orders issued by the Chief Justice
under this section shall permit as much variation and flexibility in the
administration of the courts of this state as are appropriate to the most
efficient manner of administering each court, considering the particular needs
and circumstances of the court, and consistent with the sound and efficient
administration of the judicial department of government in this state.
[(4)] (5) The judges, other officers
and employees of the courts of this state shall comply with rules made and
orders issued by the Chief Justice. Rules and orders of a court of this state,
or a judge thereof, relating to the conduct of the business of the court shall
be consistent with applicable rules made and orders issued by the Chief
Justice.
[(5)] (6) The Chief Judge of the Court of Appeals and the
presiding judge of each judicial district of this state are the administrative
heads of their respective courts. They are responsible and accountable to the
Chief Justice of the Supreme Court in the exercise of their administrative
authority and supervision over their respective courts. Other judges of the
Court of Appeals or court under a presiding judge are responsible and
accountable to the Chief Judge or presiding judge, and to the Chief Justice, in
respect to exercise by the Chief Justice, Chief Judge or presiding judge of
administrative authority and supervision.
[(6)] (7) The Chief Justice may delegate the exercise of any
of the powers specified by this section to the presiding judge of a court, and
may delegate the exercise of any of the administrative powers specified by this
section to the State Court Administrator, as may be appropriate.
[(7)] (8) [Subsections
(1) to (4) of] This section [apply]
applies to justices of the peace and the justice courts of this state
solely for the purpose of disciplining of justices of the peace and for the
purpose of continuing legal education of justices of the peace.
SECTION 2. (1) Pursuant to ORS 8.125 (11), the State
Court Administrator may establish procedures that provide for the destruction
of records, instruments, books, papers, transcripts and other documents filed
in a circuit court after making a photographic film, microphotographic film,
electronic image or other photographic or electronic copy of each document that
is destroyed.
(2) A circuit court may
use procedures established under subsection (1) of this section only if at the
time of making the copy the trial court administrator for the court attaches to
copy, attaches to the sealed container in which the copy is placed or
incorporates into the copy:
(a) A certification that
the copy is a correct copy of the original, or of a specified part of the
original;
(b) The date on which
the copy was made; and
(c) A certification that
the copy was made under the trial court administrator’s direction and control.
(3) A trial court
administrator using film for copies under this section must promptly seal and
store at least one original or negative copy of the film in a manner and place
that will ensure that the film will not be lost, stolen or destroyed.
(4) A trial court
administrator using electronic images for copies under procedures established
under subsection (1) of this section must ensure that the electronic images are
continuously updated into commonly used formats and, if necessary, transferred
to media necessary to ensure that they are accessible through commonly used
electronic or computerized systems.
(5) Copies of documents
created under this section must be retained in lieu of the original documents
for the period established by the schedule prescribed in ORS 8.125 (11).
SECTION 3. ORS 7.020 is amended to read:
7.020. The register is a
record wherein the clerk or court administrator shall enter, by its title,
every action, suit or proceeding commenced in, or transferred or appealed to,
the court, according to the date of its commencement, transfer or appeal.
Thereafter, the clerk or court administrator shall note therein all the
following:
(1) The date of any
filing of any [paper or process] document.
(2) The date of making,
filing and entry of any order, judgment, ruling or other direction of the court in or concerning such action, suit or proceeding.
(3) Any other
information required by statute, court order or rule.
SECTION 4. ORS 7.090 is amended to read:
7.090. The files of the
court are all [papers or process] documents
filed with or by the clerk of the court or court administrator, in any action,
suit or proceeding therein, or before the judge.
SECTION 5. ORS 7.110 is amended to read:
7.110. (1) The records
and files of the court shall be [kept in
the office of] maintained by the clerk or court administrator of the
respective trial or appellate court, and the clerk or court administrator is
the custodian of and responsible for those records and files. [The] Paper records and files [shall] may not be taken out of the
office, and electronic records may not be removed from any file or
electronic database, by any person except[,] when allowed by special order of the
court or a judge [thereof] or general
rule made by the court[, by a judge of
the court or an attorney].
(2) Custody of and
responsibility for records and files of the court relating to an action, suit
or proceeding may be transferred to the clerk or court administrator of another
court, for the purposes of storage and servicing, after the expiration of 25 years
after the entry of final judgment in the action, suit or proceeding.
SECTION 6. ORS 7.250 is amended to read:
7.250. (1) The State
Court Administrator and the courts of this state shall encourage persons who
make paper filings in the courts, including all pleadings, motions,
copies and other documents, to use paper that has been printed on both sides of
each sheet. The courts of this state may not decline to accept any paper
filing because the filing is printed on both sides of each sheet of paper.
(2) All paper
filings in the courts of this state, including all pleadings, motions, copies
and other documents, shall be printed on recycled paper if recycled paper is
readily available at a reasonable price. The State Court Administrator and the
courts of this state shall encourage persons who make paper filings in
the courts to use recycled paper that has the highest available content of
post-consumer waste, as defined in ORS 279A.010, and that is recyclable in
office paper recycling programs in the community in which the filing is made. A
court of this state may not decline to accept any paper filing because
the paper does not comply with the requirements of this subsection.
SECTION 7. ORS 8.120 is amended to read:
8.120. (1) The State
Court Administrator shall, for the Supreme Court and Court of Appeals:
(a) Act as court
administrator for the court.
(b) Keep the seal of the
court, and affix it in all cases required by law.
(c) Record the
proceedings of the court.
(d) Keep the records,
files, books and [papers] documents
pertaining to the court.
(e) File all [papers] documents delivered to
the administrator for that purpose in any action or proceeding in the court.
(f) Attend the terms of
the court, unless excused by the court, and administer oaths.
(g) Under the direction
of the court enter its orders and judgments.
(h) Authenticate, by
certificate or transcript, as may be required, the records, files or
proceedings of the court, or any [paper]
document pertaining thereto, and filed with the administrator.
(i) In the performance
of duties pertaining to the court, conform to the direction of the court.
(2) The State Court
Administrator may delegate powers of the office of State Court Administrator to
officers and employees of the Judicial Department designated by the State Court
Administrator in writing.
SECTION 8. ORS 8.225 is amended to read:
8.225. (1) The trial court administrator for a judicial district has
the duties, powers and functions prescribed by law or by rules of the circuit
courts in the district.
(2) A trial court
administrator shall, for each court served by the officer:
(a) Keep the seal of the
court, and affix it in all cases required by law.
(b) Record the
proceedings of the court.
(c) [Keep] Maintain
the records, files, books and [papers]
other documents pertaining to the court.
(d) File all [papers] documents delivered to
the [officer for that purpose]
trial court administrator in any action or proceeding in the court.
(e) Attend the terms of
the court, administer oaths and receive the verdict of a jury in any action or
proceeding therein, in the presence and under the direction of the court.
(f) Under the direction
of the court enter its orders and judgments.
(g) Authenticate, by
certificate or transcript, as may be required, the records, files or
proceedings of the court, or any [paper]
document pertaining thereto, and filed with the officer.
(h) In the performance
of duties pertaining to the court, conform to the direction of the court.
(3) A trial court administrator
may take and certify the proof and acknowledgment of a conveyance of real
property or any other written instrument authorized or required to be proved or
acknowledged.
(4) A trial court
administrator may delegate powers of the office of trial court administrator to
employees of the trial court administrator.
(5) A trial court
administrator shall designate a person to act as transcript coordinator for the
court.
SECTION 9. ORS 18.412 is amended to read:
18.412. (1) At any time
after the date of execution of an agreement to transfer the ownership of
property in which a homestead exemption exists pursuant to ORS 18.395, the
homestead owner or the owner’s transferee may give notice of intent to
discharge the property from the judgment lien to a judgment creditor. Each
notice shall [be styled as a paper in]
bear the caption of the action in which the judgment was recovered and
shall:
(a) Identify the
property and the judgment and state that the judgment debtor is about to
transfer, or has transferred, the property and that the transfer is intended to
discharge the property from any lien effect of the judgment;
(b) State the fair
market value of the property on the date of the notice or of any applicable
petition in bankruptcy, whichever is applicable, and list the encumbrances
against the property, including the nature and date of each encumbrance, the
name of the encumbrancer and the amount presently secured by each encumbrance;
(c) State that the
property is claimed by the person giving the notice to be wholly exempt from
the lien of the judgment or, if the value of the property exceeds the sum of
the encumbrances specified as required under paragraph (b) of this subsection
that are senior to the judgment lien and $30,000 or $39,600, whichever amount
of the homestead exemption is applicable under ORS 18.395 (1), that the amount
of the excess or the amount due on the judgment, whichever is less, will be
deposited with the court administrator for the court in which the judgment was
entered for the use of the judgment holder; and
(d) Advise the holder of
the judgment that the property may be discharged from any lien arising from the
judgment, without further notice to the judgment creditor, unless prior to a
specified date, which in no case may be earlier than 14 days after the date of
mailing of the notice, the judgment creditor files objections and a request for
a hearing on the matter as provided in ORS 18.415.
(2) Each notice
described by subsection (1) of this section shall be sent by certified mail to
the judgment creditor, as shown by the court records, at the judgment creditor’s
present or last-known address according to the best knowledge of the person
sending the notice. A copy of each notice, together with proof of mailing, may
be filed with the court administrator for the court in which the judgment was
entered and shall be filed by the court administrator with the records and
files of the action in which the judgment was recovered.
SECTION 10. ORS 19.500 is amended to read:
19.500. Except as
otherwise provided in this chapter, when any provision of this chapter requires
that a [paper] document be
served and filed, the [paper]
document shall be served in the manner provided in ORCP 9 B on all other
parties who have appeared in the action, suit or proceeding and who are not
represented by the same counsel as the party serving the [paper] document, and shall be filed, with proof of service
indorsed thereon, with the trial court administrator.
SECTION 11. ORS 21.040, as amended by section 7, chapter
702, Oregon Laws 2005, is amended to read:
21.040. In cases of
original jurisdiction in the Supreme Court, the plaintiff or moving party shall
pay $39 and the defendant or respondent shall pay $22 on the filing of their
first [paper] document.
SECTION 12. ORS 21.110, as amended by section 11, chapter
702, Oregon Laws 2005, is amended to read:
21.110. (1) Except as
otherwise provided in this section, at the time of filing in the circuit court
of any civil action, suit or proceeding, including appeals, the clerk of the
circuit court shall collect from the plaintiff, appellant or moving party the
sum of $107 as a flat and uniform filing fee. In addition, at the time of
filing any appearance in any such action, suit or proceeding by any defendant
or respondent appearing separately, or upon the part of defendants or
respondents appearing jointly, the clerk shall collect from the party or
parties the sum of $83 as a flat and uniform filing fee.
(2) In the following
actions, the clerk of the circuit court shall collect the sum of $68 as a flat
and uniform filing fee from the plaintiff, appellant or moving party at the
time the action is filed, and shall collect the sum of $53 as a flat and
uniform filing fee from any defendant or respondent appearing separately, or
upon the part of defendants or respondents appearing jointly, at the time of
filing any appearance in the action:
(a) Actions for the
recovery of money or damages only when the amount claimed does
not exceed $10,000.
(b) Actions for the
recovery of specific personal property when the value of the property claimed
and the damages for the detention do not exceed $10,000.
(c) Actions for the
recovery of any penalty or forfeiture, whether given by statute or arising out
of contract, not exceeding $10,000.
(d) Actions to enforce, marshal and foreclose liens upon personal property
where the amount claimed for such liens does not exceed $10,000.
(e) Actions of
interpleader, and in the nature of interpleader, when the amount of money or
the value of the property involved does not exceed $10,000.
(f)
Actions for injunctive relief under ORS chapter 90 when the amount of any
damages claimed does not exceed $10,000.
(3) The clerk of the
court shall collect the sum of $300 as a flat and uniform filing fee from the
petitioner in a proceeding under ORS 181.607 or 181.608, at the time the
petition is filed. Fees collected under this subsection shall be deposited into
the Judicial Department Operating Account established in ORS 1.009.
(4) For purposes of subsection
(2) of this section, the amount claimed, value of property, damages or any
amount in controversy does not include any amount claimed as costs and
disbursements or attorney fees as defined by ORCP 68 A.
(5) A [paper or] pleading or other document shall
be filed by the clerk only if the fee required under this section is paid by
the person filing the [paper or pleading]
document, or if a request for a fee waiver or deferral is granted by the
court. No part of any such filing fee shall be refunded to any party. The
uniform fee shall cover all services to be performed by the court or clerk in
any such action, suit or proceeding, except where additional fees are specially
authorized by law.
(6) Any plaintiff,
appellant, moving party, defendant or respondent that files an action or
appearance that is subject to the filing fees established under subsection (2)
of this section must include in the caption of the pleading the following
words: “Claim of not more than $10,000.”
(7) The fees imposed by
this section do not apply to:
(a) Protective
proceedings under ORS chapter 125;
(b) Proceedings for
dissolution of marriage, annulment of marriage or separation;
(c) Filiation
proceedings under ORS 109.124 to 109.230;
(d) Proceedings to
determine custody or support of a child under ORS 109.103;
(e) Probate, adoption or
change of name proceedings;
(f) Proceedings
involving dwelling units to which ORS chapter 90 applies and for which the fee
is provided by ORS 105.130; or
(g) Any counterclaim,
cross-claim or third-party claim filed by a party who has appeared in the
action or proceeding.
(8) The fees described
in this section shall not be charged to a district attorney or to the Division
of Child Support of the Department of Justice for the filing of any case,
motion, document, stipulated order, process or other document relating to the
provision of support enforcement services as described in ORS 25.080.
SECTION 13. ORS 21.111, as amended by section 15, chapter
702, Oregon Laws 2005, is amended to read:
21.111. (1) In the
proceedings specified in subsection (2) of this section, the clerk of the
circuit court shall collect the sum of $99 as a flat and uniform filing fee
from the petitioner at the time the petition is filed, and shall collect the
sum of $51 as a flat and uniform filing fee from the respondent upon the
respondent making an appearance.
(2) The filing fee
established by subsection (1) of this section shall be collected by the clerk
in the following proceedings:
(a) Proceedings for
dissolution of marriage, annulment of marriage or separation.
(b) Filiation
proceedings under ORS 109.124 to 109.230.
(c) Proceedings to
determine custody or support of a child under ORS 109.103.
(3) In addition to all
other fees collected, the clerk of the circuit court shall collect from the
moving party a fee of $50 at the time of the filing of a motion after entry of
a judgment of marital annulment, dissolution or separation. A fee of $35 shall
be charged to the responding party at the time a response is filed to the
motion. The fee provided for in this subsection does not apply to any pleading
under ORCP 68, 69 or 71.
(4) A [paper or] pleading or other document shall
be filed by the clerk only if the fee required under this section is paid or if
a request for a fee waiver or deferral is granted by the court. No part of any
such filing fee shall be refunded to any party. The uniform fee shall cover all
services to be performed by the court or clerk in any of the proceedings,
except where additional fees are specially authorized by law.
(5) Any petitioner or
respondent that files a petition or appearance that is subject to the filing
fees established under subsection (1) of this section must include in the
caption of the pleading the following words: “Domestic relations case subject
to fee under ORS 21.111.”
(6) The fees described
in this section shall not be charged to a district attorney or to the Division
of Child Support of the Department of Justice for the filing of any case,
motion, document, stipulated order, process or other document relating to the
provision of support enforcement services as described in ORS 25.080.
SECTION 14. ORS 21.114, as amended by section 19, chapter
702, Oregon Laws 2005, is amended to read:
21.114. (1) In a court having jurisdiction, the clerk of the court shall
charge and collect:
(a) In an adoption
proceeding, a first appearance fee of $39 from the party filing the petition
for adoption, and a first appearance fee of $23 from an objecting party
appearing separately or objecting parties appearing jointly.
(b) In a change of name
proceeding, a first appearance fee of $39 from the party filing the application
for change of name, and a first appearance fee of $23 from an objecting party
appearing separately or objecting parties appearing jointly.
(2) A [paper or] pleading or other document shall
be filed by the clerk only if the fee required under this section is paid or if
a request for a fee waiver or deferral is granted by the court.
(3) In any adoption or
change of name proceeding in a court having jurisdiction, the clerk of the
court shall charge and collect in advance from the party having the affirmative
of the issue, at the time the proceeding comes on for trial or hearing upon the
issues of fact or law involved therein, a trial or hearing fee of $39.
SECTION 15. ORS 21.275, as amended by section 27, chapter
702, Oregon Laws 2005, is amended to read:
21.275. (1) In any civil
action, suit or proceeding in the circuit court, other than a protective
proceeding under ORS chapter 125 or a probate, adoption or change of name
proceeding, hearing fees for reported hearings shall be collected as provided
in this section. There is no hearing fee under this section for a hearing not
reported.
(2) As used in this
section:
(a) “Hearing” means an
actual appearance of one or more parties before the court for an examination by
the court without a jury, other than a trial or during a trial for which a
trial fee is required, of issues of fact or law arising from a motion,
application, petition or other [paper]
document filed with the court by a moving party, but does not include a
conference solely for the purpose of case settlement or case scheduling.
(b) “Moving party” means
a party who files with the court a motion, application, petition or other [paper] document referred to in
paragraph (a) of this subsection.
(c) “Nonmoving party”
means a party other than a moving party.
(3) The clerk of the
circuit court shall collect the hearing fees. The fee for a reported hearing is
$33 if the hearing period is not more than three hours or $77 if the hearing
period is more than three hours. The fee does not include the preparation of
transcripts of a report.
(4) If a hearing in
respect to the [paper] document
filed by the moving party is required by statute or rule, the [paper] document shall indicate
whether the moving party requests that the hearing be reported, and if
reporting is requested, shall contain an estimate of the hearing period. If the
moving party requests reporting, the moving party shall pay the applicable
hearing fee, based upon the estimate of the hearing period, when the [paper] document is filed. If the
moving party does not request reporting and a nonmoving party files a request
for reporting with the court, the request shall contain an estimate of the
hearing period, and the nonmoving party shall pay the applicable hearing fee,
based upon the estimate of the hearing period, when the request is filed.
(5) If a hearing in
respect to the [paper] document
filed by the moving party is not required by statute or rule, the [paper] document shall indicate
whether the moving party requests a hearing. The [paper] document also shall indicate whether the moving party
requests that the hearing be reported, and if reporting is requested, shall
contain an estimate of the hearing period. If the moving party requests
reporting, the moving party shall pay the applicable hearing fee, based upon
the estimate of the hearing period, when the [paper] document is filed. If the moving party does not request
reporting and a nonmoving party files a request for reporting with the court,
the request shall contain an estimate of the hearing period, and the nonmoving
party shall pay the applicable hearing fee, based upon the estimate of the
hearing period, when the request is filed.
(6) If a hearing in
respect to the [paper] document
filed by the moving party is not required by statute or rule or requested by
the moving party and a nonmoving party files a request for hearing with the
court, the request also shall indicate whether the nonmoving party requests
that the hearing be reported, and if reporting is requested, shall contain an
estimate of the hearing period. If the nonmoving party requests reporting the
nonmoving party shall pay the applicable hearing fee, based upon the estimate
of the hearing period, when the request is filed. If the nonmoving party does
not request reporting and the moving party files a request for reporting with
the court, the request shall contain an estimate of the hearing period, and the
moving party shall pay the applicable hearing fee, based upon the estimate of
the hearing period, when the request is filed.
(7) If a hearing in
respect to the [paper] document
filed by the moving party is not required by statute or rule or requested by a
party, but the court on its own motion orders a hearing and a party files a
request that the hearing be reported with the court, the request shall contain
an estimate of the hearing period, and the party shall pay the applicable
hearing fee, based upon the estimate of the hearing period, when the request is
filed. If the court on its own motion orders a hearing, no party requests
reporting and the court on its own motion orders that the hearing be reported,
the court order shall contain an estimate of the hearing period, and each party
shall pay an equal proportionate share of the applicable hearing fee, based
upon the estimate of the hearing period, before the hearing is held.
(8) No [paper] document containing a
request for reporting or other request for reporting referred to in subsections
(4) to (7) of this section shall be deemed filed unless the fee required by
those subsections of the filing party is paid by the party.
(9) The fees provided
for in this section that are paid by a party shall be considered costs and
disbursements and may be taxed and collected as other costs and disbursements
by the prevailing party.
SECTION 16. ORS 21.310, as amended by section 31, chapter
702, Oregon Laws 2005, is amended to read:
21.310. (1) Except as provided
in ORS 114.515, in a court having probate jurisdiction, the clerk of the court
shall charge and collect the following fees for the filing of the initial [papers] documents in any probate
proceeding, including petitions for the appointment of personal
representatives, probate of wills and contest of wills, or in any
conservatorship proceeding:
______________________________________________________________________________
Where the amount of the
estate is:
1. Not more than $10,000–a
fee of $23.
2. More than $10,000 and
not more than $25,000–a fee of $77.
3. More than $25,000 and
not more than $50,000–a fee of $154.
4. More than $50,000 and
not more than $100,000–a fee of $231.
5. More than $100,000
and not more than $500,000–a fee of $308.
6. More than $500,000
and not more than $1,000,000–a fee of $385.
7. More than $1,000,000–a
fee of $462.
______________________________________________________________________________
(2) In determining fees
under subsection (1) of this section in a probate proceeding, the amount of a
settlement in a wrongful death action brought for the benefit of the decedent’s
surviving spouse or dependents is not part of the estate.
(3) In a court having
probate jurisdiction, the clerk shall charge and collect a fee of $23 for the
filing of the initial [papers]
documents in any guardianship proceeding.
(4) In a court having
probate jurisdiction, the clerk shall charge and collect a fee of $8 at the
time of filing a will without a petition for probate.
(5) At the time of filing
any answer, motion or objection in a probate proceeding or protective
proceeding under ORS chapter 125, the party filing the answer, motion or
objection shall pay a fee of $19 to the clerk.
(6) A [paper or] pleading or other document
shall be filed by the clerk only if the fee required under this section is paid
or if a request for a fee waiver or deferral is granted by the court.
(7) In any probate
proceeding or protective proceeding under ORS chapter 125 in a court having
probate jurisdiction, the clerk shall charge and collect in advance from the
party having the affirmative of the issue, at the time the proceeding comes on
for trial or hearing upon the issues of fact or law involved therein, a trial
or hearing fee of $39.
SECTION 17. ORS 21.410 is amended to read:
21.410. (1) The sheriff of a county shall collect the following fees in
civil actions, suits and proceedings for each case delivered to the office of
the sheriff:
(a) $28 for serving
summons, subpoena, citation, order, notice, including notice of seizure and
sale of personal or real property, notice of restitution and notice of seizure
under writ of attachment or execution, or similar documents, including small
claims or writ of execution, directed to not more than two parties at the same
address. If service is requested for more than two parties at the same address,
the fee is $15 for each party at the same address. The fee authorized by this
paragraph shall not be charged to the state in civil actions, suits and
proceedings where one party is a person who has been appointed counsel at state
expense.
(b) For seizure and sale
of personal or real property, enforcement of writ of execution of judgment of
restitution, or other enforcement or seizure under writ of attachment or
execution, or other process or proceeding, $47, and, in addition, such sums as
may be reasonable and necessary to secure each keeper or custodian of property
in custody, the expense of inventory of property in custody and expense
incurred in newspaper advertising required by law in the execution of process.
(c) For making a
conveyance of real property sold on any process, $15, to be paid by, or for,
the grantee.
(d) For making a copy of
any process, order, notice or other instrument in writing, when necessary to complete
the service thereof, for each folio, $3; but no charge shall be made for copy
of complaint or other [paper]
document not actually made by the sheriff.
(e) For entering and
processing distraint warrants for state agencies, $6.25 each.
(2) Persons other than a
sheriff serving process and other documents may charge any fee agreed to
between the server and the person requesting service.
(3) Fees collected for
service by the sheriff shall be retained for the benefit of the county where
the party to be served cannot be found.
(4) No mileage or
commission shall be collected by a sheriff for service of any document or
process but in any service involving travel in excess of 75 miles round trip an
additional fee not to exceed $25 may be billed and collected by a sheriff.
Mileage shall be measured from the location at which the service is made to the
circuit court in that county.
(5) Amounts paid for
service of process and other documents may be recovered as costs and
disbursements to the extent provided by ORS 20.115.
(6) A sheriff may not
collect a fee under this section for serving a foreign restraining order or an
order that only grants relief under ORS 107.095 (1)(c).
(7) As used in this
section:
(a) “Folio” means 100
words, counting two figures as one word. Any portion of a folio, when the whole
paper contains less than a folio, or when such portion is an excess over the
last folio, shall be deemed a folio.
(b) “Foreign restraining
order” means a restraining order that is a foreign judgment as defined by ORS
24.105.
SECTION 18. ORS 21.480 is amended to read:
21.480. (1) In all
counties wherein legal representation is provided for the poor without fee by a
nonprofit legal aid program operating under the Legal Services Program
established pursuant to ORS 9.572, the clerk of the circuit court shall collect
the fees provided for in subsection (2) of this section to assist in defraying
the operating costs of the legal aid program and to fund mediation programs
offered through the State Department of Agriculture. The fees provided for in
subsection (2) of this section are in addition to all other fees collected by
the clerk of the court and shall be collected by the clerk in the same manner
that other fees are collected by the clerk.
(2) The clerk shall collect
the following fees from the plaintiff or other moving party in each civil suit,
action or proceeding in the circuit court when the plaintiff or party files the
first [paper] document in the
suit, action or proceeding, and from a defendant or respondent when the
defendant or respondent files an appearance in the suit, action or proceeding:
(a)
$9.50, for filings in the small claims department of a circuit court.
(b) $18, upon the filing
of a complaint that is subject to the filing fee established under ORS 105.130
(2). If the defendant demands a trial, the clerk shall collect a fee of $38
from the defendant, and an additional fee of $21 from the plaintiff. In no
event shall the plaintiff in an action subject to the filing fee established
under ORS 105.130 be required to pay a total fee of more than $39 under the
provisions of this subsection.
(c) $33, if the action,
suit or proceeding is subject to the filing fees established by ORS 21.111.
(d) $30, if the action,
suit or proceeding is subject to the filing fees established by ORS 21.110 (2).
(e) $38, for any other
filings in a circuit court not specifically provided for in this subsection,
including all probate proceedings, protective proceedings under ORS chapter
125, adoption proceedings and change of name proceedings.
(3) In addition to the
fees provided for in ORS 21.010, the State Court Administrator shall collect a
fee of $55 from an appellant or petitioner whenever a filing fee is collected
under ORS 21.010 and a fee of $15 from each respondent whenever an appearance
fee is collected under ORS 21.010.
(4) All fees collected
by the clerk under this section shall be deposited with the State Court
Administrator. All fees collected under this section shall be distributed in
the manner provided by ORS 9.574.
(5) Ten percent of the
funds deposited with the State Court Administrator under this section shall be
transferred by the State Court Administrator on a monthly basis to the State
Department of Agriculture, until such time as the amount specified under
subsection (6) of this section has been transferred to the State Department of
Agriculture for the biennium. Moneys transferred to the State Department of
Agriculture under this section are continuously appropriated to the department
and may be used by the department only for the purpose of funding mediation
programs established by the department. Moneys appropriated to the department
under this subsection may not be used by the department to fund the costs of
conducting individual farm credit mediations. The department shall consult with
the director of the Mark O. Hatfield School of Government in establishing and
operating mediation programs funded under this subsection.
(6) The amount
transferred by the State Court Administrator to the State Department of
Agriculture under subsection (5) of this section may not exceed $150,000 in any
biennium.
SECTION 19. ORS 21.605 is amended to read:
21.605. (1)(a) The Chief
Justice of the Supreme Court, the Chief Judge of the Court of Appeals, a judge
of a circuit or county court, the judge of the Oregon Tax Court, a tax court
magistrate or a justice of the peace may waive in whole or in part, defer in
whole or in part, or both, all fees and court costs payable by a party to a
particular civil action or proceeding in the court of the justice, judge or
magistrate, upon application by the party, if the justice, judge or magistrate
finds that the party is unable to pay all or any part of the fees and costs.
Waiver or deferral of an inmate’s fees and court costs is subject to ORS 30.642
to 30.650.
(b) A fee may not be
charged for filing an application under paragraph (a) of this subsection.
(c) All amounts deferred
under this subsection constitute a monetary obligation payable to the public
body to which the fees and court costs are owed, and may be made part of the
judgment or other final written disposition of the action or proceeding by the
clerk of the court or by the State Court Administrator without further notice
to the debtor or further order of the court.
(d) The judgment or
other final written disposition of the action or proceeding may provide that
all or part of deferred amounts be waived if the court determines that the
person is unable to pay the deferred amounts or may require the payment of the deferred
amounts not later than a date certain. A default in payment by the person so
ordered to pay shall subject the person to a contempt proceeding.
(e) A judgment or other
final written disposition rendered under this subsection may be filed and entered
as a judgment in any county in this state.
(2) If fees and court
costs payable by a party to a civil action or proceeding have been waived or
deferred under subsection (1) of this section, that party is not required to
pay any fees or costs so waived or deferred except as provided in subsection
(1) of this section and ORS 30.642 to 30.650, and any pleading, petition,
application, request, motion, claim, demand, exception or other [paper] document or appearance
presented by that party for filing or acceptance in the action or proceeding
shall be filed or accepted without the payment of any such fees or costs.
(3)(a) In a civil action
or proceeding, the court to which an appeal is taken may waive in whole or in
part, defer in whole or in part, or partially waive and partially defer the
expense of preparing a transcript on appeal, if:
(A) The party requesting
the transcript is unable to pay the expense of preparing the transcript; and
(B) The party requesting
the transcript makes a prima facie showing that the transcript is necessary to
prosecute the appeal and would reveal reversible error in the action or
proceeding.
(b) In any civil action
or proceeding in which the court waives or defers any part of the expense of
preparing a transcript on appeal, the court shall authorize preparation of only
so much of the transcript as is necessary to prosecute the appeal.
(c) To the extent that
the court waives or defers any part of the expense of preparing a transcript on
appeal, the State Court Administrator shall pay the expense out of funds
appropriated for that purpose.
(d) If the court defers
payment of any part of the expense of preparing a transcript, and any part of
the deferred expense remains unpaid at the conclusion of the appeal, the unpaid
amounts may be made part of the judgment or other final written disposition of
the action or proceeding in the manner provided by subsection (1) of this
section.
(e) If costs on appeal
are awarded to a party who has obtained a waiver or deferral under this
subsection, any portion of the costs awarded for the expense of preparing the
transcript on appeal shall be ordered paid to the State Court Administrator to
the extent that the waived or deferred expense was paid by the State Court
Administrator.
(f) Waiver or deferral
of an inmate’s expenses under this subsection is subject to ORS 30.642 to
30.650.
(4) In any case in which
fees and court costs have been waived or deferred under this section, a
judgment or other final written disposition shall be rendered as in other
cases, but the state is not liable for the payment of any fees or costs awarded
against a party whose fees or costs have been waived or deferred.
(5) In the exercise of
the authority granted by ORS 1.002, the Chief Justice of the Supreme Court may
provide by rule standards and practices for waiver or deferral of fees, court
costs and expenses under this section.
SECTION 20. ORS 46.570, as amended by section 51, chapter
702, Oregon Laws 2005, is amended to read:
46.570. (1) In the small
claims department of circuit court there shall be charged and collected in
civil cases by the clerk of the court the following fees for the following
purposes and services:
(a)(A) Plaintiff filing
a claim, $26 when the amount or value claimed does not exceed $1,500, and $55
when the amount or value claimed exceeds $1,500; and
(B) Defendant demanding
a hearing, $21 when the amount or value claimed by plaintiff does not exceed $1,500, and $43 when the amount or value claimed by plaintiff
exceeds $1,500.
(b) Transcription of
judgment from small claims department, $7.
(c) Transfer of cause to
circuit court on counterclaim, $12.
(2) Except as otherwise
provided in subsection (1) of this section, fees provided for in this section
shall be collected in advance. A [paper
or] pleading or other document shall be filed by the clerk only if
the required fee is paid or if a request for a fee waiver or deferral is
granted by the court. Fees provided for in this section may not be refunded.
SECTION 21. ORS 130.200 is amended to read:
130.200. (1) An
irrevocable trust may be modified or terminated upon consent of the settlor and
all beneficiaries, even if the modification or termination is inconsistent with
a material purpose of the trust. The Attorney General must consent to any modification
or termination of a charitable trust, unless contingencies make the charitable
interest negligible. A settlor’s power to consent to a trust’s modification or
termination may be exercised by:
(a) An agent or
attorney-in-fact under a power of attorney only to the extent expressly
authorized by the terms of the trust;
(b) The settlor’s
conservator with the approval of the court supervising the conservatorship if
an agent or attorney-in-fact is not authorized by the terms of the trust; or
(c) The settlor’s
guardian with the approval of the court supervising the guardianship if an
agent or attorney-in-fact is not authorized by the terms of the trust and a
conservator has not been appointed.
(2) An irrevocable trust
may be terminated upon consent of all of the beneficiaries if the court
concludes that continuance of the trust is not necessary to achieve any
material purpose of the trust. An irrevocable trust may be modified upon
consent of all of the beneficiaries if the court concludes that the modification
is not inconsistent with a material purpose of the trust. The Attorney General
must consent to any modification or termination of a charitable trust, unless
contingencies make the charitable interest negligible.
(3) For the purposes of
subsections (1) and (2) of this section, a spendthrift provision in the terms
of the trust is rebuttably presumed to constitute a material purpose of the
trust.
(4) Upon termination of
a trust under subsection (1) or (2) of this section, the trustee shall distribute
the trust property as agreed to by the beneficiaries and, in the case of a
charitable trust requiring the Attorney General’s consent, as agreed to by the
Attorney General.
(5) If all of the
required parties do not consent to a proposed modification or termination of
the trust under subsection (1) or (2) of this section, the modification or
termination may be approved by the court if the court finds that:
(a) If all of the
required parties had consented, the trust could have been modified or
terminated under this section; and
(b) The interests of any
beneficiary who does not consent will be adequately protected.
(6)(a) A trustee, or any
other person interested in the trust, may file an agreement entered into under
subsection (1) or (2) of this section, or a memorandum summarizing the
provisions of the agreement, with the circuit court for any county where trust
assets are located or where the trustee administers the trust.
(b) After collecting the
fee provided for in subsection (8)(a) of this section,
the clerk shall enter the agreement or memorandum of record in the court’s
register.
(c) Within five days
after the filing of an agreement or memorandum under this subsection, the
person making the filing must serve a notice of the filing and a copy of the
agreement or memorandum on each person interested in the trust whose address is
known at the time of the filing. Service may be made personally, or by
registered or certified mail, return receipt requested. The notice of filing
shall be substantially in the following form:
______________________________________________________________________________
CAPTION OF
CASE NOTICE OF FILING
OF
AGREEMENT OR
MEMORANDUM
OF
AGREEMENT
You are hereby notified
that the attached document was filed by the undersigned in the above entitled
court on the ____ day of ______, ___. Unless you file objections to the
agreement within 120 days after that date, the agreement will be approved and
will be binding on all persons interested in the trust.
If you file objections within
the 120-day period, the court will fix a time and place for a hearing. At least
10 days before the date of that hearing, you must serve a copy of your
objections and give notice of the time and place of the hearing to all persons
interested in the trust. See ORS 130.200.
__________________
Signature
______________________________________________________________________________
(d) Proof of mailing of
the notices required under this subsection must be filed with the court. Proof
of service may be made by a certificate of service in the form provided by ORCP
7 F, by a signed acceptance of service or by a return receipt from the postal
authorities.
(e) If no objections are
filed with the court within 120 days after the filing of the agreement or
memorandum, the agreement is effective and binding on all persons interested in
the trust.
(7)(a) If objections are
filed with the court within 120 days after the filing of an agreement or
memorandum under this section, the clerk of the court shall collect the fee
provided in subsection (8)(a) of this section. Upon the filing of objections,
the court shall fix a time and place for a hearing. The person filing the
objections must serve a copy of the objections on all persons interested in the
trust and give notice to those persons of the time and place fixed by the court
for a hearing. Service must be made at least 10 days before the date set by the
court for the hearing. Service of the objections may be made personally or by
registered or certified mail, return receipt requested.
(b) Proof of mailing of
objections must be filed with the court. Proof of service may be made by a
certificate of service in the form provided by ORCP 7 F, by a signed acceptance
of service or by a return receipt from the postal authorities.
(c) The court shall
approve an agreement entered into under subsection (1) or (2) of this section
after a hearing upon objections filed under this subsection unless:
(A) The agreement does
not reflect the signatures of all persons required by subsection (1) or (2) of
this section;
(B) The agreement is not
authorized by subsection (1) or (2) of this section; or
(C) Approval of the
agreement would not be equitable.
(d) An agreement
approved by the court after a hearing is binding on all persons interested in
the trust.
(e) Persons interested
in the trust may waive the notice required under subsection (6) of this
section. If all persons interested in the trust waive the notice, the agreement
is effective and binding on all persons interested in the trust upon filing of
the agreement or memorandum with the court.
(8)(a) The clerk of the
circuit court shall collect in advance a fee of $65 for the filing of an
agreement or memorandum of agreement under subsection (6) of this section, and
a fee of $32.50 for the filing of objections under subsection (7) of this
section.
(b) In addition to the
filing fees provided for in paragraph (a) of this subsection, the clerk shall
charge and collect in proceedings under this section all additional fees
authorized by law for civil actions, suits or proceedings in circuit court.
(c) A [paper or] pleading or other document
is not considered filed unless the fees required by this subsection are paid.
Filing fees may not be refunded to any party.
SECTION 22. ORS 108.130 is amended to read:
108.130. At the time of
filing the petition for an order of support, the petitioner shall pay to the
clerk of the court a fee of $6, which shall cover all charges incident to the
filing of [papers] documents
necessary to a complete determination of the matter and no part of which shall
be applied toward the library fund of the county. Payment of the fee is subject
to the provisions of ORS 21.605 applicable to waiver, deferral and payment of
fees.
SECTION 23. ORCP 7 C is amended to read:
C(1)
Contents. The summons shall contain:
C(1)(a)
Title. The title of the cause, specifying the name of
the court in which the complaint is filed and the names of the parties to the
action.
C(1)(b)
Direction to defendant. A direction to the defendant requiring defendant
to appear and defend within the time required by subsection (2) of this section
and a notification to defendant that in case of failure to do so, the plaintiff
will apply to the court for the relief demanded in the complaint.
C(1)(c)
Subscription; post office address. A subscription by the plaintiff or by
an active member of the Oregon State Bar, with the addition of the post office
address at which papers in the action may be served by mail.
C(2)
Time for response. If the summons is served by any manner other than
publication, the defendant shall appear and defend within 30 days from the date
of service. If the summons is served by publication pursuant to subsection D(6) of this rule, the defendant shall appear and defend
within 30 days from the date stated in the summons. The date so stated in the
summons shall be the date of the first publication.
C(3)
Notice to party served.
C(3)(a)
In general. All summonses, other than a summons referred to in paragraph
(b) or (c) of this subsection, shall contain a notice printed in type size
equal to at least 8-point type which may be substantially in the following
form:
______________________________________________________________________________
NOTICE TO DEFENDANT:
READ THESE PAPERS
CAREFULLY!
You must “appear” in
this case or the other side will win automatically. To “appear” you must file
with the court a legal [paper]
document called a “motion” or “answer.” The “motion” or “answer” must be
given to the court clerk or administrator within 30 days along with the
required filing fee. It must be in proper form and have proof of service on the
plaintiff’s attorney or, if the plaintiff does not have an attorney, proof of
service on the plaintiff.
If you have questions,
you should see an attorney immediately. If you need help in finding an
attorney, you may call the Oregon State Bar’s Lawyer Referral Service at (503)
684-3763 or toll-free in
______________________________________________________________________________
C(3)(b)
Service for counterclaim. A summons to join a party to respond to a
counterclaim pursuant to Rule 22 D (1) shall contain a notice printed in type
size equal to at least 8-point type which may be substantially in the following
form:
______________________________________________________________________________
NOTICE TO DEFENDANT:
READ THESE PAPERS
CAREFULLY!
You must “appear” to
protect your rights in this matter. To “appear” you must file with the court a
legal [paper] document called
a “motion” or “reply.” The “motion” or “reply” must be given to the court clerk
or administrator within 30 days along with the required filing fee. It must be
in proper form and have proof of service on the defendant’s attorney or, if the
defendant does not have an attorney, proof of service on the defendant.
If you have questions,
you should see an attorney immediately. If you need help in finding an
attorney, you may call the Oregon State Bar’s Lawyer Referral Service at (503)
684-3763 or toll-free in
______________________________________________________________________________
C(3)(c)
Service on persons liable for attorney fees. A summons to join a party
pursuant to Rule 22 D(2) shall contain a notice printed in type size equal to
at least 8-point type which may be substantially in the following form:
______________________________________________________________________________
NOTICE TO DEFENDANT:
READ THESE PAPERS
CAREFULLY!
You may be liable for
attorney fees in this case. Should plaintiff in this case not prevail, a
judgment for reasonable attorney fees will be entered against you, as provided
by the agreement to which defendant alleges you are a party.
You must “appear” to
protect your rights in this matter. To “appear” you must file with the court a
legal [paper] document called
a “motion” or “reply.” The “motion” or “reply” must be given to the court clerk
or administrator within 30 days along with the required filing fee. It must be
in proper form and have proof of service on the defendant’s attorney or, if the
defendant does not have an attorney, proof of service on the defendant.
If you have questions,
you should see an attorney immediately. If you need help in finding an
attorney, you may call the Oregon State Bar’s Lawyer Referral Service at (503)
684-3763 or toll-free in
______________________________________________________________________________
SECTION 24. ORCP 9 A, as amended by the Council on Court
Procedures on December 9, 2006, is amended to read:
A Service; when
required. Except as otherwise provided in these rules, every order; every
pleading subsequent to the original complaint; every written motion other than
one which may be heard ex parte; and every written request, notice, appearance,
demand, offer of judgment, designation of record on appeal, and similar [paper] document shall be served
upon each of the parties. No service need be made on parties in default for
failure to appear except that pleadings asserting new or additional claims for
relief against them shall be served upon them in the manner provided for
service of summons in Rule 7.
SECTION 25. ORCP 9 B, as amended by the Council on Court
Procedures on December 9, 2006, is amended to read:
B Service; how made.
Whenever under these rules service is required or permitted to be made upon a
party, and that party is represented by an attorney, the service shall be made
upon the attorney unless otherwise ordered by the court. Service upon the
attorney or upon a party shall be made by delivering a copy to such attorney or
party, by mailing it to such attorney’s or party’s last known address or, if
the party is represented by an attorney, by telephonic facsimile communication
device or e-mail as provided in sections F or G of this rule. Delivery of a
copy within this rule means: handing it to the person to be served; or leaving
it at such person’s office with such person’s clerk or person apparently in
charge thereof; or, if there is no one in charge, leaving it in a conspicuous
place therein; or, if the office is closed or the person to be served has no
office, leaving it at such person’s dwelling house or usual place of abode with
some person over 14 years of age then residing therein. A party who has
appeared without providing an appropriate address for service may be served by
[placing] filing a copy of the
pleading or other [papers in the court
file] documents with the court. Service by mail is complete upon
mailing. Service of any notice or other [paper]
document to bring a party into contempt may only be upon such party
personally.
SECTION 26. ORCP 9 E, as amended by the Council on Court
Procedures on December 9, 2006, is amended to read:
E Filing with the
court defined. The filing of pleadings and other [papers] documents with the court as required by these rules
shall be made by filing them with the clerk of the court or the person
exercising the duties of that office. The clerk or the person exercising the
duties of that office shall endorse upon such pleading or [paper] document the time of day, the day of the month, the
month, and the year. The clerk or person exercising the duties of that office
is not required to receive for filing any [paper]
document unless the name of the court, the title of the cause and the [paper] document, the names of the
parties, and the attorney for the party requesting filing, if there be one, are
legibly endorsed on the front of the document, nor unless the contents thereof
are legible.
SECTION 27. ORCP 17 A is amended to read:
A Signing by party or
attorney; certificate. Every pleading, motion and other [paper] document of a party
represented by an attorney shall be signed by at least one attorney of record
who is an active member of the Oregon State Bar. A party who is not represented
by an attorney shall sign the pleading, motion or other [paper] document and state the address of the party.
Pleadings need not be verified or accompanied by affidavit or declaration.
SECTION 28. ORCP 17 C is amended to read:
C
Certifications to court.
C(1)
An attorney or party who signs, files or otherwise submits an argument in
support of a pleading, motion or other [paper]
document makes the certifications to the court identified in subsections
(2) to (5) of this section, and further certifies that the certifications are
based on the person’s reasonable knowledge, information and belief, formed
after the making of such inquiry as is reasonable under the circumstances.
C(2) A party or attorney
certifies that the pleading, motion or other [paper] document is not being presented for any improper
purpose, such as to harass or to cause unnecessary delay or needless increase
in the cost of litigation.
C(3) An attorney
certifies that the claims, defenses, and other legal positions taken in the
pleading, motion or other [paper]
document are warranted by existing law or by a nonfrivolous argument for
the extension, modification or reversal of existing law or the establishment of
new law.
C(4)
A party or attorney certifies that the allegations and other factual assertions
in the pleading, motion or other [paper]
document are supported by evidence. Any allegation or other factual
assertion that the party or attorney does not wish to certify to be supported
by evidence must be specifically identified. The attorney or party certifies
that the attorney or party reasonably believes that an allegation or other
factual assertion so identified will be supported by evidence after further
investigation and discovery.
C(5)
The party or attorney certifies that any denials of factual assertion are
supported by evidence. Any denial of factual assertion that the party or
attorney does not wish to certify to be supported by evidence must be
specifically identified. The attorney or party certifies that the attorney or
party believes that a denial of a factual assertion so identified is reasonably
based on a lack of information or belief.
SECTION 29. ORCP 17 D is amended to read:
D
Sanctions.
D(1) The court may
impose sanctions against a person or party who is found to have made a false
certification under section C of this rule, or who is found to be responsible
for a false certification under section C of this rule. A sanction may be
imposed under this section only after notice and an opportunity to be heard are
provided to the party or attorney. A law firm is jointly liable for any
sanction imposed against a partner, associate or employee of the firm, unless the court determines that joint liability would
be unjust under the circumstances.
D(2)
Sanctions may be imposed under this section upon motion of a party or upon the
court’s own motion. If the court seeks to impose sanctions on its own motion,
the court shall direct the party or attorney to appear before the court and
show cause why the sanctions should not be imposed. The court may not issue an
order to appear and show cause under this subsection at any time after the
filing of a voluntary dismissal, compromise or settlement of the action with
respect to the party or attorney against whom sanctions are sought to be
imposed.
D(3)
A motion by a party to the proceeding for imposition of sanctions under this
section must be made separately from other motions and pleadings, and must
describe with specificity the alleged false certification. A motion for
imposition of sanctions based on a false certification under subsection C(4) of this rule may not be filed until 120 days after the
filing of a complaint if the alleged false certification is an allegation or
other factual assertion in a complaint filed within 60 days of the running of
the statute of limitations for a claim made in the complaint. Sanctions may not
be imposed against a party until at least 21 days after the party is served
with the motion in the manner provided by Rule 9. Notwithstanding any other
provision of this section, the court may not impose sanctions against a party
if, within 21 days after the motion is served on the party, the party amends or
otherwise withdraws the pleading, motion, [paper]
document or argument in a manner that corrects the false certification
specified in the motion. If the party does not amend or otherwise withdraw the
pleading, motion, [paper] document
or argument but thereafter prevails on the motion, the court may order the
moving party to pay to the prevailing party reasonable attorney fees incurred
by the prevailing party by reason of the motion for sanctions.
D(4)
Sanctions under this section must be limited to amounts sufficient to reimburse
the moving party for attorney fees and other expenses incurred by reason of the
false certification, including reasonable attorney fees and expenses incurred
by reason of the motion for sanctions, and upon clear and convincing evidence
of wanton misconduct amounts sufficient to deter future false certification by
the party or attorney and by other parties and attorneys. The sanction may
include monetary penalties payable to the court. The sanction must include an
order requiring payment of reasonable attorney fees and expenses incurred by
the moving party by reason of the false certification.
D(5)
An order imposing sanctions under this section must specifically describe the
false certification and the grounds for determining that the certification was
false. The order must explain the grounds for the imposition of the specific
sanction that is ordered.
Approved by the Governor May 9, 2007
Filed in the office of Secretary of State May 10, 2007
Effective date January 1, 2008
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