74th OREGON LEGISLATIVE ASSEMBLY--2007 Regular Session
Enrolled
House Bill 2322
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
Presession filed (at the request of House Interim Committee on
Judiciary for Judicial Department)
CHAPTER ................
AN ACT
Relating to courts; creating new provisions; amending ORS 1.085,
1.220, 2.570, 3.070, 3.185, 19.335, 20.310, 133.545, 138.071,
138.083, 305.475 and 419B.806; and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
{ +
SEARCH WARRANTS + }
SECTION 1. ORS 133.545 is amended to read:
133.545. (1) A search warrant may be issued only by a judge. A
search warrant issued by a judge of the Supreme Court or the
Court of Appeals may be executed anywhere in the state. Except as
otherwise provided in subsection (2) of this section, a search
warrant issued by a judge of a circuit court may only be executed
within the judicial district in which the court is located. A
search warrant issued by a justice of the peace may only be
executed within the county in which the justice court is located.
A search warrant issued by a municipal judge authorized to
exercise the powers and perform the duties of a justice of the
peace may only be executed in the municipality in which the court
is located.
(2) Notwithstanding subsection (1) of this section, a circuit
court judge may authorize execution of a search warrant outside
of the judicial district in which the court is located, if the
judge finds from the application that one or more of the objects
of the search relate to an offense committed or triable within
the judicial district in which the court is located. If the
warrant authorizes the installation or tracking of a mobile
tracking device, the officer may track the device in any county
to which it is transported.
(3) Application for a search warrant may be made only by a
district attorney or by any police officer.
(4) The application shall consist of a proposed warrant in
conformance with ORS 133.565, and shall be supported by one or
more affidavits particularly setting forth the facts and
circumstances tending to show that the objects of the search are
in the places, or in the possession of the individuals, to be
searched. If an affidavit is based in whole or in part on
hearsay, the affiant shall set forth facts bearing on any unnamed
Enrolled House Bill 2322 (HB 2322-B) Page 1
informant's reliability and shall disclose, as far as possible,
the means by which the information was obtained.
(5) Instead of the written affidavit described in subsection
(4) of this section, the judge may take an oral statement under
oath. The oral statement shall be recorded and transcribed. The
transcribed statement shall be considered to be an affidavit for
the purposes of this section. In such cases, the recording of the
sworn oral statement and the transcribed statement shall be
certified by the judge receiving it and shall be retained as a
part of the record of proceedings for the issuance of the
warrant.
(6)(a) In addition to the procedure set out in subsection (5)
of this section, the proposed warrant and the affidavit may be
sent to the court by facsimile transmission or any similar
electronic transmission that delivers a complete printable image
of the signed { - and acknowledged - } affidavit and proposed
warrant. { + The affidavit may have a notarized
acknowledgement, or the affiant may swear to the affidavit by
telephone. A judge administering an oath telephonically under
this subsection must execute a declaration that recites the
manner and time of the oath's administration. The declaration
must be filed with the return. + }
(b) When a court issues a warrant upon an application made
under paragraph (a) of this subsection:
(A) The court may transmit the signed warrant to the district
attorney or police officer by means of facsimile transmission or
similar electronic transmission, as described in paragraph (a) of
this subsection. The court shall file the original signed warrant
and a printed image of the district attorney's or police
officer's application with the return.
(B) The district attorney or police officer shall deliver the
original signed { - and acknowledged - } affidavit to the
court with the return. { + If the affiant swore to the affidavit
by telephone, the affiant must so note next to the affiant's
signature on the affidavit. + }
{ +
APPEAL OF AMENDED AND SUPPLEMENTAL CRIMINAL JUDGMENTS + }
SECTION 2. ORS 138.071 is amended to read:
138.071. (1) Except as provided in { - subsections (2), (3)
and (4) of - } this section, { - the - } { + a + } notice of
appeal { - shall - } { + must + } be served and filed not
later than 30 days after the judgment or order appealed from was
entered in the register.
(2) If a motion for new trial or motion in arrest of judgment
is served and filed { - the - } { + a + } notice of appeal
{ - shall - } { + must + } be served and filed within 30 days
from the earlier of the following dates:
(a) The date of entry of the order disposing of the motion; or
(b) The date on which the motion is deemed denied.
(3) A defendant cross-appealing { - shall - } { + must + }
serve and file the notice of cross-appeal within 10 days of the
expiration of the time allowed in subsection (1) of this section.
{ + (4) If the trial court enters a corrected or a
supplemental judgment under ORS 138.083, a notice of appeal from
the corrected or supplemental judgment must be filed not later
than 30 days after the defendant receives notice that the
judgment has been entered. + }
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{ - (4)(a) - } { + (5)(a) + } Upon motion of a defendant,
the Court of Appeals shall grant the defendant leave to file a
notice of appeal after the time limits described in subsections
(1) to { - (3) - } { + (4) + } of this section if:
(A) The defendant, by clear and convincing evidence, shows that
the failure to file a timely notice of appeal is not attributable
to the defendant personally; and
(B) The defendant shows a colorable claim of error in the
proceeding from which the appeal is taken.
(b) A defendant { - shall not be - } { + is not + }
entitled to relief under this subsection for failure to file
timely notice of cross-appeal when the state appeals pursuant to
ORS 138.060 (1)(c) or (2)(a).
(c) The request for leave to file a notice of appeal after the
time limits prescribed in subsections (1) to (3) of this section
{ - shall - } { + must + } be filed no later than 90 days
after entry of the order or judgment being appealed { - and
shall be accompanied by the notice of appeal sought to be
filed - } . { + The request for leave to file a notice of appeal
after the time limit prescribed in subsection (4) of this section
must be filed no later than 90 days after the defendant receives
notice that the judgment has been entered. + } A request for
leave under this subsection { + must be accompanied by the
notice of appeal, + } may be filed by mail and
{ - shall be - } { + is + } deemed filed on the date of
mailing if the request is mailed as provided in ORS 19.260.
(d) The court shall not grant relief under this subsection
unless the state has notice and opportunity to respond to the
defendant's request for relief.
(e) The denial of a motion under paragraph (a) of this
subsection { - shall be - } { + is + } a bar to
post-conviction relief under ORS 138.510 to 138.680 on the same
ground, unless the court provides otherwise.
SECTION 3. ORS 138.083 is amended to read:
138.083. (1) { + (a) + } The sentencing court shall retain
authority irrespective of any notice of appeal after entry of
judgment of conviction to modify its judgment and sentence to
correct any arithmetic or clerical errors or to delete or modify
any erroneous term in the judgment. The court may correct the
judgment either on the motion of one of the parties or on the
court's own motion after written notice to all the parties.
{ + (b) + } If a sentencing court enters { - an amended - }
{ + a corrected + } judgment under this { - section - } { +
subsection while an appeal of the judgment is pending + }, the
court shall immediately forward a copy of the { - amended - }
{ + corrected + } judgment to the appellate court. Any
modification of the appeal necessitated by the { - amended - }
{ + corrected + } judgment shall be made in the manner specified
by rules adopted by the appellate court.
(2) { + (a) + } A judgment that orders payment of restitution
but does not specify the amount of restitution imposed is final
for the purpose of appealing { - from - } the judgment.
{ + (b) + } Notwithstanding the filing of a notice of appeal,
the sentencing court retains authority to determine the amount of
restitution and to enter a supplemental judgment to specify the
amount and terms of restitution.
{ + (c) If a sentencing court enters a supplemental judgment
under this subsection while an appeal of the judgment of
conviction is pending, the court shall immediately forward a copy
of the supplemental judgment to the appellate court. + } Any
Enrolled House Bill 2322 (HB 2322-B) Page 3
modification of the appeal necessitated by the supplemental
judgment may be made in the manner specified by rules adopted by
the appellate court.
{ +
PRACTICE OF LAW BY JUDGES + }
SECTION 4. ORS 1.220 is amended to read:
1.220. { - Any judicial officer may act as an attorney in any
action, suit or proceeding to which the judicial officer is a
party or in which the judicial officer is directly interested. A
judge of the county court or justice of the peace, otherwise
authorized by law, may act as an attorney in any court other than
the one of which the judge of the county court or justice of the
peace is judge, except in an action, suit or proceeding removed
therefrom to another court for review, but no judicial officer
shall, as attorney, institute or cause to be instituted any suit,
action or proceeding, or act as attorney in any suit, action or
proceeding with or without hire, in any court or otherwise, other
than as in this section allowed. No judicial officer shall have a
partner who shall practice law or act as attorney in the court
over which the judicial officer presides. - }
{ + (1) Except as provided in this section, a judicial
officer appointed or elected to a full-time position may not act
as an attorney in an action or proceeding.
(2) A judicial officer appointed or elected to a full-time
position may act as an attorney in an action or proceeding if the
judicial officer is an active member of the Oregon State Bar and
is either a party to the action or proceeding or the judicial
officer has a direct interest in the action or proceeding.
(3) A judge of a county court or justice court who is an active
member of the Oregon State Bar:
(a) May act as an attorney in a court other than the court in
which the judge presides; and
(b) May not be engaged in the practice of law with an attorney
who appears in the court in which the judge presides.
(4) A judge pro tempore may not preside in an action or
proceeding if an attorney who is engaged in the practice of law
with the judge appears in the action or proceeding. + }
{ +
STAY OF JUDGMENT ON APPEAL + }
SECTION 5. ORS 19.335 is amended to read:
19.335. (1) If a judgment is for the recovery of money, a
supersedeas undertaking acts to stay the judgment if the
undertaking provides that the appellant will pay the judgment to
the extent that the judgment is affirmed on appeal.
(2) If a judgment requires the transfer or delivery of
possession of real property, a supersedeas undertaking acts to
stay the judgment if the undertaking provides that the appellant
will not commit waste or allow waste to be committed on the real
property while the appellant possesses the property, and the
appellant will pay the value of the use and occupation of the
property for the period of possession if the judgment is
affirmed. The value of the use and occupation during the period
of possession must be stated in the undertaking.
(3)(a) If a judgment requires the transfer or delivery of
possession of personal property, a supersedeas undertaking acts
to stay the judgment if the undertaking provides that the
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appellant will obey the judgment of the appellate court, and that
if the appellant does not obey the judgment, the appellant will
pay an amount determined by the trial court and stated in the
undertaking.
(b) If a judgment requires the transfer or delivery of
possession of personal property, the judgment is stayed without
the filing of a supersedeas undertaking if the appellant
transfers or delivers the personal property to the court or
places the property in the custody of an officer or receiver
appointed by the trial court.
(4) If a judgment requires the foreclosure of a mortgage, lien
or other encumbrance, and also requires payment of the debt
secured by the mortgage, lien or other encumbrance, a supersedeas
undertaking acts to stay that portion of the judgment that
requires payment of the debt if the undertaking provides that the
appellant will pay any portion of the judgment remaining
unsatisfied after the sale of the property subject to the
mortgage, lien or other encumbrance. The amount of the
undertaking must be stated in the undertaking. The requirements
of this subsection are in addition to any provisions in a
supersedeas undertaking that may be required under subsection (2)
or (3) of this section to stay delivery or transfer of property.
(5) If a judgment requires the execution of a conveyance or
other instrument, the judgment is stayed without the filing of a
supersedeas undertaking if the appellant executes the instrument
and deposits the instrument with the trial court administrator.
Unless otherwise directed by the appellate court, the instrument
must be held by the trial court administrator until issuance of
the appellate judgment terminating the appeal.
{ + (6) Except as provided in ORCP 72, a stay of judgment
described in this section takes effect only after the party has
filed a notice of appeal and filed any supersedeas undertaking
required for the stay. + }
{ +
EXCERPT OF RECORD ON APPEAL + }
SECTION 6. ORS 20.310 is amended to read:
20.310. (1) In any appeal to the Court of Appeals or review by
the Supreme Court, the court shall allow costs and disbursements
to the prevailing party, unless a statute provides that in the
particular case costs and disbursements shall not be allowed to
the prevailing party or shall be allowed to some other party, or
unless the court directs otherwise. If, under a special provision
of any statute, a party has a right to recover costs, such party
shall also have a right to recover disbursements. On the same
terms and conditions, when the Supreme Court denies a petition
for review, the respondent on review is entitled to costs and
disbursements reasonably incurred in connection with the petition
for review.
(2) Costs and disbursements on appeal to the Court of Appeals
or Supreme Court or on petition for review by the Supreme Court
are the filing or appearance fee, the reasonable cost for any
bond or irrevocable letter of credit, the prevailing party fee
provided for under ORS 20.190, the printing, including the
{ - abstract - } { + excerpt + } of record, required by rule
of the court, postage for the filing or service of items that are
required to be filed or served by law or court rule, and the
transcript of testimony or other proceedings, when necessarily
forming part of the record on appeal.
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{ + NOTE: + } Section 7 was deleted by amendment. Subsequent
sections were not renumbered.
{ +
EMERGENCY CIRCUIT COURT LOCATIONS + }
SECTION 8. ORS 1.085 is amended to read:
1.085. (1) Except to the extent otherwise specifically provided
by law, the Chief Justice of the Supreme Court shall designate
the principal location for the sitting of the Supreme Court,
Court of Appeals, Oregon Tax Court and each circuit court. For
each circuit court there shall be a principal location in each
county in the judicial district.
(2) The Chief Justice may designate locations for the sitting
of the Supreme Court, Court of Appeals, Oregon Tax Court and each
circuit court other than those designated under subsection (1) of
this section. { + Except as provided in subsection (3) of this
section, + } { - other - } locations { + designated under
this subsection + } for a circuit court { - shall - }
{ + must + } be in the { + circuit court's + } judicial
district.
{ + (3) The Chief Justice may designate locations in the
state for the sitting of circuit courts in the event of an
emergency. Locations designated under this subsection need not
be in the circuit court's judicial district. + }
SECTION 9. ORS 3.070 is amended to read:
3.070. Any judge of a circuit court in any judicial district
may, in chambers, grant and sign defaults, judgments,
interlocutory orders and provisional remedies, make findings and
decide motions, demurrers and other like matters relating to any
judicial business coming before the judge from any judicial
district in which the judge has presided in such matters. The
judge may hear, in chambers, contested motions, demurrers and
other similar matters pending within the judicial district, at
any location { - in the district - } designated under ORS
1.085. Upon stipulation of counsel, the judge may try and
determine any issue in equity or in law where a jury has been
waived and hear and decide motions, demurrers and other like
matters, in chambers, at any location in the state where the
judge may happen to be, relating to any judicial business coming
before the judge from any judicial district in which the judge
has presided in such matters. The judge may exercise these
powers as fully and effectively as though the motions, demurrers,
matters or issues were granted, ordered, decided, heard and
determined in open court in the county where they may be pending.
If signed other than in open court, all such orders, findings and
judgments issued, granted or rendered, other than orders not
required to be filed and entered with the clerk before becoming
effective, shall be transmitted by the judge to the clerk of the
court within the county where the matters are pending. They shall
be filed and entered upon receipt thereof and shall become
effective from the date of entry in the register.
SECTION 10. ORS 3.185 is amended to read:
3.185. (1) Notwithstanding ORS 1.040, a judge of the Circuit
Court for Marion County when hearing matters relating to writs of
habeas corpus as provided in ORS 34.310 to 34.730 may direct that
the court be held or continued at any location designated under
ORS 1.085 { - (2) - } and under such conditions as may be
ordered.
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(2) When a court is held at a location directed as provided by
subsection (1) of this section, every person held or required to
appear at the court shall appear at the location so directed.
SECTION 11. ORS 305.475 is amended to read:
305.475. The principal office of the tax court shall be in the
state capital, but the court may hold hearings in any
{ - county seat - } { + location + } designated under ORS
1.085 { - (2) - } . The county court or board of county
commissioners, upon request of the judge of the tax court, shall
provide the court with suitable rooms { - at the county
seat - } when hearings are held in the county { - seat - } .
{ +
CONSOLIDATION OF DOMESTIC RELATION CASES AND JUVENILE CASES + }
SECTION 12. ORS 419B.806 is amended to read:
419B.806. (1) As used in this section, 'consolidated' means
that actions are heard before one judge of the circuit court to
determine issues regarding a child or ward.
(2) In any action filed in the juvenile court in which the
legal or physical custody of a child or ward is at issue and
there is also a child custody, parenting time, visitation,
restraining order, filiation or Family Abuse Prevention Act
action involving the child or ward in a domestic relations,
filiation or guardianship proceeding, the matters shall be
consolidated. Actions must be consolidated under this subsection
regardless of whether the actions to be consolidated were filed
or initiated before or after the filing of the petition under ORS
419B.100.
(3) Consolidation does not merge the procedural or substantive
law of the individual actions. Parties to the individual
consolidated actions do not have standing, solely by virtue of
the consolidation, in every action subject to the order of
consolidation. Parties must comply with provisions for
intervention or participation in a particular action under the
provisions of law applicable to that action.
(4) Upon entry of an order of consolidation, all pending issues
pertaining to the actions subject to the order shall be heard
together in juvenile court. The court shall hear the juvenile
matters first unless the court finds that it is in the best
interest of the child or ward to proceed otherwise.
(5) A judge shall make and modify orders and findings in
actions subject to the order of consolidation upon the filing of
proper motions and notice as provided by law applicable to the
actions. Any findings, orders or modifications must be consistent
with the juvenile court orders, and persons who were parties to
the juvenile court action may not relitigate issues in
consolidated actions.
(6) The judge shall set out separately from orders entered
under this chapter or ORS chapter 419C any orders or judgments
made in other actions subject to the consolidation order. The
trial court administrator shall file the orders and judgments in
the appropriate actions subject to the consolidation order. An
order or judgment in an individual juvenile court action is final
if it finally disposes of the rights and duties of the parties to
that action, without reference to whether the order or judgment
disposes of the rights and duties of the parties to another
action with which the action has been consolidated.
(7)(a) When the actions described in subsection (2) of this
section exist in two or more { - judicial districts - } { +
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circuit courts + }, the judges assigned to the actions shall
confer to determine the appropriate { - judicial district - }
{ + court + } in which to consolidate and hear the actions. The
judges shall confer not later than 10 judicial days after a court
has received notice of the existence of an action in another
{ - judicial district - } { + circuit court + }.
(b) If the judges agree on the { - judicial district - }
{ + circuit court + } in which the actions should be
consolidated, the judges shall take such action as is necessary
to consolidate the actions in the circuit court { - of that
district - } .
(c) If the judges do not agree on the { - judicial
district - } { + circuit court + } in which the actions should
be consolidated, the actions must be consolidated in the
{ - judicial district - } { + court + } in which the juvenile
action is filed or, if more than one juvenile action is pending,
in the { - judicial district - } { + court + } in which the
first juvenile action was filed.
(8) Nothing in this section requires the consolidation of any
administrative proceeding under ORS chapter 25 or 416 with a
juvenile court or other action.
{ +
APPOINTED JUDGES OF THE COURT OF APPEALS + }
SECTION 13. ORS 2.570 is amended to read:
2.570. (1) In hearing and determining causes, the judges of the
Court of Appeals may sit together or in departments.
(2) A department shall consist of three judges. For convenience
of administration, each department may be numbered. The Chief
Judge shall from time to time designate the number of departments
and make assignments of the judges among the departments. The
Chief Judge may sit in one or more departments and when so
sitting may preside. The Chief Judge shall designate a judge to
preside in each department.
(3) The majority of any department shall consist of regularly
elected { - and qualified - } { + or appointed + } judges of
the Court of Appeals. However, if disqualifications, recusals or
other events reduce the number of available judges to fewer than
three, the Supreme Court may appoint such number of qualified
persons as may be necessary as pro tempore members of the Court
of Appeals.
(4) The Chief Judge shall apportion the business of the court
between the departments. Each department shall have power to hear
and determine causes, and all questions that may arise therein,
subject to subsection (5) of this section. The presence of three
judges is necessary to transact business in any department,
except such business as may be transacted in chambers by any
judge. The concurrence of two judges is necessary to pronounce
judgment.
(5) The Chief Judge or a majority of the regularly elected
{ - and qualified - } { + or appointed + } judges of the
Court of Appeals at any time may refer a cause to be considered
en banc. When sitting en banc, the court may include not more
than two judges pro tempore of the Court of Appeals. When the
court sits en banc, the concurrence of a majority of the judges
participating is necessary to pronounce judgment, but if the
judges participating are equally divided in their view as to the
judgment to be given, the judgment appealed from shall be
affirmed.
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(6) The Chief Judge may rule on motions and issue orders in
procedural matters in the Court of Appeals.
(7) A judge or judge pro tempore of the Court of Appeals may
participate in the decision of the matter without resubmission of
the cause even though the judge is not present for oral argument
on the matter.
(8) A judge or judge pro tempore of the Court of Appeals may
participate in the decision of a matter without resubmission of
the cause in the following circumstances:
(a) The judge was appointed or elected to the Court of Appeals
after submission of the cause.
(b) The judge is participating in the decision of a cause that
was submitted to a department, and the judge is participating in
lieu of a judge of the department who has died, become disabled,
is disqualified or is otherwise unable to participate in the
decision of a cause submitted to the department.
(c) The judge is considering a cause en banc, but the judge was
not part of the department that originally considered the cause.
{ +
MISCELLANEOUS + }
SECTION 14. { + The unit captions used in this 2007 Act are
provided only for the convenience of the reader and do not become
part of the statutory law of this state or express any
legislative intent in the enactment of this 2007 Act. + }
SECTION 15. { + This 2007 Act being necessary for the
immediate preservation of the public peace, health and safety, an
emergency is declared to exist, and this 2007 Act takes effect on
its passage. + }
----------
Passed by House March 19, 2007
Repassed by House June 6, 2007
...........................................................
Chief Clerk of House
...........................................................
Speaker of House
Passed by Senate June 4, 2007
...........................................................
President of Senate
Enrolled House Bill 2322 (HB 2322-B) Page 9
Received by Governor:
......M.,............., 2007
Approved:
......M.,............., 2007
...........................................................
Governor
Filed in Office of Secretary of State:
......M.,............., 2007
...........................................................
Secretary of State
Enrolled House Bill 2322 (HB 2322-B) Page 10