Chapter 11 Oregon Laws 2009

AN ACT

HB 2284

Relating to correction of erroneous material in Oregon law; creating new provisions; amending ORS 1.310, 8.350, 30.868, 35.015, 105.560, 133.005, 135.037, 138.071, 164.043, 164.045, 165.495, 171.559, 174.535, 181.030, 182.415, 192.820, 238.690, 249.031, 251.049, 251.355, 255.165, 264.335, 267.010, 267.080, 267.085, 267.097, 267.107, 267.410, 284.142, 285B.422, 285B.460, 285B.462, 291.445, 292.500, 294.810, 297.070, 327.006, 339.133, 344.555, 346.640, 352.390, 390.134, 409.510, 410.625, 412.006, 412.014, 412.016, 412.079, 414.660, 416.810, 416.820, 417.345, 427.205, 456.270, 458.310, 468.501, 468.521, 469.421, 469.681, 469.805, 475.902, 507.040, 507.050, 508.485, 508.490, 508.801, 508.828, 564.105, 568.900, 616.992, 625.220, 625.270, 646A.316, 671.595, 671.610, 671.614, 671.997, 701.046, 723.466, 743.405, 743.483, 757.822, 759.385, 778.005, 819.160 and 836.640 and section 11, chapter 516, Oregon Laws 2001, section 31, chapter 736, Oregon Laws 2003, and sections 3 and 4, chapter 249, Oregon Laws 2007, and ORCP 7 D; and repealing ORS 174.106 and 657.222 and section 62, chapter 736, Oregon Laws 2003.

Be It Enacted by the People of the State of Oregon:

SECTION 1. ORS 174.535 is amended to read:

174.535. It is the policy of the Legislative Assembly to revise sections from Oregon Revised Statutes and Oregon law periodically in order to maintain accuracy. However, nothing in chapter 740, Oregon Laws 1983, chapter 565, Oregon Laws 1985, chapter 158, Oregon Laws 1987, chapter 171, Oregon Laws 1989, chapters 67 and 927, Oregon Laws 1991, chapters 18 and 469, Oregon Laws 1993, chapter 79, Oregon Laws 1995, chapter 249, Oregon Laws 1997, chapter 59, Oregon Laws 1999, chapter 104, Oregon Laws 2001, chapter 14, Oregon Laws 2003, chapter 22, Oregon Laws 2005, [or] chapter 71, Oregon Laws 2007, or this 2009 Act is intended to alter the legislative intent or purpose of statutory sections affected by chapter 740, Oregon Laws 1983, chapter 565, Oregon Laws 1985, chapter 158, Oregon Laws 1987, chapter 171, Oregon Laws 1989, chapters 67 and 927, Oregon Laws 1991, chapters 18 and 469, Oregon Laws 1993, chapter 79, Oregon Laws 1995, chapter 249, Oregon Laws 1997, chapter 59, Oregon Laws 1999, chapter 104, Oregon Laws 2001, chapter 14, Oregon Laws 2003, chapter 22, Oregon Laws 2005, [and] chapter 71, Oregon Laws 2007, and this 2009 Act except insofar as the amendments thereto, or repeals thereof, specifically require.

NOTE: Sets forth Reviser’s Bill policy statement.

SECTION 2. ORS 1.310 is amended to read:

1.310. (1) As used in this section:

(a) “Chief Justice” means the Chief Justice of the Supreme Court of Oregon, except that, if the Chief Justice is the subject judge, then the term “Chief Justice” means the one of the remaining judges of the Supreme Court who has served the longest period of time as a judge of that court.

(b) “Disability” means physical or mental incapacitation of such a degree as to cause a judge to be unable to discharge the duties of judicial office.

[(a)] (c) “Judge” includes any judge of the Supreme Court, the Court of Appeals, the Oregon Tax Court, or [of] any circuit court, of the State of Oregon.

[(b)] (d) “Subject judge” means any judge whose alleged disability is involved in proceedings under this section.

[(c) “Disability” means physical or mental incapacitation of such a degree as to cause a judge to be unable to discharge the duties of judicial office.]

[(d) “Chief Justice” means the Chief Justice of the Supreme Court of Oregon; except that, if the Chief Justice is the subject judge, then the term “Chief Justice” means the one of the remaining judges of the Supreme Court who has served the longest period of time as a judge of that court.]

(2) Any judge who becomes disabled may be retired in the manner provided in this section. The Governor, the Chief Justice, the Judicial Conference or the Board of Governors of the Oregon State Bar may file at any time with the Secretary of State a written request for an investigation to determine whether a judge named in [such] the request has a disability. Upon receipt of [such] a request, the Secretary of State shall transmit to the subject judge a certified copy of [such] the request, with a notice to the effect that, unless [such] the judge files a resignation within 45 days after the date of the notice, an investigation will be made to determine whether the judge has a disability. [Such] The certified copy and notice shall be served on the subject judge, either by delivering them to the judge in person or by transmitting them by registered mail or by certified mail with return receipt to the judge at the last residence address of the judge as shown in the records of the Secretary of State.

(3) If the subject judge fails to file a resignation within 45 days after the date of the notice, the Secretary of State, within 10 days after the expiration of that period, shall transmit to the Commission on Judicial Fitness and Disability certified copies of the request and notice, with a certificate to the effect:

(a) That the Secretary of State [had] served the notice and copy of the request on the subject judge as provided in subsection (2) of this section; and

(b) That the judge [had not filed] did not file a resignation.

(4) Upon receipt of the certified copies and certificate referred to in subsection (3) of this section, the commission shall make the requested investigation and, after hearing, determine whether the subject judge has a disability. The commission shall prepare an official record [which] that shall include the testimony taken and the exhibits considered. If the subject judge refuses or is unable to attend, the commission may proceed with the hearing in the absence of the judge.

(5) If a majority of the members of the commission [shall determine] determines that the subject judge in fact has a disability, [they] the members shall make and sign written findings of fact upon which the determination is made and transmit [them] the findings to the Secretary of State. If no appeal is filed, the office of [such] the judge shall become vacant 10 days after the filing of [such] the findings,[;] and thereupon the Secretary of State shall certify to the Governor the existence of [such] the vacancy. If a majority of the members of the commission [do] does not find that the subject judge has a disability, [they] the members shall sign and file with the Secretary of State a written report to that effect, and thereupon the proceeding shall terminate.

(6) The commission may prescribe rules of procedure for the conduct of the investigation and fix the time and place of the hearing, giving the subject judge due notice thereof. The fees and mileage allowance of witnesses, including experts, shall be fixed by the commission.

(7) [No] A judge retired under the provisions of this section [shall] may not be appointed as judge pro tempore to serve upon any court of the State of Oregon.

(8) The subject judge may appeal to the Supreme Court from a determination by the commission that the judge has a disability, by filing a notice with the Secretary of State within 10 days after the date of filing of the written findings of fact by the commission. The Secretary of State shall thereupon notify the commission and the Chief Justice. The commission shall forthwith transmit the official record to the Supreme Court, which upon receipt of [such] the record shall have full jurisdiction of the proceeding.

(9) The Supreme Court shall review the proceeding de novo on the record with authority to affirm, reverse or annul the determination. Prior to [such] a final determination, remand may also be made to the commission for additional findings of fact. In the event that the Supreme Court reverses or annuls the determination of the commission, the proceeding shall thereupon terminate and notice to that effect shall be filed with the Secretary of State. If the determination of the commission is affirmed, a decision to that effect shall be filed with the Secretary of State and the office of the subject judge shall forthwith become vacant. Thereupon, the Secretary of State shall certify to the Governor the existence of [such] the vacancy.

NOTE: Alphabetizes definitions in (1); updates punctuation and word choice; corrects grammar.

SECTION 3. ORS 8.350 is amended to read:

8.350. When a report of the proceedings, or any part thereof, has been made in any case as provided in ORS 8.340, if the court or either party to the suit or action or the party’s attorney requests [a transcript] transcription of the notes or audio records into longhand, the official reporter shall cause full and accurate typewritten transcripts to be made of the testimony or other proceedings, which shall, when certified to as provided in ORS 8.360, be filed with the clerk of the court where [such] the cause was tried or heard, for the use of the court or parties.

NOTE: Corrects and updates word choice.

SECTION 4. ORCP 7 D, as amended by the Council on Court Procedures on December 13, 2008, is amended to read:

D Manner of service.

D(1) Notice required. Summons shall be served, either within or without this state, in any manner reasonably calculated, under all the circumstances, to apprise the defendant of the existence and pendency of the action and to afford a reasonable opportunity to appear and defend. Summons may be served in a manner specified in this rule or by any other rule or statute on the defendant or upon an agent authorized by appointment or law to accept service of summons for the defendant. Service may be made, subject to the restrictions and requirements of this rule, by the following methods: personal service of true copies of the summons and the complaint upon defendant or an agent of defendant authorized to receive process; substituted service by leaving true copies of the summons and the complaint at a person’s dwelling house or usual place of abode; office service by leaving true copies of the summons and the complaint with a person who is apparently in charge of an office; service by mail; or, service by publication.

D(2) Service methods.

D(2)(a) Personal service. Personal service may be made by delivery of a true copy of the summons and a true copy of the complaint to the person to be served.

D(2)(b) Substituted service. Substituted service may be made by delivering true copies of the summons and the complaint at the dwelling house or usual place of abode of the person to be served, to any person 14 years of age or older residing in the dwelling house or usual place of abode of the person to be served. Where substituted service is used, the plaintiff, as soon as reasonably possible, shall cause to be mailed, by first class mail, true copies of the summons and the complaint to the defendant at defendant’s dwelling house or usual place of abode, together with a statement of the date, time, and place at which substituted service was made. For the purpose of computing any period of time prescribed or allowed by these rules or by statute, substituted service shall be complete upon such mailing.

D(2)(c) Office service. If the person to be served maintains an office for the conduct of business, office service may be made by leaving true copies of the summons and the complaint at such office during normal working hours with the person who is apparently in charge. Where office service is used, the plaintiff, as soon as reasonably possible, shall cause to be mailed, by first class mail, true copies of the summons and the complaint to the defendant at defendant’s dwelling house or usual place of abode or defendant’s place of business or such other place under the circumstances that is most reasonably calculated to apprise the defendant of the existence and pendency of the action, together with a statement of the date, time, and place at which office service was made. For the purpose of computing any period of time prescribed or allowed by these rules or by statute, office service shall be complete upon such mailing.

D(2)(d) Service by mail.

D(2)(d)(i) Generally. When required or allowed by this rule or by statute, except as otherwise permitted, service by mail shall be made by mailing true copies of the summons and the complaint to the defendant by first class mail and by any of the following: certified, registered, or express mail with return receipt requested. For purposes of this section, “first class mail” does not include certified, registered, or express mail, return receipt requested, or any other form of mail which may delay or hinder actual delivery of mail to the addressee.

D(2)(d)(ii) Calculation of time. For the purpose of computing any period of time provided by these rules or by statute, service by mail, except as otherwise provided, shall be complete on the day the defendant, or other person authorized by appointment or law, signs a receipt for the mailing, or three days after the mailing if mailed to an address within the state, or seven days after the mailing if mailed to an address outside the state, whichever first occurs.

D(3) Particular defendants. Service may be made upon specified defendants as follows:

D(3)(a) Individuals.

D(3)(a)(i) Generally. Upon an individual defendant, by personal delivery of true copies of the summons and the complaint to such defendant or other person authorized by appointment or law to receive service of summons on behalf of such defendant, by substituted service, or by office service. Service may also be made upon an individual defendant to whom neither subparagraph (ii) nor (iii) of this paragraph applies by a mailing made in accordance with paragraph (2)(d) of this section provided the defendant signs a receipt for the certified, registered, or express mailing, in which case service shall be complete on the date on which the defendant signs a receipt for the mailing.

D(3)(a)(ii) Minors. Upon a minor under the age of 14 years, by service in the manner specified in subparagraph (i) of this paragraph upon such minor and, also, upon such minor’s father, mother, conservator of the minor’s estate, or guardian, or, if there be none, then upon any person having the care or control of the minor, or with whom such minor resides, or in whose service such minor is employed, or upon a guardian ad litem appointed pursuant to Rule 27 A(2).

D(3)(a)(iii) Incapacitated persons. Upon a person who is incapacitated or financially incapable, as defined by ORS 125.005, by service in the manner specified in subparagraph (i) of this paragraph upon such person and, also, upon the conservator of such person’s estate or guardian, or, if there be none, upon a guardian ad litem appointed pursuant to Rule 27 B(2).

D(3)(a)(iv) Tenant of a mail agent. Upon an individual defendant who is a “tenant” of a “mail agent” within the meaning of ORS [646.221] 646A.340 by delivering true copies of the summons and the complaint to any person apparently in charge of the place where the mail agent receives mail for the tenant, provided that:

(A) the plaintiff makes a diligent inquiry but cannot find the defendant; and

(B) the plaintiff, as soon as reasonably possible after delivery, causes true copies of the summons and the complaint to be mailed by first class mail to the defendant at the address at which the mail agent receives mail for the defendant and to any other mailing address of the defendant then known to the plaintiff, together with a statement of the date, time, and place at which the plaintiff delivered the copies of the summons and the complaint.

Service shall be complete on the latest date resulting from the application of subparagraph D(2)(d)(ii) of this rule to all mailings required by this subparagraph unless the defendant signs a receipt for the mailing, in which case service is complete on the day the defendant signs the receipt.

D(3)(b) Corporations including, but not limited to, professional corporations and cooperatives. Upon a domestic or foreign corporation:

D(3)(b)(i) Primary service method. By personal service or office service upon a registered agent, officer, or director of the corporation; or by personal service upon any clerk on duty in the office of a registered agent.

D(3)(b)(ii) Alternatives. If a registered agent, officer, or director cannot be found in the county where the action is filed, true copies of the summons and the complaint may be served:

(A) by substituted service upon such registered agent, officer, or director;

(B) by personal service on any clerk or agent of the corporation who may be found in the county where the action is filed;

(C) by mailing in the manner specified in paragraph (2)(d) of this section true copies of the summons and the complaint to the office of the registered agent or to the last registered office of the corporation, if any, as shown by the records on file in the office of the Secretary of State; or, if the corporation is not authorized to transact business in this state at the time of the transaction, event, or occurrence upon which the action is based occurred, to the principal office or place of business of the corporation, and in any case to any address the use of which the plaintiff knows or has reason to believe is most likely to result in actual notice; or

(D) upon the Secretary of State in the manner provided in ORS 60.121 or 60.731.

D(3)(c) Limited liability companies. Upon a limited liability company:

D(3)(c)(i) Primary service method. By personal service or office service upon a registered agent, manager, or (for a member-managed limited liability company) member of a limited liability company; or by personal service upon any clerk on duty in the office of a registered agent.

D(3)(c)(ii) Alternatives. If a registered agent, manager, or (for a member-managed limited liability company) member of a limited liability company cannot be found in the county where the action is filed, true copies of the summons and the complaint may be served:

(A) by substituted service upon such registered agent, manager, or (for a member-managed limited liability company) member of a limited liability company;

(B) by personal service on any clerk or agent of the limited liability company who may be found in the county where the action is filed;

(C) by mailing in the manner specified in paragraph (2)(d) of this section true copies of the summons and the complaint to the office of the registered agent or to the last registered office of the limited liability company, as shown by the records on file in the office of the Secretary of State or, if the limited liability company is not authorized to transact business in this state at the time of the transaction, event, or occurrence upon which the action is based occurred, to the principal office or place of business of the limited liability company, and in any case to any address the use of which the plaintiff knows or has reason to believe is most likely to result in actual notice; or

(D) upon the Secretary of State in the manner provided in ORS 63.121.

D(3)(d) Limited partnerships. Upon a domestic or foreign limited partnership:

D(3)(d)(i) Primary service method. By personal service or office service upon a registered agent or a general partner of a limited partnership; or by personal service upon any clerk on duty in the office of a registered agent.

D(3)(d)(ii) Alternatives. If a registered agent or a general partner of a limited partnership cannot be found in the county where the action is filed, true copies of the summons and the complaint may be served:

(A) by substituted service upon such registered agent or general partner of a limited partnership;

(B) by personal service on any clerk or agent of the limited partnership who may be found in the county where the action is filed;

(C) by mailing in the manner specified in paragraph (2)(d) of this section true copies of the summons and the complaint to the office of the registered agent or to the last registered office of the limited partnership, as shown by the records on file in the office of the Secretary of State or, if the limited partnership is not authorized to transact business in this state at the time of the transaction, event, or occurrence upon which the action is based occurred, to the principal office or place of business of the limited partnership, and in any case to any address the use of which the plaintiff knows or has reason to believe is most likely to result in actual notice; or

(D) upon the Secretary of State in the manner provided in ORS 70.040 or 70.045.

D(3)(e) General partnerships and limited liability partnerships. Upon any general partnership or limited liability partnership by personal service upon a partner or any agent authorized by appointment or law to receive service of summons for the partnership or limited liability partnership.

D(3)(f) Other unincorporated association subject to suit under a common name. Upon any other unincorporated association subject to suit under a common name by personal service upon an officer, managing agent, or agent authorized by appointment or law to receive service of summons for the unincorporated association.

D(3)(g) State. Upon the state, by personal service upon the Attorney General or by leaving true copies of the summons and the complaint at the Attorney General’s office with a deputy, assistant, or clerk.

D(3)(h) Public bodies. Upon any county; incorporated city; school district; or other public corporation, commission, board, or agency by personal service or office service upon an officer, director, managing agent, or attorney thereof.

D(3)(i) Vessel owners and charterers. Upon any foreign steamship owner or steamship charterer by personal service upon a vessel master in such owner’s or charterer’s employment or any agent authorized by such owner or charterer to provide services to a vessel calling at a port in the State of Oregon, or a port in the State of Washington on that portion of the Columbia River forming a common boundary with Oregon.

D(4) Particular actions involving motor vehicles.

D(4)(a) Actions arising out of use of roads, highways, streets, or premises open to the public; service by mail.

D(4)(a)(i) In any action arising out of any accident, collision, or other event giving rise to liability in which a motor vehicle may be involved while being operated upon the roads, highways, streets, or premises open to the public as defined by law of this state if the plaintiff makes at least one attempt to serve a defendant who operated such motor vehicle, or caused it to be operated on the defendant’s behalf, by a method authorized by subsection (3) of this section except service by mail pursuant to subparagraph (3)(a)(i) of this section and, as shown by its return, did not effect service, the plaintiff may then serve that defendant by mailings made in accordance with paragraph (2)(d) of this section addressed to that defendant at:

(A) any residence address provided by that defendant at the scene of the accident;

(B) the current residence address, if any, of that defendant shown in the driver records of the Department of Transportation; and

(C) any other address of that defendant known to the plaintiff at the time of making the mailings required by (A) and (B) that reasonably might result in actual notice to that defendant.

Sufficient service pursuant to this subparagraph may be shown if the proof of service includes a true copy of the envelope in which each of the certified, registered, or express mailings required by (A), (B), and (C) above was made showing that it was returned to sender as undeliverable or that the defendant did not sign the receipt. For the purpose of computing any period of time prescribed or allowed by these rules or by statute, service under this subparagraph shall be complete on the latest date on which any of the mailings required by (A), (B), and (C) above is made. If the mailing required by (C) is omitted because the plaintiff did not know of any address other than those specified in (A) and (B) above, the proof of service shall so certify.

D(4)(a)(ii) Any fee charged by the Department of Transportation for providing address information concerning a party served pursuant to subparagraph (i) of this paragraph may be recovered as provided in Rule 68.

D(4)(a)(iii) The requirements for obtaining an order of default against a defendant served pursuant to subparagraph (i) of this paragraph are as provided in Rule 69.

D(4)(b) Notification of change of address. Any person who; while operating a motor vehicle upon the roads, highways, streets, or premises open to the public as defined by law of this state; is involved in any accident, collision, or other event giving rise to liability shall forthwith notify the Department of Transportation of any change of such defendant’s address occurring within three years after such accident, collision, or event.

D(5) Service in foreign country. When service is to be effected upon a party in a foreign country, it is also sufficient if service of true copies of the summons and the complaint is made in the manner prescribed by the law of the foreign country for service in that country in its courts of general jurisdiction, or as directed by the foreign authority in response to letters rogatory, or as directed by order of the court. However, in all cases such service shall be reasonably calculated to give actual notice.

D(6) Court order for service; service by publication.

D(6)(a) Court order for service by other method. On motion upon a showing by affidavit or declaration that service cannot be made by any method otherwise specified in these rules or other rule or statute, the court, at its discretion, may order service by any method or combination of methods which under the circumstances is most reasonably calculated to apprise the defendant of the existence and pendency of the action, including but not limited to: publication of summons; mailing without publication to a specified post office address of the defendant by first class mail and any of the following: certified, registered, or express mail, return receipt requested; or posting at specified locations. If service is ordered by any manner other than publication, the court may order a time for response.

D(6)(b) Contents of published summons. In addition to the contents of a summons as described in section C of this rule, a published summons shall also contain a summary statement of the object of the complaint and the demand for relief, and the notice required in subsection C(3) shall state: “The ‘motion’ or ‘answer’ (or ‘reply’) must be given to the court clerk or administrator within 30 days of the date of first publication specified herein along with the required filing fee.” The published summons shall also contain the date of the first publication of the summons.

D(6)(c) Where published. An order for publication shall direct publication to be made in a newspaper of general circulation in the county where the action is commenced or, if there is no such newspaper, then in a newspaper to be designated as most likely to give notice to the person to be served. Such publication shall be four times in successive calendar weeks. If the plaintiff knows of a specific location other than the county where the action is commenced where publication might reasonably result in actual notice to the defendant, the plaintiff shall so state in the affidavit or declaration required by paragraph (a) of this subsection, and the court may order publication in a comparable manner at such location in addition to, or in lieu of, publication in the county where the action is commenced.

D(6)(d) Mailing summons and complaint. If the court orders service by publication and the plaintiff knows or with reasonable diligence can ascertain the defendant’s current address, the plaintiff shall mail true copies of the summons and the complaint to the defendant at such address by first class mail and any of the following: certified, registered, or express mail, return receipt requested. If the plaintiff does not know and cannot upon diligent inquiry ascertain the current address of any defendant, true copies of the summons and the complaint shall be mailed by the methods specified above to the defendant at the defendant’s last known address. If the plaintiff does not know, and cannot ascertain upon diligent inquiry, the defendant’s current and last known addresses, a mailing of copies of the summons and the complaint is not required.

D(6)(e) Unknown heirs or persons. If service cannot be made by another method described in this section because defendants are unknown heirs or persons as described in sections I and J of Rule 20, the action shall proceed against the unknown heirs or persons in the same manner as against named defendants served by publication and with like effect; and any such unknown heirs or persons who have or claim any right, estate, lien, or interest in the property in controversy, at the time of the commencement of the action, and served by publication, shall be bound and concluded by the judgment in the action, if the same is in favor of the plaintiff, as effectively as if the action was brought against such defendants by name.

D(6)(f) Defending before or after judgment. A defendant against whom publication is ordered or such defendant’s representatives, on application and sufficient cause shown, at any time before judgment, shall be allowed to defend the action. A defendant against whom publication is ordered or such defendant’s representatives may, upon good cause shown and upon such terms as may be proper, be allowed to defend after judgment and within one year after entry of judgment. If the defense is successful, and the judgment or any part thereof has been collected or otherwise enforced, restitution may be ordered by the court, but the title to property sold upon execution issued on such judgment, to a purchaser in good faith, shall not be affected thereby.

D(6)(g) Defendant who cannot be served. Within the meaning of this subsection, a defendant cannot be served with summons by any method authorized by subsection (3) of this section if: (i) service pursuant to subparagraph (4)(a)(i) of this section is not authorized, and the plaintiff attempted service of summons by all of the methods authorized by subsection (3) of this section and was unable to complete service, or (ii) if the plaintiff knew that service by such methods could not be accomplished.

NOTE: Corrects ORS citation in 7 D(3)(a)(iv) to reflect editorial renumbering of statute.

SECTION 5. ORS 30.868 is amended to read:

30.868. (1) Any of the following persons may bring a civil action to secure damages against any and all persons whose actions are unlawful under ORS 163.257 (1)(a):

(a) A person who is 18 years of age or older and who has been taken, enticed or kept in violation of ORS 163.257 (1)(a); or

(b) A person whose custodial rights have been interfered with if, by reason of the interference:

(A) The person has reasonably and in good faith reported a person missing to any city, county or state police agency; or

(B) A defendant in the action has been charged with a violation of ORS 163.257 (1)(a).

(2) An entry of judgment or a certified copy of a judgment against the defendant for a violation of ORS 163.257 (1)(a) is prima facie evidence of liability if the plaintiff was injured by the defendant’s unlawful action under the conviction.

(3)(a) For purposes of this section, a public or private entity that provides counseling and shelter services to victims of domestic violence is not considered to have violated ORS 163.257 (1)(a) if the entity provides counseling or shelter services to a person who violates ORS 163.257 (1)(a).

(b) As used in this subsection, “victim of domestic violence” means an individual against whom domestic violence, as defined in ORS 135.230, 181.610[,] or 411.117 [or 657.176], has been committed.

(4) Bringing an action under this section does not prevent the prosecution of any criminal action under ORS 163.257.

(5) A person bringing an action under this section must establish by a preponderance of the evidence that a violation of ORS 163.257 (1)(a) has occurred.

(6) It is an affirmative defense to civil liability for an action under this section that the defendant reasonably and in good faith believed that the defendant’s violation of ORS 163.257 (1)(a) was necessary to preserve the physical safety of:

(a) The defendant;

(b) The person who was taken, enticed or kept in violation of ORS 163.257 (1)(a); or

(7)(a) If the person taken, enticed or kept in violation of ORS 163.257 (1)(a) is under 18 years of age at the time an action is brought under this section, the court may:

(A) Appoint an attorney who is licensed to practice law in Oregon to act as guardian ad litem for the person; and

(B) Appoint one of the following persons to provide counseling services to the person:

(i) A psychiatrist.

(ii) A psychologist licensed under ORS 675.010 to 675.150.

(iii) A clinical social worker licensed under ORS 675.510 to 675.600.

(iv) A professional counselor or marriage and family therapist licensed under ORS 675.715.

(b) The court may assess against the parties all costs of the attorney or person providing counseling services appointed under this subsection.

(8) If an action is brought under this section by a person described under subsection (1)(b) of this section and a party shows good cause that it is appropriate to do so, the court may order the parties to obtain counseling directed toward educating the parties on the impact that the parties’ conflict has on the person taken, enticed or kept in violation of ORS 163.257 (1)(a). The court may assess against the parties all costs of obtaining counseling ordered under this subsection.

(9) Upon prevailing in an action under this section, the plaintiff may recover:

(a) Special and general damages, including damages for emotional distress; and

(b) Punitive damages.

(10) The court may award reasonable attorney fees to the prevailing party in an action under this section.

(11)(a) Notwithstanding ORS 12.110, 12.115, 12.117 or 12.160, an action under this section must be commenced within six years after the violation of ORS 163.257 (1)(a). An action under this section accruing while the person who is entitled to bring the action is under 18 years of age must be commenced not more than six years after that person attains 18 years of age.

(b) The period of limitation does not run during any time when the person taken, enticed or kept in violation of ORS 163.257 (1)(a) is removed from this state as a result of the defendant’s actions in violation of ORS 163.257 (1)(a).

NOTE: Removes reference in (3)(b) to deleted definition.

SECTION 6. ORS 35.015 is amended to read:

35.015. (1) Except as otherwise provided in this section, a public body as defined in ORS 174.109 may not condemn private real property used as a residence, business establishment, farm[,] or forest operation if at the time of the condemnation the public body intends to convey fee title to all or a portion of the real property, or a lesser interest than fee title, to another private party.

(2) Subsection (1) of this section does not apply to condemnation of:

(a) Improved or unimproved real property that constitutes a danger to the health or safety of the community by reason of contamination, dilapidated structures, improper or insufficient water or sanitary facilities, or any combination of these factors;

(b) Any timber, crops, [top soil] topsoil, gravel or fixtures to be removed from the real property being condemned; or

(c) Real property condemned for maintenance, improvement, or construction of transportation facilities, transportation systems, utility facilities or utility transmission systems.[;]

(3) Subsection (1) of this section does not prohibit a public body from leasing a portion of a public facility to a privately owned business for the provision of retail services designed primarily to serve the patrons of the public facility.

(4) A public body as defined in ORS 174.109 may at any time publish notice that the public body intends to consider condemnation of a lot or parcel. If the public body publishes notice under this subsection, subsection (1) of this section does not apply for such time necessary to provide the public body reasonable opportunity to condemn the property, if the lot or parcel is conveyed by the owner of the lot or parcel to another private party after the notice is published, but prior to the time the property is condemned.

(5) Subsection (1) of this section does not affect the ability of a public body as defined in ORS 174.109 to make a conveyance of a [non-possessory] nonpossessory interest in condemned property for the purpose of financing acquisition of the property.

(6) A court shall independently determine whether a taking of property complies with the requirements of this section, without deference to any determination made by the public body. If a court determines that a taking of property does not comply with the requirements of this section, the owner of the lot or parcel that is the subject of the condemnation proceeding shall be entitled to reasonable attorney fees, expenses, costs[,] and other disbursements reasonably incurred to defend against the proposed condemnation.

NOTE: Removes serial commas in (1) and (6); corrects spelling in (2)(b) and (5); corrects paragraph structure in (2).

SECTION 7. ORS 105.560 is amended to read:

105.560. (1) An action to restrain or enjoin a nuisance described in ORS 105.555 may be brought by the Attorney General, district attorney, county attorney, city attorney or a person residing or doing business in the county where the property is located. The action shall be brought in the circuit court in the county where the property is located. Except as provided in subsection (5) of this section, the action may be commenced in the small claims department of the circuit court for the county where the property is located.

(2) In addition to any other remedy that may be available under ORS 105.550 to 105.600, a plaintiff in an action brought to restrain or enjoin a nuisance described in ORS 105.555 may seek damages for mental suffering, emotional distress, inconvenience and interference with the use of property suffered by the plaintiff by reason of the activities constituting a nuisance.

(3) The court may award reasonable attorney fees to the prevailing party in an action under ORS 105.550 to 105.600 unless the action is commenced and tried in the small claims department of a circuit court. Attorney fees may not be awarded to any party in an action under ORS 105.550 to 105.600 that is commenced and tried in the small claims department of a circuit court.

(4) The court may consolidate all actions that relate to the same property and that are brought to restrain or enjoin a nuisance described in ORS 105.555. Consolidation in the small claims department of a circuit court shall be for purposes of trial only. A separate judgment shall be entered for each action in the small claims department of a circuit court.

(5) An action may not be brought in the small claims department of a circuit court to restrain or enjoin a nuisance described in ORS 105.555 if the property alleged to be a nuisance is licensed under ORS chapter 471 [or 472].

NOTE: Adds indefinite articles in (3) and (4); deletes reference to repealed ORS chapter in (5).

SECTION 8. ORS 133.005 is amended to read:

133.005. As used in ORS [131.655 and] 133.005 to 133.381 and 133.410 to 133.450, unless the context requires otherwise:

(1) “Arrest” means to place a person under actual or constructive restraint or to take a person into custody for the purpose of charging that person with an offense. A “stop” as authorized under ORS 131.605 to 131.625 is not an arrest.

(2) “Federal officer” means a special agent or law enforcement officer employed by a federal agency [and] who is empowered to effect an arrest with or without a warrant for violations of the United States Code and who is authorized to carry firearms in the performance of duty.

(3) “Peace officer” means a member of the Oregon State Police or a sheriff, constable, marshal, municipal police officer, investigator of a district attorney’s office if the investigator is or has been certified as a peace officer in this or any other state, or an investigator of the Criminal Justice Division of the Department of Justice of the State of Oregon.

NOTE: Removes erroneous reference in lead-in; corrects syntax in (2).

SECTION 9. ORS 135.037 is amended to read:

135.037. (1) At any time after the filing of the accusatory instrument in circuit court and before the commencement of trial thereon, the court upon motion of any party shall, and upon its own motion may, order an omnibus hearing.

(2) The purpose of an omnibus hearing shall be to rule on all pretrial motions and requests, including but not limited to the following issues:

(a) Suppression of evidence.[;]

(b) Challenges to identification procedures used by the prosecution.[;]

(d) Challenges to the accusatory instrument.

(3) The court, at the time of the omnibus hearing, may also consider any matters [which] that will facilitate trial by avoiding unnecessary proof or by simplifying the issues to be tried, or [which] that are otherwise appropriate under the circumstances to facilitate disposition of the proceeding.

(4) At the conclusion of the hearing and prior to trial the court shall prepare and file an order setting forth all rulings of the court on issues raised under subsection (2) of this section. The court shall further prepare and file a memorandum of other matters agreed upon at the hearing. Except in a prosecution of the defendant for perjury or false swearing, or impeachment of the defendant, [no] admissions made by the defendant or the attorney of the defendant at the hearing [shall] may not be used against the defendant unless the admissions are reduced to writing and signed by the defendant and the attorney.

(5) This section [shall] may not be applied in any proceeding or at any stage of any proceeding where the defendant is not represented by counsel.

NOTE: Modifies punctuation in (2); updates word choice in (3); conforms syntax in (4) and (5) to legislative style.

SECTION 10. ORS 138.071 is amended to read:

138.071. (1) Except as provided in this section, a notice of appeal 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, a notice of appeal 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 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.

(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 (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 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 must be filed no later than 90 days after entry of the order or judgment being appealed. 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 is deemed filed on the date of mailing if the request is mailed as provided in ORS 19.260.

(d) The court [shall] may 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 is a bar to post-conviction relief under ORS 138.510 to 138.680 on the same ground, unless the court provides otherwise.

NOTE: Inserts comma after introductory clause in (2); improves syntax in (5)(d).

SECTION 11. ORS 164.043 is amended to read:

164.043. (1) A person commits the crime of theft in the third degree if[, by means other than extortion, the person]:

(a) By means other than extortion, the person commits theft as defined in ORS 164.015; and

(b) The total value of the property in a single or an aggregate transaction is under $50.

(2) Theft in the third degree is a Class C misdemeanor.

NOTE: Corrects read-in in (1).

SECTION 12. ORS 164.045 is amended to read:

164.045. (1) A person commits the crime of theft in the second degree if[, by other than extortion, the person]:

(a) By other than extortion, the person commits theft as defined in ORS 164.015; and

(b) The total value of the property in a single or aggregate transaction is $50 or more but is under $200 in a case of theft by receiving and under $750 in any other case.

(2) Theft in the second degree is a Class A misdemeanor.

NOTE: Corrects read-in in (1).

SECTION 13. ORS 165.495 is amended to read:

165.495. (1) Except as provided in subsection (2) of this section, [no] an agent, operator or employee in any telegraph office[, shall] may not unreasonably and willfully:

(a) Refuse or neglect to send any message received at [such] the office for transmission;

(b) Postpone any message out of its order; or

(2) This section does not require:

(a) Any message to be received, transmitted or delivered, unless the charges thereon have been paid or tendered; or

(b) The sending, receiving or delivery of any message counseling, aiding, abetting or encouraging treason against the Government of the United States or of this state, or other resistance to the lawful authority, or any message calculated to further any fraudulent plan or purpose, or to instigate or encourage the perpetration of any unlawful act, or to facilitate the escape of any criminal or person accused of crime.

NOTE: Updates syntax in (1) lead-in and (1)(a); supplies missing connector in (2).

SECTION 14. ORS 171.559 is amended to read:

171.559. The Joint [Legislative] Committee on Ways and Means shall examine budgets based upon policy where budget policies affect more than one agency pursuant to the policies stated in ORS 171.557.

NOTE: Conforms title of committee with majority of references to committee.

SECTION 15. ORS 174.106 is repealed.

NOTE: Repeals definition of term no longer used in statutes.

SECTION 16. ORS 181.030 is amended to read:

181.030. (1) The Department of State Police and each member of the Oregon State Police shall be charged with the enforcement of all criminal laws.

(2) Each member of the state police is authorized and empowered to:

(a) Prevent crime.

(b) Pursue and apprehend offenders and obtain legal evidence necessary to [insure] ensure the conviction in the courts of [such] the offenders.

(d) Execute any lawful warrant or order of arrest issued against any person or persons for any violation of the law.

(e) Make arrests without warrant for violations of law in the manner provided in ORS 133.310.

(f) Give first aid to the injured.

(g) Succor the helpless.

(3) Each member of the state police shall have in general the same powers and authority as those conferred by law upon sheriffs, police officers, constables[,] and peace officers. [and] A member of the state police may be appointed as a deputy medical [examiners] examiner.

(4) The members of the state police [shall be] are subject to the call of the Governor, and are empowered to cooperate with any other instrumentality or authority of the state, or any political subdivision in detecting crime, apprehending criminals and preserving law and order throughout the state,[;] but the state police [shall] may not be used as a posse except when ordered by the Governor.

NOTE: Updates word choice in (2)(b); corrects syntax in (3) and (4).

SECTION 17. ORS 182.415 is amended to read:

182.415. As used in ORS 182.415 to 182.435 [and 240.086] unless the context requires otherwise:

(1) “Furnishings” includes furniture usually used in connection with occupancy of a household but does not include rugs, draperies, [range, refrigerator, washer, dryer] ranges, refrigerators, washers, dryers or any item of furnishings received by the state or one of its agencies as a gift, nor does it include any furniture purchased for the state-owned residence required in relation to the official duties of an institutional executive or the Chancellor of the Department of Higher Education prior to September 9, 1971.

(2) “Housing” includes single and multiple family dwellings, apartments, and manufactured dwellings and manufactured dwelling pads, available on a monthly tenancy but does not include guard stations maintained by the State Forestry Department or dormitory facilities at any state institution or at any state institution of higher education.

(3) “Dormitory” includes any facility [which] that houses students and those facilities used primarily for sleeping purposes by the employees of the Department of Human Services.

(4) “State agency” has the [same] meaning [as] given that term in ORS 291.002.

NOTE: Removes erroneous reference in lead-in; corrects syntax in (1); updates word choice in (3) and (4).

SECTION 18. ORS 192.820 is amended to read:

192.820. As used in ORS 192.820 to 192.868:

(1) “Actual address” means:

(a) A residential, work or school street address of an individual specified on the application of the individual to be a program participant; or

(b) The name of the county in which the program participant resides or the name or number of the election precinct in which the program participant is registered to vote.

(2) “Address Confidentiality Program” means the program established under ORS 192.822.

(3) “Application assistant” means an employee of or a volunteer serving a public or private entity designated by the Attorney General under ORS 192.854 to assist individuals with applications to participate in the Address Confidentiality Program.

(4) “Program participant” means an individual accepted into the Address Confidentiality Program under ORS 192.820 to 192.868.

(5) “Public body” has the meaning given that term in ORS 174.109.

(6) “Public record” has the meaning given that term in ORS 192.410.

(7) “Substitute address” means an address designated by the Attorney General under the Address Confidentiality Program.

(8) “Victim of domestic violence” means:

(a) An individual against whom domestic violence has been committed, as defined in ORS 135.230, 181.610[,] or 411.117 [or 657.176];

(b) An individual who has been a victim of abuse, as defined in ORS 107.705; or

(9) “Victim of a sexual offense” means:

(a) An individual against whom a sexual offense has been committed, as described in ORS 163.305 to 163.467, 163.427, 163.466 or 163.525; or

(b) Any other individual designated by the Attorney General by rule.

(10) “Victim of stalking” means:

(a) An individual against whom stalking has been committed, as described in ORS 163.732; or

(b) Any other individual designated by the Attorney General by rule.

NOTE: Removes reference in (8)(a) to deleted definition.

SECTION 19. Section 11, chapter 516, Oregon Laws 2001, is amended to read:

Sec. 11. The amendments to ORS 196.800, 196.810, [196.825,] 196.850, 196.895, 196.905, 196.990, 390.835, 421.628 and 459.047 by sections 1 to 10, chapter 516, Oregon Laws 2001, [of this 2001 Act] and the repeal of section 2, chapter 45, Oregon Laws 1989, by section 13, chapter 516, Oregon Laws 2001, [of this 2001 Act] become operative on January 2 of the even-numbered year following the date the United States Environmental Protection Agency grants authority by letter to the Department of State Lands to administer permits for the discharge of dredge or fill materials under section 404 of the Federal Water Pollution Control Act (P.L. 92-500, as amended) and the Legislative Assembly approves the grant of authority.

NOTE: Eliminates reference to statute no longer affected by conditional operative date (see amendments to 196.825 by sections 4 and 5, chapter 849, Oregon Laws 2007, incorporating amendments subject to conditional operative date).

SECTION 20. ORS 238.690 is amended to read:

238.690. (1) A retirement plan [which] that has been adopted by a mass transit district organized under ORS 267.010 to 267.390 situated in a [standard] metropolitan statistical area with a population exceeding 400,000[,] may be integrated with, or the district may become a participant in, the Public Employees Retirement System in the manner prescribed in subsection (2) of this section.

(2)(a) A proposed form of contract setting forth all the terms, conditions and provisions of the integration or participation shall be a mandatory subject of bargaining subject to the provisions of ORS 243.650 to 243.782.

(b) The proposed contract shall be submitted to a vote of the employees of the mass transit district, or the members of the affected bargaining unit of the applicable labor organization, and the board of directors of the mass transit district. In submitting a proposed contract to its members, the labor organization shall follow the procedure provided in its bylaws for the promulgation and adoption of bylaws.

(c) Adoption by the employees or members of the affected bargaining unit of the applicable labor organization of the proposed contract of integration or participation shall be by an affirmative vote of not less than two-thirds of the affected employees or active members of the affected bargaining unit of the applicable labor organization at the time of the election.

(d) The proposed contract so formulated, approved and adopted shall be submitted to the Public Employees Retirement Board. The board may exercise its authority to negotiate and enter into a contract with the mass transit district that would accomplish the integration or participation without adversely affecting the current operational and capital requirements of the mass transit district. The board [shall] may not enter into any contract that prevents those adverse effects by adjusting the level of benefits received by any of the employees of the mass transit district.

(e) [No] A contract of prospective participation [shall] does not in any way alter, impair or adversely affect any rights, benefits or privileges [which] that have vested under the provisions of law or collective bargaining agreement in an employee of a mass transit district by virtue of retirement, either on account of disability or on account of having attained the retirement age, prior to the effective date of the contract of integration or participation.

(f) When a public employer enters into a contract with the board under this section, the public employer shall agree to eventually extend coverage under this chapter to all eligible employees of the employer through subsequent contracts with the board.

(3) For the purposes of this section, “[standard] metropolitan statistical area” has that meaning given that term in ORS 267.010.

NOTE: Updates syntax in (1), (2)(d) and (e) and (3); conforms census terminology in (1) and (3) to current federal usage.

SECTION 21. ORS 249.031 is amended to read:

249.031. (1) Except as provided in subsection (2) of this section, a nominating petition or declaration of candidacy shall contain:

(a) The name by which the candidate is commonly known. A candidate may use a nickname in parentheses in connection with the candidate’s full name.

(b) Address information as required by the Secretary of State by rule.

(d) If the candidate is seeking the nomination of a major political party, the name of the major political party of which the candidate will have been a member, subject to the exceptions stated in ORS 249.046, during at least 180 days before the deadline for filing a nominating petition or declaration of candidacy.

(e) A statement that the candidate is willing to accept the nomination or election or, regarding a candidate for precinct committeeperson, that the candidate accepts the office if elected.

(f) A statement that the candidate will qualify if elected.

(g) If the candidate is seeking the nomination of a major political party, a statement that the candidate, if not nominated, will not accept the nomination or [indorsement] endorsement of any political party other than the one of which the candidate is a member on the date the petition or declaration is filed.

(h) The signature of the candidate.

(i) A statement of the candidate’s occupation, educational and occupational background and prior governmental experience.

(2) Subsection (1)(i) of this section does not apply to a candidate for election as a precinct committeeperson.

(3) A declaration of candidacy shall include a statement that the required fee is included with the declaration.

(4) If required by the national rules of the major political party, the declaration of a candidate for election as a precinct committeeperson shall include the name of the individual the candidate supports for President of the United States or “uncommitted” or “no preference.”

NOTE: Standardizes word choice in elections law in (1)(g).

SECTION 22. ORS 251.049 is amended to read:

251.049. (1) Except as provided in subsection (2) of this section, the Secretary of State may not print the name or title of a person or the name of an organization in an argument supporting or opposing any measure or a statement of any candidate, political party or assembly of electors filed for inclusion in the voters’ pamphlet, if the name or title of the person or the name of the organization is cited as supporting or [indorsing] endorsing the argument or statement.

(2) The Secretary of State may print the name or title of a person or the name of an organization in an argument or statement submitted for inclusion in the voters’ pamphlet as supporting or [indorsing] endorsing the argument or statement if:

(a) Not later than the deadline for filing an argument or statement with the Secretary of State, the secretary receives a statement signed by the person, or by an authorized person on behalf of an organization, stating that the person consents to the use of the name or title of the person or the name of the organization; or

(b) The name or title of a person or the name of an organization is used with a quotation made by the person or by an authorized person on behalf of an organization, the quotation was disseminated to the public prior to its inclusion in the argument or statement and the quotation is identified by its source and date.

(3) A person may not:

(a) Submit a false signature under subsection (2) of this section; or

(b) Alter the manner in which a person signing a statement of consent described in subsection (2) of this section designates the person’s name or title or the name of the organization the person represents to appear in the argument or statement. This paragraph does not prohibit revisions allowed or required under ORS 251.055 or 251.087.

NOTE: Standardizes word choice in elections law in (1) and (2).

SECTION 23. ORS 251.355 is amended to read:

251.355. (1) Not later than the date specified by the Secretary of State by rule, in a county that prepares a county voters’ pamphlet, any person may file with the county clerk a typewritten argument supporting or opposing any measure to be submitted to the voters on the ballot. The county clerk [shall] may not accept any arguments [which] that are not accompanied by the fee established by the Secretary of State or a petition in a form prescribed by the Secretary of State. A petition shall contain the signatures of at least four percent of the electors in the county eligible to vote on the measure to which the argument refers, or the signatures of 1,000 electors in the county eligible to vote on the measure to which the argument refers, whichever is less. The number of registered electors in an electoral district, for the purposes of this section, shall be calculated on January 1 of each year. Each person signing the petition shall subscribe to a statement that the person has read and agrees with the argument. The signatures on each petition shall be certified by the county clerk in the manner provided in ORS 249.008. The petition shall be filed with the county clerk.

(2) The county clerk shall include in the county voters’ pamphlet, on the page of the printed argument, the name of the person who submitted the argument, the name of the organization the person represents, if any, whether the argument supports or opposes the measure and a disclaimer that the argument does not constitute an [indorsement] endorsement by the county and that the county does not warrant the accuracy or truth of any statement made in the argument.

NOTE: Updates word choice in (1); standardizes word choice in elections law in (2).

SECTION 24. ORS 255.165 is amended to read:

255.165. (1) Except for a district measure of the Port of Portland, a metropolitan service district organized under ORS chapter 268, a school district with an enrollment exceeding 40,000 pupils or a mass transit district situated in a [standard] metropolitan statistical area with a population exceeding 400,000, other than a mass transit district measure relating to a route, schedule or fare change, a petition to refer or initiate a district measure must be signed by a number of electors registered in the district that:

(a) For an initiative petition, is not less than 15 percent of the total number of votes cast in the district for all candidates for Governor at the most recent election at which a candidate for Governor was elected to a full term; and

(b) For a referendum petition, is not less than 10 percent of the total number of votes cast in the district for all candidates for Governor at the most recent election at which a candidate for Governor was elected to a full term.

(2) A petition to refer or initiate a district measure of the Port of Portland, a metropolitan service district organized under ORS chapter 268, a school district with an enrollment exceeding 40,000 pupils or a mass transit district situated in a [standard] metropolitan statistical area with a population exceeding 400,000, other than a mass transit district measure relating to a route, schedule or fare change, must be signed by a number of electors registered in the district that:

(a) For an initiative petition, is not less than six percent of the total number of votes cast in the district for all candidates for Governor at the most recent election at which a candidate for Governor was elected to a full term; and

(b) For a referendum petition, is not less than four percent of the total number of votes cast in the district for all candidates for Governor at the most recent election at which a candidate for Governor was elected to a full term.

(3) Except for a district measure of the Port of Portland, a metropolitan service district organized under ORS chapter 268, a school district with an enrollment exceeding 40,000 pupils or a mass transit district situated in a [standard] metropolitan statistical area with a population exceeding 400,000, other than a mass transit district measure relating to a route, schedule or fare change, a petition to refer a district measure must be filed with the elections officer not later than the 30th day after adoption of the district ordinance sought to be referred.

(4) A petition to refer a district measure of the Port of Portland, a metropolitan service district organized under ORS chapter 268, a school district with an enrollment exceeding 40,000 pupils or a mass transit district situated in a [standard] metropolitan statistical area with a population exceeding 400,000, other than a mass transit district measure relating to a route, schedule or fare change, must be filed with the elections officer not later than the 90th day after adoption of the district ordinance sought to be referred.

NOTE: Conforms census terminology to current federal usage.

SECTION 25. ORS 264.335 is amended to read:

264.335. In addition to the other powers granted to districts under this chapter, a district may exercise the powers granted to sanitary districts under ORS 450.005 to 450.245 when:

(1) The district obtains all or part of its supply of water from a watershed;

(2) The watershed is located in a sole-source aquifer designated prior to September 29, 1991, by the United States Environmental Protection Agency under the Safe Drinking Water Act (42 U.S.C. [300h] 300f et seq.);

(3) The watershed is recognized under rules of the Environmental Quality Commission as a watershed requiring protection from contamination in order to maintain high water quality; and

(4) The district adopts a resolution declaring that the health of the residents of the district and the general public interest requires the district to protect the water quality of the watershed.

NOTE: Corrects federal citation in (2).

SECTION 26. ORS 267.010 is amended to read:

267.010. As used in ORS 267.010 to 267.390, unless the context requires otherwise:

(1) “District” means a mass transit district established under ORS 267.010 to 267.390.

(2) “District board” or “board” means the board of directors of a district.

(3) “Mass transit system” or “transit system” means the property, equipment and improvements of whatever nature owned, used, constructed, maintained, controlled or operated to provide mass transportation for passengers or to provide for the movement of people, including park-and-ride stations, transfer stations, parking lots, malls[,] and skyways, provided that nothing contained herein shall limit the power of a city to exercise its general powers over or provide such stations, lots, malls[,] or skyways.

(4) “[Standard] Metropolitan statistical area” means an area designated [and published] by the United States [Bureau of the Budget] Office of Management and Budget as a [standard] metropolitan statistical area.

NOTE: Strikes serial commas in (3); conforms census terminology to current federal usage, eliminates redundancy and updates title of federal agency in (4).

SECTION 27. ORS 267.080 is amended to read:

267.080. As provided by ORS 267.010 to 267.390, a mass transit district may be created in any [standard] metropolitan statistical area for the purpose of providing a mass transit system for the people of the district. Except as otherwise provided in ORS 267.107 (2)(c), the territorial jurisdiction of the district may include all territory within the geographic boundaries of every Oregon county in that [standard] metropolitan statistical area.

NOTE: Conforms census terminology to current federal usage.

SECTION 28. ORS 267.085 is amended to read:

267.085. (1) In addition to and not in lieu of other actions authorized for the initiation of proceedings to form a mass transit district, the governing body of the most populous city in a [standard] metropolitan statistical area may by resolution propose formation of a mass transit district, if that city has a local transit system and if the governing body finds that area-wide mass transit needs cannot be met by local transit operation. The resolution of the governing body shall be addressed to and filed with the county board of the principal county and proceedings conducted as provided by ORS 198.705 to 198.955.

(2) A certified copy of the order forming a mass transit district shall be filed with the Governor.

NOTE: Conforms census terminology in (1) to current federal usage.

SECTION 29. ORS 267.097 is amended to read:

267.097. Before appointing a director to the board of a district situated in a [standard] metropolitan statistical area with a population exceeding 400,000, the Governor shall solicit from each city and county located wholly or partly within the subdistrict for which the appointment will be made recommendations of qualified individuals for the position.

NOTE: Conforms census terminology to current federal usage.

SECTION 30. ORS 267.107 is amended to read:

267.107. Notwithstanding ORS 267.085:

(1) The governing body of the most populous city in a [standard] metropolitan statistical area may by resolution propose creation of a mass transit district if the governing body finds that area-wide mass transit needs cannot be met by local transit operation.

(2) The resolution of the governing body shall:

(a) Be considered at a public hearing only after notice as required for regular consideration of other resolutions by city charter or ordinance;

(b) Include findings of the need for creation of a mass transit district in the affected area;

(c) Describe the boundaries of the proposed district, which may be limited to a proposed service area but which may not extend beyond the limits of the city’s urban growth boundary; and

(d) If approved, be addressed to and filed with the governing body of the county in which the proposed district is principally situated.

(3) Upon receipt of the resolution under subsection (2) of this section, the county governing body shall commence district formation proceedings as provided in ORS 198.705 to 198.955 and 267.108.

NOTE: Conforms census terminology in (1) to current federal usage; inserts comma after introductory clause in (3).

SECTION 31. ORS 267.410 is amended to read:

267.410. ORS 267.300, 267.380 and 267.410 to 267.430 apply only to a mass transit district situated in a [standard] metropolitan statistical area with a population exceeding 400,000.

NOTE: Conforms census terminology to current federal usage.

SECTION 32. ORS 284.142 is amended to read:

284.142. (1) The Oregon Tourism Commission shall appoint an executive director. The appointment shall be subject to the approval of the Governor. The executive director shall serve at the pleasure of the members of the commission.

(2) The commission shall set the compensation of the executive director.

(3) The executive director shall direct all administrative functions of the commission. The executive director may appoint all subordinate officers and employees of the commission and may prescribe their duties and set their compensation.

(4) Except as provided in subsection (5) of this section, the commission may delegate to the executive director any duty, function or power conferred or imposed on the commission and the executive director may delegate to any subordinate officer or employee of the commission any duty, function or power conferred, imposed on or delegated to the executive director.

(5) The commission may not delegate to the executive director the power to:

(a) Approve the comprehensive marketing plan described in ORS 284.111;

(b) Approve the biennial budget required under ORS 284.126; or

NOTE: Strikes unnecessary reference in (5)(c); see subsection (1).

SECTION 33. ORS 285B.422 is amended to read:

285B.422. (1) The Economic and Community Development Department may provide financial or other assistance to a municipality for a development project [as defined in ORS 285B.410].

(2) The project must be municipally owned and operated either by the municipality or under a management contract or an operating agreement with the municipality. If the project consists:

(a) Solely of the purchase or acquisition of land by the municipality, the land must be identified in the applicable land use or capital plan as necessary for a potential development project or be zoned solely for commercial or industrial use.

(b) Of a privately owned railroad, the railroad must be designated by the owner and operator as subject to abandonment within three years, pursuant to federal law governing abandonment of common carrier railroad lines.

(c) Of a telecommunications system, the governing body of the municipality shall adopt a resolution, after a public hearing, finding that the proposed telecommunications system project is necessary and would not otherwise be provided by a for-profit entity within a reasonable time and for a reasonable cost.

(3) If the project is an energy system, the municipality and the serving utility must execute an ownership and operating agreement for the proposed energy system. This subsection does not apply when the energy system will be located within the recognized service territory of the municipality.

(4) The department may not use funds to provide assistance for:

(a) Projects that primarily focus on relocating business or economic activity from one part of the state to another, except in cases where the business or economic activity would otherwise locate outside of Oregon; or

(b) Ongoing operations or maintenance expenses.

NOTE: Strikes redundant reference to definition section in (1); see 285B.410.

SECTION 34. ORS 285B.460 is amended to read:

285B.460. (1) The Economic and Community Development Department may provide financial or other assistance to a municipality for a planning project [as defined in ORS 285B.410].

(2) The planning project may be a stand-alone project.

(3) The planning project may include an environmental action on a brownfield. For purposes of this subsection:

(a) “Brownfield” has the meaning given that term in ORS 285A.185.

(b) “Environmental action” has the meaning given that term in ORS 285A.188.

NOTE: Strikes redundant reference to definition section in (1); see 285B.410.

SECTION 35. ORS 285B.462 is amended to read:

285B.462. (1) The Economic and Community Development Department may provide financial or other assistance to a municipality for an emergency project [as defined in ORS 285B.410].

(2) The department may award grant funding to an emergency project only if federal disaster relief assistance has been committed for the emergency project.

(3) Assistance from the Special Public Works Fund for an emergency project may not exceed the total local matching funds requirement for the federal disaster relief assistance committed to the project.

NOTE: Strikes redundant reference to definition section in (1); see 285B.410.

SECTION 36. ORS 291.445 is amended to read:

291.445. (1) Before July 1 of each fiscal year, the Oregon Department of Administrative Services shall request from the appropriate state agency a certificate as prescribed in this section. The request shall be made by letter to the agency.

(2) Each state agency authorized to issue general obligation bonds that are ordinarily to be repaid from other than General Fund appropriations shall, on or before August 15 of each fiscal year:

(a) Certify to the Director of the Oregon Department of Administrative Services that the amounts available or that will become available during the current year to the bond program debt service fund to pay bond principal and interest that has accrued or will accrue during the current year are sufficient and will be sufficient to pay bond program principal and interest scheduled for payment during the current year; or

(b) Certify to the Director of the Oregon Department of Administrative Services that the amounts available or that will become available during the current year to the bond program debt service fund will not be sufficient to pay bond program principal and interest scheduled for payment during the current year. A certificate issued under this paragraph shall specify the amount of the anticipated current year deficit. The Director of the Oregon Department of Administrative Services shall review and confirm the correctness of each certification made under this paragraph.

(3) On or before August 15 of each fiscal year, the administrative division of the Oregon Department of Administrative Services that has primary responsibility for accounting for each general obligation bond program in which the bond principal and interest is ordinarily to be repaid from General Fund appropriations shall:

(a) Certify to the Director of the Oregon Department of Administrative Services that the amounts available or that will become available during the current year from General Fund appropriations to defray program bond principal and interest that has accrued or will accrue during the current year are sufficient and will be sufficient to pay program bond principal and interest scheduled for payment during the current year; or

(b) Certify to the Director of the Oregon Department of Administrative Services that the amounts available or that will become available during the current year from General Fund appropriations will not be sufficient to pay program bond principal and interest scheduled for payment during the current year. A certificate issued under this paragraph shall specify the amount of the anticipated current year deficit.

(4)(a) If a deficit in funds available to pay principal and interest in any general obligation bond program is certified and confirmed under subsection (2) or certified under subsection (3) of this section, the amount of the deficit, together with any deficit that is certified for any other general obligation bond program shall upon certification constitute a state tax levy on property that shall be apportioned among and charged to the several counties in that proportion which the total assessed value of all the taxable property in each county bears to the total assessed value of all the taxable property of the state as equalized.

(b) If any agency fails to make the certification under subsection (2) or (3) of this section with respect to any general obligation bond fund program, the Oregon Department of Administrative Services shall determine the amount of revenue and other funds that are available and the amount of taxes, if any, that should be levied in addition to the revenues and funds, to pay bond principal and interest under the program for the fiscal year in question. The additional amount so determined shall thereupon constitute a state tax levy on property that shall be apportioned, certified, collected and distributed as if determined and certified as a deficit by the agency. The Oregon Department of Administrative Services shall charge the agency for cost recovery for time spent on that agency’s behalf.

(5) Immediately after the department has determined the amount of a state tax levy on property in accordance with subsection (4) of this section, a certificate of levy, signed by the director of the department, shall be filed in the office of the department. If no state levy is required for the fiscal or tax year, a certificate so stating and signed by the director shall be filed in the office of the department.

(6) If, for any reason, after the close of any regular biennial session of the Legislative Assembly, it becomes necessary to reduce General Fund appropriations, General Fund appropriations for a debt service fund of a general obligation bond program described under subsection (3) of this section may not be reduced.

(7) For purposes of this section:

(a) State agencies that are authorized to issue general obligation bonds ordinarily to be repaid from other than General Fund appropriations include but are not limited to:

(A) The Director of Veterans’ Affairs, as authorized by Article XI-A of the Oregon Constitution and ORS chapter 407 (veterans loans).

(B) The State Board of Higher Education, as authorized by Article XI-F(1) of the Oregon Constitution and ORS 351.350 (building projects).

(C) The Department of Environmental Quality, as authorized by Article XI-H of the Oregon Constitution and ORS 468.195 to 468.260 (pollution control).

(D) The Water Resources Commission and the Water Resources Director, as authorized by Article XI-I(1) of the Oregon Constitution and ORS 541.700 to 541.855 (water development).

(E) The [Housing Agency] Housing and Community Services Department, as authorized by Article XI-I(2) of the Oregon Constitution and ORS 456.515 to 456.725 and 458.505 to 458.515 (housing).

(F) The Director of the State Department of Energy, as authorized by Article XI-J of the Oregon Constitution and ORS 470.220 to 470.290 (small scale energy projects).

(G) Other agencies as required by the Oregon Department of Administrative Services by rule adopted using the criterion of this subsection.

(b) Each agency authorized to issue general obligation bonds that are ordinarily to be repaid from other than General Fund appropriations shall determine the amount of revenues or other funds that are available and the amount of taxes, if any, that should be levied for the ensuing year in the manner required under rules adopted by the Oregon Department of Administrative Services and make the certification required under subsection (2) of this section.

(8)(a) State agencies that are authorized to issue general obligation bonds that are ordinarily to be repaid from General Fund appropriations include but are not limited to:

(A) The State Board of Forestry and the State Forester, as authorized by Article XI-E of the Oregon Constitution and ORS 530.210 to 530.280 (state reforestation).

(B) The State Board of Higher Education, as authorized by Article XI-G of the Oregon Constitution and ORS 351.345 (higher education and community colleges).

(C) Other agencies as required by the Oregon Department of Administrative Services by rule adopted using the criterion of this subsection.

(b) Each agency authorized to issue general obligation bonds ordinarily to be repaid from General Fund appropriations shall furnish any data required by the Oregon Department of Administrative Services to determine the amount of revenues or other funds that are available and the amount of taxes, if any, that should be levied for the ensuing year and the administrative division of the Oregon Department of Administrative Services that has primary responsibility for accounting shall make the determination for purposes of the making of the certification required under subsection (3) of this section.

NOTE: Corrects name of agency in (7)(a)(E).

SECTION 37. ORS 292.500 is amended to read:

292.500. (1) As used in this section, “council” means the Oregon Council on Developmental Disabilities [Council] that receives federal financial support under the Developmental Disabilities Assistance and Bill of Rights Act (42 U.S.C. 6000 et seq.).

(2) Each member of the Oregon Council on Developmental Disabilities [Council] is entitled to compensation as provided in ORS 292.495 (1).

(3) Subject to limits provided by law or by the Oregon Department of Administrative Services under ORS 292.210 to 292.250, each member of the council may receive actual and necessary travel or other expenses incurred in the performance of the member’s official duties and not reimbursed from other sources.

(4) As used in subsection (3) of this section, “other expenses” means:

(a) Expenses not exceeding $25 for each day that are incurred by a member of the council in employing another person to perform duties, including personal duties, normally performed by the member that the member is unable to perform because of other official duties that cannot be delayed without risk to health or safety.

(b) Notwithstanding paragraph (a) of this subsection, the actual cost of personal assistant services necessary for a member of the council to perform official duties of the member.

(c) Notwithstanding paragraph (a) of this subsection, the actual cost of care for children or family members with disabilities that is required to allow a parent or caregiver to perform the duties of a member of the council.

NOTE: Updates name of council to reflect Executive Order No. 02-24.

SECTION 38. ORS 294.810 is amended to read:

294.810. (1) With the consent of the governing body, a local government official may place in the aggregate up to $30 million of its funds in the investment pool, or, if the assets of the investment pool have been transferred pursuant to ORS 294.882, in the state investment fund established pursuant to ORS 293.721, for investment and reinvestment by the investment officer as provided under ORS 293.701 to 293.820 or 294.805 to 294.895, as the case may be. The $30 million limitation stated in this section [shall] does not apply either to funds of a governing body [which] that are placed in the investment pool on a pass-through basis or to funds invested on behalf of another government unit. Local governments must remove pass-through funds [which] that result in an account balance in the pool in excess of $30 million within 10 business days. County governments must remove such excess funds within 20 business days. The investment officer shall promptly report each instance of noncompliance with, or apparent abuse of, the limitations of this section to the Secretary of State and to the governing body of the local government involved.

(2) The $30 million limitation contained in subsection (1) of this section shall increase in proportion to the increase occurring after September 9, 1995, in the Consumer Price Index for All Urban Consumers of the Portland, Oregon, [Standard] Metropolitan Statistical Area, as compiled by the United States Department of Labor, Bureau of Labor Statistics.

NOTE: Updates syntax in (1); conforms census terminology in (2) to current federal usage.

SECTION 39. ORS 297.070, as amended by section 8, chapter 7, Oregon Laws 2008, is amended to read:

297.070. (1) Performance and program audits of all state departments, boards, commissions, institutions and state-aided institutions and agencies shall be conducted on the basis of risk assessment and on standards established by national recognized entities including, but not limited to, the United States [General Accounting] Government Accountability Office and the National Association of State Auditors. The Secretary of State shall adopt and the Joint Legislative Audit Committee shall approve rules specifying all criteria to be considered for conducting a performance or program audit under this section. The Secretary of State shall schedule the performance and program audits as directed by the Joint Legislative Audit Committee.

(2) The Secretary of State may subpoena witnesses, may require the production of books and papers and rendering of reports in [such] the manner and form [as] that the Secretary of State requires and may do all things necessary to secure a full and thorough audit. The Secretary of State shall report, in writing, to the Legislative Assembly as provided in ORS 192.245 and to the Committee on Performance Excellence established in section 1, chapter 7, Oregon Laws 2008. The report shall include a copy of the report on each performance and program audit.

(3) The Secretary of State, as State Auditor, shall contract with qualified private sector auditors to conduct audits required by this section, unless the Secretary of State determines that it is not practical or in the public interest to do so. If the Secretary of State determines that it is not practical or in the public interest to contract with qualified private sector auditors, after notifying the Joint Legislative Audit Committee, the Secretary of State shall employ auditors for [such] that purpose and shall include in the written audit report the circumstances that rendered it impractical or not in the public interest to contract with qualified private sector auditors. All contracts for conducting performance and program audits under this section shall be in a form prescribed or approved by the Secretary of State. A copy of each completed contract shall be furnished to the Secretary of State and the Joint Legislative Audit Committee. The Secretary of State shall employ or contract with auditors upon terms and for compensation as the Secretary of State determines are advantageous and advisable.

(4) An audit conducted under contract as provided in subsection (3) of this section shall be considered to be conducted by the Division of Audits for purposes of ORS 297.020, 297.050 and 297.535.

(5) If a person fails to comply with any subpoena issued under subsection (2) of this section, a judge of the circuit court of any county, on application of the Secretary of State, shall compel obedience by proceedings for contempt as in the case of disobedience of the requirements of a subpoena issued from the circuit court.

(6) The Secretary of State may enter into an agreement with the department, board, commission, institution, state-aided institution or agency that is the subject of a performance or program audit for payment of the expenses incurred by the Secretary of State in conducting the audit. The Emergency Board may also make funds available to the Division of Audits to reimburse it for expenses incurred under this section.

(7) As used in this section:

(a) “Performance audit” includes determining:

(A) Whether an entity described in subsection (1) of this section that is the subject of the audit is acquiring, protecting and using its resources economically and efficiently;

(B) The causes of inefficiencies or uneconomical practices; and

(b) “Program audit” includes determining:

(A) The extent to which the desired results or benefits of a program established by the Legislative Assembly or other authorizing body are being achieved;

(B) The extent to which the need for or objectives of an ongoing program are necessary or relevant;

(D) The effectiveness of organizations, programs, activities or functions; and

(E) Whether the entity described in subsection (1) of this section that is the subject of the audit has complied with laws and regulations applicable to the program.

NOTE: Updates title of federal agency in (1); updates word choice in (2) and (3).

SECTION 40. ORS 327.006 is amended to read:

327.006. As used in ORS 327.006 to 327.133, 327.348, 327.355, 327.357, 327.360 and 327.731:

(1) “Aggregate days membership” means the sum of days present and absent, according to the rules of the State Board of Education, of all resident pupils when school is actually in session during a certain period. The aggregate days membership of kindergarten pupils shall be calculated on the basis of a half-day program.

(2)(a) “Approved transportation costs” means those costs as defined by rule of the State Board of Education and is limited to those costs attributable to transporting or room and board provided in lieu of transporting:

(A) Elementary school students who live at least one mile from school;

(B) Secondary school students who live at least 1.5 miles from school;

(C) Any student required to be transported for health or safety reasons, according to supplemental plans from districts that have been approved by the state board identifying students who are required to be transported for health or safety reasons, including special education;

(D) Preschool children with disabilities requiring transportation for early intervention services provided pursuant to ORS 343.224 and 343.533;

(E) Students who require payment of room and board in lieu of transportation;

(F) A student transported from one school or facility to another school or facility when the student attends both schools or facilities during the day or week; and

(G) Students participating in school-sponsored field trips that are extensions of classroom learning experiences.

(b) “Approved transportation costs” does not include the cost of constructing boarding school facilities.

(3) “Average daily membership” or “ADM” means the aggregate days membership of a school during a certain period divided by the number of days the school was actually in session during the same period. However, if a district school board adopts a class schedule that operates throughout the year for all or any schools in the district, average daily membership shall be computed by the Department of Education so that the resulting average daily membership will not be higher or lower than if the board had not adopted such schedule.

(4) “Consumer Price Index” means the Consumer Price Index for All Urban Consumers of the Portland, Oregon, [Standard] Metropolitan Statistical Area, as compiled by the United States Department of Labor, Bureau of Labor Statistics.

(5) “Kindergarten” means a kindergarten program that conforms to the standards and rules adopted by the State Board of Education.

(6) “Net operating expenditures” means the sum of expenditures of a school district in kindergarten through grade 12 for administration, instruction, attendance and health services, operation of plant, maintenance of plant, fixed charges and tuition for resident students attending in another district, as determined in accordance with the rules of the State Board of Education, but net operating expenditures does not include transportation, food service, student body activities, community services, capital outlay, debt service or expenses incurred for nonresident students.

(7)(a) “Resident pupil” means any pupil:

(A) Whose legal school residence is within the boundaries of a school district reporting the pupil, if the district is legally responsible for the education of the pupil, except that “resident pupil” does not include a pupil who pays tuition or for whom the parent pays tuition or for whom the district does not pay tuition for placement outside the district; or

(B) Whose legal residence is not within the boundaries of the district reporting the pupil but attends school in the district with the written consent of the affected school district boards.

(b) A pupil [shall not be] is not considered to be a resident pupil under paragraph (a)(A) of this subsection if the pupil is attending school in another school district pursuant to a contract under ORS 339.125 and in the prior year was considered to be a resident pupil in another school district under paragraph (a)(B) of this subsection. The pupil shall continue to be considered a resident of another school district under paragraph (a)(B) of this subsection.

(c) A pupil [shall not be] is not considered to be a resident pupil under paragraph (a)(B) of this subsection if the pupil is attending school in a school district pursuant to an agreement with another school district under ORS 339.133 and in the prior year was considered to be a resident pupil under paragraph (a)(A) of this subsection because the pupil was attending school in another school district pursuant to a contract under ORS 339.125. The pupil shall continue to be considered a resident pupil under paragraph (a)(A) of this subsection.

(d) “Resident pupil” includes a pupil admitted to a school district under ORS 339.115 (7).

(8) “Standard school” means a school meeting the standards set by the rules of the State Board of Education.

(9) “Tax” and “taxes” includes all taxes on property, excluding exempt bonded indebtedness, as those terms are defined in ORS 310.140.

NOTE: Conforms census terminology in (4) to current federal usage; updates syntax in (7)(b) and (c).

SECTION 41. ORS 327.006, as amended by section 11, chapter 846, Oregon Laws 2007, is amended to read:

327.006. As used in ORS 327.006 to 327.133, 327.348 and 327.731: