75th OREGON LEGISLATIVE ASSEMBLY--2009 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 471
House Bill 2163
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
Presession filed (at the request of Governor Theodore R.
Kulongoski for Oregon Military Department)
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
Allows Adjutant General to appoint temporary Assistant State
Judge Advocates who must meet certain qualifications within 12
months of appointment.
Creates position of State Judge Advocate Legal Assistant.
Gives Supreme Court of this state exclusive jurisdiction over
appeals from Armed Forces Court of Appeals for Oregon.
Provides for tolling of statute of limitations during service
member's active service. Decreases time that service member may
apply to court or administrative body for relief.
A BILL FOR AN ACT
Relating to military justice; creating new provisions; and
amending ORS 398.012, 398.420 and 399.238.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 398.012 is amended to read:
398.012. (1) The Governor, on the recommendation of the
Adjutant General, shall appoint an officer of the organized
militia as State Judge Advocate. To be eligible for appointment
{ + as State Judge Advocate + }, an officer must:
(a) Be a member in good standing of the Oregon State Bar;
(b) Have been a member of the Oregon State Bar for at least
five years; and
(c) Meet the qualifications for a judge advocate under the
Uniform Code of Military Justice.
(2) { + The Adjutant General may appoint an officer of the
organized militia as an Assistant State Judge Advocate. + } The
Adjutant General may appoint as many Assistant State Judge
Advocates as the Adjutant General deems necessary. { - The
Assistant State Judge Advocates shall be officers of the
organized militia and members of the Oregon State Bar. - }
{ + To be eligible for appointment as an Assistant State Judge
Advocate, an officer must:
(a) Be a member in good standing of the Oregon State Bar; and
(b) Meet the qualifications for a judge advocate under the
Uniform Code of Military Justice. + }
{ + (3)(a) + } { - However, - } The Adjutant General may
appoint temporary Assistant State Judge Advocates { - for a
period not to exceed 12 months - } { + who are officers of the
organized militia + }. An individual appointed as a temporary
Assistant State Judge Advocate { + has 12 months from the date
of appointment to become a member in good standing of the Oregon
State Bar and meet the qualifications for a judge advocate under
the Uniform Code of Military Justice.
(b) The legal services performed by a temporary Assistant State
Judge Advocate are limited to those legal services that may be
performed by legal assistants consistent with ORS 9.160.
(c) A temporary Assistant State Judge Advocate who has met the
requirements under this subsection is eligible for appointment as
an Assistant State Judge Advocate.
(d) The Adjutant General may extend, for an additional 12
months, the time during which a temporary Assistant State Judge
Advocate must meet the qualifications described in paragraph (a)
of this subsection.
(4) The Adjutant General may appoint State Judge Advocate Legal
Assistants for a period not to exceed 12 months. An individual
appointed as a State Judge Advocate Legal Assistant + } shall be
an officer of the Oregon State Defense Force and shall be legally
trained but is not required to be admitted to the practice of law
by the Supreme Court of this state. The legal services performed
by { - temporary Assistant State Judge Advocates shall be - }
{ + a State Judge Advocate Legal Assistant are + } limited to
those legal services that may be performed by legal assistants
consistent with ORS 9.160.
{ - (3) - } { + (5) + } The State Judge Advocate { + , the
Senior Force Judge Advocate, as defined in the Oregon Code of
Military Justice (2008), + } or { + their + } assistants shall
make frequent inspections in the field for supervision of the
administration of military justice and general military legal
matters.
{ - (4) - } { + (6)(a) + } Convening authorities shall at
all times communicate directly with their { - staff judge
advocate or legal officers - } { + judge advocate + } in
matters relating to the administration of military justice and
general military legal matters { - ; and - } { + . + }
{ + (b) + } The { - staff judge advocate or legal
officer - } { + judge advocate + } of any command { - is
entitled to - } { + may + } communicate directly with the
{ - staff judge advocate or legal officer - } { + judge
advocate + } of a superior or subordinate command, or with the
State Judge Advocate { + or the Senior Force Judge Advocate, as
defined in the Oregon Code of Military Justice (2008) + }.
{ - (5) - } { + (7) + } A person who has acted as member,
military judge, trial counsel, assistant trial counsel, defense
counsel, assistant defense counsel or investigating officer, or
who has been a witness for either the prosecution or defense in
any case, may not later act as { - staff judge advocate or
legal officer - } { + judge advocate + } to any reviewing
authority upon the same case.
{ - (6) - } { + (8) + } A judicial officer, as defined by
ORS 1.210, is not prohibited, by reason of holding that office,
from { + : + }
{ + (a) + } Performing all acts necessary or incumbent to the
authorized exercise of duties as a judge advocate or as a member
of the Military Council.
{ + (b) Being assigned as a judge advocate by the Adjutant
General as appointed by the Governor as Commander in Chief under
the Oregon Constitution. + }
SECTION 2. ORS 398.420 is amended to read:
398.420. (1) There is established within the Oregon Military
Department the Armed Forces Court of Appeals for Oregon.
(2) The court shall have { + exclusive + } jurisdiction over
appeals properly brought { - under regulations adopted by the
Adjutant General - } { + under this chapter and ORS chapters
396 and 399 + }.
(3) The Adjutant General shall appoint three persons who shall
serve as judges on the court. The persons appointed shall serve
without compensation.
(4) One person shall be Chief Judge and two persons shall be
Associate Judges. The Chief Judge shall be selected by the three
judges. The selection shall be subject to the approval of the
Adjutant General.
(5)(a) Appointments shall be for a term of six years, except
that the initial appointments of the judges shall be for the
following terms:
(A) One judge shall serve a two-year term.
(B) One judge shall serve a four-year term.
(C) One judge shall serve a six-year term.
(b) The term of office of any successor judges shall be six
years, but any judge appointed to fill a vacancy occurring prior
to the expiration of the term for which the judge's predecessor
was appointed shall be appointed only for the unexpired term of
the predecessor.
(c) Any person appointed to a full or partial term on the
court, unless otherwise disqualified, shall be eligible for
reappointment.
(6) A person is eligible for appointment to the court if the
person:
(a) Is a member of the Oregon State Bar and admitted to
practice before the highest court of this state;
(b) Is a former commissioned officer of the Armed Forces of the
United States { - (regular, reserve or National Guard) - }
{ + or the reserve components + }, or { + is + } a former or
current member of the Oregon State Defense Force; and
(c) Has at least:
(A) Five years' experience as an officer in the Judge Advocate
General's Corps; or
(B) Fifteen years' experience in the Judge Advocate Branch of
the Oregon State Defense Force.
(7) Judges of the court may be removed by the Adjutant General,
upon notice and hearing, for neglect of duty or malfeasance in
office or for mental or physical disability, but for no other
cause.
(8) If a judge of the court is temporarily unable to perform
the judge's duties due to mental or physical disability, the
Adjutant General may designate another person eligible for
appointment to the court to fill the office for the period of
disability.
(9) The Oregon Military Department shall be responsible for
reimbursement and funding of all usual travel and per diem
expenses of the judges.
(10) The Adjutant General shall adopt regulations to govern
appellate procedure before the court. The regulations shall be
substantially similar to the provisions for post-trial procedure
and review of courts-martial under the Uniform Code of Military
Justice.
{ + (11) The Supreme Court of this state has exclusive
jurisdiction over all appeals from the Armed Forces Court of
Appeals for Oregon. + }
SECTION 3. ORS 399.238 is amended to read:
399.238. (1) As used in this section, 'service member ' means:
(a) A member of the organized militia who is called into active
service { - of the state by the Governor - } under ORS
{ - 399.065 (1) - } { + chapter 399 + }.
(b) A member of the Oregon National Guard who is called into
active service outside this state under Title 10 or Title 32 of
the United States Code.
{ - (c) A member of the Oregon National Guard who is called
into active state duty under ORS 399.075. - }
(2) A service member may, while in active service { - or
active state duty - } or within { - six months - } { + 90
days + } after that service { - or duty - } ends, apply to a
court or an administrative body:
(a) For relief with respect to any obligation or liability
incurred by the member before the period of active service
{ - or active state duty - } began. The court or administrative
body, after appropriate notice and hearing, may grant relief
unless the court or administrative body determines that the
ability of the member to comply with the terms of the obligation
or liability has not been materially affected by active service
{ - or active state duty - } .
(b) For a stay of a civil or administrative proceeding in which
the service member is a party. The court or administrative body,
after appropriate notice, shall grant the stay unless the court
or administrative body determines that the ability of the service
member to appear is not materially affected by active service
{ - or active state duty - } .
(3) The court or administrative body may not charge or collect
any fee from a service member who applies to the court or
administrative body for relief under this section.
(4) An application filed under this section may not be deemed
as consent to jurisdiction in any action or proceeding.
{ + (5) The period of a service member's active service may
not be included in computing any period limited by law, rule or
order for bringing any action or proceeding before a court or
administrative body for or against the service member or the
service member's heirs, executors, administrators or assigns. + }
SECTION 4. { + The amendments to ORS 399.238 by section 3 of
this 2009 Act apply to applications to a court or an
administrative body brought on or after the effective date of
this 2009 Act. + }
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