75th OREGON LEGISLATIVE ASSEMBLY--2009 Regular Session
Enrolled
House Bill 2394
Sponsored by Representative COWAN (at the request of Oregon State
Sheriffs' Association)
CHAPTER ................
AN ACT
Relating to service of legal documents; creating new provisions;
and amending ORS 136.595 and 163.741 and ORCP 55 D.
Be It Enacted by the People of the State of Oregon:
{ +
SERVICE OF SUBPOENAS + }
SECTION 1. ORCP 55 D, as amended by the Council on Court
Procedures on December 13, 2008, is amended to read:
D Service; service on law enforcement agency; service by mail;
proof of service.
D(1) Service. Except as provided in subsection (2) of this
section, a subpoena may be served by the party or any other
person 18 years of age or older. The service shall be made by
delivering a copy to the witness personally and giving or
offering to the witness at the same time the fees to which the
witness is entitled for travel to and from the place designated
and, whether or not personal attendance is required, one day's
attendance fees. { + If the witness is under 14 years of age,
the subpoena may be served by delivering a copy to the witness or
to the witness's parent, guardian or guardian ad litem. + } The
service must be made so as to allow the witness a reasonable time
for preparation and travel to the place of attendance. A subpoena
for taking of a deposition, served upon an organization as
provided in Rule 39 C(6), shall be served in the same manner as
provided for service of summons in Rule 7 D(3)(b)(i), D(3)(c)(i),
D(3)(d)(i), D(3)(e), D(3)(f), or D(3)(h). Copies of each subpoena
commanding production of books, papers, documents or tangible
things and inspection thereof before trial, not accompanied by
command to appear at trial or hearing or at deposition, whether
the subpoena is served personally or by mail, shall be served on
each party at least seven days before the subpoena is served on
the person required to produce and permit inspection, unless the
court orders a shorter period. In addition, a subpoena shall not
require production less than 14 days from the date of service
upon the person required to produce and permit inspection, unless
the court orders a shorter period.
D(2) Service on law enforcement agency.
D(2)(a) Every law enforcement agency shall designate individual
or individuals upon whom service of subpoena may be made. At
least one of the designated individuals shall be available during
Enrolled House Bill 2394 (HB 2394-INTRO) Page 1
normal business hours. In the absence of the designated
individuals, service of subpoena pursuant to paragraph (b) of
this subsection may be made upon the officer in charge of the law
enforcement agency.
D(2)(b) If a peace officer's attendance at trial is required as
a result of employment as a peace officer, a subpoena may be
served on such officer by delivering a copy personally to the
officer or to one of the individuals designated by the agency
{ - which - } { + that + } employs the officer { - not
later than 10 days prior to the date attendance is sought - } . A
subpoena may be served { - in this manner - } { + by delivery
to one of the individuals designated by the agency that employs
the officer + } only if { + the subpoena is delivered at least
10 days before the date the officer's attendance is required, + }
the officer is currently employed as a peace officer { + by the
agency, + } and { + the officer + } is present within the state
at the time of service.
D(2)(c) When a subpoena has been served as provided in
paragraph (b) of this subsection, the law enforcement agency
shall make a good faith effort to give actual notice to the
officer whose attendance is sought of the date, time, and
location of the court appearance. If the officer cannot be
notified, the law enforcement agency shall promptly notify the
court and a postponement or continuance may be granted to allow
the officer to be personally served.
D(2)(d) As used in this subsection, 'law enforcement agency'
means the Oregon State Police, a county sheriff's department, or
a municipal police department.
D(3) Service by mail.
Under the following circumstances, service of a subpoena to a
witness by mail shall be of the same legal force and effect as
personal service otherwise authorized by this section:
D(3)(a) The attorney certifies in connection with or upon the
return of service that the attorney, or the attorney's agent, has
had personal or telephone contact with the witness, and the
witness indicated a willingness to appear at trial if subpoenaed;
D(3)(b) The attorney, or the attorney's agent, made
arrangements for payment to the witness of fees and mileage
satisfactory to the witness; and
D(3)(c) The subpoena was mailed to the witness more than 10
days before trial by certified mail or some other designation of
mail that provides a receipt for the mail signed by the
recipient, and the attorney received a return receipt signed by
the witness more than three days prior to trial.
D(4) Service by mail; exception. Service of subpoena by mail
may be used for a subpoena commanding production of books,
papers, documents, or tangible things, not accompanied by a
command to appear at trial or hearing or at deposition.
D(5) Proof of service. Proof of service of a subpoena is made
in the same manner as proof of service of a summons except that
the server need not certify that the server is not a party in the
action, an attorney for a party in the action or an officer,
director or employee of a party in the action.
SECTION 2. ORS 136.595 is amended to read:
136.595. (1) Except as provided in ORS 136.447 and subsections
(2) and (3) of this section, a subpoena is served by delivering a
copy to the witness personally. { + If the witness is under 14
years of age, the subpoena may be served by delivering a copy to
the witness or to the witness's parent, guardian or guardian ad
Enrolled House Bill 2394 (HB 2394-INTRO) Page 2
litem. + } Proof of the service is made in the same manner as in
the service of a summons.
(2)(a) Every law enforcement agency shall designate an
individual or individuals upon whom service of subpoena may be
made. At least one of the designated individuals shall be
available during normal business hours. In the absence of the
designated individuals, service of subpoena pursuant to paragraph
(b) of this subsection may be made upon the officer in charge of
the law enforcement agency.
(b) { - If a peace officer's attendance at trial is required
as a result of employment as a peace officer, a subpoena may be
served on the peace officer by delivering a copy personally to
the officer or to one of the individuals designated by the agency
that employs the officer not later than 10 days prior to the date
attendance is sought. A subpoena may be served in this manner
only if the officer is currently employed as a peace officer and
is present within the state at the time of service. - } { + If
a peace officer's attendance at trial is required as a result of
employment as a peace officer, a subpoena may be served on such
officer by delivering a copy personally to the officer or to one
of the individuals designated by the agency that employs the
officer. A subpoena may be served by delivery to one of the
individuals designated by the agency that employs the officer
only if the subpoena is delivered at least 10 days before the
date the officer's attendance is required, the officer is
currently employed as a peace officer by the agency, and the
officer is present within the state at the time of service. + }
(c) When a subpoena has been served as provided in paragraph
(b) of this subsection, the law enforcement agency shall make a
good faith effort to actually notify the officer whose attendance
is sought of the date, time and location of the court appearance.
If the officer cannot be notified, the law enforcement agency
shall contact the court and a continuance may be granted to allow
the officer to be personally served.
(d) As used in this subsection, 'law enforcement agency ' means
the Oregon State Police, a county sheriff's department or a
municipal police department.
(3) A subpoena for the production of papers, documents, records
and other tangible things may be served on a corporation or
limited partnership in the manner provided by ORCP 7 D(3) for the
service of a summons.
(4) When a subpoena has been served as provided in subsection
(1), (2) or (3) of this section and, subsequent to service, the
date on, or the time at, which the person subpoenaed is to appear
has changed, a new subpoena is not required to be served if:
(a) The subpoena is continued orally in open court in the
presence of the person subpoenaed; or
(b) The party who issued the original subpoena notifies the
person subpoenaed of the change by first class mail and by:
(A) Certified or registered mail, return receipt requested; or
(B) Express mail.
{ +
SERVICE OF STALKING PROTECTIVE ORDER + }
SECTION 3. ORS 163.741 is amended to read:
163.741. { + (1) Service of a stalking protective order shall
be made by personal delivery of a copy of the order to the
respondent. The respondent need not be served if an order of the
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court indicates that the respondent appeared in person before the
court. + }
{ - (1) - } { + (2) + } Whenever a stalking protective
order, as authorized by ORS 163.735 or 163.738, is { - issued
and the person to be restrained has actual notice thereof - }
{ + served on a respondent + }, the person serving the order
shall deliver forthwith to the county sheriff a true copy of the
order and an affidavit of proof of service on which it is stated
that personal service of the order was made on the respondent.
{ - If an order entered by the court recites that the respondent
appeared in person before the court, the necessity for further
service of the order is waived and accompanying proof of service
is not necessary. - } { + If service of the order is not
required under subsection (1) of this section, a copy of the
order shall be delivered to the sheriff by the court. + }Upon
receipt of the order and { - completion of any required
service - } { + any required proof of service + }, the county
sheriff shall forthwith enter the order into the Law Enforcement
Data System maintained by the Department of State Police and into
the databases of the National Crime Information Center of the
United States Department of Justice. The sheriff shall also
provide the complainant with a true copy of { - the - } { +
any required + } proof of service. Entry into the Law Enforcement
Data System constitutes notice to all law enforcement agencies of
the existence of such order. Law enforcement agencies shall
establish procedures adequate to ensure that an officer at the
scene of an alleged violation of such order may be informed of
the existence and terms of such order. Such order shall be fully
enforceable in any county in the state. The complainant may elect
to deliver documents personally to a county sheriff or to have
them delivered by a private person for entry into the Law
Enforcement Data System and the databases of the National Crime
Information Center of the United States Department of Justice.
{ - (2) - } { + (3) + } When a stalking protective order
has been entered into the Law Enforcement Data System and the
databases of the National Crime Information Center of the United
States Department of Justice under subsection (1) of this
section, a county sheriff shall cooperate with a request from a
law enforcement agency from any other jurisdiction to verify the
existence of the stalking protective order or to transmit a copy
of the order to the requesting jurisdiction.
{ - (3) - } { + (4) + } When a stalking protective order
{ - described in subsection (1) of this section - } is
terminated by order of the court, the clerk of the court shall
deliver forthwith a true copy of the termination order to the
county sheriff with whom the original order was filed. Upon
receipt of the termination order, the county sheriff shall
promptly remove the original order from the Law Enforcement Data
System and the databases of the National Crime Information Center
of the United States Department of Justice.
SECTION 4. { + The unit captions used in this 2009 Act are
provided only for the convenience of the reader and do not become
part of the statutory law of this state or express any
legislative intent in the enactment of this 2009 Act. + }
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Enrolled House Bill 2394 (HB 2394-INTRO) Page 4
Passed by House April 29, 2009
...........................................................
Chief Clerk of House
...........................................................
Speaker of House
Passed by Senate May 21, 2009
...........................................................
President of Senate
Enrolled House Bill 2394 (HB 2394-INTRO) Page 5
Received by Governor:
......M.,............., 2009
Approved:
......M.,............., 2009
...........................................................
Governor
Filed in Office of Secretary of State:
......M.,............., 2009
...........................................................
Secretary of State
Enrolled House Bill 2394 (HB 2394-INTRO) Page 6