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 1556
Senate Bill 255
Printed pursuant to Senate Interim Rule 213.28 by order of the
President of the Senate in conformance with presession filing
rules, indicating neither advocacy nor opposition on the part
of the President (at the request of Senate Interim Committee on
Judiciary for Oregon Criminal Defense Lawyers Association)
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.
Modifies standard by which Public Defense Services Commission
compensates appointed counsel, investigators and other persons
who provide services for persons eligible for appointed counsel.
A BILL FOR AN ACT
Relating to compensation for services provided to persons
eligible for appointed counsel; creating new provisions; and
amending ORS 135.055 and 151.216.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 151.216 is amended to read:
151.216. (1) The Public Defense Services Commission shall:
(a) Establish and maintain a public defense system that ensures
the provision of public defense services in the most
cost-efficient manner consistent with the Oregon Constitution,
the United States Constitution and Oregon and national standards
of justice.
(b) Establish an office of public defense services and appoint
a public defense services executive director who serves at the
pleasure of the commission.
(c) Submit the budget of the commission and the office of
public defense services to the Legislative Assembly after the
budget is submitted to the commission by the director and
approved by the commission. The Chief Justice of the Supreme
Court and the chairperson of the commission shall present the
budget to the Legislative Assembly.
(d) Review and approve any public defense services contract
negotiated by the director before the contract can become
effective.
(e) Adopt a compensation plan, classification system and
personnel plan for the office of public defense services that are
commensurate with other state agencies.
(f) Adopt policies, procedures, standards and guidelines
regarding:
(A) The determination of financial eligibility of persons
entitled to be represented by appointed counsel at state expense;
(B) The appointment of counsel;
(C) The { - fair - } compensation of counsel appointed to
represent a person financially eligible for appointed counsel at
state expense { + , at a rate commensurate with the compensation
paid to counsel employed by the government + };
{ + (D) The compensation of investigators and other persons
who provide services pursuant to ORS 135.055 at a rate
commensurate with the compensation paid to investigators and
other persons who provide similar services for the
government; + }
{ - (D) - } { + (E) + } Appointed counsel compensation
disputes;
{ - (E) - } { + (F) + } Any other costs associated with the
representation of a person by appointed counsel in the state
courts that are required to be paid by the state under ORS
34.355, 135.055, 138.500, 138.590, 161.346, 161.365, 161.385,
419A.211, 419B.201, 419B.208, 419B.518, 419B.908, 419C.206,
419C.209, 419C.408, 419C.535, 426.100, 426.135, 426.250, 426.307,
427.265, 427.295, 436.265 or 436.315 or any other provision of
law that expressly provides for payment of such compensation,
costs or expenses by the commission;
{ - (F) - } { + (G) + } Professional qualifications for
counsel appointed to represent public defense clients;
{ - (G) - } { + (H) + } Performance for legal
representation;
{ - (H) - } { + (I) + } The contracting of public defense
services;
{ - (I) - } { + (J) + } Contracting with expert witnesses
to allow contracting with out-of-state expert witnesses only if
in-state expert witnesses are not available or are more expensive
than out-of-state expert witnesses; and
{ - (J) - } { + (K) + } Any other matters necessary to
carry out the duties of the commission.
(g) Establish a peer review system for the approval of
nonroutine fees and expenses incurred in cases involving
aggravated murder and the crimes listed in ORS 137.700 and
137.707. The review shall be conducted by a panel of attorneys
who practice in the area of criminal defense.
(h) Establish a complaint process that allows district
attorneys, criminal defense counsel and the public to file
complaints concerning the payment from public funds of nonroutine
fees and expenses incurred in cases.
(i) Reimburse the State Court Administrator from funds
deposited in the subaccount established under ORS 151.225 for the
costs of personnel and other costs associated with location of
eligibility verification and screening personnel pursuant to ORS
151.489 by the State Court Administrator.
(2) Policies, procedures, standards and guidelines adopted by
the commission supersede any conflicting rules, policies or
procedures of the Public Defender Committee, State Court
Administrator, circuit courts, the Court of Appeals, the Supreme
Court and the Psychiatric Security Review Board related to the
exercise of the commission's administrative responsibilities
under this section and transferred duties, functions and powers
as they occur.
(3) The commission may accept gifts, grants or contributions
from any source, whether public or private. However, the
commission may not accept a gift, grant or contribution if
acceptance would create a conflict of interest. Moneys accepted
under this subsection shall be deposited in the Public Defense
Services Account created in ORS 151.225 and expended for the
purposes for which given or granted.
(4) The commission may not:
(a) Make any decision regarding the handling of any individual
case;
(b) Have access to any case file; or
(c) Interfere with the director or any member of the staff of
the director in carrying out professional duties involving the
legal representation of public defense clients.
SECTION 2. ORS 135.055 is amended to read:
135.055. (1) Counsel appointed pursuant to ORS 135.045 or
135.050 shall be paid fair compensation for representation in the
case:
(a) By the county, subject to the approval of the governing
body of the county, in a proceeding in a county or justice court.
(b) By the public defense services executive director from
funds available for the purpose, in a proceeding in a circuit
court.
(2) { - Except for counsel appointed pursuant to contracts or
counsel employed by the public defense services executive
director, - } Compensation payable to appointed counsel under
subsection (1) of this section:
(a) In a proceeding in a county or justice court may not be
less than $30 per hour.
(b) In a proceeding in a circuit court is subject to the
applicable compensation established under ORS 151.216.
(3)(a) A person determined to be eligible for appointed counsel
is entitled to necessary and reasonable fees and expenses for
investigation, preparation and presentation of the case for
trial, negotiation and sentencing. The person or the counsel for
the person shall upon written request secure preauthorization to
incur fees and expenses that are not routine to representation
but are necessary and reasonable in the investigation,
preparation and presentation of the case, including but not
limited to nonroutine travel, photocopying or other reproduction
of nonroutine documents, necessary costs associated with
obtaining the attendance of witnesses for the defense,
investigator fees and expenses, expert witness fees and expenses
and fees for interpreters and assistive communication devices
necessary for the purpose of communication between counsel and a
client or witness in the case. Preauthorization to incur a fee or
expense does not guarantee that a fee or expense incurred
pursuant to the preauthorization will be determined to be
necessary or reasonable when the fee or expense is submitted for
payment.
(b) In a county or justice court, the request must be in the
form of a motion to the court. The motion must be accompanied by
a supporting affidavit that sets out in detail the purpose of the
requested expenditure, the name of the service provider or other
recipient of the funds, the dollar amount of the requested
expenditure that may not be exceeded without additional
authorization and the date or dates during which the service will
be rendered or events will occur for which the expenditure is
requested.
(c) In a circuit court, the request must be in the form and
contain the information that is required by the policies,
procedures, standards and guidelines of the Public Defense
Services Commission. If the public defense services executive
director denies a request for preauthorization to incur
nonroutine fees and expenses, the person making the request may
appeal the decision to the presiding judge of the circuit court.
The presiding judge has final authority to preauthorize incurring
nonroutine fees and expenses under this paragraph.
(d) Entitlement under subsection (7) of this section to payment
for fees and expenses in circuit court is subject to the
policies, procedures, standards and guidelines adopted under ORS
151.216. Entitlement to payment of nonroutine fees and expenses
is dependent upon obtaining preauthorization from the court, if
the case is in county or justice court, or from the public
defense services executive director, if the case is in circuit
court, except as otherwise provided in paragraph (c) of this
subsection and in the policies, procedures, standards and
guidelines adopted under ORS 151.216. Fees and expenses shall be
paid:
(A) By the county, in respect to a proceeding in a county or
justice court.
(B) By the public defense services executive director from
funds available for the purpose, in respect to a proceeding in a
circuit court.
(C) By the city, in respect to a proceeding in municipal court.
(4) Upon completion of all services by the counsel of a person
determined to be eligible for appointed counsel, the counsel
shall submit a statement of all necessary and reasonable fees and
expenses of investigation, preparation and presentation and, if
counsel was appointed by the court, a statement of all necessary
and reasonable fees and expenses for legal representation,
supported by appropriate receipts or vouchers and certified by
the counsel to be true and accurate.
(5) In a county or justice court, the total fees and expenses
payable under this section must be submitted to the court by
counsel or other providers and are subject to the review of the
court. The court shall certify that such amount is fair
reimbursement for fees and expenses for representation in the
case as provided in subsection (6) of this section. Upon
certification and any verification as provided under subsection
(6) of this section, the amount of the fees and expenses approved
by the court and not already paid shall be paid by the county.
(6) In a county or justice court, the court shall certify to
the administrative authority responsible for paying fees and
expenses under this section that the amount for payment is
reasonable and that the amount is properly payable out of public
funds.
(7) In a circuit court, the total fees and expenses payable
under this section must be submitted to and are subject to review
by the public defense services executive director. The public
defense services executive director shall determine whether the
amount is necessary, reasonable and properly payable from public
funds for fees and expenses for representation in the case as
provided by the policies, procedures, standards and guidelines of
the Public Defense Services Commission. The public defense
services executive director shall pay the amount of the fees and
expenses determined necessary, reasonable and properly payable
out of public funds. The court shall provide any information
identified and requested by the public defense services executive
director as needed for audit, statistical or any other purpose
pertinent to ensure the proper disbursement of state funds or
pertinent to the provision of appointed counsel compensated at
state expense.
(8) If the public defense services executive director denies,
in whole or in part, fees and expenses submitted for review and
payment, the person who submitted the payment request may appeal
the decision to the presiding judge of the circuit court. The
presiding judge or the designee of the presiding judge shall
review the public defense services executive director's decision
for abuse of discretion. The decision of the presiding judge or
the designee of the presiding judge is final.
(9) The following may not be disclosed to the district attorney
prior to the conclusion of a case:
(a) Requests and administrative or court orders for
preauthorization to incur nonroutine fees and expenses in the
investigation, preparation and presentation of the case; and
(b) Billings for such fees and expenses submitted by counsel or
other providers.
(10) Notwithstanding subsection (9) of this section, the total
amount of moneys determined to be necessary and reasonable for
nonroutine fees and expenses may be disclosed to the district
attorney at the conclusion of the trial in the circuit court.
(11) As used in this section unless the context requires
otherwise, 'counsel' includes a legal advisor appointed under ORS
135.045.
SECTION 3. { + The amendments to ORS 135.055 and 151.216 by
sections 1 and 2 of this 2009 Act apply to appointments made on
or after the effective date of this 2009 Act. + }
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