75th OREGON LEGISLATIVE ASSEMBLY--2009 Regular Session
 
SA to SB 262
 
LC 196/SB 262-1
 
                      SENATE AMENDMENTS TO
                         SENATE BILL 262
 
                    By COMMITTEE ON JUDICIARY
 
                            April 24
 
  In line 2 of the printed bill, delete 'repealing ORS 5.110 '
and insert 'creating new provisions; amending ORS 2.570, 19.360,
19.415, 183.650, 419A.200, 421.628 and 545.579; and declaring an
emergency'.
  Delete line 4 and insert:
  '  { +  SECTION 1. + } ORS 2.570 is amended to read:
  ' 2.570. (1) In hearing and determining causes, the judges of
the Court of Appeals may sit together or in departments.
  ' (2) { + (a) Except as provided in paragraph (b) of this
subsection, + } a department shall consist of three judges. For
convenience of administration, each department may be numbered.
The Chief Judge shall from time to time designate the number of
departments and make assignments of the judges among the
departments. The Chief Judge may sit in one or more departments
and when so sitting may preside. The Chief Judge shall designate
a judge to preside in each department.
  '  { +  (b) The Chief Judge may order that a department consist
of two judges unless a third judge is necessary to break a tie
vote by the department. + }
  ' (3) { +  Except as provided in this subsection, + } the
majority of any department shall consist of regularly elected or
appointed judges of the Court of Appeals.   { - However, - }  If
disqualifications, recusals or other events reduce the number of
available judges to fewer than   { - three - }  { +  the
necessary number of judges + }, the Supreme Court may appoint
such number of qualified persons as may be necessary as pro
tempore members of the Court of Appeals.
  ' (4) The Chief Judge shall apportion the business of the court
between the departments. Each department shall have power to hear
and determine causes, and all questions that may arise therein,
subject to subsection (5) of this section. The presence of
 { - three - }  { +  two + } judges is necessary to transact
business in any department, except such business as may be
transacted in chambers by any judge. The concurrence of two
judges is necessary to pronounce judgment.
  ' (5) The Chief Judge or a majority of the regularly elected or
appointed judges of the Court of Appeals at any time may refer a
cause to be considered en banc. When sitting en banc, the court
may include not more than two judges pro tempore of the Court of
Appeals. When the court sits en banc, the concurrence of a
majority of the judges participating is necessary to pronounce
judgment, but if the judges participating are equally divided in
their view as to the judgment to be given, the judgment appealed
from shall be affirmed.
  ' (6) The Chief Judge may rule on motions and issue orders in
procedural matters in the Court of Appeals { +  or may delegate
the authority to rule on motions and issue orders in procedural
matters to an appellate commissioner as provided for in the
court's rules of appellate procedure + }.
 
  ' (7) A judge or judge pro tempore of the Court of Appeals may
participate in the decision of the matter without resubmission of
the cause even though the judge is not present for oral argument
on the matter.
  ' (8) A judge or judge pro tempore of the Court of Appeals may
participate in the decision of a matter without resubmission of
the cause in the following circumstances:
  ' (a) The judge was appointed or elected to the Court of
Appeals after submission of the cause.
  ' (b) The judge is participating in the decision of a cause
that was submitted to a department, and the judge is
participating in lieu of a judge of the department who has died,
become disabled, is disqualified or is otherwise unable to
participate in the decision of a cause submitted to the
department.
  ' (c) The judge is considering a cause en banc, but the judge
was not part of the department that originally considered the
cause.
  '  { +  SECTION 2. + } ORS 19.415 is amended to read:
  ' 19.415. (1)  { + Except as provided in this section, + } upon
an appeal   { - from a judgment - }  in an action   { - at
law - }  { +  or proceeding + },  { +  without regard to whether
the action or proceeding was triable to the court or a jury, + }
the scope of review shall be as provided in section 3, Article
VII (Amended) of the Oregon Constitution.
  ' (2) No judgment shall be reversed or modified except for
error substantially affecting the rights of a party.
  ' (3) Upon an appeal   { - from a judgment - }  in an
equitable { +  action or + } proceeding,  { + review by + } the
Court of Appeals shall   { - try the cause anew upon the
record - }  { +  be as follows:
  ' (a) Upon an appeal from a judgment in a proceeding for the
termination of parental rights, the Court of Appeals shall try
the cause anew upon the record; and
  ' (b) Upon an appeal in an equitable action or proceeding other
than an appeal from a judgment in a proceeding for the
termination of parental rights, the Court of Appeals, acting in
its sole discretion, may try the cause anew upon the record or
make one or more factual findings anew upon the record + }.
  ' (4) When the Court of Appeals has tried a cause anew upon the
record { +  or has made one or more factual findings anew upon
the record + }, the Supreme Court may limit its review of the
decision of the Court of Appeals to questions of law.
  '  { +  SECTION 3. + }  { + The amendments to ORS 19.415 by
section 2 of this 2009 Act apply only to appeals for which a
notice of appeal is filed with the Court of Appeals under ORS
19.240 (3) on or after the effective date of this 2009 Act. + }
  '  { +  SECTION 4. + } ORS 19.360 is amended to read:
  ' 19.360. (1) Any party aggrieved by the trial court's final
order relating to an undertaking on appeal, the trial court's
grant or denial of a stay or the terms and conditions imposed by
the trial court on the granting of a stay may seek review of the
trial court's decision by filing a motion in the appellate court
to which the appeal is made. The motion must be filed within 14
days after the entry of the trial court's order. During the
14-day period after the entry of the trial court's order, the
judgment shall automatically be stayed unless the trial court
orders otherwise. The trial court may impose terms or conditions
on the stay or take such other action as may be necessary to
prevent prejudice to the parties.
  ' (2) The appellate court may review the decision of the trial
court under the provisions of this section at any time after the
filing of the notice of appeal.  { + Notwithstanding ORS 19.415
(3), + } the appellate court shall review the decision de novo
upon the record.
 
  ' (3) On de novo review under subsection (2) of this section,
the record shall be restricted to the record made before the
trial court unless:
  ' (a) There is additional relevant information relating to the
period of time following the decision of the trial court that the
appellate court determines to be important to review of the
decision; or
  ' (b) The party submitting new information establishes that
there was good cause for not submitting the information to the
trial court.
  ' (4) On review of a trial court's decision relating to a
request for a stay pending appeal, an appellate court may remand
the matter to the trial court for reconsideration, may vacate a
stay granted by the trial court, may grant a stay, and may impose
or modify terms and conditions on a stay. Upon receipt of a
request for a stay pending appeal made to the appellate court in
the first instance, the appellate court may remand the matter to
the trial court for consideration in the first instance, may
grant or deny a stay, and may impose terms and conditions on a
stay issued by the appellate court.
  '  { +  SECTION 5. + } ORS 183.650 is amended to read:
  ' 183.650. (1) In any contested case hearing conducted by an
administrative law judge assigned from the Office of
Administrative Hearings, the administrative law judge shall
prepare and serve on the agency and all parties to the hearing a
form of order, including recommended findings of fact and
conclusions of law. The administrative law judge shall also
prepare and serve a proposed order in the manner provided by ORS
183.464 unless the agency or hearing is exempt from the
requirements of ORS 183.464.
  ' (2) If the administrative law judge assigned from the office
will not enter the final order in a contested case proceeding,
and the agency modifies the form of order issued by the
administrative law judge in any substantial manner, the agency
must identify the modifications and provide an explanation to the
parties to the hearing as to why the agency made the
modifications.
  ' (3) An agency conducting a contested case hearing may modify
a finding of historical fact made by the administrative law judge
assigned from the Office of Administrative Hearings only if the
agency determines that the finding of historical fact made by the
administrative law judge is not supported by a preponderance of
the evidence in the record. For the purposes of this section, an
administrative law judge makes a finding of historical fact if
the administrative law judge determines that an event did or did
not occur in the past or that a circumstance or status did or did
not exist either before the hearing or at the time of the
hearing.
  ' (4)  { + Notwithstanding ORS 19.415 (3), + } if a party seeks
judicial review of an agency's modification of a finding of
historical fact under subsection (3) of this section, the court
shall make an independent finding of the fact in dispute by
conducting a review de novo of the record viewed as a whole. If
the court decides that the agency erred in modifying the finding
of historical fact made by the administrative law judge, the
court shall remand the matter to the agency for entry of an order
consistent with the court's judgment.
  '  { +  SECTION 6. + } ORS 419A.200 is amended to read:
  ' 419A.200. (1) Except as provided in ORS 419A.190, any person
or entity, including, but not limited to, a party to a juvenile
court proceeding under ORS 419B.875 (1) or 419C.285 (1), whose
rights or duties are adversely affected by a judgment of the
juvenile court may appeal therefrom. An appeal from a circuit
court must be taken to the Court of Appeals, and an appeal from a
county court must be taken to the circuit court.
 
  ' (2) If the proceeding is in the circuit court and no record
of the proceedings was kept, the court, on motion made not later
than 15 days after the entry of the court's judgment, shall grant
a rehearing and shall direct that a record of the proceedings be
kept. However, the court may not grant a rehearing in a case
barred by ORS 419A.190 without the consent of the child, ward,
youth or youth offender affected by such case. If a rehearing is
held, the time for taking an appeal runs from the date of entry
of the court's judgment after the rehearing.
  ' (3)(a) The appeal may be taken by causing a notice of appeal,
in the form prescribed by ORS 19.250, to be served:
  ' (A) On all parties who have appeared in the proceeding;
  ' (B) On the trial court administrator or other person serving
as clerk of the juvenile court; and
  ' (C) On the juvenile court transcript coordinator, if a
transcript is designated in connection with the appeal.
  ' (b) The original of the notice with proof of service must be
filed with:
  ' (A) The Court of Appeals if the appeal is from a circuit
court; or
  ' (B) The circuit court if the appeal is from a county court.
  ' (c) The notice must be filed not later than 30 days after the
entry of the court's judgment. On appeal from the county court,
the circuit court shall hear the matter de novo and its judgment
is appealable to the Court of Appeals in the same manner as if
the proceeding had been commenced in the circuit court.
  ' (4) The counsel in the proceeding from which the appeal is
being taken shall file and serve those documents necessary to
commence an appeal if the counsel is requested to do so by the
party the counsel represents. If the party requesting an appeal
is represented by court-appointed counsel, court-appointed
counsel may discharge the duty to commence an appeal under this
subsection by complying with policies and procedures established
by the office of public defense services for appeals of juvenile
court judgments.
  ' (5)(a) Upon motion of a person, other than the state,
entitled to appeal under subsection (1) of this section, the
appellate court shall grant the person leave to file a notice of
appeal after the time limits described in subsection (3) of this
section if:
  ' (A) The person shows a colorable claim of error in the
proceeding from which the appeal is taken; and
  ' (B) The person shows that the failure to file a timely notice
of appeal is not personally attributable to the person.
  ' (b) A person other than the state is not entitled to relief
under this subsection for failure to file timely notice of
cross-appeal when the state appeals pursuant to ORS 419A.208.
  ' (c) The request for leave to file a notice of appeal after
the time limits prescribed in subsection (3) of this section must
be filed no later than 90 days after entry of the judgment being
appealed and must be accompanied by the notice of appeal sought
to be filed. A request for leave under this subsection 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 may not grant relief under this subsection
unless the state has notice and opportunity to respond to the
person's request for relief.
  ' (6) An appeal to the Court of Appeals must be conducted in
the same manner as an appeal under ORS chapter 19 except that
 { - : - }
  '  { - (a) - }  the court shall advance the appeal on the
court's docket in the same manner as appeals in criminal cases
 { - ; and - }
  '  { - (b) The court's scope of review is de novo on the
record - } .
 
  ' (7)(a) Except as provided in ORS 419A.208 (2), or when
otherwise ordered by the appellate court, the filing of an appeal
does not suspend an order or judgment of the juvenile court nor
discharge the ward or youth offender from the custody of the
person, institution or agency in whose custody the ward or youth
offender may have been placed nor preclude the juvenile court
after notice and hearing from entering such further orders
relating to the ward or youth offender's custody pending final
disposition of the appeal as it finds necessary by reason only of
matters transpiring subsequent to the order or judgment appealed
from. The trial court administrator shall immediately file
certified copies of any such order or judgment with the Court of
Appeals.
  ' (b) Notwithstanding the filing of an appeal from a
jurisdictional or dispositional judgment or an order entered
pursuant to ORS 419B.449 or 419B.476, the juvenile court may
proceed with the adjudication of a petition seeking termination
of the parental rights of a parent of the ward who is subject to
the judgment from which the appeal is taken.
  ' (c) The appeal of any judgment entered in a termination of
parental rights proceeding under paragraph (b) of this subsection
must be consolidated, if appropriate, with any pending appeal of
an order or judgment entered under ORS 419B.325, 419B.449 or
419B.476. The consolidated appeal must be conducted and advanced
on the court's docket in the same manner as termination of
parental rights cases.
  ' (8) On appeal of a judgment or final order, the appellate
court may review any interlocutory order that:
  ' (a) Involves the merits or necessarily affects the judgment
or final order appealed from; and
  ' (b) Was made after entry of the last appealable judgment or
final order preceding entry of the judgment or final order being
appealed.
  ' (9) The district attorney or Attorney General shall represent
the state in the appeal.
  '  { +  SECTION 7. + } ORS 421.628 is amended to read:
  ' 421.628. (1) Notwithstanding ORS 169.690, 195.025, 197.180,
215.130 (4) and 227.286 or any other provision of law, including
but not limited to statutes, ordinances, regulations and charter
provisions, the decisions of the Corrections Facilities Siting
Authority, if approved by the Governor, shall bind the state and
all counties, cities and political subdivisions in this state as
to the approval of the sites and the construction and operation
of the proposed corrections facilities. Affected state agencies,
counties, cities and political subdivisions shall issue the
appropriate permits, licenses and certificates and enter into any
intergovernmental agreements as necessary for construction and
operation of the facilities, subject only to the conditions of
the siting decisions.
  ' (2) Each state or local governmental agency that issues a
permit, license or certificate shall continue to exercise
enforcement authority over the permit, license or certificate.
  ' (3) Except as provided in subsections (4) to (16) of this
section, nothing in ORS 421.611 to 421.630 expands or alters the
obligations of cities, counties and political subdivisions to pay
for infrastructure improvements for the proposed corrections
facilities.
  ' (4) The Department of Corrections shall seek to obtain public
services necessary for the construction and operation of
corrections facilities from a public body providing such
services.  The department shall not acquire or develop and
furnish its own public services under this section that could be
provided by a public body unless the department concludes that
the state can achieve significant cost savings by doing so.
  ' (5) Upon request of the Department of Corrections, a public
body furnishing public services shall make public services
available to the department that are either necessary for the
construction and operation of a corrections facility or required
by additions to or remodeling of a corrections facility sited or
constructed under ORS 421.611 to 421.630 or any other law. All
rates, terms and conditions of furnishing public services shall
be just, fair and reasonable. A just, fair and reasonable rate
shall assure the public body the recovery of the additional costs
of providing and maintaining the requested service to the
corrections facility, including, but not limited to, feasibility
and design engineering costs, and reasonable capacity
replacement, but shall not exceed the public body's actual
capital and operating expenses, including reasonable reserves
charged to all ratepayers, for such service. The public body's
rates, terms and conditions shall be conclusively deemed to be
just, fair and reasonable if the department and public body so
agree in writing.
  ' (6) If the Department of Corrections and the public body
cannot agree on the rates, terms and conditions of furnishing
necessary public services to a corrections facility, either the
department or the public body may deliver to the other a notice
of request to mediate any disputed issues, including, but not
limited to, whether the department can achieve significant cost
savings to the state by acquiring or developing and furnishing
its own public services. If either the department or the public
body requests mediation, the other shall participate in good
faith in such mediation. Unless otherwise agreed by the
department and the public body, the mediation shall be concluded
within 30 days of delivery of the notice of request to mediate.
  ' (7) If the mediation fails to resolve the issues in dispute,
or if mediation is not requested by either the Department of
Corrections or the public body, the department and the public
body may agree to submit any disputed matters to arbitration. The
arbitration may be either binding or nonbinding. If the
department and the public body cannot agree on the selection of
the arbitrator and the arbitration rules and procedure, upon
motion directed to the Court of Appeals, the Chief Judge of the
Court of Appeals shall select the arbitrator and decide the rules
and procedure. The arbitrator's decision and award shall be
guided by the standards set forth in this section. The decision
and award of the arbitrator shall be final and binding on the
department and the public body only if they agree to enter into
binding arbitration prior to the initiation of the arbitration.
If the department and public body have agreed to binding
arbitration of disputed issues, either the department or the
public body, if dissatisfied with the arbitrator's decision and
award, may file exceptions in the Court of Appeals within 21 days
of the issuance of the decision and award. Exceptions shall be
limited to the causes set forth in ORS 36.705 (1)(a) to (d), and
to the grounds for modification or correction of an award under
ORS 36.710. If any of the exceptions requires consideration of
facts that do not appear on the face of the arbitrator's decision
and award or is not stipulated to by the parties, the court may
appoint a master to take evidence and make the necessary factual
findings. The Court of Appeals' decision shall be final and not
subject to further review.
  ' (8) If the Department of Corrections and the public body have
submitted disputed matters to nonbinding arbitration or if the
department and public body have chosen not to submit disputed
matters to arbitration, the department shall issue a preliminary
order to the public body that either concludes that the state can
achieve significant costs savings by acquiring or developing and
furnishing its own public services, or establishes the rates,
terms and conditions upon which the public body shall make
necessary public services available to the department for the
corrections facility. The public body, no later than 15 days
following the department's issuance of its preliminary order, may
contest the preliminary order by filing a written notice to that
effect with the department. The preliminary order shall become
final, binding and conclusive if the public body fails to request
a hearing within the time permitted in this section.
  ' (9) If a hearing is requested, the department shall provide
the public body with an opportunity to be heard and shall issue
its final order upon conclusion of the hearing. The department
shall establish procedures to regulate and provide for the nature
and extent of the proofs and evidence and the method of taking
and furnishing the same in order to afford the public body a
reasonable opportunity for a fair hearing. The procedures shall
ensure that the public body has a reasonable opportunity to place
in the record the information upon which the public body relies
as a basis for its position. The department's order shall be
guided by the standards set forth in this section.
  ' (10) Proceedings for review of the department's final order
shall be instituted when the affected public body files a
petition with the Court of Appeals that meets the following
requirements:
  ' (a) The petition shall be filed within 21 days of issuance of
the final order on which the petition is based.
  ' (b) The petitioner shall serve a copy of the petition by
registered or certified mail upon the Department of Corrections
and the Attorney General.
  ' (11) Within 30 days after service of the petition, the
department shall transmit to the Court of Appeals the original or
a certified copy of the entire record and any findings that may
have been made.
  ' (12) The Court of Appeals shall review the final order of the
Department of Corrections   { - de novo on the record created
before the department - } . The Court of Appeals' decision shall
be final and not subject to further review.
  ' (13) Proceedings for review in the Court of Appeals under
this section shall be given priority over all other matters
before the Court of Appeals.
  ' (14) The Department of Corrections or other state agency
shall not be required to make payments to the public body for
necessary public services to a corrections facility in excess of
funds that are legally available for such purposes.
  ' (15) Nothing in this section shall require a public body to
furnish public services to the Department of Corrections for a
corrections facility in the event that the Legislative Assembly
fails to make funds available in an amount sufficient to pay the
state's share of costs of such services as determined under this
section.
  ' (16) As used in this section, 'public services' means
off-site infrastructure, including, but not limited to, sewer and
water systems and service, and road improvements.
  '  { +  SECTION 8. + } ORS 421.628, as amended by section 9,
chapter 516, Oregon Laws 2001, and section 45, chapter 598,
Oregon Laws 2003, is amended to read:
  ' 421.628. (1) Notwithstanding ORS 169.690, 195.025, 197.180,
215.130 (4) and 227.286 or any other provision of law, including
but not limited to statutes, ordinances, regulations and charter
provisions, and except for permit decisions delegated by the
federal government to the Department of State Lands, the
decisions of the Corrections Facilities Siting Authority, if
approved by the Governor, shall bind the state and all counties,
cities and political subdivisions in this state as to the
approval of the sites and the construction and operation of the
proposed corrections facilities. Except for those statutes and
rules for which permit decisions have been delegated by the
federal government to the Department of State Lands, all affected
state agencies, counties, cities and political subdivisions shall
issue the appropriate permits, licenses and certificates and
enter into any intergovernmental agreements as necessary for
construction and operation of the facilities, subject only to the
conditions of the siting decisions.
  ' (2) Each state or local governmental agency that issues a
permit, license or certificate shall continue to exercise
enforcement authority over the permit, license or certificate.
  ' (3) Except as provided in subsections (4) to (16) of this
section, nothing in ORS 421.611 to 421.630 expands or alters the
obligations of cities, counties and political subdivisions to pay
for infrastructure improvements for the proposed corrections
facilities.
  ' (4) The Department of Corrections shall seek to obtain public
services necessary for the construction and operation of
corrections facilities from a public body providing such
services.  The department may not acquire or develop and furnish
its own public services under this section that could be provided
by a public body unless the department concludes that the state
can achieve significant cost savings by doing so.
  ' (5) Upon request of the Department of Corrections, a public
body furnishing public services shall make public services
available to the department that are either necessary for the
construction and operation of a corrections facility or required
by additions to or remodeling of a corrections facility sited or
constructed under ORS 421.611 to 421.630 or any other law. All
rates, terms and conditions of furnishing public services shall
be just, fair and reasonable. A just, fair and reasonable rate
shall assure the public body the recovery of the additional costs
of providing and maintaining the requested service to the
corrections facility, including, but not limited to, feasibility
and design engineering costs, and reasonable capacity
replacement, but may not exceed the public body's actual capital
and operating expenses, including reasonable reserves charged to
all ratepayers, for such service. The public body's rates, terms
and conditions shall be conclusively deemed to be just, fair and
reasonable if the department and public body so agree in writing.
  ' (6) If the Department of Corrections and the public body
cannot agree on the rates, terms and conditions of furnishing
necessary public services to a corrections facility, either the
department or the public body may deliver to the other a notice
of request to mediate any disputed issues, including, but not
limited to, whether the department can achieve significant cost
savings to the state by acquiring or developing and furnishing
its own public services. If either the department or the public
body requests mediation, the other shall participate in good
faith in such mediation. Unless otherwise agreed by the
department and the public body, the mediation shall be concluded
within 30 days of delivery of the notice of request to mediate.
  ' (7) If the mediation fails to resolve the issues in dispute,
or if mediation is not requested by either the Department of
Corrections or the public body, the department and the public
body may agree to submit any disputed matters to arbitration. The
arbitration may be either binding or nonbinding. If the
department and the public body cannot agree on the selection of
the arbitrator and the arbitration rules and procedure, upon
motion directed to the Court of Appeals, the Chief Judge of the
Court of Appeals shall select the arbitrator and decide the rules
and procedure. The arbitrator's decision and award shall be
guided by the standards set forth in this section. The decision
and award of the arbitrator shall be final and binding on the
department and the public body only if they agree to enter into
binding arbitration prior to the initiation of the arbitration.
If the department and public body have agreed to binding
arbitration of disputed issues, either the department or the
public body, if dissatisfied with the arbitrator's decision and
award, may file exceptions in the Court of Appeals within 21 days
of the issuance of the decision and award. Exceptions shall be
limited to the causes set forth in ORS 36.705 (1)(a) to (d), and
to the grounds for modification or correction of an award under
ORS 36.710. If any of the exceptions requires consideration of
facts that do not appear on the face of the arbitrator's decision
and award or is not stipulated to by the parties, the court may
appoint a master to take evidence and make the necessary factual
findings. The Court of Appeals' decision shall be final and not
subject to further review.
  ' (8) If the Department of Corrections and the public body have
submitted disputed matters to nonbinding arbitration or if the
department and public body have chosen not to submit disputed
matters to arbitration, the department shall issue a preliminary
order to the public body that either concludes that the state can
achieve significant costs savings by acquiring or developing and
furnishing its own public services, or establishes the rates,
terms and conditions upon which the public body shall make
necessary public services available to the department for the
corrections facility. The public body, no later than 15 days
following the department's issuance of its preliminary order, may
contest the preliminary order by filing a written notice to that
effect with the department. The preliminary order shall become
final, binding and conclusive if the public body fails to request
a hearing within the time permitted in this section.
  ' (9) If a hearing is requested, the department shall provide
the public body with an opportunity to be heard and shall issue
its final order upon conclusion of the hearing. The department
shall establish procedures to regulate and provide for the nature
and extent of the proofs and evidence and the method of taking
and furnishing the same in order to afford the public body a
reasonable opportunity for a fair hearing. The procedures shall
ensure that the public body has a reasonable opportunity to place
in the record the information upon which the public body relies
as a basis for its position. The department's order shall be
guided by the standards set forth in this section.
  ' (10) Proceedings for review of the department's final order
shall be instituted when the affected public body files a
petition with the Court of Appeals that meets the following
requirements:
  ' (a) The petition shall be filed within 21 days of issuance of
the final order on which the petition is based.
  ' (b) The petitioner shall serve a copy of the petition by
registered or certified mail upon the Department of Corrections
and the Attorney General.
  ' (11) Within 30 days after service of the petition, the
department shall transmit to the Court of Appeals the original or
a certified copy of the entire record and any findings that may
have been made.
  ' (12) The Court of Appeals shall review the final order of the
Department of Corrections   { - de novo on the record created
before the department - } . The Court of Appeals' decision shall
be final and not subject to further review.
  ' (13) Proceedings for review in the Court of Appeals under
this section shall be given priority over all other matters
before the Court of Appeals.
  ' (14) The Department of Corrections or other state agency is
not required to make payments to the public body for necessary
public services to a corrections facility in excess of funds that
are legally available for such purposes.
  ' (15) This section does not require a public body to furnish
public services to the Department of Corrections for a
corrections facility in the event that the Legislative Assembly
fails to make funds available in an amount sufficient to pay the
state's share of costs of such services as determined under this
section.
  ' (16) As used in this section, 'public services' means
off-site infrastructure, including, but not limited to, sewer and
water systems and service, and road improvements.
  '  { +  SECTION 9. + } ORS 545.579 is amended to read:
  ' 545.579. (1) The appellant and all persons appearing shall
make a statement in writing of the grounds of appeal, and no
further pleadings shall be necessary. The cause shall be tried in
one action by the circuit court as an action not triable by right
to a jury.
  ' (2) Upon the entry of a judgment, any person aggrieved by the
judgment may appeal to the Court of Appeals in the manner
provided for other cases in equity. Notice of appeal shall be
served on those appearing in the circuit court or their
attorneys.   { +  Notwithstanding ORS 19.415 (3), + } the cause
shall be tried de novo by the Court of Appeals as expeditiously
as possible after the appeal is perfected. Upon the effective
date of decision of the Court of Appeals, the circuit court shall
enter such judgment as is directed by the Court of Appeals.
  ' (3) If the resolution of the board of directors is affirmed
it shall be considered an assessment against all the lands
described in the resolution for the amount of the assessment and
payable at the times specified in the resolution, as well as a
final determination of the total benefits accruing from the
existing or proposed improvements to the parcels of land
described in the resolution. If the resolution is modified in any
respect, the court shall specify the proper resolution to be
entered, which shall be entered accordingly. If no appeal is
taken from the resolution, it shall become final.
  '  { +  SECTION 10. + }  { + This 2009 Act being necessary for
the immediate preservation of the public peace, health and
safety, an emergency is declared to exist, and this 2009 Act
takes effect on its passage. + } ' .
                         ----------