Chapter 0962

Chapter 962 Oregon Laws 2001

AN ACT

SB 145

Relating to public defense services; creating new provisions; amending ORS 1.851, 19.370, 21.410, 33.035, 33.055, 33.065, 34.355, 45.275, 45.285, 107.425, 109.119, 135.045, 135.050, 135.055, 135.405, 136.602, 136.603, 137.071, 137.463, 137.595, 137.769, 137.771, 138.310, 138.480, 138.490, 138.500, 138.590, 144.337, 151.010, 151.430, 151.450, 151.460, 151.480, 151.485, 151.487, 151.489, 151.491, 151.493, 151.495, 151.505, 161.327, 161.346, 161.365, 161.385, 161.665, 173.029, 181.010, 192.502, 192.559, 417.839, 419A.098, 419A.170, 419B.115, 419B.195, 419B.198, 419B.201, 419B.205, 419B.208, 419B.320, 419B.518, 419C.200, 419C.203, 419C.206, 419C.209, 419C.245, 419C.285, 419C.408, 420A.203, 420A.206, 426.100, 426.135, 426.250, 426.301, 426.307, 427.265, 427.275, 427.295, 433.019, 436.265 and 436.315 and section 2, chapter 472, Oregon Laws 2001 (Enrolled House Bill 2337), section 6, chapter 480, Oregon Laws 2001 (Enrolled House Bill 2336), section 6, chapter 622, Oregon Laws 2001 (Enrolled House Bill 2611), and sections 5, 8 and 9, chapter 661, Oregon Laws 2001 (Enrolled House Bill 2348); repealing ORS 138.490, 151.210, 151.220, 151.230, 151.240, 151.250, 151.260, 151.270, 151.280, 151.290, 151.430, 151.450, 151.460, 151.465 and 151.480 and sections 1, 2, 3 and 5, chapter 1033, Oregon Laws 1999, sections 3, 5, 7 and 8, chapter 472, Oregon Laws 2001 (Enrolled House Bill 2337), and sections 3 and 4, chapter 661, Oregon Laws 2001 (Enrolled House Bill 2348); appropriating money; and declaring an emergency.

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

SECTION 1. For purposes of sections 1 to 4 of this 2001 Act:

(1) “Bar member” means an individual who is an active member of the Oregon State Bar.

(2) “Chief Justice” means the Chief Justice of the Oregon Supreme Court.

(3) “Commission” means the Public Defense Services Commission.

(4) “Director” means the public defense services executive director appointed under section 3 of this 2001 Act.

(5) “Office of public defense services” means the office established by the commission under the director to handle the cases assigned and to carry out the administrative policies and procedures for the public defense system.

SECTION 2. (1) The Public Defense Services Commission is established in the judicial branch of state government. Except for the appointment or removal of commission members, the commission and employees of the commission are not subject to the exercise of administrative authority and supervision by the Chief Justice of the Supreme Court as the administrative head of the Judicial Department.

(2) The commission consists of seven members appointed by order of the Chief Justice. In addition to the seven appointed members, the Chief Justice serves as a nonvoting, ex officio member. The Chief Justice shall appoint at least two persons who are not bar members, at least one person who is a bar member and who is engaged in criminal defense representation but is not primarily engaged in representing persons at state expense and at least one person who is a former Oregon state prosecutor. Except for the Chief Justice, a member may not serve concurrently as a judge, a prosecuting attorney or an employee of a law enforcement agency.

(3) The term of a member is four years beginning on the effective date of the order of the Chief Justice appointing the member. A member is eligible for reappointment if qualified for membership at the time of reappointment. A member may be removed from the commission by order of the Chief Justice. If a vacancy occurs for any cause before the expiration of the term of a member, the Chief Justice shall make an appointment to become immediately effective for the unexpired term.

(4) A chairperson and a vice chairperson shall be appointed by order of the Chief Justice every two years with such functions as the commission may determine. A member is eligible for reappointment as chairperson or vice chairperson.

(5) A majority of the voting members constitutes a quorum for the transaction of business.

(6) A member of the commission is not entitled to compensation for services as a member, but is entitled to expenses as provided in ORS 292.495 (2).

SECTION 3. (1) The Public Defense Services Commission shall:

(a) Plan for the establishment of 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 and maintain a public defense system for criminal and probation violation appeals, the responsibility for which is transferred by section 7 of this 2001 Act.

(c) Establish an office of public defense services and appoint a public defense services executive director who serves at the pleasure of the commission.

(d) 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.

(e) Review and approve any public defense services contract negotiated by the director before the contract can become effective.

(f) Adopt a compensation plan for the office of public defense services that is commensurate with other state agencies.

(g) Adopt rules regarding:

(A) Procedures for the contracting of public defense services; and

(B) Any other matters necessary to carry out the duties of the commission.

(2) Rules 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 section 5 of this 2001 Act 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 4. (1) The public defense services executive director shall:

(a) Recommend to the Public Defense Services Commission how to establish and maintain, in a cost-effective manner, the delivery of legal services to persons entitled to, and financially eligible for, appointed counsel at state expense under Oregon statutes, the Oregon Constitution, the United States Constitution and consistent with Oregon and national standards of justice.

(b) Implement and ensure compliance with contracts, policies, procedures, rules and standards adopted by the commission or required by statute.

(c) Prepare and submit to the commission for its approval the biennial budget of the commission and the office of public defense services.

(d) Negotiate contracts, as appropriate, for providing legal services to persons financially eligible for appointed counsel at state expense. No contract so negotiated is binding or enforceable until the contract has been reviewed and approved by the commission as provided in section 3 of this 2001 Act.

(e) Employ personnel or contract for services as necessary to carry out the responsibilities of the director and the office of public defense services.

(f) Supervise the personnel, operation and activities of the office of public defense services.

(g) Provide services, facilities and materials necessary for the performance of the duties, functions and powers of the Public Defense Services Commission.

(h) Pay the expenses of the commission and the office of public defense services.

(i) Prepare and submit to the commission and the Legislative Assembly an annual report of the activities of the office of public defense services.

(j) Provide for legal representation, advice and consultation for the commission, its members, the director and staff of the office of public defense services who require such services or who are named as defendants in lawsuits arising from their duties, functions and responsibilities. If requested by the director, the Attorney General may also provide for legal representation, advice and consultation for the commission, its members, the director and staff of the office of public defense services in litigation.

(2) The director may designate persons as representatives of the director for the purposes of determining and paying bills submitted to the office of public defense services.

SECTION 5. (1) There is created a Public Defense Services Account in the General Fund. The Public Defense Services Account is continuously appropriated to the Public Defense Services Commission to pay compensation of counsel and other expenses in connection with the legal representation of persons for which the commission is responsible by law.

(2) All moneys appropriated to the commission to pay compensation of counsel and other expenses in connection with the legal representation of persons for which the commission is responsible by law shall be deposited in the Public Defense Services Account.

(3) All gifts, grants or contributions accepted by the commission under section 3 of this 2001 Act shall be deposited in a separate subaccount created in the Public Defense Services Account to be used by the commission for the purpose for which the gift, grant or contribution was given or granted.

(4) As used in this section, “other expenses in connection with the legal representation of persons for which the commission is responsible by law” includes expenses incurred in the administration of the public defense system.

SECTION 6. The Public Defender Committee and the office of the Public Defender are abolished. The tenure of office of the Public Defender and of the members of the Public Defender Committee is terminated.

SECTION 7. There are imposed upon, transferred to and vested in the Public Defense Services Commission all the duties, functions and powers of the Public Defender Committee and the Public Defender.

SECTION 8. Notwithstanding the transfer of duties, functions and powers by section 7 of this 2001 Act, the lawfully adopted rules, procedures, standards, schedules and guidelines of the Public Defender Committee in effect on October 1, 2001, continue in effect until lawfully superseded or repealed by rules, procedures, standards, schedules and guidelines of the Public Defense Services Commission. References in rules of the Public Defender Committee or to the Public Defender Committee or an officer or employee thereof are considered to be references to the commission or to an officer or employee thereof.

SECTION 9. The transfer of duties, functions and powers to the Public Defense Services Commission under section 7 of this 2001 Act does not affect any action, suit, proceeding or prosecution involving or with respect to such duties, functions and powers begun before and pending at the time of the transfer, except that the commission shall be substituted for the Public Defender Committee or the Public Defender in such action, suit, proceeding or prosecution.

SECTION 10. (1) Nothing in sections 1 to 13 of this 2001 Act relieves a person of an obligation with respect to a tax, fee, fine, charge, interest, penalty, forfeiture or other liability, duty or obligation accruing under or with respect to the duties, functions and powers transferred by section 7 of this 2001 Act. The Public Defense Services Commission may undertake the collection or enforcement of any such tax, fee, fine, charge, interest, penalty, forfeiture or other liability, duty or obligation.

(2) The rights and obligations of the Public Defender Committee or the Public Defender legally incurred under contracts, leases and business transactions, executed, entered into or begun before October 1, 2001, are transferred to the commission. For the purpose of succession to these rights and obligations, the commission is considered to be a continuation of the Public Defender Committee and not a new authority, and the commission shall exercise such rights and fulfill such obligations as if they had not been transferred.

SECTION 11. There are transferred to the Public Defense Services Commission:

(1) All the supplies, materials, equipment, records, books, papers and facilities of the Public Defender Committee and the Public Defender.

(2) All the employees of the Public Defender Committee and the office of the Public Defender, subject to the right of the commission to abolish positions and change duties to the extent that the commission finds it desirable for the sound, efficient and economical administration and enforcement of the duties, functions and powers transferred by section 7 of this 2001 Act. However, subject to the right of the commission to abolish positions and change duties under this subsection, in the case of any transfer of personnel made under this subsection, an employee occupying a classified position under the State Personnel Relations Law who is so transferred shall retain the same salary classification and civil service status insofar as possible.

SECTION 12. (1) The unexpended balances of amounts as of October 1, 2001, authorized to be expended for the biennium beginning July 1, 2001, from revenues dedicated, continuously appropriated, appropriated or otherwise made available for the purpose of administering and enforcing the duties, functions and powers transferred by section 7 of this 2001 Act, are appropriated and transferred to and are available for expenditure by the Public Defense Services Commission, to the extent provided in subsection (2) of this section, for the biennium beginning July 1, 2001.

(2) For the purpose of administering and enforcing the duties, functions and powers transferred by section 7 of this 2001 Act and for the payment of expenses lawfully incurred by the Public Defender Committee or the Public Defender with respect to the administration and enforcement of such duties, functions and powers, the commission may expend the money that is authorized to be expended by the Public Defender Committee or the Public Defender for administering and enforcing the duties, functions and powers transferred by section 7 of this 2001 Act and that is unexpended on October 1, 2001. The commission shall assume and pay all outstanding obligations lawfully incurred by the Public Defender Committee or the Public Defender before October 1, 2001, that are properly charged against amounts authorized by this section to be expended by the commission. The expenditure classifications, if any, established by Acts authorizing or limiting expenditures remain applicable to expenditures by the commission under this section.

SECTION 13. The Public Defender Committee, Public Defender, State Court Administrator, indigent defense services director, Attorney General and any state agencies involved in the justice systems in which public defense services are mandated shall cooperate with the commission in providing information reasonably necessary for the commission to execute its duties.

SECTION 14. (1) Any reference in the statutes to the Public Defender Committee shall be considered a reference to the Public Defense Services Commission.

(2) For the purpose of harmonizing and clarifying statute sections published in Oregon Revised Statutes, the Legislative Counsel may substitute for words designating the Public Defender Committee, wherever they occur in Oregon Revised Statutes, words designating the Public Defense Services Commission.

SECTION 15. (1) Sections 6 to 12 and 14 of this 2001 Act, the amendments to statutes by sections 28, 31, 104 and 107 to 113 of this 2001 Act and the repeal of statutes by section 114 of this 2001 Act become operative on October 1, 2001.

(2) Except as otherwise specifically provided in sections 16 to 23 of this 2001 Act, sections 16 to 23 of this 2001 Act, the amendments to statutes by sections 24 to 27, 29, 29a, 30 and 32 to 103 of this 2001 Act, the amendments to sections 3, 4 and 5 of this 2001 Act by sections 106, 106a and 106b of this 2001 Act and the repeal of statutes by section 115 of this 2001 Act become operative on October 1, 2003.

SECTION 16. All statutory and administrative duties, functions and powers of the State Court Administrator relating to indigent defense program management are transferred to the Public Defense Services Commission.

SECTION 17. The State Court Administrator shall deliver to the Public Defense Services Commission all necessary and relevant records, files, documents and information within the jurisdiction of the State Court Administrator that relate to the duties, functions and powers so transferred and shall transfer the position authority and associated costs for those employees engaged in the exercise of the statutory duties, functions and powers so transferred. The commission shall take charge of and employ those employees who are employed exclusively in the exercise of duties, functions and powers assigned or transferred by section 16 of this 2001 Act, without reduction of compensation but subject to the right of the commission to abolish positions and change duties to the extent that the commission finds it desirable for the sound, efficient and economical administration and enforcement of the duties, functions and powers transferred by section 16 of this 2001 Act. However, subject to the right of the commission to abolish positions and change duties under this section, in the case of any transfer of personnel made under this section, an employee occupying a classified position under the State Personnel Relations Law who is so transferred shall retain the same salary classification and civil service status insofar as possible.

SECTION 18. (1) The unexpended balances of amounts as of October 1, 2003, authorized to be expended for the biennium beginning July 1, 2003, from revenues dedicated, continuously appropriated, appropriated or otherwise made available for the purpose of administering and enforcing the duties, functions and powers transferred by section 16 of this 2001 Act, are appropriated and transferred to and are available for expenditure by the Public Defense Services Commission, to the extent provided in subsection (2) of this section, for the biennium beginning July 1, 2003.

(2) For the purpose of administering and enforcing the duties, functions and powers transferred by section 16 of this 2001 Act and for the payment of the expenses lawfully incurred by the State Court Administrator with respect to the administration and enforcement of such duties, functions and powers, the commission may expend the money that is authorized to be expended by the State Court Administrator for administering and enforcing the duties, functions and powers transferred by section 16 of this 2001 Act and that is unexpended on October 1, 2003. The commission shall assume and pay all outstanding obligations lawfully incurred by the State Court Administrator before October 1, 2003, that are properly charged against amounts authorized by this section to be expended by the commission. The expenditure classifications, if any, established by Acts authorizing or limiting expenditures remain applicable to expenditures by the commission under this section.

SECTION 19. Any proceeding, action, prosecution or other business or matter undertaken or commenced before October 1, 2003, by the State Court Administrator, with respect to the duties, functions and powers transferred to the Public Defense Services Commission by section 16 of this 2001 Act, and still pending on October 1, 2003, may be conducted and completed by the commission in the same manner, under the same terms and conditions and with the same effect as though undertaken, conducted or completed by the State Court Administrator before the transfer.

SECTION 20. Nothing in sections 16 to 23 of this 2001 Act relieves a person of any obligation with respect to a tax, fee, fine, charge, interest, penalty, forfeiture or other liability, duty or obligation accruing under or with respect to the duties, functions and powers transferred by section 16 of this 2001 Act. The Public Defense Services Commission may undertake the collection or enforcement of any such tax, fee, fine, charge, interest, penalty, forfeiture or other liability, duty or obligation.

SECTION 21. The Public Defense Services Commission is considered to be a continuation of the State Court Administrator with respect to duties, functions and powers relating to indigent defense program management, and not a new authority, for the purpose of succession to all rights and obligations of the State Court Administrator as constituted at the time of such assignment or transfer, except as otherwise provided by sections 16 to 23 of this 2001 Act, with the same force and effect as if such duties, functions and powers had not been assigned or transferred.

SECTION 22. (1) Whenever, in any law or resolution of the Legislative Assembly or in any rule, document, record or proceeding authorized thereby, reference is made to the State Court Administrator, or employee thereof, whose duties, functions or powers are assigned or transferred by section 16 of this 2001 Act, except as otherwise provided in sections 16 to 23 of this 2001 Act, such reference is considered to describe the Public Defense Services Commission or employee thereof that by sections 16 to 23 of this 2001 Act is charged with carrying out such duties, functions and powers.

(2) The lawful rules, procedures, standards, schedules and guidelines of the State Court Administrator with respect to duties, functions or powers assigned or transferred by section 16 of this 2001 Act continue in effect until superseded or rescinded by rules, procedures, standards, schedules and guidelines lawfully adopted by the commission.

SECTION 23. The transfer of duties, functions, powers, rights, records, employees or moneys by section 16 of this 2001 Act does not become operative until October 1, 2003, except as necessary to allow an orderly transition and only with the express written approval of the State Court Administrator. Until then the State Court Administrator shall continue to exercise and perform such duties, functions, powers and rights and to have charge of such records, employees and moneys.

SECTION 24. ORS 135.045, as amended by section 1, chapter 472, Oregon Laws 2001 (Enrolled House Bill 2337), is amended to read:

135.045. (1)(a) If the defendant in a criminal action appears without counsel at arraignment or thereafter, the court shall determine whether the defendant wishes to be represented by counsel.

(b) If the defendant does wish to be represented by counsel, the court, in accordance with ORS 135.050, shall appoint counsel to represent the defendant.

(c) If the defendant wishes to waive counsel, the court shall determine whether the defendant has made a knowing and voluntary waiver of counsel. The court shall accept the waiver of counsel if the defendant is not charged with a capital offense. The court may decline to accept the waiver of counsel if the defendant is charged with a capital offense.

(d) If the court accepts a defendant's waiver of counsel, the court may allow an attorney to serve as the defendant's legal advisor and may, in accordance with ORS 135.050, appoint an attorney as the defendant's legal advisor.

(2) Appointment of counsel, including a legal advisor, under this section[:]

[(a)] is subject to ORS 135.050, 135.055 and 151.430 to 151.495[; and]

[(b) Shall be made in compliance with the terms of applicable contracts executed by the State Court Administrator under ORS 151.460].

SECTION 25. ORS 135.050 is amended to read:

135.050. (1) Suitable counsel for a defendant shall be appointed by a municipal, county or justice court if:

(a) The defendant is before a court on a matter described in subsection [(4)] (5) of this section;

(b) The defendant requests aid of counsel;

(d) It appears to the court that the defendant is financially unable to retain adequate representation without substantial hardship in providing basic economic necessities to the defendant or the defendant's dependent family.

(2) Suitable counsel for a defendant shall be appointed by a circuit court if:

(a) The defendant is before the court on a matter described in subsection (5) of this section;

(b) The defendant requests aid of counsel;

(c) The defendant provides to the court a written and verified financial statement; and

(d)(A) The defendant is determined to be financially eligible under ORS 151.485 and the standards established by the Public Defense Services Commission under section 3 of this 2001 Act; or

(B) The court finds, on the record, substantial and compelling reasons why the defendant is financially unable to retain adequate representation without substantial hardship in providing basic economic necessities to the defendant or the defendant's dependent family despite the fact that the defendant does not meet the financial eligibility standards established by the commission.

[(2)] (3) Appointed counsel shall not be denied to any defendant merely because the defendant's friends or relatives have resources adequate to retain counsel or because the defendant has deposited or is capable of depositing security for release. However, appointed counsel may be denied to a defendant if the defendant's spouse has adequate resources which the court determines should be made available to retain counsel.

[(3)] (4) The defendant's financial statement under subsection (1) or (2) of this section shall include, but not be limited to:

(a) A list of bank accounts in the name of defendant or defendant's spouse, and the balance in each;

(b) A list of defendant's interests in real property and those of defendant's spouse;

(d) A list of debts in the name of defendant or defendant's spouse, and the total of each; and

(e) A record of earnings and other sources of income in the name of defendant or defendant's spouse, and the total of each.

[(4)] (5) Counsel must be appointed for a defendant who meets the requirements of subsection (1) or (2) of this section and who is before a court on any of the following matters:

(a) Charged with a crime.

(b) For a hearing to determine whether an enhanced sentence should be imposed when such proceedings may result in the imposition of a felony sentence.

(d) For any proceeding concerning an order of probation, including but not limited to the revoking or amending thereof.

[(5)] (6) Unless otherwise ordered by the court, the appointment of counsel under this section shall continue during all criminal proceedings resulting from the defendant's arrest through acquittal or the imposition of punishment. The court having jurisdiction of the case may substitute one appointed counsel for another at any stage of the proceedings when the interests of justice require such substitution.

[(6)] (7) If, at any time after the appointment of counsel, the court having jurisdiction of the case finds that the defendant is financially able to obtain counsel, the court may terminate the appointment of counsel. If, at any time during criminal proceedings, the court having jurisdiction of the case finds that the defendant is financially unable to pay counsel whom the defendant has retained, the court may appoint counsel as provided in this section.

[(7)] (8) The court may order the defendant in a circuit court to pay to the [State Court Indigent Defense] Public Defense Services Account in the General Fund, through the clerk of the court, in full or in part the administrative costs of determining the eligibility of the defendant for appointed counsel and the costs of the legal and other services that are related to the provision of appointed counsel under ORS 151.487, 151.505 or 161.665.

[(8)] (9) In addition to any criminal prosecution, a civil proceeding may be initiated by any public body which has expended moneys for the defendant's legal assistance within two years of judgment if the defendant was not qualified in accordance with subsection (1) or (2) of this section for legal assistance.

[(9)] (10) The civil proceeding shall be subject to the exemptions from execution as provided for by law.

SECTION 26. ORS 135.055, as amended by section 107 of this 2001 Act, is amended to read:

135.055. (1) Counsel appointed pursuant to ORS 135.045 or 135.050[, if other than counsel provided pursuant to ORS 151.010 or 151.460, shall, upon certification by the court,] 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 [State Court Administrator] 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 shall not be less than $30 per hour.

(b) In a proceeding in a circuit court shall be subject to the applicable compensation established under [ORS 151.430 (5)] section 3 of this 2001 Act.

(3)(a) A person determined to be eligible for appointed counsel is entitled to necessary and reasonable expenses for investigation, preparation and presentation of the case. The person or the counsel for the person may upon written request, which shall not be disclosed to the district attorney prior to conclusion of the case, secure approval and preauthorization of payment of such expenses [as] that are not routine to representation but are necessary and proper in the investigation, preparation and presentation of the case, including but not limited to travel, [telephone calls,] 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.

(b) In a county or justice court, the request shall be in the form of a motion to the court. The motion must be accompanied by a supporting affidavit which 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 which 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 shall be in the form and contain the information that is required by [policies of the State Court Administrator] rules of the Public Defense Services Commission.

(d) Entitlement under this subsection to payment for expenses in circuit court is subject to [policies and procedures established by the State Court Administrator, including, but not limited to, cost guidelines and standards established under ORS 151.430] rules adopted under section 3 of this 2001 Act. Entitlement to payment of [extraordinary] nonroutine expenses is dependent upon obtaining preauthorization from the court, if the case is in county or justice court, or from the [State Court Administrator] public defense services executive director, if the case is in circuit court, except as otherwise provided in [the policies and procedures established by the State Court Administrator. The presiding judge or trial judge has ultimate authority for approval of expenses under this paragraph] rules adopted under section 3 of this 2001 Act. Approved and authorized expenses shall be paid:

(A) By the county, in respect to a proceeding in a county or justice court.

(B) By the [State Court Administrator] public defense services executive director from funds available for the purpose, in respect to a proceeding in a circuit court.

(4) Upon completion of all services by the counsel of a person determined to be eligible for appointed counsel, the counsel shall submit [to the court] a statement of all reasonable fees and expenses of investigation, preparation, presentation and, if counsel was appointed by the court, representation paid or incurred, supported by appropriate receipts or vouchers and certified by the counsel to be true and accurate. The counsel, at that time, may request payment or reimbursement for any such expenses for which payment has not yet been approved and authorized.

(5) In a county or justice court, the total fees and expenses payable under this section shall be submitted to the court and shall be subject to the review of the [presiding judge for the judicial district] court. The [presiding judge] 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[:]

[(a)] by the county[, in respect to a proceeding in a county or justice court.]

[(b) By the State Court Administrator from funds available for the purpose, in respect to a proceeding in a circuit court].

(6)[(a) The presiding judge] 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.

[(b) With any certification by the court of fees or expenses that the State Court Administrator is to pay for counsel or other costs of indigent representation under ORS 33.015 to 33.155, 135.045, 135.055, 135.705, 144.317, 144.343, 151.430, 151.450, 151.460, 151.505, 161.346, 161.365, 161.665, 163.105, 419B.195, 419B.201, 419B.205, 419B.518, 419C.200, 419C.206, 426.255 and 426.307, the court shall include any information identified and requested by the State Court Administrator as needed for audit, statistical or any other purpose pertinent to insure the proper disbursement of state funds or pertinent to the provision of appointed counsel compensated at state expense.]

[(c) The presiding judge may authorize the trial court administrator to make the certification required under this section in some or all cases where the amount for payment meets the policies and procedures established by the State Court Administrator under ORS 151.430 (5) and (6). The authorization must be in writing and must specify the types of cases to which the authorization applies.]

(7) In a circuit court, the total fees and expenses payable under this section shall be submitted to and subject to review by the public defense services executive director. The public defense services executive director shall determine whether the amount is fair reimbursement for fees and expenses for representation in the case as provided by rules of the Public Defense Services Commission. The public defense services executive director shall pay the amount of the fees and expenses approved and not already paid. 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.

[(7)] (8) As used in this section unless the context requires otherwise, “counsel” includes a legal advisor appointed under ORS 135.045.

SECTION 27. ORS 136.603 is amended to read:

136.603. (1)(a) Whenever any person attends any court, grand jury or committing magistrate as a witness on behalf of the prosecution or of any person accused of a crime upon request of the district attorney or city attorney or pursuant to subpoena, or by virtue of a recognizance for that purpose, and it appears that the witness has come from outside the state or that the witness is indigent, the court may, by an order entered in its records, direct payment to the witness of such sum of money as the court considers reasonable for the expenses of the witness. The order of the court, so entered, is sufficient authority for the payment.

(b) Except as otherwise specifically provided by law, if a witness who is to be paid expenses pursuant to this subsection:

(A) Attends a grand jury, a circuit court or judge thereof, a judge of a county court or a justice of the peace, on behalf of the prosecution, payment shall be made by the county.

(B) Attends a municipal court or judge thereof on behalf of the prosecution, payment shall be made by the city.

(C) Attends a circuit court or judge thereof on behalf of [an indigent] a financially eligible defendant, payment shall be made by the [State Court Administrator] public defense services executive director.

(D) Attends a judge of the county court or a justice of the peace on behalf of [an indigent] a financially eligible defendant, payment shall be made by the county.

(E) Attends a municipal court or judge thereof on behalf of [an indigent] a financially eligible defendant, payment shall be made by the city.

(F) Attends any court on behalf of a defendant who is not [indigent] financially eligible, payment shall be made by the defendant, and the court shall so order.

(2) In the case of a prisoner of a jurisdiction outside of this state who is required to attend as a witness in this state, whether for the prosecution or the defense, the sheriff shall be responsible for transporting the witness to the proper court of this state, and the sheriff shall assume any costs incurred in connection with the witness while the witness is in the custody of the sheriff. However, the sheriff and not the witness shall be entitled to the witness fees, mileage and expenses to which the witness would otherwise be entitled under this section and ORS 136.627 or other applicable law.

SECTION 28. ORS 138.480 is amended to read:

138.480. The Supreme Court or the Court of Appeals may, in its discretion, at the request of an individual who is deprived of liberty by a judgment, is without means to retain an attorney and is without the aid of an attorney, direct the Public [Defender to represent] Defense Services Commission to provide representation for the individual in a proceeding before it to test the validity of that judgment.

SECTION 29. ORS 138.500, as amended by section 108 of this 2001 Act, is amended to read:

138.500. (1) If a defendant in a criminal action or a petitioner in a proceeding pursuant to ORS 138.510 to 138.680 wishes to appeal from an appealable adverse final order or judgment of a circuit court and if the person is without funds to employ suitable counsel possessing skills and experience commensurate with the nature and complexity of the case for the appeal, the person may request the circuit court from which the appeal is or would be taken to appoint counsel to represent the person on appeal. The following apply to a request under this subsection:

(a) The request shall be in writing and shall be made within the time during which an appeal may be taken or, if the notice of appeal has been filed, at any time thereafter. The request shall include a brief statement of the assets, liabilities and income in the previous year of the person unless the court already determined the person to be [indigent] financially eligible for appointed counsel at state expense for purposes of the specific case, in which instance, the written request need only so indicate. However, if a request relies on a court's previous determination that the person is [indigent] financially eligible, the court, in its discretion, may require the person to submit a new statement of assets, liabilities and income.

(b) If, based upon a request under paragraph (a) of this subsection, the court finds that petitioner or defendant previously received the services of appointed counsel or currently is without funds to employ suitable counsel for an appeal, the court shall appoint counsel to represent petitioner or defendant on the appeal[, subject to applicable contracts entered into by the State Court Administrator under ORS 151.460].

[(c) Under paragraph (b) of this subsection, the court, in its discretion, may appoint counsel who represented petitioner or defendant in the court in the case, or if counsel employed or compensated by the Public Defense Services Commission is able to serve, the court may appoint, in a criminal action, such counsel to serve as counsel on appeal.]

(2)(a) Notwithstanding subsection (1) of this section, when a defendant has been sentenced to death, the request for appointed counsel shall be made to the Supreme Court. The Supreme Court shall appoint suitable counsel to represent the defendant on the appeal.

(b) After the notice of appeal has been filed, the Court of Appeals has concurrent authority to appoint or substitute counsel or appoint or substitute a legal advisor for the defendant under section 2, chapter 472, Oregon Laws 2001 (Enrolled House Bill 2337).

(c) The Supreme Court has concurrent authority to appoint or substitute counsel or appoint or substitute a legal advisor for the defendant under section 2, chapter 472, Oregon Laws 2001 (Enrolled House Bill 2337), in connection with review of a Court of Appeals decision under ORS 2.520.

(3) Whenever a defendant in a criminal action or a petitioner in a proceeding pursuant to ORS 138.510 to 138.680 has filed a notice of appeal from an appealable adverse final order or judgment of a circuit court and the person is without funds to pay for a transcript, or portion thereof, necessary to present adequately the case upon appeal, the person may request the [circuit court to order] public defense services executive director to have the transcript, or portion thereof, furnished to the person. The following apply to a request under this subsection:

(a) The request shall be in writing and, shall include a brief statement of the assets, liabilities and income in the previous year of the person [unless the court already determined the person to be indigent for purposes of the specific case, in which instance, the written request need only so indicate. However, if the request relies on the court's previous determination that the person is indigent, the court, in its discretion, may require the person to submit a new statement of assets, liabilities and income].

(b) If, based upon a request under paragraph (a) of this subsection, the [court] public defense services executive director finds that the person is unable to pay for the transcript, the [court shall order] public defense services executive director shall have furnished to the person that portion of the transcript as may be material to the decision on appeal, if the [court] public defense services executive director finds that the transcript or portion thereof is necessary.

(c) The cost of the transcript under paragraph (b) of this subsection shall be in the amount prescribed in ORS 21.470 and paid for as provided [in subsection (4) of this section] by the rules of the Public Defense Services Commission.

(4) After oral argument on the appeal or, if there is no oral argument, after submission of the appeal to the court for decision, the [Court of Appeals shall certify] public defense services executive director shall determine the cost of briefs and any other expenses of appellant, except transcripts, necessary to appellate review and [shall determine and certify] a reasonable amount of compensation for counsel appointed under this section. [The circuit court shall certify the cost of the transcript furnished pursuant to subsection (3) of this section, except that when a defendant has been sentenced to death, the Supreme Court shall certify the cost of the transcript.] Compensation payable to appointed counsel shall [not be less than the applicable minimum compensation set forth in the schedule] be as established under [ORS 151.430 (5). A statement of the costs and expenses and a request to certify compensation of counsel shall be filed after the date of oral argument, or if there is no oral argument, after the date of submission of the appeal to the court for decision, but not later than the 21st day after the date of the decision of the appeal by the court or such further time as may be allowed by the court. Except as the court may otherwise provide by rule, only one statement and request for certification may be filed] section 3 of this 2001 Act. On any review by the Supreme Court of the judgment of the Court of Appeals a person for whom counsel has been appointed shall by similar procedure recover the cost of briefs, any other expense of the review and compensation for counsel.

(5) Costs, expenses and compensation [certified by the Supreme Court or by the Court of Appeals] determined by the public defense services executive director under subsection (4) of this section shall be paid by the [state] public defense services executive director from funds for that purpose. [The Supreme Court or Court of Appeals shall certify to the administrative authority responsible for paying costs, expenses and compensation under this section that the amount of payment is reasonable and properly payable out of public funds.]

[(6) A court certifying costs, expenses and compensation for payment by the State Court Administrator shall supply any information requested by the State Court Administrator for the purpose of audits, statistical analysis or other activities relating to the proper disbursement of state funds or the payment of appointed counsel.]

[(7)] (6) The provisions of this section shall apply in favor of the defendant in a criminal action or the petitioner in a proceeding pursuant to ORS 138.510 to 138.680 when the person is respondent in an appeal taken by the state in a criminal action or by the defendant in a proceeding pursuant to ORS 138.510 to 138.680.

[(8) If appointed counsel on appeal is counsel employed or compensated by the Public Defense Services Commission or counsel who is under contract to provide services for the appeal pursuant to ORS 151.460, the appellate court shall not allow compensation for that appointed counsel. In all other cases, counsel shall be compensated as provided in this section.]

[(9) The Chief Justice of the Supreme Court may authorize one or more employees of the Judicial Department to make the certification required under subsection (4) of this section. The authorization may apply to some or all appeals before the Court of Appeals and Supreme Court. The authorization must be in writing and must specify the types of cases to which the authorization applies. A certification made by an employee of the Judicial Department pursuant to an authorization under this subsection must be based on the cost guidelines and standards established pursuant to ORS 151.430 (5) and (6). Upon motion of the attorney seeking compensation, or upon the court's own motion, the court may increase or decrease any amount certified by an employee of the Judicial Department pursuant to an authorization made under the provisions of this subsection.]

[(10)] (7) As used in [subsections] subsection (4) [and (8)] of this section, “counsel” includes a legal advisor appointed under section 2, chapter 472, Oregon Laws 2001 (Enrolled House Bill 2337).

SECTION 29a. Section 2, chapter 472, Oregon Laws 2001 (Enrolled House Bill 2337), is amended to read:

Sec. 2. (1) If the defendant wishes to waive counsel in the appeal of a criminal action to the Court of Appeals or on review of a criminal action by the Supreme Court, the court shall determine whether the defendant has made a knowing and voluntary waiver of counsel. The court shall accept the waiver of counsel if the defendant is not charged with a capital offense. The court may decline to accept the waiver of counsel if the defendant is charged with a capital offense.

(2) If the court accepts a defendant's waiver of counsel, the court may allow an attorney to serve as the defendant's legal advisor and, if the defendant is [indigent] financially eligible for appointed counsel at state expense, may appoint an attorney as the defendant's legal advisor.

(3) If the court declines to accept a defendant's waiver of counsel under subsection (1) of this section, the court shall give the defendant a reasonable opportunity, as prescribed by order or rule of the court, to file a brief on the defendant's own behalf.

SECTION 30. ORS 138.590 is amended to read:

138.590. (1) Any petitioner who is unable to pay the expenses of a proceeding pursuant to ORS 138.510 to 138.680 or to employ suitable counsel possessing skills and experience commensurate with the nature of the conviction and complexity of the case for [such a] the proceeding may proceed as [an indigent] a financially eligible person pursuant to this section upon order of the circuit court in which the petition is filed.

(2) If the petitioner wishes to proceed as [an indigent] a financially eligible person, the person shall file with the petition an affidavit stating inability to pay the expenses of a proceeding pursuant to ORS 138.510 to 138.680, including, but not limited to, the filing fee required by ORS 138.560, or to employ suitable counsel for such a proceeding. The affidavit shall contain a brief statement of the petitioner's assets and liabilities and income during the previous year. If the circuit court is satisfied that the petitioner is unable to pay such expenses or to employ suitable counsel, it shall order that the petitioner proceed as [an indigent] a financially eligible person. If the court finds that a petitioner who has been sentenced to death is not competent to decide whether to accept or reject the appointment of counsel, the court shall appoint counsel to represent the petitioner. However, when the Circuit Court for Marion County orders petitioner's case transferred to another circuit court as provided in ORS 138.560 (4), the matter of petitioner's proceeding as [an indigent] a financially eligible person shall be determined by the latter court.

(3) If a petitioner who has been sentenced to death qualifies for the appointment of counsel under this section but rejects the appointment, the court shall determine, after a hearing if necessary, whether the petitioner rejected the offer of counsel and made the decision with an understanding of its legal consequences. The court shall make appropriate findings on the record.

(4) In the order to proceed as [an indigent] a financially eligible person, the circuit court shall appoint suitable counsel to represent petitioner. Counsel so appointed shall represent petitioner throughout the proceedings in the circuit court.

(5) If counsel appointed by the circuit court determines that the petition as filed by petitioner is defective, either in form or in substance, or both, counsel may move to amend the petition within 15 days following counsel's appointment, or within [such] a further period as the court may allow. [Such] The amendment shall be permitted as of right at any time during this period. If appointed counsel believes that the original petition cannot be construed to state a ground for relief under ORS 138.510 to 138.680, and cannot be amended to state [such] a ground for relief, counsel shall, in lieu of moving to amend the petition, inform the petitioner and notify the circuit court of [such] counsel's belief by filing an affidavit stating [such] the belief and the reasons therefor with the clerk of the circuit court. This affidavit [shall] does not constitute a ground for denying the petition prior to a hearing upon its sufficiency, but the circuit court may consider [such] the affidavit in deciding upon the sufficiency of the petition at the hearing.

(6) When a petitioner has been ordered to proceed as [an indigent] a financially eligible person, the expenses which are necessary for the proceedings upon the petition in the circuit court and the compensation to appointed counsel for petitioner as provided in this subsection shall be paid by the [state] public defense services executive director from funds available for the purpose. At the conclusion of proceedings on a petition pursuant to ORS 138.510 to 138.680, the [circuit court] public defense services executive director shall determine and [allow] pay, as provided [in ORS 135.055] by rules of the Public Defense Services Commission, the amount of expenses of petitioner and compensation for the services of appointed counsel in the proceedings in the circuit court. [The expenses and compensation determined by the circuit court shall be certified to and paid by the state.]

[(7) If appointed counsel is under contract to provide services for the proceeding pursuant to ORS 151.460, the court shall not allow compensation for that appointed counsel. In all other cases, counsel shall be compensated as provided in this section.]

[(8)(a)] (7)(a) When a petitioner has been [ordered] authorized to proceed as [an indigent] a financially eligible person, all court fees in the circuit court, except for the filing fee required by ORS 138.560, are waived.

(b) When a petitioner is allowed to file a petition without payment of the fee required by ORS 138.560 due to inability to pay, the fee is not waived but may be drawn from, or charged against, the petitioner's trust account if the petitioner is an inmate in a correctional facility.

[(9)] (8) Notwithstanding any other provision of this chapter, a court may not appoint as counsel for a petitioner who has been sentenced to death a counsel who previously represented the petitioner at trial or on automatic and direct review in the case resulting in the death sentence unless the petitioner and the counsel expressly request continued representation.

SECTION 31. ORS 144.337 is amended to read:

144.337. Persons petitioning for review under ORS 144.335 shall be represented by [the] a public [Defender] defense services counsel pursuant to the terms of [ORS 151.210 to 151.290] sections 3 and 4 of this 2001 Act.

SECTION 32. ORS 151.010 is amended to read:

151.010. (1) The governing body of a county, on behalf of the county, may contract with an attorney, group of attorneys or full-time not-for-profit public defender organization for the provision by the attorney, group of attorneys or organization of services as counsel for [indigents] financially eligible persons in proceedings in which a court or magistrate has the power to appoint counsel to represent [an indigent] a financially eligible person and the county is required to pay compensation for that representation. [If a contract is with an attorney or group of attorneys, each attorney who will provide services under the contract shall satisfy the standards of eligibility established under ORS 151.430 (3)(a). If a contract is with a public defender organization, the organization shall satisfy the standards of eligibility established under ORS 151.430 (3)(b).]

(2) A court or magistrate may appoint an attorney who is, or an attorney member of a public defender organization that is, under a contract with a county as provided in this section to represent [an indigent] a financially eligible person in any proceeding in which the court or magistrate has the power to appoint counsel to represent [an indigent] a financially eligible person and the county is required to pay compensation for that representation.

SECTION 33. ORS 151.485 is amended to read:

151.485. (1) For purposes of determining the financial eligibility for [court-appointed] appointed counsel of persons with a constitutional or statutory right to counsel in matters before the state courts and whose counsel is authorized to be paid by the [State Court Administrator under ORS 151.450] public defense services executive director under section 4 of this 2001 Act, a person is [indigent] financially eligible for appointed counsel if the person is determined to be financially unable to retain adequate counsel without substantial hardship in providing basic economic necessities to the person or the person's dependent family under standards established by the Public Defense Services Commission under section 3 of this 2001 Act.

(2) A determination of [indigence] financial eligibility shall be made upon the basis of information contained in a detailed financial statement submitted by the person for whom counsel is requested or appointed or, in an appropriate case, by the person's parent, guardian or custodian. The financial statement shall be in the form prescribed by the [State Court Administrator and approved by the Supreme Court] Public Defense Services Commission. The form shall contain a full disclosure of all assets, liabilities, current income, dependents and other information required by ORS 135.050 [(3)] (4) and, in addition, any information required by the [State Court Administrator] commission and state courts as necessary to determine eligibility. [The State Court Administrator shall promulgate and issue uniform statewide guidelines and procedures that have been approved by the Supreme Court and that prescribe how the form will be used in the state courts and how the eligibility for court-appointed counsel will be determined.] The commission shall adopt uniform statewide guidelines and procedures that prescribe how to use the form and determine financial eligibility for appointed counsel.

(3) If at any time after the appointment of counsel the court having jurisdiction of the case finds that the defendant is financially able to obtain counsel, the court may terminate the appointment of counsel. If at any time during criminal proceedings the court having jurisdiction of the case finds that the defendant is financially unable to pay counsel whom the defendant has retained, the court may appoint counsel as provided in this section.

(4) In addition to any criminal prosecution, a civil proceeding may be initiated by any public body that has expended moneys for the defendant's legal assistance within two years of judgment if the defendant was not qualified for legal assistance in accordance with subsections (1) and (2) of this section. As used in this subsection, “legal assistance” includes legal counsel, transcripts, witness fees and expenses and any other goods or services required by law to be provided to [an indigent] a financially eligible person at state expense under [ORS 151.450] sections 3 and 4 of this 2001 Act.

(5) The civil proceeding shall be subject to the exemptions from execution as provided for by law.

SECTION 34. ORS 151.487 is amended to read:

151.487. (1) If in determining that a person is financially eligible for [court-appointed] appointed counsel [after applying the guidelines and standards issued by the State Court Administrator] under ORS 151.485, the court finds that the person has financial resources that enable the person to pay in full or in part the administrative costs of determining the eligibility of the person and the costs of the legal and other services to be provided at state expense that are related to the provision of appointed counsel, the court shall order the person to pay to the [State Court Indigent Defense] Public Defense Services Account in the General Fund, through the clerk of the court, the amount that it finds the person is able to pay without creating substantial hardship in providing basic economic necessities to the person or the person's dependent family. The amount that a court may order the person to pay [shall be] is subject to the guidelines and procedures issued by the [State Court Administrator] Public Defense Services Commission as provided in subsection (4) of this section.

(2) Failure to obey an order under this section [shall not be] is not grounds for contempt or grounds for withdrawal by the appointed attorney, but any part of the amount ordered under this section and not paid may be:

(a) Enforced against the person as if the order is a civil judgment; or

(b) Enforced as otherwise permitted by law.

(3) Except as authorized in this section, no person, organization or governmental agency may request or accept a payment or promise of payment for assisting in the representation of a person by [court] appointment.

(4) The [State Court Administrator] commission shall promulgate and issue guidelines and procedures [that have been approved by the Supreme Court]:

(a) For the determination of persons provided with [court-appointed] appointed counsel who have some financial resources to pay in full or in part the administrative, legal and other costs under subsection (1) of this section; and

(b) Regarding the amounts persons may be required to pay by a court under subsection (1) of this section.

(5) The determination that a person is able to pay or partially able to pay, or that a person no longer has the ability to pay the amount ordered in subsection (1) of this section, [shall be] is subject to review at any time by the court.

SECTION 35. ORS 151.489 is amended to read:

151.489. For the purpose of aiding courts in [implementing indigency eligibility] making determinations of financial eligibility for appointed counsel at state expense under ORS 151.485 and 151.487, the State Court Administrator may locate [indigency] eligibility verification and screening [positions] personnel or otherwise arrange for such services in the state trial and appellate courts or other locations and [may] shall prescribe the policies and procedures for their use.

SECTION 36. ORS 151.491 is amended to read:

151.491. (1) [The] State [Court Administrator] courts or authorized [designee who conducts] designees who conduct the verification of the financial statement submitted by a person seeking or having appointed counsel payable at state expense under [ORS 151.450 shall have the authority to] sections 3 and 4 of this 2001 Act may require the person to execute and deliver any written requests or authorizations as may be necessary under applicable law to provide the state court [Administrator] or authorized designee with access to records of public or private source, otherwise confidential, as may be needed to evaluate eligibility.

(2) In performing the verification duties under subsection (1) of this section, the state [Court Administrator or authorized designee is] courts are authorized to obtain information from any public record office of the state or of any subdivision or agency of the state upon request and without payment of any fees ordinarily required by law.

SECTION 37. ORS 151.493 is amended to read:

151.493. (1) Notwithstanding any other provision of law, any state agency as defined in ORS 192.410 that receives a request for release of information from the state [Court Administrator] courts for the purpose of verifying the [indigency] financial eligibility of a person under ORS 151.430 to 151.495 shall release all requested information to the state court [Administrator]. The [administrator] court shall forward to the state agency a certification signed by the person about whom the requested information is sought that authorizes the release of the information.

(2) Upon its own motion or motion of the [State Court Administrator] public defense services executive director, a court that has appointed counsel for a person by reason of [indigency] financial eligibility may order the release of any information relating to the person's financial situation held by any other person.

SECTION 38. ORS 151.495 is amended to read:

151.495. (1) All information supplied by a person seeking [court-appointed] appointed counsel and all information collected by the state [Court Administrator] courts for purposes of determining financial eligibility for [court-appointed] appointed counsel under ORS 151.430 to 151.495 is confidential and shall not be used for any purpose other than determining financial eligibility.

(2) Notwithstanding subsection (1) of this section, information supplied by a person seeking [court-appointed] appointed counsel and information collected by the state [Court Administrator] courts for purposes of determining financial eligibility may be:

(a) Introduced in a proceeding, criminal or civil, arising out of a determination that a person is not financially eligible for [court-appointed] appointed counsel;

(b) Introduced in a proceeding, criminal or civil, arising as a result of an allegation that a person has supplied false information in seeking [court-appointed] appointed counsel;

(c) Used by the court in a sentencing proceeding resulting from the defendant's conviction on the matter for which the information was provided or collected; and

(d) Used by the court, the Department of Revenue, or the assignees of the court or the Department of Revenue, for the purpose of collecting delinquent amounts owed to this state by the person.

SECTION 39. ORS 151.505 is amended to read:

151.505. (1) At the conclusion of a case or matter in which the first accusatory instrument or petition in the trial court was filed after January 1, 1998, and in which the court appointed counsel to represent a person, a trial or appellate court may include in its judgment an order that the person repay in full or in part the administrative costs of determining the eligibility of the person for appointed counsel and the costs of the legal and other services that are related to the provision of appointed counsel.

(2) Costs repayable under this section include a reasonable attorney fee for counsel appointed to represent the person and a reasonable amount for expenses authorized under ORS 135.055. A reasonable attorney fee is presumed to be a reasonable number of hours at the hourly rate authorized by the [State Court Administrator under ORS 151.430] Public Defense Services Commission under section 3 of this 2001 Act. For purposes of this subsection, compensation of counsel shall be determined by reference to a schedule of compensation established by the commission.

(3) Costs repayable under this section do not include costs imposed and paid under a previous order under ORS 151.487, but may include costs imposed under an order under ORS 151.487 that are unpaid at the time the judgment is filed.

(4) The court may not order a person to pay costs under this section unless the person is or may be able to pay the costs. In determining the amount and method of payment of costs, the court shall take account of the financial resources of the person and the nature of the burden that payment of costs will impose. The determination of the ability of a person to pay costs and the amount of costs to be paid shall be subject to the guidelines and procedures issued by the [State Court Administrator] commission under ORS 151.487.

(5) A person who has been ordered to pay costs under this section and who is not in contumacious default in the payment of the costs may at any time petition the court for remission of the payment of costs or any unpaid portion of the costs. If it appears to the satisfaction of the court that payment of the amount due will impose manifest hardship on the person ordered to repay or on the immediate family of the person, the court may remit all or part of the amount due or modify the method of payment.

(6) Except for moneys payable under subsection (1) of this section pursuant to an order under ORS 151.487, all moneys collected or paid under this section shall be paid into the General Fund and credited to the Criminal Fine and Assessment Account.

(7) Any part of the costs ordered to be paid under this section that is not paid may be enforced against the person as provided in ORS 137.450 if the judgment is a judgment in a criminal action or in the same manner as unpaid costs may be enforced under ORS 151.487.

SECTION 40. ORS 161.346 is amended to read:

161.346. (1) The Psychiatric Security Review Board shall conduct hearings upon any application for discharge, conditional release, commitment or modification filed pursuant to ORS 161.336, 161.341 or 161.351 and as otherwise required by ORS 161.336 to 161.351 and shall make findings on the issues before it which may include:

(a) If the board finds that the person is no longer affected by mental disease or defect, or, if so affected, no longer presents a substantial danger to others, the board shall order the person discharged from commitment or from conditional release.

(b) If the board finds that the person is still affected by a mental disease or defect and is a substantial danger to others, but can be controlled adequately if conditionally released with treatment as a condition of release, the board shall order the person conditionally released as provided in ORS 161.336.

(c) If the board finds that the person has not recovered from the mental disease or defect and is a substantial danger to others and cannot adequately be controlled if conditionally released on supervision, the board shall order the person committed to, or retained in, a state hospital designated by the Mental Health and Developmental Disability Services Division for care, custody and treatment.

(2) At any time, the board may appoint a psychiatrist or licensed psychologist to examine the person and to submit a report to the board. Reports filed with the board pursuant to the examination shall include, but need not be limited to, an opinion as to the mental condition of the person and whether the person presents a substantial danger to others, and whether the person could be adequately controlled with treatment as a condition of release. To facilitate the examination of the person, the board may order the person placed in the temporary custody of any state hospital or other suitable facility.

(3) The board may make the determination regarding discharge or conditional release based upon the written reports submitted pursuant to this section. If any member of the board desires further information from the examining psychiatrist or licensed psychologist who submitted the report, these persons shall be summoned by the board to give testimony. The board shall consider all evidence available to it which is material, relevant and reliable regarding the issues before the board. Such evidence may include but is not limited to the record of trial, the information supplied by the attorney representing the state or by any other interested party, including the person, and information concerning the person's mental condition and the entire psychiatric and criminal history of the person. All evidence of a type commonly relied upon by reasonably prudent persons in the conduct of their serious affairs shall be admissible at hearings. Testimony shall be taken upon oath or affirmation of the witness from whom received. The officer presiding at the hearing shall administer oaths or affirmations to witnesses.

(4) The board shall furnish to the person about whom the hearing is being conducted, the attorney representing the person, the Attorney General, the district attorney and the court or department of the county from which the person was committed written notice of any hearing pending under this section within a reasonable time prior to the hearing. The notice shall include:

(a) The time, place and location of the hearing.

(b) The nature of the hearing and the specific action for which a hearing has been requested, the issues to be considered at the hearing and a reference to the particular sections of the statutes and rules involved.

(d) A statement of all rights under subsection (6) of this section.

(5) Prior to the commencement of a hearing, the board or presiding officer shall inform each party as provided in ORS 183.413 (2).

(6) At the hearing, the person about whom the hearing is being held shall have the right:

(a) To appear at all proceedings held pursuant to this section, except board deliberations.

(b) To cross-examine all witnesses appearing to testify at the hearing.

(d) To be represented by suitable legal counsel possessing skills and experience commensurate with the nature and complexity of the case, to consult with counsel prior to the hearing and, if [indigent] financially eligible, to have suitable counsel [provided without cost] appointed at state expense.

(e) To examine all information, documents and reports which the board considers. If then available to the board, the information, documents and reports shall be disclosed to the person so as to allow examination prior to the hearing.

(7) A record shall be kept of all hearings before the board, except board deliberations.

(8) Upon request of any party before the board, or on its own motion, the board may continue a hearing for a reasonable period not to exceed 60 days to obtain additional information or testimony or for other good cause shown.

(9) Within 15 days following the conclusion of the hearing, the board shall provide to the person, the attorney representing the person, the Attorney General or other attorney representing the state, if any, written notice of the board's decision.

(10) The burden of proof on all issues at hearings of the board shall be by a preponderance of the evidence.

(11) If the board determines that the person about whom the hearing is being held is [indigent] financially eligible, the board shall appoint suitable counsel to represent the person. Counsel so appointed shall be an attorney who satisfies the professional qualification standards [of eligibility] established by the [State Court Administrator under ORS 151.430. The State Court Administrator] Public Defense Services Commission under section 3 of this 2001 Act. The public defense services executive director shall determine and allow fair compensation for counsel appointed under this subsection and the reasonable expenses of the person in respect to the hearing. Compensation payable to appointed counsel shall not be less than [$30 an hour] the applicable compensation level established under section 3 of this 2001 Act. The compensation and expenses so allowed shall be paid by the [administrator] public defense services executive director from funds available for the purpose. [If appointed counsel is under contract to provide services for the proceeding under ORS 151.460, compensation shall be as provided by the contract.]

(12) The Attorney General may represent the state at contested hearings before the board unless the district attorney of the county from which the person was committed elects to represent the state. The district attorney of the county from which the person was committed shall cooperate with the Attorney General in securing the material necessary for presenting a contested hearing before the board. If the district attorney elects to represent the state, the district attorney shall give timely written notice of such election to the Attorney General, the board and the attorney representing the person.

SECTION 41. ORS 161.665, as amended by section 113 of this 2001 Act, is amended to read:

161.665. (1) Except as provided in ORS 151.505, the court, only in the case of a defendant for whom it enters a judgment of conviction, may include in its sentence thereunder a provision that the convicted defendant shall pay as costs expenses specially incurred by the state in prosecuting the defendant. Costs include a reasonable attorney fee for counsel appointed pursuant to ORS 135.045 or 135.050 and a reasonable amount for expenses approved under ORS 135.055. A reasonable attorney fee is presumed to be a reasonable number of hours at the hourly rate authorized by the [State Court Administrator under ORS 151.430] Public Defense Services Commission under section 3 of this 2001 Act. Costs [shall] do not include expenses inherent in providing a constitutionally guaranteed jury trial or expenditures in connection with the maintenance and operation of government agencies that must be made by the public irrespective of specific violations of law.

(2) Except as provided in ORS 151.505, the court, after the conclusion of an appeal of its initial judgment of conviction, may include in its final judgment or modify the judgment to include a requirement that a convicted defendant pay as costs a reasonable attorney fee for counsel appointed pursuant to ORS 138.500, including counsel who is appointed under section 3 of this 2001 Act or counsel who is under contract to provide services for the [appeal pursuant to ORS 151.460] proceeding under section 4 of this 2001 Act, and other costs and expenses allowed by the [appellate court] public defense services executive director under ORS 138.500 (4). A reasonable attorney fee is presumed to be a reasonable number of hours at the hourly rate authorized by the [State Court Administrator under ORS 151.430] commission under section 3 of this 2001 Act.

(3) For purposes of subsections (1) and (2) of this section, compensation of counsel shall be determined by reference to a schedule of compensation established by the commission under section 3 of this 2001 Act.

[(3)] (4) The court shall not sentence a defendant to pay costs under this section unless the defendant is or may be able to pay them. In determining the amount and method of payment of costs, the court shall take account of the financial resources of the defendant and the nature of the burden that payment of costs will impose.

[(4)] (5) A defendant who has been sentenced to pay costs under this section and who is not in contumacious default in the payment thereof may at any time petition the court which sentenced the defendant for remission of the payment of costs or of any unpaid portion thereof. If it appears to the satisfaction of the court that payment of the amount due will impose manifest hardship on the defendant or the immediate family of the defendant, the court may remit all or part of the amount due in costs, or modify the method of payment under ORS 161.675.

[(5)] (6) All moneys collected or paid under this section shall be paid into the General Fund and credited to the Criminal Fine and Assessment Account.

SECTION 42. ORS 181.010, as amended by section 60, chapter 104, Oregon Laws 2001 (Enrolled House Bill 2609), is amended to read:

181.010. As used in ORS 181.010 to 181.560 and 181.715 to 181.730, unless the context requires otherwise:

(1) “Bureau” means the Department of State Police Bureau of Criminal Identification.

(2) “Criminal justice agency” means:

(a) The Governor;

(b) Courts of criminal jurisdiction;

(d) District attorneys, city attorneys with criminal prosecutive functions, attorney employees of the office of public defense services and nonprofit public defender organizations established under [ORS chapter 151] contract with the Public Defense Services Commission;

(e) Law enforcement agencies;

(f) The Department of Corrections;

(g) The State Board of Parole and Post-Prison Supervision;

(h) The Department of Public Safety Standards and Training; and

(i) Any other state or local agency with law enforcement authority designated by order of the Governor.

(3) “Criminal offender information” includes records and related data as to physical description and vital statistics, fingerprints received and compiled by the bureau for purposes of identifying criminal offenders and alleged offenders, records of arrests and the nature and disposition of criminal charges, including sentencing, confinement, parole and release.

(4) “Department” means the Department of State Police established under ORS 181.020.

(5) “Deputy superintendent” means the Deputy Superintendent of State Police.

(6) “Designated agency” means any state, county or municipal government agency where Oregon criminal offender information is required to implement a federal or state statute, executive order or administrative rule that expressly refers to criminal conduct and contains requirements or exclusions expressly based on such conduct or for agency employment purposes, licensing purposes or other demonstrated and legitimate needs when designated by order of the Governor.

(7) “Disposition report” means a form or process prescribed or furnished by the bureau, containing a description of the ultimate action taken subsequent to an arrest.

(8) “Law enforcement agency” means county sheriffs, municipal police departments, State Police, other police officers of this and other states and law enforcement agencies of the federal government.

(9) “State Police” means the members of the state police force appointed under ORS 181.250.

(10) “Superintendent” means the Superintendent of State Police.

SECTION 43. ORS 419B.195 is amended to read:

419B.195. (1) If the child, the parent or guardian requests counsel for the child but is without sufficient financial means to employ suitable counsel possessing skills and experience commensurate with the nature of the petition and the complexity of the case, the court may appoint suitable counsel to represent the child at state expense if the child is determined to be financially eligible under rules of the Public Defense Services Commission. Whenever requested to do so, the court shall appoint counsel to represent the child in [every] a case filed pursuant to ORS 419B.100.

(2) Upon presentation of the order of appointment under this section by the attorney for the child, any agency, hospital, school organization, division or department of the state, doctor, nurse or other health care provider, psychologist, psychiatrist, police department or mental health clinic shall permit the attorney to inspect and copy any records of the child or children involved in the case, without the consent of the child or children or parents. This subsection does not apply to records of a police agency relating to an ongoing investigation prior to charging.

SECTION 44. ORS 419B.198 is amended to read:

419B.198. (1) [Where] When the court appoints counsel to represent [the] a child, it may [require] order the parent, if able, or guardian of the estate, if the estate is able, to pay to the [State Court Indigent] Public Defense Services Account in the General Fund, through the clerk of the court, in full or in part the administrative costs of determining the ability of the parents or estate to pay for legal services and the costs of the legal and other services that are related to the provision of appointed counsel.

(2) The test of the parent's or estate's ability to pay costs under subsection (1) of this section [shall be] is the same test as applied to appointment of counsel for defendants under ORS 135.050 or under the rules adopted under section 3 of this 2001 Act. If counsel is provided at state expense, the court shall apply this test in accordance with the [rules of the State Court Administrator adopted under ORS 151.487] guidelines adopted by the Public Defense Services Commission under ORS 151.485.

(3) If counsel is provided at state expense, the court shall determine the amount the parents or estate [shall be] is required to pay for the costs of administrative, legal and other services related to the provision of appointed counsel in the same manner as this amount is determined under ORS 151.487.

(4) The court's order of payment [shall be] is enforceable in the same manner as an order of support under ORS 419B.408.

SECTION 45. ORS 419B.201 is amended to read:

419B.201. [Where] When the court appoints counsel for the child and the child[,] is determined to be entitled to, and financially eligible for, appointment of counsel at state expense, and the parent or guardian is without sufficient financial means to employ counsel, the compensation for counsel and reasonable expenses of investigation, preparation and presentation paid or incurred shall be allowed and paid as provided in ORS 135.055.

SECTION 46. ORS 419B.205 is amended to read:

419B.205. Counsel shall be appointed for the parent or legal guardian whenever the nature of the proceedings and due process so require, and when the parent or legal guardian has been determined by the court to be eligible to receive [court-appointed] appointed counsel under the standard in ORS 135.050 or the rules adopted under section 3 of this 2001 Act. In deciding whether to appoint counsel under this section, the court shall consider the following factors:

(1) The duration and degree of invasiveness of the interference with the parent-child relationship that possibly could result from the proceeding;

(2) The complexity of the issues and evidence;

(3) The nature of allegations and evidence contested by the parent or legal guardian; and

(4) The effect the facts found or the disposition in the proceeding may have on later proceedings or events, including but not limited to termination of parental rights or criminal proceedings.

SECTION 47. ORS 419B.208 is amended to read:

419B.208. Appointment of counsel for the child or parent is subject to ORS 135.055[, 151.430 to 151.480 and applicable contracts entered into by the State Court Administrator under ORS 151.460] and sections 3 and 4 of this 2001 Act.

SECTION 48. ORS 419B.320 is amended to read:

419B.320. Witnesses subpoenaed to give testimony shall receive the same fees as are paid in criminal cases. Except as provided by this subsection, responsibility for the per diem and mileage fees of any witness, and travel expenses if so ordered by the court, shall be borne by the party who subpoenas the witness or requests the court to subpoena the witness. If the witness was subpoenaed to appear on behalf of the State Office for Services to Children and Families, responsibility for per diem, mileage fees and travel expenses shall be borne by the county. If the witness was subpoenaed by more than one party, the witness shall be paid by the party who first subpoenas the witness. The court may then, thereafter, order that the costs be distributed equally among all parties who subpoenaed the witness and that the original payor of the costs be reimbursed accordingly. When the witness has been subpoenaed on behalf of [an indigent] a party who is represented by [court-appointed] appointed counsel, the fees and costs allowed for that witness shall be paid pursuant to ORS 135.055.

SECTION 49. ORS 419C.200 is amended to read:

419C.200. (1) If the youth, the parent or guardian requests counsel for the youth but is without sufficient financial means to employ suitable counsel possessing skills and experience commensurate with the nature of the petition and the complexity of the case, the court may appoint suitable counsel to represent the youth at state expense if the youth is determined to be financially eligible under rules of the Public Defense Services Commission. Whenever requested to do so, the court shall appoint counsel to represent the youth in every case filed pursuant to ORS 419C.005 in which the youth would be entitled to [court-appointed] appointed counsel if the youth were an adult charged with the same offense.

(2) Upon presentation of the order of appointment under this section by the attorney for the youth, any agency, hospital, school organization, division or department of the state, doctor, nurse or other health care provider, psychologist, psychiatrist, police department or mental health clinic shall permit the attorney to inspect and copy any records of the youth or youths involved in the case, without the consent of the youth or youths or parents. This subsection does not apply to records of a police agency relating to an ongoing investigation prior to charging.

SECTION 50. ORS 419C.203 is amended to read:

419C.203. (1) [Where] When the court appoints counsel to represent [the] a youth, it may [require] order the youth, if able, parent, if able, or guardian of the estate, if the estate is able, to pay to the [State Court Indigent] Public Defense Services Account in the General Fund, through the clerk of the court, in full or in part the administrative costs of determining the ability of the youth, parents or estate to pay for legal services and the costs of the legal and other services that are related to the provision of appointed counsel.

(2) The test of the youth's, parent's or estate's ability to pay costs under subsection (1) of this section [shall be] is the same test as applied to appointment of counsel for defendants under ORS 135.050 or under the rules adopted under section 3 of this 2001 Act. If counsel is provided at state expense, the court shall apply this test in accordance with the [rules of the State Court Administrator adopted under ORS 151.487] guidelines adopted by the Public Defense Services Commission under ORS 151.485.

(3) If counsel is provided at state expense, the court shall determine the amount the youth, parents or estate [shall be] is required to pay for the costs of administrative, legal and other services related to the provision of appointed counsel in the same manner as this amount is determined under ORS 151.487.

(4) In determining whether to order the youth to pay costs under subsection (1) of this section, the court shall also consider the reformative effect of having the youth pay. The court may order that a portion of any moneys earned by the youth in juvenile work projects be used to pay costs ordered under subsection (1) of this section.

(5) The court's order of payment [shall be] is enforceable in the same manner as an order of support under ORS 419C.600.

SECTION 51. ORS 419C.206 is amended to read:

419C.206. [Where] When the court appoints counsel for the youth and the youth[,] is determined to be entitled to, and financially eligible for, appointment of counsel at state expense and the parent or guardian is without sufficient financial means to employ counsel, the compensation for counsel and reasonable expenses of investigation, preparation and presentation paid or incurred shall be allowed and paid as provided in ORS 135.055.

SECTION 52. ORS 419C.209 is amended to read:

419C.209. Appointment of counsel for the youth or parent is subject to ORS 135.055[, 151.430 to 151.480 and applicable contracts entered into by the State Court Administrator under ORS 151.460] and sections 3 and 4 of this 2001 Act.

SECTION 53. ORS 419C.408 is amended to read:

419C.408. Witnesses subpoenaed to give testimony shall receive the same fees as are paid in criminal cases. Except as provided by this section, responsibility for the per diem and mileage fees of any witness, and travel expenses if so ordered by the court, shall be borne by the party who subpoenas the witness or requests the court to subpoena the witness. If the witness was subpoenaed to appear on behalf of the Oregon Youth Authority, responsibility for per diem, mileage fees and travel expenses shall be borne by the county. If the witness was subpoenaed by more than one party, the witness shall be paid by the party who first subpoenas the witness. The court may then, thereafter, order that the costs be distributed equally among all parties who subpoenaed the witness and that the original payor of the costs be reimbursed accordingly. When the witness has been subpoenaed on behalf of [an indigent] a party who is represented by [court-appointed] appointed counsel, the fees and costs allowed for that witness shall be paid pursuant to ORS 135.055.

SECTION 54. Section 6, chapter 622, Oregon Laws 2001 (Enrolled House Bill 2611), is amended to read:

Sec. 6. (1) A summons under section 5, chapter 622, Oregon Laws 2001 (Enrolled House Bill 2611), [of this 2001 Act] shall be entitled “In the matter of :HR3., a child” and must contain:

(a) The name of the person to be served, the address at which the summons and petition may be served and the post office address at which the papers may be served by mail.

(b) The date and time for the hearing on the petition, which must be fixed at a reasonable time, not less than 24 hours for a jurisdictional adjudication and not less than 10 days for a termination adjudication after the service or final publication of the summons. If the summons is posted, the purpose of the proceeding must be stated in the summons.

(c) A direction to the served person to personally appear before the court and, if the person has physical custody of the child, to bring the child before the court as directed in the summons.

(d) A notice that if the person named in the summons fails to appear at the time and place specified therein the court may proceed without the person and:

(A) If the petition seeks to establish jurisdiction over the child, that the court may take jurisdiction, and make such further orders and take such action as may be authorized by law.

(B) If the petition seeks termination of parental rights, a statement that the rights of the parent are proposed to be terminated in the proceeding, that the court may immediately terminate parental rights and make such further orders and take any other action that is authorized by law. The summons must contain a statement that the termination of parental rights hearing may not be held less than 10 days after service of the summons.

(C) If the petition seeks guardianship or any other disposition of the child, that the court may grant such disposition and make such further orders and take such action as may be authorized by law.

(e) A notice that the served person has a right to be represented by an attorney and, if the person is [an indigent] a financially eligible child in any proceeding or if the person is [an indigent] a financially eligible parent in a termination of parental rights proceeding, that the person has a right to have an attorney appointed at state expense or, if the person is [an indigent] a financially eligible parent or [indigent] financially eligible guardian in any proceeding, the person may be entitled to have an attorney appointed at state expense.

(f) A notice that no later than 30 days after the petition is filed each person about whom allegations have been made shall admit or deny the allegations. The admission or denial may be made orally at the hearing or filed with the court in writing.

(g) If the petition alleges that the child has been physically or sexually abused, a notice that the court, at the hearing, may enter an order requiring the alleged perpetrator of the abuse to move from the household in which the child resides.

(h) A notice that the parent or other person legally obligated to support the child may be required to pay at some future date for all or a portion of the support of the child, including the cost of out-of-home placement, depending upon the ability of the parent or other person to pay support.

(2) The summons must be signed by the petitioner, petitioner's attorney or a representative of the juvenile department, the district attorney's office, the attorney general's office or the State Office for Services to Children and Families and must be served with a true copy of the petition.

SECTION 55. ORS 419B.518 is amended to read:

419B.518. If the parents are determined to be [indigent by the court] financially eligible, and request the assistance of appointed counsel, the court shall appoint an attorney to represent them at state expense. Appointment of counsel under this section is subject to ORS 135.055 [and 151.430 to 151.480 and to applicable contracts entered into under ORS 151.460] and sections 3 and 4 of this 2001 Act.

SECTION 56. Section 6, chapter 480, Oregon Laws 2001 (Enrolled House Bill 2336), is amended to read:

Sec. 6. (1) If the child, parent or guardian is [shown to be without sufficient financial means to employ suitable counsel possessing skills and experience commensurate with the nature and complexity of the case to represent the person] determined to be entitled to, and financially eligible for, appointment of counsel at state expense in an appeal as provided in ORS 419A.200 and section 5, chapter 480, Oregon Laws 2001 (Enrolled House Bill 2336), [of this 2001 Act,] the court, upon request of the person or upon its own motion, shall appoint suitable counsel to represent the person. Counsel appointed by the court shall be paid compensation determined by the [appellate court] public defense services executive director as provided in ORS 135.055 if the circuit court is the appellate court or as provided in ORS 138.500 if the Court of Appeals or the Supreme Court is the appellate court.

(2)(a) When the court appoints counsel to represent the child, it may [require] order the parent, if able, or guardian of the estate, if the estate is able, to pay to the [State Court Indigent] Public Defense Services Account in the General Fund, through the clerk of the court, in full or in part the administrative costs of determining the ability of the parents or estate to pay for legal services and the costs of the legal and other services that are related to the provision of appointed counsel.

(b) The test of the parent's or estate's ability to pay costs under paragraph (a) of this subsection [shall be] is the same test as applied to appointment of counsel for defendants under [ORS 135.050] section 3 of this 2001 Act. If counsel is provided at state expense, the court shall apply this test in accordance with the [rules of the State Court Administrator adopted under ORS 151.487] guidelines adopted by the Public Defense Services Commission under ORS 151.485.

(c) If counsel is provided at state expense, the court shall determine the amount the parents or estate [shall be] is required to pay for the costs of administrative, legal and other services related to the provision of appointed counsel in the same manner as this amount is determined under ORS 151.487.

(d) The court's order of payment [shall be] is enforceable in the same manner as an order of support under ORS 419B.408 and 419C.600.

(3) When the court appoints counsel and the child, parent or guardian [is without sufficient financial means to employ counsel] has been determined to be entitled to, and financially eligible for, appointed counsel at state expense, the compensation for counsel and costs and expenses necessary to the appeal shall be [allowed] determined and paid as provided in ORS 135.055 if the circuit court is the appellate court or as provided in ORS 138.500 if the Court of Appeals or the Supreme Court is the appellate court.

SECTION 57. ORS 426.100 is amended to read:

426.100. (1) At the time the allegedly mentally ill person is brought before the court, the court shall advise the person of the following:

(a) The reason for being brought before the court;

(b) The nature of the proceedings;

(d) The right to subpoena witnesses; and

(e) The person's rights regarding representation by or appointment of counsel.

(2) Subsection (3) of this section establishes the rights of allegedly mentally ill persons in each of the following circumstances:

(a) When the person is held by warrant of detention issued under ORS 426.070.

(b) In commitment hearings under ORS 426.095.

(d) In recommitment hearings under ORS 426.307.

(3) When provided under subsection (2) of this section, an allegedly mentally ill person has the following rights relating to representation by or appointment of counsel:

(a) The right to obtain suitable legal counsel possessing skills and experience commensurate with the nature of the allegations and complexity of the case during the proceedings.

(b) If the person [does not have funds with which to retain legal counsel] is determined to be financially eligible for appointed counsel at state expense, the court will appoint legal counsel to represent the person [without cost]. If a person is [unable to afford legal counsel] appointed counsel at state expense, payment of expenses and compensation relating to legal counsel shall be made as provided under ORS 426.250.

(c) If the allegedly mentally ill person does not request legal counsel, the legal guardian, relative or friend may request the assistance of suitable legal counsel on behalf of the person.

(d) If no request for legal counsel is made, the court shall appoint suitable legal counsel unless counsel is expressly, knowingly and intelligently refused by the person.

(e) If the person is being involuntarily detained before a hearing on the issue of commitment, the right under paragraph (a) of this subsection to contact an attorney or under paragraph (b) of this subsection to have an attorney appointed may be exercised as soon as reasonably possible.

(f) In all cases suitable legal counsel shall be present at the hearing and may be present at examination and may examine all witnesses offering testimony, and otherwise represent the person.

(4) The responsibility for representing the state's interest in commitment proceedings, including, but not limited to, preparation of the state's case and appearances at commitment hearings is as follows:

(a) The Attorney General's office shall have the responsibility relating to proceedings initiated by state hospital staff that are any of the following:

(A) Recommitment proceedings under ORS 426.307; or

(B) Proceedings under ORS 426.228, 426.232 or 426.233.

(b) The district attorney if requested to do so by the governing body of the county.

(c) In lieu of the district attorney under paragraph (b) of this subsection, a counsel designated by the governing body of a county shall take the responsibility. A county governing body may designate counsel to take responsibility under this paragraph either for single proceedings or for all such proceedings the county will be obligated to pay for under ORS 426.250. If a county governing body elects to proceed under this paragraph, the county governing body shall so notify the district attorney. The expenses of an attorney appointed under this paragraph shall be paid as provided under ORS 426.250.

SECTION 58. ORS 426.135 is amended to read:

426.135. If a person determined to be mentally ill as provided in ORS 426.130 appeals the determination or disposition based thereon, and is [unable to afford suitable legal counsel possessing skills and experience commensurate with the nature and complexity of the case to represent the person on appeal, the court] determined to be financially eligible for appointed counsel at state expense, upon request of the person or upon its own motion, the court shall appoint suitable legal counsel to represent the person. The compensation for legal counsel and costs and expenses necessary to the appeal shall be determined and [allowed by the appellate court] paid by the public defense services executive director as provided in ORS 135.055 if the circuit court is the appellate court or as provided in ORS 138.500 if the Court of Appeals or Supreme Court is the appellate court. The compensation, costs and expenses [so allowed] shall be paid as provided in ORS 138.500.

SECTION 59. ORS 426.250 is amended to read:

426.250. The following is a nonexclusive list of responsibilities for payment of various costs related to commitment proceedings under this chapter and ORS 430.397 to 430.401 as described:

(1) Any physician or qualified person recommended by the Mental Health and Developmental Disability Services Division who is employed under ORS 426.110 to make an examination as to the mental condition of a person alleged to be mentally ill shall be allowed a fee as the court in its discretion determines reasonable for the examination.

(2) Witnesses subpoenaed to give testimony shall receive the same fees as are paid in criminal cases, and are subject to compulsory attendance in the same manner as provided in ORS 136.567 to 136.603. The attendance of out-of-state witnesses may be secured in the same manner as provided in ORS 136.623 to 136.637. The party who subpoenas the witness or requests the court to subpoena the witness is responsible for payment of the cost of the subpoena and payment for the attendance of the witness at a hearing. When the witness has been subpoenaed on behalf of an allegedly mentally ill person who is represented by [court-appointed] appointed counsel, the fees and costs allowed for that witness shall be paid pursuant to ORS 135.055. If the costs of witnesses subpoenaed by the allegedly mentally ill person are paid as provided under this subsection, the procedure for subpoenaing witnesses shall comply with ORS 136.570.

(3) If a person with a right to a counsel under ORS 426.100 is [unable to afford counsel, the court] determined to be financially eligible for appointed counsel at state expense, the public defense services executive director shall determine and [allow] pay, as provided in ORS 135.055, the reasonable expenses related to the representation of the person and compensation for legal counsel. The expenses and compensation so allowed shall be paid by the [state] public defense services executive director from funds available for the purpose.

(4) The Mental Health and Developmental Disability Services Division shall pay the costs of expenses incurred under ORS 426.100 by the Attorney General's office. Any costs for district attorneys or other counsel appointed to assume responsibility for presenting the state's case shall be paid by the county where the commitment hearing is held, subject to reimbursement under ORS 426.310.

(5) All costs incurred in connection with a proceeding under ORS 426.200, including the costs of transportation, commitment and delivery of the person, shall be paid by the county of which the person is a resident; or, if the person is not a resident of this state, then by the county from which the emergency admission was made.

(6) All costs incurred in connection with a proceeding under ORS 426.180 for the commitment of a person from a reservation for land-based tribes of Native Americans, including the cost of transportation, commitment and delivery of the person, shall be paid by the ruling body of the reservation of which the person is a resident.

SECTION 60. ORS 426.301 is amended to read:

426.301. (1) At the end of the 180-day period of commitment, any person whose status has not been changed to voluntary shall be released unless the Mental Health and Developmental Disability Services Division certifies to the court in the county where the treating facility is located that the person is still mentally ill and in need of further treatment. The division, pursuant to its rules, may delegate to the director of the treating facility the responsibility for making the certification. The director of the treating facility shall consult with the community mental health and developmental disabilities program director of the county of residence prior to making the certification. If the certification is made, the person will not be released, but the director of the treating facility shall immediately issue a copy of the certification to the person and to the community mental health and developmental disabilities program director of the county of residence.

(2) The certification shall be served upon the person by the director of the facility wherein the person is confined or the designee of the director. The director of the facility shall inform the court in writing that service has been made and the date thereof.

(3) The certification shall advise the person of all the following:

(a) That the division or facility has requested that commitment be continued for an additional period of time.

(b) That the person may consult with legal counsel and that legal counsel will be provided for the person without cost if the person is unable to afford legal counsel.

(c) That the person may protest this further commitment within 14 days, and if the person does not commitment will be continued for an indefinite period of time up to 180 days.

(d) That if the person does protest a further period of commitment, the person is entitled to a hearing before the court on whether commitment should be continued.

(e) That the person may protest either orally or in writing by signing the form accompanying the certification; that the person is entitled to have a physician or other qualified person as recommended by the division, other than a member of the staff at the facility where the person is confined, examine the person and report to the court the results of the examination.

(f) That the person may subpoena witnesses and offer evidence on behalf of the person at the hearing.

(g) That if the person is without funds to retain legal counsel or an examining physician or qualified person as recommended by the division, the court will appoint legal counsel, a physician or other qualified person [at no cost to the person].

(4) Nothing in subsection (3) of this section requires the giving of the warning under ORS 426.123.

(5) The person serving the certification shall read and deliver the certification to the person and ask whether the person protests a further period of commitment. The person may protest further commitment either orally or by signing a simple protest form to be given to the person with the certification. If the person does not protest a further period of commitment within 14 days of service of the certification, the division or facility shall so notify the court and the court shall, without further hearing, order the commitment of the person for an additional indefinite period of time up to 180 days.

SECTION 61. ORS 426.307 is amended to read:

426.307. If the person requests a hearing under ORS 426.301 or if the court proceeds under ORS 426.275 (5), the following provisions apply as described:

(1) The hearing shall be conducted as promptly as possible and at a time and place as the court may direct.

(2) If the person requests a continuance in order to prepare for the hearing or to obtain legal counsel to represent the person, the court may grant postponement and detention during postponement as provided under ORS 426.095.

(3) The person has the right to representation by or appointment of counsel as provided under ORS 426.100 subject to ORS 135.055[, 151.430 to 151.480 and applicable contracts entered into under ORS 151.460] and sections 3 and 4 of this 2001 Act.

(4) If the person requests an examination by a physician or other qualified person as recommended by the Mental Health and Developmental Disability Services Division and is without funds to retain a physician or other qualified person for purposes of the examination, the court shall appoint a physician or other qualified person, other than a member of the staff from the facility where the person is confined, to examine the person at no expense to the person and to report to the court the results of the examination.

(5) The provisions of ORS 40.230, 40.235, 40.240 and 40.250 do not apply to the use of medical records from the current period of commitment or to testimony related to such records or period of commitment in connection with hearings under this section. The court may consider as evidence such reports and testimony.

(6) The court shall then conduct a hearing and after hearing the evidence and reviewing the recommendations of the treating and examining physicians or other qualified persons, the court shall determine whether the person is still a mentally ill person and in need of further treatment. If in the opinion of the court the individual is still a mentally ill person by clear and convincing evidence and in need of further treatment, the court may order commitment to the division for an additional indefinite period of time up to 180 days.

(7) At the end of the 180-day period, the person shall be released unless the division or facility again certifies to the committing court that the person is still a mentally ill person and in need of further treatment, in which event the procedures set forth in ORS 426.301 to 426.307 shall be followed.

SECTION 62. ORS 19.370 is amended to read:

19.370. (1) If a transcript is prepared from audio records by a person other than the reporter, then the reporter shall certify the audio records and the transcript shall be certified by the person preparing it. In all other cases the transcript shall be certified by the reporter or the trial judge. The transcript shall be filed by the reporter with the trial court administrator within 30 days after the filing of the notice of appeal [or within 30 days after the entry of an order granting a transcript under ORS 138.500 (3)]. The reporter shall give immediate notice in writing to the parties that the transcript has been filed. Except as provided in subsection (2) of this section the reporter shall serve the respondent with a copy of the transcript and shall, at the time of filing the original transcript, file proof of such service with the trial court administrator, and with the clerk of the court to which the appeal is made.

(2) If there are two or more parties in addition to the appellant who have appeared in the trial court and who are represented by different attorneys, the reporter shall at the time of filing the original transcript deposit a copy thereof with the trial court administrator for use by all such other parties. The reporter shall serve notice of such deposit upon all such parties and file proof of such service with the trial court administrator and with the clerk of the court to which the appeal is made.

(3) Within 15 days after the transcript is filed, any party may move the trial court for an order to correct any errors appearing in the transcript or, where the interests of justice require, to have additional parts of the proceedings included in the transcript. A copy of any such motion shall be filed with the court to which the appeal is made. The trial court shall direct the making of such corrections and the adding of such matter as may be appropriate and shall fix the time within which such corrections or additions shall be made.

(4) Upon the denial of a motion to correct or add to the transcript, or upon the making of such corrections or additions as may be ordered, whichever last occurs, the trial court shall enter an order settling the transcript and send copies thereof to each of the parties or their attorneys and to the State Court Administrator. In the absence of a motion to correct or add to the transcript, the transcript shall be deemed automatically settled 15 days after it is filed.

SECTION 63. ORS 33.035 is amended to read:

33.035. Whenever ORS 33.015 to 33.155 provide for [court-appointed] appointed counsel, appointment of counsel and payment of counsel and related expenses shall be made as follows:

(1) For contempt of a circuit court, the Oregon Tax Court, the Court of Appeals or the Supreme Court, appointment and payment of counsel shall be made as provided in ORS [135.050,] 135.055 and [151.430 to 151.480 and applicable contracts entered into by the State Court Administrator under ORS 151.460] sections 3 and 4 of this 2001 Act.

(2) For contempt of a justice court, municipal court or other public body not described in subsection (1) of this section, payment for and appointment of counsel shall be made as otherwise provided by law for the court or public body.

SECTION 64. ORS 34.355 is amended to read:

34.355. If counsel is appointed by a court to represent, in an initial proceeding by habeas corpus or on appeal as provided in ORS 34.710, a person who is imprisoned or otherwise restrained of liberty by virtue of a charge or conviction of crime and who is [unable to afford counsel, the court] determined to be financially eligible for appointed counsel at state expense, the public defense services executive director shall determine [and allow] compensation for counsel and costs and expenses of the person in the proceeding or on appeal. Compensation for counsel and expenses of the person in an initial proceeding or in a circuit court on appeal shall be determined and [allowed] paid as provided in ORS 135.055. Compensation for counsel and costs and expenses of the person on appeal to the Court of Appeals or on review by the Supreme Court shall be determined and [allowed] paid as provided in ORS 138.500. The compensation and expenses so allowed in an initial proceeding in a county court shall be paid by the county in which the person was charged or convicted of crime. [The compensation and expenses so allowed in an initial proceeding in a circuit court or on appeal shall be paid by the state from funds available for the purpose.]

SECTION 65. ORS 45.275 is amended to read:

45.275. (1) The court shall appoint a qualified interpreter in a civil or criminal proceeding whenever it is necessary:

(a) To interpret the proceedings to a non-English-speaking party;

(b) To interpret the testimony of a non-English-speaking party or witness; or

(2) No fee shall be charged to any person for the appointment of an interpreter to interpret testimony of a non-English-speaking party or witness, or to assist the court in performing the duties and responsibilities of the court. No fee shall be charged to an indigent party for the appointment of an interpreter to interpret the proceedings to the indigent non-English-speaking party. No fee shall be charged to any person for the appointment of an interpreter if appointment is made to determine whether the person is indigent or non-English-speaking for the purposes of this section.

(3) A party shall be considered indigent for the purposes of this section if:

(a) The party makes a verified statement and provides other information in writing under oath showing financial inability to pay for a qualified interpreter, and provides any other information required by the court concerning the inability to pay for such an interpreter; and

(b) It appears to the court that the party is in fact indigent and unable to pay for a qualified interpreter.

(4) Fair compensation for the services of an interpreter appointed under this section shall be paid:

(a) By the county, subject to the approval of the terms of the contract by the governing body of the county, in a proceeding in a county or justice court.

(b) By the city, subject to the approval of the terms of the contract by the governing body of the city, in a proceeding in a municipal court.

(c) By the state in a proceeding in a circuit court. Amounts payable by the state shall be from funds available to the court other than the [State Court Indigent Defense Account established by ORS 151.465] Public Defense Services Account established by section 5 of this 2001 Act, except that fees of an interpreter necessary for the purpose of communication between appointed counsel and a client or witness in a criminal case shall be payable from that account.

(5) Where a party or witness is dissatisfied with the interpreter selected by the court, the party or witness may use any certified interpreter. However, if the substitution of another interpreter will delay the proceeding, good cause must be shown for the substitution. Any party may object to use of any interpreter for good cause. Unless the court has substituted interpreters for cause, the party using any interpreter other than the interpreter originally appointed by the court shall bear any additional costs beyond the amount required to pay the original interpreter.

(6) A court may allow as costs reasonable expenses incurred by a party in employing the services of an interpreter in civil proceedings in the manner provided by ORCP 68.

(7) Any person serving as an interpreter for the court in a civil or criminal proceeding shall state or submit the person's qualifications on the record unless waived or otherwise stipulated to by the parties or counsel for the parties. An interpreter for the court shall swear or affirm under oath to make a true and impartial translation of the proceedings in an understandable manner using the interpreter's best skills and judgment in accordance with the standards and ethics of the interpreter profession.

(8) For the purposes of this section:

(a) “Non-English-speaking person” means a person who, by reason of place of birth or culture, speaks a language other than English and does not speak English with adequate ability to communicate effectively in the proceedings.

(b) “Qualified interpreter” means a person who is readily able to communicate with the non-English-speaking person, translate the proceedings and accurately repeat and translate the statements of the non-English-speaking person into oral English, and the statements of other persons into the language spoken by the non-English-speaking person. “Qualified interpreter” does not include any person who is unable to interpret or translate fluently the dialect, slang or specialized vocabulary used by the party or witness.

SECTION 66. ORS 45.275, as amended by section 4, chapter 1041, Oregon Laws 1999, is amended to read:

45.275. (1) The court shall appoint a qualified interpreter in a civil or criminal proceeding, and a hearing officer or the designee of a hearing officer shall appoint a qualified interpreter in an adjudicatory proceeding, whenever it is necessary:

(a) To interpret the proceedings to a non-English-speaking party;

(b) To interpret the testimony of a non-English-speaking party or witness; or

(c) To assist the court, agency or hearing officer in performing the duties and responsibilities of the court, agency or hearing officer.

(2) No fee shall be charged to any person for the appointment of an interpreter to interpret testimony of a non-English-speaking party or witness, or to assist the court, agency or hearing officer in performing the duties and responsibilities of the court, agency or hearing officer. No fee shall be charged to a non-English-speaking party who is unable to pay for the appointment of an interpreter to interpret the proceedings to the non-English-speaking party. No fee shall be charged to any person for the appointment of an interpreter if appointment is made to determine whether the person is unable to pay or non-English-speaking for the purposes of this section.

(3) A non-English-speaking party shall be considered unable to pay for an interpreter for the purposes of this section if:

(a) The party makes a verified statement and provides other information in writing under oath showing financial inability to pay for a qualified interpreter, and provides any other information required by the court or agency concerning the inability to pay for such an interpreter; and

(b) It appears to the court or agency that the party is in fact unable to pay for a qualified interpreter.

(4) Fair compensation for the services of an interpreter appointed under this section shall be paid:

(a) By the county, subject to the approval of the terms of the contract by the governing body of the county, in a proceeding in a county or justice court.

(b) By the city, subject to the approval of the terms of the contract by the governing body of the city, in a proceeding in a municipal court.

(d) By the agency in an adjudicatory proceeding.

(5) Where a party or witness is dissatisfied with the interpreter selected by the court, the hearing officer or the designee of the hearing officer, the party or witness may use any certified interpreter. However, if the substitution of another interpreter will delay the proceeding, good cause must be shown for any substitution other than a substitution made by the judge or hearing officer. Any party may object to use of any interpreter for good cause. Unless the court, hearing officer or the designee of the hearing officer has substituted interpreters for cause, the party using any interpreter other than the interpreter originally appointed by the court, hearing officer or the designee of the hearing officer shall bear any additional costs beyond the amount required to pay the original interpreter.

(6) A court may allow as costs reasonable expenses incurred by a party in employing the services of an interpreter in civil proceedings in the manner provided by ORCP 68.

(7) Any person serving as an interpreter for the court or agency shall state or submit the person's qualifications on the record unless waived or otherwise stipulated to by the parties or counsel for the parties. An interpreter for the court or in an adjudicatory proceeding shall swear or affirm under oath to make a true and impartial interpretation of the proceedings in an understandable manner using the interpreter's best skills and judgment in accordance with the standards and ethics of the interpreter profession.

(8) For the purposes of this section:

(b) “Qualified interpreter” means a person who is readily able to communicate with the non-English-speaking person and who can orally transfer the meaning of statements to and from English and the language spoken by the non-English-speaking person. A qualified interpreter must be able to interpret in a manner that conserves the meaning, tone, level, style and register of the original statement, without additions or omissions. “Qualified interpreter” does not include any person who is unable to interpret the dialect, slang or specialized vocabulary used by the party or witness.

SECTION 67. ORS 45.285 is amended to read:

45.285. (1) In any civil or criminal proceeding, including a court-ordered deposition if no other person is responsible for providing an interpreter, in which a disabled person is a party or witness, the court shall appoint a qualified interpreter and make available appropriate assistive communication devices whenever it is necessary to interpret the proceedings to the disabled person, or to interpret the testimony of the disabled person.

(2) No fee shall be charged to the disabled person for the appointment of an interpreter or use of an assistive communication device under this section. No fee shall be charged to any person for the appointment of an interpreter or the use of an assistive communication device if appointment or use is made to determine whether the person is disabled for the purposes of this section.

(3) Fair compensation for the services of an interpreter or the cost of an assistive communication device under this section shall be paid:

(a) By the county, subject to the approval of the terms of the contract by the governing body of the county, in a proceeding in a county or justice court.

(b) By the city, subject to the approval of the terms of the contract by the governing body of the city, in a proceeding in a municipal court.

(4) For the purposes of this section:

(a) “Assistive communication device” means any equipment designed to facilitate communication by a disabled person.

(b) “Disabled person” means a person who cannot readily understand the proceedings because of deafness or a physical hearing impairment, or cannot communicate in the proceedings because of a physical speaking impairment.

(c) “Qualified interpreter” means a person who is readily able to communicate with the disabled person, interpret the proceedings and accurately repeat and interpret the statements of the disabled person to the court.

SECTION 68. ORS 45.285, as amended by section 5, chapter 1041, Oregon Laws 1999, is amended to read:

45.285. (1) In any civil action, adjudicatory proceeding or criminal proceeding, including a court-ordered deposition if no other person is responsible for providing an interpreter, in which a disabled person is a party or witness, the court, hearing officer or the designee of the hearing officer shall appoint a qualified interpreter and make available appropriate assistive communication devices whenever it is necessary to interpret the proceedings to the disabled person, or to interpret the testimony of the disabled person.

(3) Fair compensation for the services of an interpreter or the cost of an assistive communication device under this section shall be paid:

(a) By the county, subject to the approval of the terms of the contract by the governing body of the county, in a proceeding in a county or justice court.

(b) By the city, subject to the approval of the terms of the contract by the governing body of the city, in a proceeding in a municipal court.

(d) By the agency in an adjudicatory proceeding.

(4) For the purposes of this section:

(a) “Assistive communication device” means any equipment designed to facilitate communication by a disabled person.

SECTION 69. ORS 138.310 is amended to read:

138.310. [If the appellate court certifies] When the public defense services executive director pays costs, expenses or compensation under ORS 138.500 (4) on appeal in a criminal action, the [appellate court] public defense services executive director shall notify the court below of the costs, expenses and compensation [certified] paid in order that the court below may exercise its discretion under ORS 151.505 or 161.665 (2).

SECTION 70. ORS 161.385 is amended to read:

161.385. (1) There is hereby created a Psychiatric Security Review Board consisting of five members appointed by the Governor and subject to confirmation by the Senate under section 4, Article III of the Oregon Constitution.

(2) The membership of the board shall not include any district attorney, deputy district attorney or public defender, but[,] the membership shall be composed of:

(a) A psychiatrist experienced in the criminal justice system and not otherwise employed on a full-time basis by the Mental Health and Developmental Disability Services Division or a community mental health and developmental disabilities program;

(b) A licensed psychologist experienced in the criminal justice system and not otherwise employed on a full-time basis by the Mental Health and Developmental Disability Services Division or a community mental health and developmental disabilities program;

(d) A member of the general public; and

(e) A lawyer with substantial experience in criminal trial practice.

(3) The term of office of each member is four years. The Governor at any time may remove any member for inefficiency, neglect of duty or malfeasance in office. Before the expiration of the term of a member, the Governor shall appoint a successor whose term begins on July 1 next following. A member is eligible for reappointment. If there is a vacancy for any cause, the Governor shall make an appointment to become immediately effective for the unexpired term.

(4) A member of the board not otherwise employed full time by the state, shall be paid on a per diem basis an amount equal to $212, adjusted according to the executive pay plan for the biennium, for each day during which the member is engaged in the performance of official duties, including necessary travel time. In addition, subject to ORS 292.220 to 292.250 regulating travel and other expenses of state officers and employees, the member shall be reimbursed for actual and necessary travel and other expenses incurred in the performance of official duties.

(5) Subject to any applicable provision of the State Personnel Relations Law, the board may hire employees to aid it in performing its duties.

(6)(a) The board shall select one of its members as chairperson to serve for a one-year term with such duties and powers as the board determines.

(b) A majority of the voting members of the board constitutes a quorum for the transaction of business.

(7) The board shall meet at least twice every month, unless the chairperson determines that there is not sufficient business before the board to warrant a meeting at the scheduled time. The board shall also meet at other times and places specified by the call of the chairperson or of a majority of the members of the board.

(8)(a) When a person over whom the board exercises its jurisdiction is adversely affected or aggrieved by a final order of the board, the person is entitled to judicial review of the final order. The person [shall be] is entitled on judicial review to suitable counsel possessing skills and experience commensurate with the nature and complexity of the case. If the person is [indigent] financially eligible, suitable counsel shall be appointed by the reviewing court in the manner provided in ORS 138.500 (1). If the person is [indigent, the reviewing court] financially eligible, the public defense services executive director shall determine and [allow] pay, as provided in ORS 138.500, the cost of briefs, any other expenses of the person necessary to the review and compensation for counsel appointed for the person. The costs, expenses and compensation so allowed shall be paid as provided in ORS 138.500.

(b) The order and the proceedings underlying the order are subject to review by the Court of Appeals upon petition to that court filed within 60 days of the order for which review is sought. The board shall submit to the court the record of the proceeding or, if the person agrees, a shortened record. The record may include a certified true copy of a tape recording of the proceedings at a hearing in accordance with ORS 161.346. A copy of the record transmitted shall be delivered to the person by the board.

(d) The filing of the petition shall not stay the board's order, but the board or the Court of Appeals may order a stay upon application on such terms as are deemed proper.

SECTION 71. ORS 427.265 is amended to read:

427.265. (1) At the time the allegedly mentally retarded person is brought before the court, the court shall advise the person of the reason for being brought before the court, the nature of the proceedings and the possible results of the proceedings. The court shall also advise the allegedly mentally retarded person of the right to subpoena witnesses and to suitable legal counsel possessing skills and experience commensurate with the nature of the allegations and complexity of the case during the proceedings, and that if the person does not have funds with which to retain suitable legal counsel, the court shall appoint such legal counsel to represent the person [without cost]. If the allegedly mentally retarded person does not request legal counsel, the legal guardian, relative or friend may request the assistance of legal counsel on behalf of the person.

(2) If no request for legal counsel is made, the court shall appoint suitable legal counsel.

(3) If the person is unable to afford legal counsel, the court, if the matter is before a county or justice court, or the public defense services executive director, if the matter is before the circuit court, shall determine and allow, as provided in ORS 135.055, the reasonable expenses of the person and compensation for legal counsel. The expenses and compensation so allowed by a county court shall be paid by the county of residence of the allegedly mentally retarded person. The expenses and compensation [so allowed by a circuit court] determined by the public defense services executive director shall be paid by the [state] public defense services executive director from funds available for the purpose. In all cases legal counsel shall be present at the hearing and may examine all witnesses offering testimony, and otherwise represent the person.

(4) If the allegedly mentally retarded person, the legal counsel, parent, guardian, an examiner or the court requests, the court may, for good cause, postpone the hearing for not more than 72 hours in order to allow preparation for the hearing. The court may, for good cause, order the continuation of detention authorized under ORS 427.255, during a postponement.

SECTION 72. ORS 427.275 is amended to read:

427.275. (1) Any physician or psychologist employed by the judge to make a diagnostic evaluation of a person alleged to be mentally retarded shall be allowed a fee as the court in its discretion determines reasonable for the evaluation. The costs of the evaluation shall be paid by the county of residence of the person or, if the person has no residence within the state, by the county in which the person is taken into custody. The county shall not be held responsible for the costs of prior examinations or tests reported to the court, or of diagnostic evaluations performed or arranged by the community mental health and developmental disabilities program or division.

(2) Witnesses subpoenaed to give testimony shall receive the same fees as are paid in criminal cases and are subject to compulsory attendance in the same manner as provided in ORS 136.567 to 136.603. The attendance of out-of-state witnesses may be secured in the same manner as provided in ORS 136.623 to 136.637. The party who subpoenas the witness or requests the court to subpoena the witness is responsible for payment of the cost of the subpoena and payment for the attendance of the witness at a hearing. When the witness has been subpoenaed on behalf of an [indigent] allegedly mentally retarded person who is represented by [court-appointed] appointed counsel, the fees and costs allowed for that witness shall be paid pursuant to ORS 135.055.

SECTION 73. ORS 427.295 is amended to read:

427.295. If a person determined by a court to be mentally retarded appeals the determination or disposition based thereon, and is [unable to afford suitable legal counsel possessing skills and experience commensurate with the nature and complexity of the case to represent the person on appeal] determined to be financially eligible for appointed counsel at state expense, the court, upon request of the person or upon its own motion, shall appoint suitable legal counsel to represent the person. The compensation for legal counsel and costs and expenses necessary to the appeal shall be determined and [allowed by the appellate court] paid by the public defense services executive director as provided in ORS 135.055 if the circuit court is the appellate court or as provided in ORS 138.500 if the Court of Appeals or Supreme Court is the appellate court. The compensation, costs and expenses so allowed shall be paid as provided in ORS 138.500.

SECTION 74. ORS 433.019 is amended to read:

433.019. (1) As used in this section, “subject of the petition” means the person or the property upon which the public health measure is sought to be imposed.

(2) Except as provided in ORS 433.022, proceedings for imposing a public health measure shall be initiated by filing a petition in the circuit court for the county in which the subject of the petition is located. If the property which is the subject of the petition is in more than one county, then the petition may be filed in the circuit court for any one of those counties. The petition shall name as the respondent, the person who is the subject of the petition or the person who possesses the property which is the subject of the petition. The petition shall be accompanied by an affidavit or affidavits based upon the investigation of the assistant director or the local public health administrator supporting the allegations in the petition. The petition shall describe the public health measure requested and shall allege:

(a)(A) The subject of the petition has, or contains persons or property having, an infectious agent of a communicable disease designated a reportable disease by the Health Division; or

(B) The subject of the petition is contaminated with or contains property contaminated with a toxic substance;

(b) The subject of the petition poses a substantial threat to public health;

(c) The respondent is unable or unwilling to behave or to control the subject of the petition so as not to expose other persons to danger of infection or contamination; and

(d) The public health measure requested is necessary and the least restrictive alternative measure under the circumstances to protect or preserve the public health.

(3) If the court, upon the basis of the affidavits, concludes that there is probable cause for the allegations in the petition, it shall issue a citation as provided in subsection (11) of this section. The court shall also issue a warrant of detention to the sheriff of the county or counties, directing the sheriff or the sheriff's designee to place the subject of the petition under custody.

(4) At the time the subject of the petition is placed under custody, the respondent shall be served certified copies of the warrant of detention, the citation and petition. The sheriff or designee shall also read the citation to the respondent and inform the respondent that a request for hearing may be made within 14 days by signing and filing with the petitioner a simple request form to be given to the respondent with the citation:

(a) If the respondent does not file a signed request for a hearing within 14 days of service of the citation, the petitioner shall so notify the court and the court shall have the respondent brought before it or communicate with the respondent by telephone. If the court then determines that the respondent does not request a hearing, it may, without hearing, order imposition of the requested public health measure effective for a period of time not to exceed 60 days or, if substantial medical evidence indicates that the condition is spread by the airborne route and either that it cannot be rendered noninfectious within 60 days or that it may recur after the public health measure is discontinued, for a period not to exceed 180 days. However, if at the time of inquiry by the court it determines that the respondent does request a hearing, one shall be conducted at a time and place the court may direct consistent with subsection (6) of this section.

(b) If the respondent files a signed request for a hearing within 14 days of service of the citation, the petitioner shall immediately notify the court and the court shall have the respondent brought before it or communicate with the respondent, or if represented the respondent's counsel, by telephone. If the request for hearing is confirmed, one shall be conducted at a time and place the court may direct consistent with subsection (6) of this section. If at the time of inquiry by the court it is determined that the respondent does not request a hearing, it may without hearing, order imposition of the requested public health measure effective for a period of time not to exceed 60 days or, if substantial medical evidence indicates that the condition is spread by the airborne route and either that it cannot be rendered noninfectious within 60 days or that it may recur after the public health measure is discontinued, for a period not to exceed 180 days.

(5) A person placed under custody under subsection (4) of this section may as appropriate and as directed by the court be held in a residence or in a health care or other facility consistent with the requirements of subsection (19) of this section and receive the care, custody and treatment required for mental and physical health and safety. The treating physician shall report any care, custody and treatment to the court as required in subsection (9) of this section. All methods of treatment, including the prescription and administration of drugs, shall be the sole responsibility of the treating physician. Property placed under custody shall be detained as described by the court either under the possession of the respondent or under the possession of the sheriff, or the sheriff's designee. Property detained under the possession of the sheriff will be provided care and treatment which is reasonable under the circumstances.

(6) The hearing may be held in the place where the subject of the petition is being held in custody or in some other place convenient to the court and the respondent. The hearing shall be held within three judicial days of the respondent's initial appearance before the court requesting a hearing. The court may for good cause, allow the person or property to be detained up to an additional 72 hours if additional time is requested by the respondent or the legal counsel of the respondent. The court may make any orders for the care and custody of the subject of the petition as it deems necessary.

(7) The petitioner shall prepare or cause to be prepared an investigative report setting forth the evidence on which the petition is based. A copy of the investigative report shall be provided upon request to the respondent and to the respondent's counsel. Copies shall likewise be provided to counsel assisting the court, to the examiners and to the court for the use in questioning witnesses in a hearing under this section.

(8) The provisions of ORS 40.230 to 40.240 shall not apply in a hearing under this section insofar as the information is relevant to the proceeding. Such evidence shall be disclosed only to the court, the examiners, the parties and their attorneys or persons authorized by the court and shall not be disclosed to the public.

(9) In a hearing under this section, the court shall be fully advised by the treating physician of all drugs and other treatment known to have been administered to the subject of the petition, which may be pertinent to the subject's infectious or contaminated state. The medical record of treatment shall be made available in order that the examiners may review the medical record of treatment and have an opportunity to inquire of the medical personnel concerning the treatment of the respondent during the detention period prior to the hearing. Such record shall be made available to counsel for said respondent at least 24 hours prior to the hearing.

(10) The person serving a warrant of detention, citation and petition provided for by subsection (4) of this section shall, immediately after service thereof, make a return showing the time, place and manner of such service and file it with the clerk of the court. In executing the warrant of detention, the person has all the powers provided by ORS 133.235 and 161.235 to 161.245 and may require the assistance of any peace officer or other person.

(11) The citation issued to the respondent shall state the nature of the proceedings and the public health measure requested in the petition. The citation shall further contain a notice that the respondent may file a request with the petitioner for a court hearing on the petition within 14 days and, if the respondent does not do so, the court will order imposition of the public health measure requested in the petition. The citation shall also notify of the right to legal counsel, the right to have legal counsel appointed if the respondent is unable to afford legal counsel, and, if requested, to have legal counsel immediately appointed, the right to subpoena witnesses in behalf of the respondent to the hearing and other information as the court may direct. The respondent shall have an opportunity to consult with legal counsel when requested.

(12) In a hearing under this section, the respondent shall have the right to cross-examine all witnesses, the person conducting the investigation, the examining physicians or other qualified persons who have examined the subject of the petition.

(13) At the time the respondent appears before the court, the court shall advise the respondent of the nature of the proceedings and the possible results of the proceedings. The court shall also advise respondent of the right to subpoena witnesses and to obtain suitable legal counsel possessing skills and experience commensurate with the nature of the allegations and complexity of the case during the proceedings, and if the respondent is an individual in custody under subsection (4) of this section and does not have funds with which to retain legal counsel, the court shall appoint legal counsel to represent the respondent [without cost]. If the respondent is an individual in custody under subsection (4) of this section and does not request legal counsel, the legal guardian, relative or friend may request the assistance of suitable legal counsel on behalf of the respondent.

(a) If no request for legal counsel is made by an individual in custody, the court shall appoint suitable legal counsel therefor unless counsel is expressly, knowingly and intelligently refused by the respondent.

(b) If the respondent is an individual in custody and is unable to afford legal counsel, the [court] public defense services executive director shall determine and [allow] pay, as provided in ORS 135.055, the reasonable expenses of the person and compensation for legal counsel. [The expenses and compensation so allowed shall be paid by the county if the petition was filed by the local public health administrator and by the state if the petition was filed by the assistant director.] In such cases suitable legal counsel shall be present at the hearing and examination and may examine all witnesses offering testimony, and otherwise represent the respondent and may be present in other cases.

(c) The governing body of the county shall designate either the district attorney or counsel appointed pursuant to ORS 203.145 to assist the court in the conduct of the hearing if the court requests assistance. If the person so designated has a conflict of interest in a particular case, the court may appoint private counsel to render such assistance.

(d) If the respondent, the legal counsel or guardian, or examiners request, the court may, for good cause, postpone the hearing for not more than 72 hours in order to allow preparation for the hearing. The court may make orders for the care and custody of the subject of the petition during a postponement as it deems necessary.

(14)(a) In the case where it is alleged that the subject of the petition has or contains an infectious agent of a communicable disease, when a hearing is requested the court shall appoint at least one competent physician, licensed by the Board of Medical Examiners for the State of Oregon and expert in the field of infectious diseases or public health to examine the respondent as to the matters alleged in the petition. The person appointed may be the county health officer or other person recommended by the local public health administrator.

(b) In the case where it is alleged that the subject of the petition is contaminated with a toxic substance, when a hearing is requested the court shall appoint an expert on the particular subject, who may be the county health officer or other person recommended by the local public health administrator, to examine the subject of the petition as to the matters alleged in the petition.

(c) If the respondent requests in writing that one additional examining physician or qualified person be appointed, or, in the absence of such request by the respondent, if such request is made by the legal guardian, relative or friend of the respondent, the court shall appoint an additional physician or other qualified person.

(15) The persons appointed to conduct the examination shall make their separate report in writing, under oath, to the court. The reports shall be filed immediately with the clerk of the court. If the examining persons find, and show by their reports, that the allegations described in subsection (2)(a) to (c) of this section are true, the reports shall include a recommendation as to whether the allegations described under subsection (2)(d) of this section are true or as to alternative measures that would satisfy subsection (2)(d) of this section.

(16) After hearing all of the evidence and reviewing the findings of the examining persons, the court shall determine the truth of the allegations contained in the petition and the need for the requested public health measure. If, based upon clear and convincing evidence, it is the opinion of the court that the allegations are true, the court shall order the requested order or such other measure the court deems appropriate to satisfy subsection (2)(d) of this section.

(17) The order shall be effective for a period of time not to exceed 60 days or, if substantial medical evidence indicates that the condition is spread by the airborne route and either that it cannot be rendered noninfectious within 60 days or that it may recur after the public health measure is discontinued, for a period not to exceed 180 days.

(18) If a respondent who is an individual in custody under subsection (4) of this section appeals the determination or disposition based thereon, and is [unable to afford suitable legal counsel possessing skills and experience commensurate with the nature and complexity of the case to represent the respondent on appeal] determined to be financially eligible for appointed counsel at state expense, the court, upon request of the respondent in custody or upon its own motion, shall appoint suitable legal counsel to represent the respondent. The compensation for legal counsel and costs and expenses necessary to the appeal shall be determined and [allowed by the appellate court as provided in ORS 138.500 and the compensation, costs and expenses so allowed shall be] paid as provided in ORS 138.500.

(19)(a) Any person who is not incarcerated upon a criminal charge and is the subject of a petition under this section, shall not be confined in any prison, jail or other enclosure where those charged with a crime or a violation of a municipal ordinance are incarcerated, unless the person represents an immediate and serious danger to staff or physical facilities of a hospital or other facility to which committed, or unless the person has been found in contempt of court because of failure to obey a court order or other public health measure.

(b) Any respondent who is the subject of a petition and has been taken into custody shall not be confined, either before or after the hearing, without an attendant in direct charge of the person. If the respondent is not confined in a health care facility, the sheriff having the person in custody shall select some suitable person to act as attendant in quarters suitable for the comfortable, safe and humane confinement of the person and approved by the assistant administrator or local public health administrator.

(20)(a) Upon receipt of the order of the court, the sheriff or the sheriff's designee shall take the subject of the petition into custody or continue custody, and insure the safekeeping and proper care of the subject until delivery is made to an assigned facility or other location. During custody of the subject, the sheriff or sheriff's designee or the representative of the facility has all the powers provided by ORS 133.225 and 161.255 and may require the assistance of any peace officer or other person.

(b) The court may authorize the guardian, custodian, friend or relative to transport the subject of the petition to the designated facility or location when the court determines that the means of transportation would not be detrimental to the welfare of the subject or to the public.

(21) The judge shall cause to be recorded and filed in the court records a full account of proceedings had at all hearings and examinations conducted pursuant to this section together with the judgments and orders of the court and a copy of the orders issued. If the respondent is the subject of the petition, the court clerk shall seal the record and it shall not be disclosed to any person except:

(a) The assistant administrator or local public health administrator;

(b) As provided in subsection (22) of this section;

(d) Pursuant to court order.

(22) If the subject of the petition is ordered committed to a facility, a copy of the judgment and orders of the court, medical records and such other information as the court deems necessary, certified by the court clerk shall be given to the sheriff, for delivery to the director of the facility to which such person is committed.

(23) The petitioner shall, by filing a written certificate with the ordering court, discharge the subject of the petition except when the subject is being held, upon an order of a court or judge having criminal jurisdiction, in an action or proceeding arising out of a criminal offense, when in the petitioner's opinion the matters alleged in the petition are no longer true.

(24)(a) At the end of the 60-day or 180-day period, the subject of the petition shall be released from an order imposing a public health measure under this section unless the petitioner certifies to the ordering court that the order should be continued. If the certification is made, the subject shall not be released from the order but the petitioner shall immediately issue a copy of the certification to the respondent.

(b) The certification shall be served upon the respondent by the sheriff or the sheriff's designee. The sheriff shall inform the court in writing that service has been made and the date thereof.

(A) That the petitioner has requested that the order be continued for an additional period of time;

(B) That the respondent may consult with legal counsel and that legal counsel shall be provided for the respondent who is an individual in custody without cost if the respondent is unable to afford legal counsel;

(C) That the respondent may protest this further extension of the order within 14 days and, if the respondent does not, it shall be continued for an indefinite period of time up to 60 days;

(D) That, if the respondent does protest a further extension of the order, the respondent is entitled to a hearing before the court on whether the order should be continued;

(E) That the respondent may protest in writing by signing a simple protest form accompanying the certification by filing it with the petitioner within 14 days;

(F) That the respondent is entitled to have a physician or other qualified person examine the subject of the petition and report to the court the results of the examination;

(G) That the respondent may subpoena witnesses and offer evidence on behalf of the respondent at the hearing; and

(H) That, if the respondent is an individual in custody and is without funds to retain legal counsel or an examining physician or qualified person, the court shall appoint legal counsel, a physician or other qualified person [at no cost to the respondent].

(25) The person serving the certification shall read and deliver the certification to the respondent. If the respondent does not file a protest of the extension of order within 14 days, the procedures in subsection (4)(a) of this section shall be followed before ordering an extension of the order. If the respondent files a protest of the extension of order, the procedures in subsection (4)(b) of this section shall be followed before setting a hearing on the extension of the order.

(26) If, at the time of inquiry by the court, it is determined that no hearing is requested by the respondent the court, without hearing, may order an extension of the order effective for a period of time not to exceed 60 days.

(27) If at the time of inquiry the respondent requests a hearing, the hearing shall be conducted as promptly as possible and at a time and place the court may direct. If the respondent requests a continuance in order to prepare for the hearing or to obtain legal counsel to represent the respondent, the court may grant a continuance for up to 72 hours for this purpose. In the event the respondent is an individual in custody and requests the appointment of legal counsel and is without funds to retain legal counsel, the court shall appoint legal counsel to represent the respondent [at no cost to the respondent]. If no request for legal counsel is made, the court shall appoint legal counsel to represent a respondent who is an individual in custody unless legal counsel is expressly, knowingly and intelligently refused by the respondent. If such respondent requests an examination by a physician or other qualified person and is without funds to retain a physician or other qualified person for purposes of the examination, the court shall appoint a physician or other qualified person, other than a member of the staff from the facility where the respondent may be confined, to examine the respondent at no expense to the respondent and to report to the court the results of the examination. The court shall then conduct a hearing and after hearing the evidence and reviewing the recommendations of the treating and examining physician or other qualified person, the court shall determine whether the order should be continued. If in the opinion of the court the allegations of the original petition are still applicable to the subject of the petition by clear and convincing evidence the court may continue the order for an additional indefinite period of time up to 60 days or may order such other measure to satisfy subsection (2)(d) of this section. At the end of the 60-day period, the subject of the petition shall be released unless the assistant director or local public health administrator again certifies to the committing court that the order should be extended in which event the procedures set forth in subsections (24) to (27) of this section shall be followed.

(28) Neither the assistant director or any local public health administrator, sheriff, peace officer, physician, attorney, judge or other person or entity shall in any way be held criminally or civilly liable for actions pursuant to this section and ORS 433.022 provided the actions are taken in good faith, without malice and based on reasonable belief.

(29) Failure to obey a court order or other public health measure issued under this section shall subject the individual in violation of the order or measure to contempt proceedings.

SECTION 75. ORS 436.265 is amended to read:

436.265. (1) If the respondent requests counsel but is [without sufficient financial means to employ suitable counsel possessing skills and experience commensurate with the nature of the petition and the complexity of the case] determined to be financially eligible for appointed counsel at state expense, the court shall appoint suitable counsel to represent the respondent at state expense.

(2) If the respondent is not represented by counsel and appears to be unable to request counsel, the court shall appoint suitable counsel to represent the respondent.

(3) Counsel appointed by the court shall be paid compensation [determined], as provided in ORS 135.055[, by the court]. [Where] When the court appoints counsel and the respondent is without sufficient financial means to employ counsel, the compensation for counsel and reasonable expenses of investigation, preparation and presentation paid or incurred shall be [allowed] determined and paid as provided in ORS 135.055.

SECTION 76. ORS 436.315 is amended to read:

436.315. If the respondent is [shown to be without sufficient financial means to employ suitable counsel possessing skills and experience commensurate with the nature and complexity of the case to represent the person in an appeal] determined to be financially eligible for appointed counsel at state expense, the court, upon the request of the person or upon its own motion, shall appoint suitable counsel to represent the respondent on appeal. Counsel appointed by the court shall be paid compensation [determined], as provided in ORS 138.500[, by the Court of Appeals]. Compensation for counsel and costs and expenses necessary shall be [allowed] determined and paid as provided in ORS 138.500.

SECTION 77. ORS 33.055 is amended to read:

33.055. (1) Except as otherwise provided in ORS 161.685, proceedings to impose remedial sanctions for contempt shall be conducted as provided in this section.

(2) The following persons may initiate the proceeding or, with leave of the court, participate in the proceeding, by filing a motion requesting that defendant be ordered to appear:

(a) A party aggrieved by an alleged contempt of court;

(b) A district attorney;

(d) The Attorney General; or

(e) Any other person specifically authorized by statute to seek imposition of sanctions for contempt.

(3) A motion to initiate a proceeding under this section shall be filed in the proceeding to which the contempt is related, if there is a related proceeding.

(4) The person initiating a proceeding under this section shall file supporting documentation or affidavits sufficient to give defendant notice of the specific acts alleged to constitute contempt.

(5)(a) The court may issue an order directing the defendant to appear. Except as otherwise provided in paragraph (b) of this subsection, the defendant shall be personally served with the order to appear in the manner provided in ORCP 7 and 9. The court may order service by a method other than personal service or issue an arrest warrant if, based upon motion and supporting affidavit, the court finds that the defendant cannot be personally served.

(b) The defendant shall be served by substituted service if personal service is waived under ORS 107.835. If personal service is waived under ORS 107.835, the defendant shall be served by the method specified in the waiver.

(6) The court may impose a remedial sanction only after affording the defendant opportunity for a hearing tried to the court. The defendant may waive the opportunity for a hearing by stipulated order filed with the court.

(7) A defendant has no right to a jury trial and, except as provided in this section, has only those rights accorded to a defendant in a civil action.

(8) A defendant is entitled to be represented by counsel. A court shall not impose on a defendant a remedial sanction of confinement unless, before the hearing is held, the defendant is:

(a) Informed that such sanction may be imposed; and

(b) Afforded the same right to [court-appointed] appointed counsel required in proceedings for the imposition of an equivalent punitive sanction of confinement.

(9) If the defendant is not represented by counsel when coming before the court, the court shall inform the defendant of the right to counsel, and of the right to appointed counsel if the defendant is entitled to, and financially eligible for, appointed counsel under subsection (8) of this section.

(10) Inability to comply with an order of the court is an affirmative defense.

(11) In any proceeding for imposition of a remedial sanction other than confinement, proof of contempt shall be by clear and convincing evidence. In any proceeding for imposition of a remedial sanction of confinement, proof of contempt shall be beyond a reasonable doubt.

(12) Proceedings under this section are subject to rules adopted under ORS 33.145. Proceedings under this section are not subject to the Oregon Rules of Civil Procedure except as provided in subsection (5) of this section or as may be provided in rules adopted under ORS 33.145.

SECTION 78. ORS 33.065 is amended to read:

33.065. (1) Except as otherwise provided in ORS 161.685, proceedings to impose punitive sanctions for contempt shall be conducted as provided in this section.

(2) The following persons may initiate the proceeding by an accusatory instrument charging a person with contempt of court and seeking a punitive sanction:

(a) A city attorney.

(b) A district attorney.

(3) If a city attorney, district attorney or Attorney General who regularly appears before the court declines to prosecute a contempt, and the court determines that remedial sanctions would not provide an effective alternative remedy, the court may appoint an attorney who is authorized to practice law in this state, and who is not counsel for an interested party, to prosecute the contempt. The court shall allow reasonable compensation for the appointed attorney's attendance, to be paid by:

(a) The Oregon Department of Administrative Services, if the attorney is appointed by the Supreme Court, the Court of Appeals or the Oregon Tax Court;

(b) The city where the court is located, if the attorney is appointed by a municipal court; and

(4) The prosecutor may initiate proceedings on the prosecutor's own initiative, on the request of a party to an action or proceeding or on the request of the court. After the prosecutor files an accusatory instrument, the court may issue any order or warrant necessary to compel the appearance of the defendant.

(5) Except as otherwise provided by this section, the accusatory instrument is subject to the same requirements and laws applicable to an accusatory instrument in a criminal proceeding, and all proceedings on the accusatory instrument shall be in the manner prescribed for criminal proceedings.

(6) Except for the right to a jury trial, the defendant is entitled to the constitutional and statutory protections, including the right to [court-appointed] appointed counsel, that a defendant would be entitled to in a criminal proceeding in which the fine or term of imprisonment that could be imposed is equivalent to the punitive sanctions sought in the contempt proceeding. This subsection does not affect any right to a jury that may otherwise be created by statute.

(7) Inability to comply with an order of the court is an affirmative defense. If the defendant proposes to rely in any way on evidence of inability to comply with an order of the court, the defendant shall, not less than five days before the trial of the cause, file and serve upon the city attorney, district attorney or Attorney General prosecuting the contempt a written notice of intent to offer that evidence. If the defendant fails to file and serve the notice, the defendant shall not be permitted to introduce evidence of inability to comply with an order of the court at the trial of the cause unless the court, in its discretion, permits such evidence to be introduced where just cause for failure to file the notice, or to file the notice within the time allowed, is made to appear.

(8) The court may impose a remedial sanction in addition to or in lieu of a punitive sanction.

(9) In any proceeding for imposition of a punitive sanction, proof of contempt shall be beyond a reasonable doubt.

SECTION 79. ORS 135.405 is amended to read:

135.405. (1) In cases in which it appears that the interest of the public in the effective administration of criminal justice would thereby be served, and in accordance with the criteria set forth in ORS 135.415, the district attorney may engage in plea discussions for the purpose of reaching a plea agreement.

(2) The district attorney shall engage in plea discussions or reach a plea agreement with the defendant only through defense counsel, except when, as a matter of record, the defendant has effectively waived the right of the defendant to counsel or, if the defendant is not eligible for [court-appointed] appointed counsel, has not retained counsel.

(3) The district attorney in reaching a plea agreement may agree to, but is not limited to, one or more of the following, as required by the circumstances of the individual case:

(a) To make or not to oppose favorable recommendations as to the sentence which should be imposed if the defendant enters a plea of guilty or no contest to the offense charged;

(b) To seek or not to oppose dismissal of the offense charged if the defendant enters a plea of guilty or no contest to another offense reasonably related to the defendant's conduct; or

(c) To seek or not to oppose dismissal of other charges or to refrain from bringing potential charges if the defendant enters a plea of guilty or no contest to the offense charged.

(4) Similarly situated defendants should be afforded equal plea agreement opportunities.

SECTION 80. ORS 192.502 is amended to read:

192.502. The following public records are exempt from disclosure under ORS 192.410 to 192.505:

(1) Communications within a public body or between public bodies of an advisory nature to the extent that they cover other than purely factual materials and are preliminary to any final agency determination of policy or action. This exemption shall not apply unless the public body shows that in the particular instance the public interest in encouraging frank communication between officials and employees of public bodies clearly outweighs the public interest in disclosure.

(2) Information of a personal nature such as but not limited to that kept in a personal, medical or similar file, if the public disclosure thereof would constitute an unreasonable invasion of privacy, unless the public interest by clear and convincing evidence requires disclosure in the particular instance. The party seeking disclosure shall have the burden of showing that public disclosure would not constitute an unreasonable invasion of privacy.

(3)(a) Public body employee or volunteer addresses, dates of birth and telephone numbers contained in personnel records maintained by the public body that is the employer or the recipient of volunteer services. This exemption does not apply:

(A) To such employees or volunteers if they are elected officials, except that a judge or district attorney subject to election may seek to exempt the judge's or district attorney's address or telephone number, or both, under the terms of ORS 192.445;

(B) To such employees or volunteers to the extent that the party seeking disclosure shows by clear and convincing evidence that the public interest requires disclosure in a particular instance; or

(C) To a substitute teacher as defined in ORS 342.815 when requested by a professional education association of which the substitute teacher may be a member.

(b) Nothing in this subsection exempting employee records from disclosure relieves a public employer of any duty under ORS 243.650 to 243.782.

(4) Information submitted to a public body in confidence and not otherwise required by law to be submitted, where such information should reasonably be considered confidential, the public body has obliged itself in good faith not to disclose the information, and when the public interest would suffer by the disclosure.

(5) Information or records of the Department of Corrections, including the State Board of Parole and Post-Prison Supervision, to the extent that disclosure thereof would interfere with the rehabilitation of a person in custody of the department or substantially prejudice or prevent the carrying out of the functions of the department, if the public interest in confidentiality clearly outweighs the public interest in disclosure.

(6) Records, reports and other information received or compiled by the Director of the Department of Consumer and Business Services in the administration of ORS chapters 723 and 725 not otherwise required by law to be made public, to the extent that the interests of lending institutions, their officers, employees and customers in preserving the confidentiality of such information outweighs the public interest in disclosure.

(7) Reports made to or filed with the court under ORS 137.077 or 137.530.

(8) Any public records or information the disclosure of which is prohibited by federal law or regulations.

(9) Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential or privileged under Oregon law.

(10) Public records or information described in this section, furnished by the public body originally compiling, preparing or receiving them to any other public officer or public body in connection with performance of the duties of the recipient, if the considerations originally giving rise to the confidential or exempt nature of the public records or information remain applicable.

(11) Records of the Energy Facility Siting Council concerning the review or approval of security programs pursuant to ORS 469.530.

(12) Employee and retiree address, telephone number and other nonfinancial membership records and employee financial records maintained by the Public Employees Retirement System pursuant to ORS chapter 238 and ORS 238.410.

(13) Records submitted by private persons or businesses to the State Treasurer or the Oregon Investment Council relating to proposed acquisition, exchange or liquidation of public investments under ORS chapter 293 may be treated as exempt from disclosure when and only to the extent that disclosure of such records reasonably may be expected to substantially limit the ability of the Oregon Investment Council to effectively compete or negotiate for, solicit or conclude such transactions. Records which relate to concluded transactions are not subject to this exemption.

(14) The monthly reports prepared and submitted under ORS 293.761 and 293.766 concerning the Public Employees Retirement Fund and the Industrial Accident Fund may be uniformly treated as exempt from disclosure for a period of up to 90 days after the end of the calendar quarter.

(15) Reports of unclaimed property filed by the holders of such property to the extent permitted by ORS 98.352.

(16) The following records, communications and information submitted to the Oregon Economic and Community Development Commission, the Economic and Community Development Department, the State Department of Agriculture, the Oregon Resource and Technology Development Account or the Oregon Resource and Technology Development Account Board, the Port of Portland or other ports, as defined in ORS 777.005, by applicants for investment funds, loans or services including, but not limited to, those described in ORS 285A.224:

(a) Personal financial statements.

(b) Financial statements of applicants.

(d) Information of an applicant pertaining to litigation to which the applicant is a party if the complaint has been filed, or if the complaint has not been filed, if the applicant shows that such litigation is reasonably likely to occur; this exemption does not apply to litigation which has been concluded, and nothing in this paragraph shall limit any right or opportunity granted by discovery or deposition statutes to a party to litigation or potential litigation.

(e) Production, sales and cost data.

(f) Marketing strategy information that relates to applicant's plan to address specific markets and applicant's strategy regarding specific competitors.

(17) Records, reports or returns submitted by private concerns or enterprises required by law to be submitted to or inspected by a governmental body to allow it to determine the amount of any transient lodging tax payable and the amounts of such tax payable or paid, to the extent that such information is in a form which would permit identification of the individual concern or enterprise. Nothing in this subsection shall limit the use which can be made of such information for regulatory purposes or its admissibility in any enforcement proceedings. The public body shall notify the taxpayer of the delinquency immediately by certified mail. However, in the event that the payment or delivery of transient lodging taxes otherwise due to a public body is delinquent by over 60 days, the public body shall disclose, upon the request of any person, the following information:

(a) The identity of the individual concern or enterprise that is delinquent over 60 days in the payment or delivery of the taxes.

(b) The period for which the taxes are delinquent.

(18) All information supplied by a person under ORS [151.430 to 151.491] 151.485 for the purpose of requesting [court-appointed] appointed counsel, and all information supplied to the [State Court Administrator] court from whatever source for the purpose of verifying [indigency] the financial eligibility of a person pursuant to ORS [151.430 to 151.491] 151.485.

(19) Workers' compensation claim records of the Department of Consumer and Business Services, except in accordance with rules adopted by the Director of the Department of Consumer and Business Services, in any of the following circumstances:

(a) When necessary for insurers, self-insured employers and third party claim administrators to process workers' compensation claims.

(b) When necessary for the director, other governmental agencies of this state or the United States to carry out their duties, functions or powers.

(c) When the disclosure is made in such a manner that the disclosed information cannot be used to identify any worker who is the subject of a claim.

(d) When a worker or the worker's representative requests review of the worker's claim record.

(20) Sensitive business records or financial or commercial information of the Oregon Health Sciences University that is not customarily provided to business competitors.

(21) Records of Oregon Health Sciences University regarding candidates for the position of president of the university.

(22) The records of a library, including circulation records, showing use of specific library material by a named person or consisting of the name of a library patron together with the address or telephone number, or both, of the patron.

(23) The following records, communications and information submitted to the Housing and Community Services Department by applicants for and recipients of loans, grants and tax credits:

(a) Personal and corporate financial statements and information, including tax returns.

(b) Credit reports.

(d) Market studies and analyses.

(e) Articles of incorporation, partnership agreements and operating agreements.

(f) Commitment letters.

(g) Project pro forma statements.

(h) Project cost certifications and cost data.

(i) Audits.

(j) Project tenant correspondence requested to be confidential.

(k) Tenant files relating to certification.

(L) Housing assistance payment requests.

(24) Raster geographic information system (GIS) digital databases, provided by private forestland owners or their representatives, voluntarily and in confidence to the State Forestry Department, that is not otherwise required by law to be submitted.

(25) Sensitive business, commercial or financial information furnished to or developed by a public body engaged in the business of providing electricity or electricity services, if the information is directly related to a transaction described in ORS 261.348, or if the information is directly related to a bid, proposal or negotiations for the sale or purchase of electricity or electricity services, and disclosure of the information would cause a competitive disadvantage for the public body or its retail electricity customers. This subsection does not apply to cost-of-service studies used in the development or review of generally applicable rate schedules.

(26) Sensitive business, commercial or financial information furnished to or developed by the City of Klamath Falls, acting solely in connection with the ownership and operation of the Klamath Cogeneration Project, if the information is directly related to a transaction described in ORS 225.085 and disclosure of the information would cause a competitive disadvantage for the Klamath Cogeneration Project. This subsection does not apply to cost-of-service studies used in the development or review of generally applicable rate schedules.

(27) Personally identifiable information about customers of a municipal electric utility or a people's utility district. The utility or district may, however, release such information to a third party if the customer consents in writing or electronically, if the disclosure is necessary to render utility or district services to the customer, or if the disclosure is required pursuant to a court order. The utility or district may charge as appropriate for the costs of providing such information. The utility or district may make customer records available to third party credit agencies on a regular basis in connection with the establishment and management of customer accounts or in the event such accounts are delinquent.

(28) A record of the street and number of an employee's address submitted to a special district to obtain assistance in promoting an alternative to single occupant motor vehicle transportation.

(29) Except under the provisions of section 8 (2), chapter 1059, Oregon Laws 1999, pesticide sales or use reporting data obtained by the State Department of Agriculture exclusively under the provisions of sections 2 to 9, chapter 1059, Oregon Laws 1999, that would reveal the identity or specific location of the owner or lessee of a specific property where a pesticide has been applied for a private agriculture or forestry production operation, or other nonpublic facility on private property. Nothing in this subsection shall limit the use that may be made of such information for regulatory purposes or its admissibility in any enforcement proceedings.

(30) Sensitive business records, capital development plans or financial or commercial information of Oregon Corrections Enterprises that is not customarily provided to business competitors.

SECTION 81. ORS 192.502, as amended by section 16, chapter 1059, Oregon Laws 1999, is amended to read: