Chapter 595
Oregon Laws 2011
AN ACT
HB 2710
Relating to
courts; creating new provisions; amending ORS 1.202, 2.560, 8.125, 9.572,
9.576, 9.820, 18.999, 20.190, 21.010, 21.125, 21.270, 21.615, 24.115, 24.135,
24.190, 34.340, 36.520, 36.522, 36.524, 36.610, 36.615, 46.405, 46.425, 46.455,
46.461, 46.465, 46.475, 46.488, 46.570, 51.080, 51.310, 52.635, 55.011, 55.095,
105.130, 105.938, 106.120, 107.434, 107.795, 109.100, 109.787, 110.426,
112.820, 114.515, 114.720, 125.060, 125.075, 125.605, 125.842, 125.845,
130.045, 130.355, 130.400, 133.055, 135.265, 135.921, 137.225, 137.540,
138.560, 166.274, 180.345, 181.823, 181.826, 182.040, 205.360, 305.490,
352.066, 417.825, 419B.529, 419B.555, 701.133, 813.210 and 813.240 and sections
2, 4, 6, 8, 10, 12, 13, 15, 17, 20, 22, 25, 26, 27, 29, 31, 32, 33, 35, 37 and
38, chapter 659, Oregon Laws 2009, section 37g, chapter 885, Oregon Laws 2009,
sections 35, 42, 45, 48 and 51, chapter 107, Oregon Laws 2010, section 1,
chapter 224, Oregon Laws 2011 (Enrolled House Bill 2367), section 27, chapter
271, Oregon Laws 2011 (Enrolled Senate Bill 408), section 3, chapter 719,
Oregon Laws 2011 (Enrolled House Bill 2104), and section 5, chapter 671, Oregon
Laws 2011 (Enrolled House Bill 3075); repealing ORS 1.204, 2.565, 9.574, 9.830,
9.840, 9.850, 21.040, 21.110, 21.111, 21.112, 21.114, 21.275, 21.310, 21.325,
21.335, 21.350, 21.420, 21.480, 21.580, 21.660, 21.670, 21.730, 21.990, 36.170,
108.130, 352.655, 458.350, 458.355, 458.360 and 458.365 and section 1, chapter
659, Oregon Laws 2009, sections 3 and 4, chapter 271, Oregon Laws 2011
(Enrolled Senate Bill 408), sections 2 and 5, chapter 719, Oregon Laws 2011
(Enrolled House Bill 2104), and section 4, chapter 671, Oregon Laws 2011
(Enrolled House Bill 3075); appropriating money; declaring an emergency; and
providing for revenue raising that requires approval by a three-fifths
majority.
Be It Enacted by the People of the State of Oregon:
DEPOSIT OF
COURT FEES AND CHARGES
SECTION 1. Transfers to General
Fund. Except as otherwise provided by law, all amounts collected as
fees and charges in the Supreme Court, the Court of Appeals, the Oregon Tax
Court and the circuit courts shall be transferred to the State Court
Administrator for deposit in the General Fund.
SECTION 2. Section 1 of this 2011
Act applies to all fees and charges collected in courts on or after the
effective date of this 2011 Act.
SECTION 3. Legislative intent
relating to funding certain programs, services and activities. It is the
intent of the Legislative Assembly that funding be provided to the following
entities by appropriations each biennium to fund programs, services and
activities that were funded through court fees before the 2011-2013 biennium:
(1) To the counties of this state for
the purposes of funding mediation services, conciliation services and other
services in domestic relations cases.
(2) To the counties of this state for
the purposes of funding the operation of law libraries or of providing law
library services.
(3) To the Oregon University System to
fund the programs and expenses of the Mark O. Hatfield School of Government and
the University of Oregon School of Law under ORS 36.100 to 36.238 and 183.502.
(4) To the Housing and Community
Services Department for the purpose of funding programs that defray the cost of
rent for dwelling units for very low income households.
(5) To the Oregon University System to
fund clinical legal education programs at accredited institutions of higher
education that provide civil legal services to victims of domestic violence,
stalking or sexual assault.
(6) To the State Department of
Agriculture for the purpose of funding mediation programs established by the
department, other than individual farm credit mediations.
(7) To the Judicial Department for the
purposes of funding the appellate mediation program established under ORS
2.560.
(8) To the Department of Human
Services for the funding of the Office of Children’s Advocate.
LEGAL AID
SECTION 3a. Legal Aid Account.
(1) The Legal Aid Account is established in the General Fund of the State
Treasury. All moneys in the account are continuously appropriated to the State
Court Administrator for the purpose of the distributions required by this
section. Interest earned by the account shall be credited to the General Fund.
(2) Each month, the State Court
Administrator shall transfer to the Legal Aid Account, from amounts collected
by the State Court Administrator as fees and charges in the circuit courts, the
amounts necessary to make the distributions required by subsection (3) of this
section.
(3) Each biennium, the State Court
Administrator shall distribute to the Oregon State Bar $11.9 million from the
Legal Aid Account. Distributions under this section shall be made by the State
Court Administrator in eight quarterly installments of equal amounts, with the
first distribution to be made as soon as possible after July 1, 2011. Amounts
distributed to the Oregon State Bar under this subsection may be used only for
the funding of the Legal Services Program established under ORS 9.572.
CIRCUIT COURT
FILING FEES
(Payment)
SECTION 4. Filing fees payable
in advance. A pleading or other document may be filed by the circuit court
only if the filing fee required by law is paid by the person filing the
document or a request for a fee waiver or deferral is granted by the court.
Filing fees are not refundable under any circumstances. Unless otherwise
specifically provided by statute, the filing fee for an action or proceeding is
the only fee or charge that may be collected for the filing, whether by the
court or any other public body, as defined by ORS 174.109.
SECTION 5. Caption of pleading;
amended pleadings. (1) The caption of any complaint or other
document filed in a circuit court for the purpose of commencing an action or
other civil proceeding must include a reference to the statute that establishes
the filing fee for the proceeding. If the proceeding is subject to a filing fee
established under section 15 of this 2011 Act, the caption must indicate the
amount in controversy. If the proceeding is subject to a filing fee established
under section 21 or 28 of this 2011 Act, the caption must indicate the value of
the estate.
(2) If at any time a party files an
amended pleading in a proceeding that is subject to a filing fee established
under section 15, 21 or 28 of this 2011 Act, and the pleading increases the
amount in controversy or the value of the estate in the proceeding, the caption
of the pleading must note that increased amount. The court shall collect an
additional filing fee from the party filing the pleading that is equal to the
difference between the filing fee that was paid by the party when the original
pleading was filed and the filing fee that would have been collected if the
amount had been pleaded in the original pleading.
(3) If at any time the court
determines that a party has failed to comply with the requirements of this
section, the court may require that the party pay all fees that should have
been paid at the time the document was filed.
SECTION 6. Section 5 of this 2011
Act applies only to proceedings commenced on or after October 1, 2011. Any
proceeding commenced before October 1, 2011, shall continue to be governed by
the law in effect immediately before October 1, 2011.
(Standard
Filing Fee)
SECTION 7. ORS 21.110 is repealed.
SECTION 7a. The repeal of ORS
21.110 by section 7 of this 2011 Act becomes operative immediately after the
amendments to ORS 21.110 by section 31, chapter 107, Oregon Laws 2010, become
operative under section 17, chapter 659, Oregon Laws 2009, as amended by
section 143 of this 2011 Act.
SECTION 8. Standard filing fee.
(1) Unless a specific fee is provided by other law for a proceeding, a circuit
court shall collect a filing fee of $240 when a complaint or other document is
filed for the purpose of commencing an action or other civil proceeding and
when an answer or other first appearance is filed in the proceeding.
(2) The filing fee established by this
section applies to:
(a) Proceedings in which only
equitable remedies are sought.
(b) Appeals from a conviction of a
violation in justice or municipal courts as provided in ORS 21.615.
(c) Interpleader actions.
(d) Adoptions under ORS chapter 109.
(e) Actions relating to a trust.
(f) Proceedings for judicial review of
an agency order.
(g) Declaratory judgment actions.
(h) Any other action or proceeding
that is statutorily made subject to the fee established by this section and any
other civil proceeding for which a specific filing fee is not provided.
SECTION 9. Section 8 of this 2011
Act applies only to proceedings commenced on or after October 1, 2011.
(Domestic
Relations Filing Fee)
SECTION 10. ORS 21.111 and 108.130
are repealed.
SECTION 11. Domestic relations
filing fee. A circuit court shall collect a filing fee of $260 when
a complaint or other document is filed for the purpose of commencing one of the
following proceedings and when an answer or other first appearance is filed in
the proceeding:
(1) Proceedings for dissolution of
marriage, annulment of marriage or separation.
(2) Filiation proceedings under ORS
109.124 to 109.230.
(3) Proceedings under ORS 108.110,
109.100 and 109.103.
SECTION 12. Section 11 of this
2011 Act applies only to proceedings commenced on or after October 1, 2011.
(Simple
Proceeding Filing Fee)
SECTION 13. Simple proceeding
filing fee. In the following proceedings, a circuit court shall
collect a filing fee of $105 when a complaint or other document is filed for
the purpose of commencing an action or other proceeding and at the time of
filing an answer or other first appearance in the proceeding:
(1) Applications for change of name
under ORS 33.410.
(2) Applications for a legal change of
sex under ORS 33.460.
(3) Guardianship proceedings under ORS
chapter 125.
(4) Any other action or proceeding
that is statutorily made subject to the fee established by this section.
SECTION 14. Section 13 of this
2011 Act applies only to proceedings commenced on or after October 1, 2011.
(Tort and
Contract Actions)
SECTION 15. Filing fee for tort
and contract actions. (1) A circuit court shall collect the following
filing fees when a complaint or other document is filed for the purpose of
commencing an action or other civil proceeding based on a tort or contract and
when an answer or other first appearance is filed in the proceeding:
(a) If the amount claimed is $10,000
or less, the court shall collect a filing fee of $150.
(b) If the amount claimed is more than
$10,000 and less than $50,000, the court shall collect a filing fee of $240.
(c) If the amount claimed is more than
$50,000, and less than $1 million, the court shall collect a filing fee of
$505.
(d) If the amount claimed is $1
million or more and less than $10 million, the court shall collect a fee of
$755.
(e) If the amount claimed is $10
million or more, the court shall collect a filing fee of $1,005.
(2) The filing fees provided by this
section apply to proceedings for the foreclosure of a mortgage, lien or other
security interest. For the purposes of such proceedings, the amount claimed is
the amount of the debt secured by the mortgage, lien or other security interest
that is owing as of the date that the proceeding is filed.
(3) The filing fees provided by this
section apply to proceedings for specific performance of a contract. For the
purposes of such proceedings, the amount claimed is the amount owing under the
contract on the date that the proceeding is filed.
(4) A court shall collect the filing
fees provided by this section when an appeal from a justice court is filed
under ORS 53.005 to 53.125 or a case is transferred from a justice court under
ORS 52.320.
(5) For purposes of this section, the
amount claimed in a proceeding does not include any amount claimed as attorney
fees or as costs and disbursements.
(6) For purposes of this section, the
amount claimed in a proceeding includes any penalty or forfeiture provided by
statute or arising out of contract.
SECTION 16. Section 15 of this
2011 Act applies only to proceedings commenced on or after October 1, 2011.
(Filing Fees
for Support Enforcement Cases)
SECTION 16a. The filing fees
described sections 8, 11, 13 and 15 of this 2011 Act may not be charged to a
district attorney or to the Division of Child Support of the Department of
Justice for the filing of any proceeding related to the provision of support
enforcement services as described in ORS 25.080.
(Adoption and
Change of Name)
SECTION 17. ORS 21.114 is
repealed.
SECTION 18. ORS 419B.529 is amended
to read:
419B.529. (1) Notwithstanding ORS
109.309, a prospective adoptive parent is not required to file a petition for
adoption when:
(a) A juvenile court that is a circuit
court has entered an order of permanent commitment of a ward to the Department
of Human Services under ORS 419B.527 or the parent has signed and the
department has accepted a release and surrender to the department and a
certificate of irrevocability and waiver as provided in ORS 418.270 regarding a
child;
(b) The department has completed a
home study as defined in ORS 109.304 that finds the prospective parent is
suitable to adopt the child or ward and the department consents to the adoption
of the child or ward by the prospective parent;
(c) A home study and a placement
report requesting the juvenile court to enter a judgment of adoption have been
filed in the juvenile court proceeding; and
(d) At the time the placement report
is filed under paragraph (c) of this subsection, the prospective adoptive
parent files the adoption report form required under ORS 109.400.
(2) Notwithstanding [ORS 21.114] section 8 of this 2011
Act, the clerk of the juvenile court may not charge or collect first
appearance [or hearing] fees for a
proceeding under this section.
(3) After the filing of the home study
and the placement report requesting the court to enter a judgment of adoption,
the juvenile court that entered the order of permanent commitment may proceed
as provided in ORS 109.307 and 109.350 and may enter a judgment of adoption.
(4) Records of adoptions filed and
established under this section shall be kept in accordance with, and are
subject to, ORS 7.211.
SECTION 19. The amendments to ORS
419B.529 by section 18 of this 2011 Act apply only to proceedings commenced on
or after October 1, 2011.
(Probate)
SECTION 20. ORS 21.310 is
repealed.
SECTION 21. Probate filing fees
and accounting fees. (1) Except as provided in ORS 114.515, a
probate court shall collect the following filing fees for the filing of a
petition for the appointment of personal representative:
(a) If the value of the estate is less
than $50,000, $240.
(b) If the value of the estate is
$50,000 or more, but less than $1 million, $505.
(c) If the value of the estate is $1
million or more, but less than $10 million, $755.
(d) If the value of the estate is $10
million or more, $1,005.
(2) A probate court shall collect the
following fees for an annual or final accounting filed in a probate proceeding:
(a) If the value of the estate is less
than $50,000, $30.
(b) If the value of the estate is
$50,000 or more, but less than $1 million, $255.
(c) If the value of the estate is $1
million or more, but less than $10 million, $505.
(d) If the value of the estate is $10
million or more, $1,005.
(3) For the purpose of determining the
value of the estate under this section, the amount of a settlement in a
wrongful death action brought for the benefit of the decedent’s surviving
spouse or dependents is not part of the estate.
(4) A person filing an appearance in a
probate proceeding must pay the fee established under section 8 of this 2011
Act.
(5) The fees established under this
section apply to county courts exercising probate jurisdiction.
SECTION 22. ORS 114.515 is amended to
read:
114.515. (1) If the estate of a
decedent meets the requirements of subsection (2) of this section, any of the
following persons may file an affidavit with the clerk of the probate court in
any county where there is venue for a proceeding seeking the appointment of a
personal representative for the estate:
(a) One or more of the claiming
successors of the decedent.
(b) If the decedent died testate, any
person named as personal representative in the decedent’s will.
(c) The Director of Human Services,
the Director of the Oregon Health Authority or an attorney approved under ORS
114.517, if the decedent received public assistance pursuant to ORS chapter 411
or 414 or received care at an institution as defined in ORS 179.010, and it
appears that the assistance or the cost of care may be recovered from the
estate of the decedent.
(2) An affidavit under this section
may be filed only if:
(a) The fair market value of the
estate is $275,000 or less;
(b) Not more than $75,000 of the fair
market value of the estate is attributable to personal property; and
(c) Not more than $200,000 of the fair
market value of the estate is attributable to real property.
(3) An affidavit under this section
may not be filed until 30 days after the death of the decedent.
(4) An affidavit filed under the
provisions of this section must contain the information required in ORS 114.525
and shall be made a part of the probate records. If the affiant is an attorney
approved by the Director of Human Services or the Director of the Oregon Health
Authority, a copy of the document approving the attorney must be attached to
the affidavit.
(5) In determining fair market value
under this section, the fair market value of the entire interest in the
property included in the estate shall be used without reduction for liens or
other debts.
(6) The clerk of the probate court shall
charge and collect [a fee of $23]
the fee established under section 13 of this 2011 Act for the filing of any
affidavit under this section.
(7) Any error or omission in an
affidavit filed under this section may be corrected by filing an amended
affidavit within four months after the filing of the affidavit.
(8) One or more supplemental
affidavits may be filed at any time after the filing of an affidavit under this
section for the purpose of including property not described in the original
affidavit. Copies of all previously filed affidavits must be attached to the
supplemental affidavit and all information required in ORS 114.525 must be
reflected in the supplemental affidavit. A supplemental affidavit may not be
filed if by reason of the additional property described in the supplemental
affidavit any limitation imposed by subsection (2) of this section is exceeded.
SECTION 23. Section 21 of this
2011 Act and the amendments to ORS 114.515 by section 22 of this 2011 Act apply
only to proceedings commenced on or after October 1, 2011.
SECTION 24. Section 25 of this
2011 Act is added to and made a part of ORS 114.505 to 114.560.
SECTION 25. (1) A person filing a
petition for summary determination under ORS 114.540 or a petition for summary
review of administration of estate under ORS 114.550, or any other appearance
in a proceeding under ORS 114.505 to 114.560, must pay the filing fee
established under section 8 of this 2011 Act.
(2) If at any time after the filing of
an affidavit under ORS 114.515 a petition for appointment of a personal
representative is filed for the same estate, the person filing the petition
must pay the fees established under section 21 of this 2011 Act.
SECTION 26. Section 25 of this
2011 Act applies only to proceedings commenced on or after October 1, 2011.
(Protective
Proceedings)
SECTION 27. Guardianship filing
fees. (1) A circuit court shall collect the filing fee established
under section 13 of this 2011 Act for the filing of the initial documents in a
guardianship proceeding and for filing an appearance in a guardianship
proceeding.
(2) The fees established under this
section apply to county courts exercising probate jurisdiction.
SECTION 28. Conservatorship
filing fees and accounting fees.(1) The court shall collect the following
filing fees for the filing of the initial documents in a conservatorship
proceeding:
(a) If the value of the estate is less
than $50,000, $240.
(b) If the value of the estate is
$50,000 or more, but less than $1 million, $505.
(c) If the value of the estate is $1
million or more, but less than $10 million, $755.
(d) If the value of the estate is $10
million or more, $1,005.
(2) The court shall collect the
following fees for an annual or final accounting filed in a conservatorship
proceeding:
(a) If the value of the estate is less
than $50,000, $30.
(b) If the value of the estate is
$50,000 or more, but less than $1 million, $255.
(c) If the value of the estate is $1
million or more, but less than $10 million, $505.
(d) If the value of the estate is $10
million or more, $1,005.
(3) For the purpose of determining the
value of the estate under this section, the amount of a settlement in a
wrongful death action brought for the benefit of the decedent’s surviving
spouse or dependents is not part of the estate.
(4) Except as provided in subsection
(1) of this section, at the time of filing an appearance in a conservatorship
proceeding the party filing the appearance must pay the filing fee established
under section 8 of this 2011 Act.
(5) The fees established by this
section apply to county courts exercising probate jurisdiction.
SECTION 29. ORS 112.820 is amended to
read:
112.820. (1) An attorney authorized to
destroy a will under ORS 112.815 may proceed as follows:
(a) The attorney shall first publish a
notice in a newspaper of general circulation in the county of the last-known
address of the testator, if any, otherwise in the county of the principal place
of business of the attorney. The notice shall state the name of the testator, the
date of the will and the intent of the attorney to destroy the will if the
testator does not contact the attorney within 90 days after the date of the
notice.
(b) If the testator fails to contact
the attorney within 90 days after the date of the notice, the attorney may
destroy the will.
(c) Within 30 days after destruction
of the will, the attorney shall file with the probate court in the county where
the notice was published an affidavit stating the name of the testator, the
name and relationship of each person named in the will whom the testator
identified as related to the testator by blood, adoption or marriage, the date
of the will, proof of the publication and the date of destruction.
(d) The clerk of the probate court
shall charge and collect [a fee of $17]
the fee established under section 13 of this 2011 Act for filing of the
affidavit.
(2) If a will has not been admitted to
probate within 40 years following the death of the testator, an attorney having
custody of the will may destroy the will without notice to any person or court.
SECTION 30. ORS 130.045 is amended to
read:
130.045. (1) For purposes of this
section, “interested persons” means any settlor of a trust who is living, all
beneficiaries of the trust who have an interest in the subject of the
agreement, any acting trustee of the trust, and the Attorney General if the
trust is a charitable trust subject to the enforcement or supervisory powers of
the state or the Attorney General under the provisions of ORS 128.610 to
128.750.
(2) Except as otherwise provided in
subsection (3) of this section, interested persons may enter into a binding
nonjudicial settlement agreement with respect to any matter involving a trust.
(3) A nonjudicial settlement agreement
is valid only to the extent the agreement does not violate a material purpose
of the trust and includes terms and conditions that could be properly approved
by the court under this chapter or other applicable law.
(4) Matters that may be resolved by a
nonjudicial settlement agreement include:
(a) The interpretation or construction
of the terms of the trust or other writings that affect the trust.
(b) The approval of a trustee’s report
or accounting.
(c) Direction to a trustee to refrain
from performing a particular act or the grant to a trustee of any necessary or
desirable power.
(d) The resignation or appointment of
a trustee and the determination of a trustee’s compensation.
(e) Transfer of a trust’s principal
place of administration.
(f) Liability of a trustee for an
action or failure to act relating to the trust.
(g) Determining classes of creditors,
beneficiaries, heirs, next of kin or other persons.
(h) Resolving disputes arising out of
the administration or distribution of the trust.
(i) Modifying the terms of the trust,
including extending or reducing the period during which the trust operates.
(5)(a) Any interested person may file
a settlement agreement entered into under this section, or a memorandum
summarizing the provisions of the agreement, with the circuit court for any
county where trust assets are located or where the trustee administers the
trust.
(b) After collecting the fee provided
for in subsection (7)[(a)] of this
section, the clerk shall enter the agreement or memorandum of record in the
court’s register.
(c) Within five days after the filing
of an agreement or memorandum under this subsection, the person making the
filing must serve a notice of the filing and a copy of the agreement or
memorandum on each person interested in the trust whose address is known at the
time of the filing. Service may be made personally, or by registered or
certified mail, return receipt requested. The notice of filing shall be
substantially in the following form:
______________________________________________________________________________
CAPTION NOTICE OF FILING OF
OF CASE SETTLEMENT AGREEMENT
OR MEMORANDUM OF
SETTLEMENT AGREEMENT
You are hereby notified that the
attached document was filed by the undersigned in the above entitled court on
the ____ day of______,___. Unless you file objections to the agreement within
120 days after that date, the agreement will be approved and will be binding on
all persons interested in the trust.
If you file objections within the
120-day period, the court will fix a time and place for a hearing. At least 10
days before the date of that hearing, you must serve a copy of your objections
and give notice of the time and place of the hearing to all persons interested
in the trust. See ORS 130.045.
__________________
Signature
______________________________________________________________________________
(d) Proof of mailing of the notices
required under this subsection must be filed with the court. Proof of service
may be made by a certificate of service in the form provided by ORCP 7 F, by a
signed acceptance of service or by a return receipt from the postal
authorities.
(e) If no objections are filed with
the court within 120 days after the filing of the agreement or memorandum, the
agreement is effective and binding on all persons interested in the trust.
(6)(a) If objections are filed with
the court within 120 days after the filing of a settlement agreement or
memorandum under this section, the clerk of the court shall collect the fee
provided in subsection (7)[(a)] of
this section. Upon the filing of objections, the court shall fix a time and
place for a hearing. The person filing the objections must serve a copy of the
objections on all persons interested in the trust and give notice to those
persons of the time and place fixed by the court for a hearing. Service must be
made at least 10 days before the date set by the court for the hearing. Service
of the objections may be made personally or by registered or certified mail,
return receipt requested.
(b) Proof of mailing of objections
must be filed with the court. Proof of service may be made by a certificate of
service in the form provided by ORCP 7 F, by a signed acceptance of service or
by a return receipt from the postal authorities.
(c) The court shall approve an
agreement entered into under this section after a hearing upon objections filed
under this subsection unless:
(A) The agreement does not reflect the
signatures of all persons required by this section;
(B) The agreement is not authorized by
this section; or
(C) Approval of the agreement would
not be equitable.
(d) An agreement approved by the court
after a hearing is binding on all persons interested in the trust.
(e) Persons interested in the trust
may waive the notice required under subsection (5) of this section. If all
persons interested in the trust waive the notice, the agreement is effective
and binding on all persons interested in the trust upon filing of the agreement
or memorandum with the court.
(7)[(a)] The clerk of the circuit court shall collect in advance [a fee of $65] the filing fees
established under section 8 of this 2011 Act for the filing of an agreement
or memorandum of agreement under subsection (5) of this section[,] and [a fee of $32.50] for the filing of objections under subsection (6)
of this section.
[(b)
In addition to the filing fees provided for in paragraph (a) of this
subsection, the clerk shall charge and collect in proceedings under this
section all additional fees authorized by law for civil actions, suits or
proceedings in circuit court.]
[(c)
A pleading or other document is not considered filed unless the fees required
by this subsection are paid. Filing fees may not be refunded to any party.]
SECTION 31. Sections 27 and 28 of
this 2011 Act and the amendments to ORS 112.820 and 130.045 by sections 29 and
30 of this 2011 Act apply only to proceedings commenced on or after October 1,
2011.
(Foreign
Judgments)
SECTION 32. ORS 24.115 is amended to
read:
24.115. (1) A copy of any foreign
judgment authenticated in accordance with the Act of Congress or the statutes
of this state may be filed in the office of the clerk of any circuit court of
any county of this state. Except as otherwise provided by law, the person
filing the copy of the foreign judgment must pay the filing fee established
under section 8 of this 2011 Act. The clerk shall treat the foreign
judgment in the same manner as a judgment of the circuit court.
(2) A certified copy of any foreign
judgment authenticated in accordance with the Act of Congress or the statutes
of this state shall be recorded in the County Clerk Lien Record of any county
other than the county in which the judgment is originally filed, in order to
become a lien upon the real property of the judgment debtor in that county as
provided in ORS 18.152.
(3) A judgment so filed has the same
effect and is subject to the same procedures, defenses and proceedings for
reopening, vacating or staying as a judgment of the circuit court in which the
foreign judgment is filed, and may be enforced or satisfied in like manner.
(4) A foreign judgment of a tribal
court of a federally recognized Indian tribe that is filed in a circuit court
under this section, and that otherwise complies with 26 U.S.C. 414(p) as a
domestic relations order as defined in 26 U.S.C. 414(p), is a domestic
relations order made pursuant to the domestic relations laws of this state for
the purposes of 26 U.S.C. 414(p).
SECTION 33. ORS 24.135 is amended to
read:
24.135. (1) If the judgment debtor
shows the court of any county that an appeal from the foreign judgment is
pending or will be taken, or that a stay of execution has been granted, the
court shall stay enforcement of the foreign judgment until the appeal is
concluded, the time for appeal expires, or the stay of execution expires or is
vacated, upon proof that the judgment debtor has furnished the security for the
satisfaction of the judgment required by the state in which it was rendered.
(2) If the judgment debtor shows the
court of any county any ground upon which enforcement of a judgment of any
court of any county of this state would be stayed, the court shall stay
enforcement of the foreign judgment for an appropriate period, upon requiring
the same security for satisfaction of the judgment which is required in this
state.
(3) Any person making an appearance
in proceedings related to foreign judgments filed under ORS 24.115, including a
judgment debtor filing a proceeding seeking a stay of judgment under this
section or otherwise seeking relief from enforcement of the judgment, must pay
the filing fee established under section 8 of this 2011 Act.
SECTION 34. ORS 109.787 is amended to
read:
109.787. (1) A child custody
determination issued by a court of another state may be registered in this
state, with or without a simultaneous request for enforcement, by sending to
any circuit court in this state:
(a) A letter or other document
requesting registration;
(b) The filing fee established
under section 13 of this 2011 Act;
[(b)]
(c) Two copies, including one certified copy, of the determination sought
to be registered and a statement under penalty of perjury that to the best of
the knowledge and belief of the person seeking registration the order has not
been modified; and
[(c)]
(d) Except as otherwise provided in ORS 109.767, the name and address of
the person seeking registration and any parent or person acting as a parent who
has been awarded custody, parenting time or visitation in the child custody
determination sought to be registered.
(2) On receipt of the documents required
by subsection (1) of this section, the registering court shall cause the
determination to be filed as a foreign judgment, together with one copy of any
accompanying documents and information, regardless of their form.
(3) The person seeking registration of
a child custody determination shall serve notice upon the persons named under
subsection [(1)(c)] (1)(d) of
this section notifying them of the opportunity to contest the registration in
accordance with this section.
(4) The notice required by subsection
(3) of this section must state that:
(a) A registered determination is
enforceable as of the date of the registration in the same manner as a
determination issued by a court of this state;
(b) A hearing to contest the validity
of the registered determination must be requested within 21 days after service
of notice; and
(c) Failure to contest the
registration will result in confirmation of the child custody determination and
preclude further contest of that determination with respect to any matter that
could have been asserted.
(5) A person seeking to contest the
validity of a registered order must request a hearing within 21 days after
service of the notice and pay the filing fee established under section 13 of
this 2011 Act. At that hearing, the court shall confirm the registered
order unless the person contesting registration establishes that:
(a) The issuing court did not have
jurisdiction under ORS 109.741 to 109.771;
(b) The child custody determination
sought to be registered has been vacated, stayed or modified by a court having
jurisdiction to do so under ORS 109.741 to 109.771; or
(c) The person contesting registration
was entitled to notice, but notice was not given in accordance with the
standards of ORS 109.724, in the proceedings before the court that issued the
order for which registration is sought.
(6) If a timely request for a hearing
to contest the validity of the registration is not made, the registration is
confirmed as a matter of law and the person requesting registration and all
persons served must be notified of the confirmation.
(7) Confirmation of a registered
order, whether by operation of law or after notice and hearing, precludes
further contest of the order with respect to any matter that could have been
asserted at the time of registration.
SECTION 35. ORS 110.426 is amended to
read:
110.426. A party or support
enforcement agency seeking to modify, or to modify and enforce, a child support
order issued in another state shall register that order in this state in the same
manner provided in ORS 110.405, 110.408 and 110.411 if the order has not been
registered. A petition for modification may be filed at the same time as a
request for registration, or later. The pleading must specify the grounds for
modification. The person filing the request for registration, and any other
person making an appearance in the proceeding, must pay the filing fee
established under section 13 of this 2011 Act.
SECTION 36. ORS 125.842 is amended to
read:
125.842. If a guardian has been appointed
in another state and a petition for the appointment of a guardian is not
pending in this state, the guardian appointed in the other state, after giving
notice to the appointing court of an intent to register, may register the
guardianship order in this state by filing as a foreign judgment in a court, in
any appropriate county of this state, certified copies of the order and letters
of office. The person registering the order, and any other person making an
appearance in the proceeding, must pay the filing fee established under section
13 of this 2011 Act.
SECTION 37. ORS 125.845 is amended to
read:
125.845. If a conservator has been
appointed in another state and a petition for a conservatorship order is not
pending in this state, the conservator appointed in the other state, after
giving notice to the appointing court of an intent to register, may register
the conservatorship order in this state by filing as a foreign judgment in a
court of this state, in any county in which property belonging to the protected
person is located, certified copies of the order and letters of office and of
any bond. The person registering the order, and any other person making an
appearance in the proceeding, must pay the filing fee established under section
13 of this 2011 Act.
SECTION 38. The amendments to ORS
24.115, 24.135, 109.787, 110.426, 125.842 and 125.845 by sections 32 to 37 of
this 2011 Act apply only to proceedings commenced on or after October 1, 2011.
(Habeas Corpus
Proceedings)
SECTION 39. ORS 34.340 is amended to
read:
34.340. The writ shall be allowed by
the court or judge thereof upon the petition of the party for whose relief it
is intended, or of some other person in behalf of the party, signed and
verified by the oath of the plaintiff, to the effect that the plaintiff
believes it to be true. The petition must be accompanied by [a] the filing fee [of $28] established under section 8
of this 2011 Act.
SECTION 40. The amendments to ORS
34.340 by section 39 of this 2011 Act apply only to proceedings commenced on or
after October 1, 2011.
(Arbitration-Related
Proceedings)
SECTION 41. ORS 36.520 is amended to
read:
36.520. (1) Recourse to a court
against an arbitral award may only be by an application for setting aside in
accordance with subsections (2) and (3) of this section.
(2) An arbitral award may be set aside
by the circuit court only if:
(a) The party making application
furnishes proof that:
(A) A party to the arbitration
agreement referred to in ORS 36.466 was under some incapacity or that the
agreement is not valid under the law to which the parties have subjected it or,
failing any indication thereon, under the laws of the State of Oregon or the
United States;
(B) The party making the application
was not given proper notice of the appointment of an arbitrator or of the
arbitral proceedings or was otherwise unable to present the party’s case;
(C) The award deals with a dispute not
contemplated by or not falling within the terms of the submission to
arbitration or contains decisions on matters beyond the scope of the submission
to arbitration, provided that, if the decisions on matters not submitted to
arbitration can be separated from those not so submitted, only that part of the
award which contains decisions on matters not submitted to arbitration may be
set aside; or
(D) The composition of the arbitral
tribunal or the arbitral procedure was not in accordance with the agreement of
the parties, unless such agreement was in conflict with a provision of ORS
36.450 to 36.558 from which the parties cannot derogate, or, failing such
agreement, was not in accordance with ORS 36.450 to 36.558; or
(b) The circuit court finds that:
(A) The subject matter of the dispute
is not capable of settlement by arbitration under the laws of the State of
Oregon or of the United States; or
(B) The award is in conflict with the
public policy of the State of Oregon or of the United States.
(3) An application for setting aside
may not be made after three months have elapsed from the date on which the
party making that application had received the award or, if a request had been
made under ORS 36.518, from the date on which that request had been disposed of
by the arbitral tribunal.
(4) The circuit court, when asked to
set aside an arbitral award, may, where appropriate and so requested by a
party, suspend the setting aside proceedings for a period of time determined by
it in order to give the arbitral tribunal an opportunity to resume the arbitral
proceedings or to take such other action as in the arbitral tribunal’s opinion
will eliminate the grounds for setting aside.
(5) The clerk of the circuit court
shall collect the filing fees established under section 8 of this 2011 Act
from the party making application for setting aside under subsection (1) of
this section [a filing fee of $39]
and from a party filing an appearance in opposition to the application.
[a filing fee of $39. However, if the
application relates to an arbitral award made following an application or
request to a circuit court under any section of ORS 36.450 to 36.558 in respect
to which the parties have paid filing fees under ORS 21.110, filing fees shall
not be collected under this subsection. An application for setting aside or an
appearance in opposition thereto shall not be deemed filed unless the fee
required by this subsection is paid by the filing party.]
SECTION 42. ORS 36.522 is amended to
read:
36.522. (1) An arbitral award,
irrespective of the country in which it was made, shall be recognized as
binding and, upon application in writing to the circuit court, shall be
enforced subject to the provisions of this section and ORS 36.524.
(2) The party relying on an award or
applying for its enforcement shall supply the authenticated original or a
certified copy of the award and the original or certified copy of the
arbitration agreement referred to in ORS 36.466. If the award or agreement is
not made in the English language, then the party relying on the award or
applying for its enforcement shall supply a duly certified translation thereof
into the English language.
(3) The party relying on an arbitral
award or applying for its enforcement shall deliver to the clerk of the circuit
court the documents specified in subsection (2) of this section along with
proof of the delivery of a copy of the arbitral award as required by ORS 36.514
(4). The relying party shall pay to the clerk [a] the filing fee [of
$25] established under section 8 of this 2011 Act, after which the
clerk shall enter the arbitral award of record in the office of the clerk. If
no application to set aside is filed against the arbitral award as provided in
ORS 36.520 within the time specified in ORS 36.520 (3) or, if such an
application is filed, the relying party after the disposition of the
application indicates the intention to still rely on the award or to apply for
its enforcement, judgment shall be entered as upon the verdict of a jury, and
execution may issue thereon, and the same proceedings may be had upon the award
with like effect as upon a verdict in a civil action.
SECTION 43. ORS 36.524 is amended to
read:
36.524. (1) Recognition or enforcement
of an arbitral award, irrespective of the country in which it was made, may be
refused only:
(a) At the request of the party
against whom it is invoked, if that party pays the clerk of the circuit court [a] the filing fee [of $25] established under section 8
of this 2011 Act and furnishes to the court where recognition or
enforcement is sought proof that:
(A) A party to the arbitration
agreement referred to in ORS 36.466 was under some incapacity or that the
agreement is not valid under the law to which the parties have subjected it or
under the law of the country where the award was made;
(B) The party against whom the award
is invoked was not given proper notice of the appointment of an arbitrator or
of the arbitral proceedings or was otherwise unable to present the party’s
case;
(C) The arbitral award deals with a
dispute not contemplated by or not falling within the terms of the submission
to arbitration or the award contains decisions on matters beyond the scope of
the submission to arbitration, provided that, if the decisions on matters
submitted to arbitration can be separated from those not so submitted, that
part of the award which contains decisions on matters submitted to arbitration
may be recognized and enforced;
(D) The composition of the arbitral
tribunal or the arbitral procedure was not in accordance with the agreement of
the parties or, failing such agreement, was not in accordance with the law of
the country where the arbitration took place; or
(E) The award has not yet become
binding on the parties or has been set aside or suspended by a court of the
country in which, or under the law of which, that award was made; or
(b) If the court finds that:
(A) The subject matter of the dispute
is not capable of settlement by arbitration under the laws of the State of
Oregon or of the United States; or
(B) The recognition or enforcement of
the arbitral award would be contrary to the public policy of the State of
Oregon or of the United States.
(2) If an application for setting
aside or suspension of an award has been made to the court referred to in
subsection (1)(a)(E) of this section, and if it considers it proper, the court
where recognition or enforcement is sought may adjourn its decision on
application of the party claiming recognition or enforcement of the award. The
court may also order the other party to provide appropriate security.
SECTION 44. ORS 36.615, as amended by
sections 40 and 41, chapter 107, Oregon Laws 2010, is amended to read:
36.615. (1)[(a)] Except as otherwise provided in ORS 36.730, an application for
judicial relief under ORS 36.600 to 36.740 must be made by petition to the
court. The petitioner and the respondent must pay the filing fees
established under section 8 of this 2011 Act. [Except as otherwise provided in this subsection, a person filing the
first petition relating to an agreement to arbitrate or relating to an
arbitration proceeding must pay the filing fee provided by ORS 21.110 (1) for
plaintiffs, and persons responding to the petition must pay the filing fee
provided by ORS 21.110 (1) for defendants. If subsequent petitions are filed
relating to the same agreement to arbitrate or arbitration proceeding, no
additional filing fees shall be required of the parties.]
[(b)
If the first petition relating to an arbitration proceeding is a petition to
seek confirmation, vacation, modification or correction of an award under ORS
36.700, 36.705 or 36.710, the person filing the petition must pay a fee of $39,
and a person filing an appearance in opposition to the petition must pay a
filing fee of $39.]
[(c)
If a civil action is pending relating to the same dispute that is the subject
of the arbitration, and filing fees were paid for that action under ORS 21.110,
filing fees may not be charged under this subsection for the filing of any
petition under ORS 36.600 to 36.740.]
(2) Unless a civil action involving
the agreement to arbitrate is pending, notice of a first petition to the court
under ORS 36.600 to 36.740[,] must be
served in the manner provided by ORCP 7 D. Otherwise, notice of the petition
must be given in the manner provided by ORCP 9.
SECTION 45. The amendments to ORS
36.520, 36.522, 36.524 and 36.615 by sections 41 to 44 of this 2011 Act apply
only to proceedings commenced on or after October 1, 2011.
(Small Claims)
SECTION 46. ORS 46.570 is amended to
read:
46.570. [(1) In the small claims department of circuit court there shall be
charged and collected in civil cases by the clerk of the court the following
fees for the following purposes and services:]
[(a)(A)
Plaintiff filing a claim, $26 when the amount or value claimed does not exceed
$1,500, and $55 when the amount or value claimed exceeds $1,500; and]
[(B)
Defendant demanding a hearing, $24 when the amount or value claimed by
plaintiff does not exceed $1,500, and $50 when the amount or value claimed by
plaintiff exceeds $1,500.]
[(b)
Transcription of judgment from small claims department, $7.]
[(c)
Transfer of cause to circuit court on counterclaim, $12.]
[(2)
Except as otherwise provided in subsection (1) of this section, fees provided
for in this section shall be collected in advance. A pleading or other document
shall be filed by the clerk only if the required fee is paid or if a request
for a fee waiver or deferral is granted by the court. Fees provided for in this
section may not be refunded.] The small claims department of a circuit
court shall collect the following filing fees from the plaintiff when a claim
is filed in the court, and from the defendant when the defendant demands a
hearing:
(1) $50, when the amount claimed is
$2,500 or less; and
(2) $90, when the amount is more than
$2,500.
SECTION 47. ORS 46.405 is amended to
read:
46.405. (1) Except as provided in
subsection (6) of this section, each circuit court shall have a small claims
department.
(2) Except as provided in this
section, all actions for the recovery of money, damages, specific personal
property, or any penalty or forfeiture must be commenced and prosecuted in the
small claims department if the amount or value claimed in the action does not
exceed $750.
(3) Except as provided in this section
[and ORS 46.455 (2)(c)], an action
for the recovery of money, damages, specific personal property, or any penalty
or forfeiture may be commenced and prosecuted in the small claims department if
the amount or value claimed in the action does not exceed [$7,500] $10,000.
(4) Class actions may not be commenced
and prosecuted in the small claims department.
(5) Actions providing for statutory
attorney fees in which the amount or value claimed does not exceed $750 may be
commenced and prosecuted in the small claims department or may be commenced and
prosecuted in the regular department of the circuit court. This subsection does
not apply to an action based on contract for which attorney fees are authorized
under ORS 20.082.
(6) If a circuit court is located in
the same city as a justice court, the circuit court need not have a small
claims department if the circuit court and the justice court enter into an
intergovernmental agreement that provides that only the justice court will
operate a small claims department. If an intergovernmental agreement is entered
into under this subsection, the agreement must establish appropriate procedures
for referring small claims cases to the justice court.
SECTION 48. ORS 46.425 is amended to
read:
46.425. (1) An action in the small
claims department shall be commenced by the plaintiff’s filing with the clerk
of the court a verified claim in the form prescribed by the court[, and by paying the fee prescribed by ORS
46.570 (1)(a) for each action filed].
(2) The claim shall contain the name
and address of the plaintiff and of the defendant, followed by a plain and
simple statement of the claim, including the amount and the date the claim
allegedly accrued. The claim shall include an affidavit signed by the plaintiff
and stating that the plaintiff made a bona fide effort to collect the claim
from the defendant before filing the claim with the clerk.
(3) Except in actions arising under
ORS chapter 90, the plaintiff must include in a claim all amounts claimed from
the defendant arising out of a single transaction or occurrence. Any plaintiff
alleging damages on a transaction requiring installment payments need only
claim the installment payments due and owing as of the date of filing of the
claim, and need not accelerate the remaining payments. The plaintiff may
include in a claim all amounts claimed from a defendant on more than one
transaction or occurrence if the total amount of the claim does not exceed [$7,500] $10,000.
(4) Notwithstanding subsection (3) of
this section, a plaintiff bringing an action on assigned claims:
(a) Need bring an action only on those
claims that have been assigned as of the date the action is filed; and
(b) May bring separate actions for
each person assigning claims to the plaintiff.
SECTION 49. ORS 46.455 is amended to
read:
46.455. Within 14 days after the date
of service of the notice and claim upon the defendant as provided in ORS
46.445:
(1) If the defendant admits the claim,
the defendant may settle it by:
(a) Paying to the plaintiff the amount
of the claim plus the amount of all filing fees and service expenses paid by the
plaintiff and mailing proof of that payment to the court.
(b) If the claim is for recovery of
specific personal property, delivering the property to the plaintiff and paying
to the plaintiff the amount of all filing fees and service expenses paid by the
plaintiff and mailing proof of that delivery and payment to the court.
(2) If the defendant denies the claim,
the defendant:
(a) May demand a hearing in the small
claims department in a written request to the clerk in the form prescribed by
the court, accompanied by payment of the defendant’s fee prescribed; and
(b) When demanding a hearing, may
assert a counterclaim in the form provided by the court[; or].
[(c)]
(3) If the amount or value claimed exceeds $750, the defendant has a
constitutional right to a jury trial and may claim that right in a written
request to the clerk in the form prescribed by the court, accompanied by
payment of the appearance fee required from defendants [in circuit court actions together with the amount of the circuit court
jury trial fee for the first day of trial] under section 15 of this 2011
Act. The request shall designate a mailing address to which a summons and
copy of the complaint may be served by mail. Thereafter, the plaintiff’s claim
will not be limited to the amount stated in the claim, though it must involve
the same controversy.
SECTION 50. ORS 46.461 is amended to
read:
46.461. (1) The defendant in an action
in the small claims department may assert as a counterclaim any claim that, on
the date of issuance of notice pursuant to ORS 46.445, the defendant may have
against the plaintiff and that arises out of the same transaction or occurrence
that is the subject matter of the claim filed by the plaintiff.
(2) If the amount or value of the
counterclaim exceeds [$7,500]
$10,000, the court shall strike the counterclaim and proceed to hear and
dispose of the case as though the counterclaim had not been asserted unless the
defendant files with the counterclaim a motion requesting that the case be
transferred from the small claims department to the circuit court. After the
transfer the plaintiff’s claim will not be limited to the amount stated in the
claim filed with the small claims department, though it must involve the same
controversy.
(3)(a) If the amount or value of the
counterclaim exceeds that specified in subsection (2) of this section, and the
defendant files a motion requesting transfer as provided in subsection (2) of
this section, the case shall be transferred to the circuit court. The clerk of
the court shall notify the plaintiff and defendant, by mail, of the transfer.
The notice to the plaintiff shall contain a copy of the counterclaim and shall
instruct the plaintiff to file with the court and serve by mail on the
defendant, within 20 days following the mailing of the notice, a reply to the
counterclaim and, if the plaintiff proposes to increase the amount of the claim
originally filed with the small claims department, an amended claim for the
increased amount. Proof of service on the defendant of the plaintiff’s reply
and amended claim may be made by certificate of the plaintiff or plaintiff’s
attorney attached to the reply and amended claim filed with the court. The
defendant is not required to answer an amended claim of the plaintiff.
(b) Upon filing the motion requesting
transfer, the defendant shall pay to the clerk of the court [the transfer fee required by ORS 46.570
(1)(c) and] an amount equal to the difference between the fee paid by the
defendant as required by ORS 46.570 [(1)(a)]
and the fee required of a defendant [by
ORS 21.110] under section 15 of this 2011 Act. Upon filing a reply
to the counterclaim, the plaintiff shall pay to the clerk of the court an
amount equal to the difference between the fee paid by the plaintiff as
required by ORS 46.570 [(1)(a)] and
the fee required of a plaintiff [by ORS
21.110] under section 15 of this 2011 Act.
SECTION 51. ORS 46.465 is amended to
read:
46.465. (1) If the defendant demands a
hearing in the small claims department, under the direction of the court the
clerk shall fix a day and time for the hearing and shall mail to the parties a
notice of the hearing time in the form prescribed by the court, instructing
them to bring witnesses, documents and other evidence pertinent to the
controversy.
(2) If the defendant asserts a
counterclaim, the notice of the hearing time shall contain a copy of the
counterclaim.
(3)(a) If the defendant claims the
right to a jury trial, the clerk shall notify the plaintiff by mail of the
requirements of this paragraph. Within 20 days after the mailing of the notice,
the plaintiff must file a formal complaint with the court and serve by mail a
summons and copy of the complaint on the defendant at the designated address of
the defendant. Proof of service must be filed by the plaintiff with the court.
Proof of service may be made by filing a certificate of the plaintiff or the
plaintiff’s attorney with the complaint.
(b) The plaintiff’s claim in the
formal complaint filed pursuant to this subsection is not limited to the amount
stated in the claim filed in the small claims department, but the claim in the
formal complaint must relate to the same controversy.
(c) The defendant must file an
appearance in the matter within 10 days after the date on which the summons and
copy of the complaint would be delivered to the defendant in due course of
mail. Thereafter the cause shall proceed as other causes in the court, and
costs and disbursements shall be allowed and taxed. Fees not previously paid
shall be charged and collected as provided for other cases tried in the circuit
court, except that the [appearance]
filing fee for the plaintiff shall be an amount equal to the difference
between the filing fee paid by the plaintiff as required by ORS 46.570
and the filing fee required of the plaintiff under [ORS 21.110] section 15 of this 2011 Act.
(4)(a) If the defendant claims the
right to a jury trial and does not prevail in the action, the court shall award
to the plaintiff reasonable attorney fees incurred by the plaintiff in the
action. Unless attorney fees are otherwise provided for in the action by
contract or statutory provision, attorney fees awarded under this paragraph may
not exceed $1,000.
(b) If the defendant asserts a
counterclaim that requires transfer of the matter under the provisions of ORS
46.461, and the defendant does not prevail in the action, the court shall award
to the plaintiff reasonable attorney fees incurred by the plaintiff in the
action.
SECTION 52. ORS 46.475 is amended to
read:
46.475. (1) Upon written request, the
court may extend to the parties additional time within which to make formal
appearances required in the small claims department of a circuit court.
(2) If the defendant fails to pay the
claim, demand a hearing, or demand a jury trial and comply with ORS 46.465
(3)(c), upon written request from the plaintiff the clerk shall enter a
judgment against the defendant for the relief claimed plus the amount of the
small claims filing fees and service expenses paid by the plaintiff and the
prevailing party fee provided by ORS 20.190.
(3) If the plaintiff fails within the
time provided to file a formal complaint pursuant to ORS 46.465 (3)(a), the
clerk shall[:]
[(a)]
dismiss the case without prejudice.[;
and]
[(b)
If the defendant applies therefor in writing to the clerk not later than 30
days after the expiration of the time provided for the plaintiff to file a
formal complaint, refund to the defendant the amount of the jury trial fee paid
by the defendant under ORS 46.455 (2)(c).]
(4) If the defendant appears at the
time set for hearing but no appearance is made by the plaintiff, the claim
shall be dismissed with prejudice. If neither party appears, the claim shall be
dismissed without prejudice.
(5) Upon good cause shown within 60
days, the court may set aside a default judgment or dismissal and reset the
claim for hearing.
SECTION 52a. ORS 51.080 is amended to
read:
51.080. (1) A justice court has
jurisdiction, but not exclusive, of the following actions:
(a) For the recovery of money or
damages only, when the amount claimed does not exceed [$7,500] $10,000.
(b) For the recovery of specific
personal property, when the value of the property claimed and the damages for
the detention do not exceed [$7,500]
$10,000.
(c) For the recovery of any penalty or
forfeiture, whether given by statute or arising out of contract, not exceeding
[$7,500] $10,000.
(d) To give judgment without action,
upon the confession of the defendant for any of the causes specified in this
section, except for a penalty or forfeiture imposed by statute.
(2) For purposes of this section, the
amount claimed, value of property, damages or any amount in controversy does
not include any amount claimed as costs and disbursements or attorney fees as
defined by ORCP 68 A.
SECTION 52b. ORS 51.310 is amended to
read:
51.310. (1) Except as provided in ORS
105.130, the justice of the peace shall collect, in advance except in criminal
cases, and issue receipts for, the following fees:
(a) For the first appearance of the
plaintiff, [$30] $40.
(b) For the first appearance of the
defendant, [$22.50] $40.
(c) In the small claims department,
for a plaintiff filing a claim, [$22.50]
$28; and for a defendant requesting a hearing, [$15] $28.
(d) For transcript of judgment, $6.
(e) For transcript of judgment from
the small claims department, [$5]
$6.
(f) For certified copy of judgment, [$3.50] $6.
(g) For issuing writs of execution or
writs of garnishment, [$5] $6
for each writ.
(h) For taking an affidavit of a
private party, $1.
(i) For taking depositions, for each
folio, 70 cents.
(j) For supplying to private parties
copies of records and files, the same fees as provided or established for the
county clerk under ORS 205.320.
(k) For each official certificate, $1.
(L) For taking and certifying for a
private party an acknowledgment of proof of any instrument, $3.
(m) Costs in criminal cases, where
there has been a conviction, or upon forfeiture of security, $5.
(2) Not later than the last day of the
month immediately following the month in which fees set forth in subsection (1)
of this section are collected, the justice of the peace shall pay all such
fees, other than those for performing marriage ceremonies, over to the county
treasurer of the county wherein the justice of the peace was elected or
appointed, for crediting to the general fund of the county, and shall take the
receipt of the treasurer therefor.
SECTION 53. ORS 55.011 is amended to
read:
55.011. (1) Except as provided in
subsection (8) of this section, in each justice court created under any law of
this state there shall be a small claims department.
(2) Except as provided in this
section, all actions for the recovery of money, damages, specific personal
property, or any penalty or forfeiture must be commenced and prosecuted in the
small claims department if the amount or value claimed in the action does not
exceed $750.
(3) Except as provided in this section
[and ORS 46.455 (2)(c)], an action
for the recovery of money, damages, specific personal property, or any penalty
or forfeiture may be commenced and prosecuted in the small claims department if
the amount or value claimed in the action does not exceed [$7,500] $10,000.
(4) Class actions may not be commenced
and prosecuted in the small claims department.
(5) Actions providing for statutory
attorney fees in which the amount or value claimed does not exceed $750 may be
commenced and prosecuted in the small claims department or may be commenced and
prosecuted in the regular department of the justice court. This subsection does
not apply to an action based on contract for which attorney fees are authorized
under ORS 20.082.
(6) Jurisdiction of the person of the
defendant in an action commenced in the small claims department shall be deemed
acquired as of the time of service of the notice and claim.
(7) Except as provided in ORS 55.065
(2)(c), the provisions of ORS 55.020 to 55.140 shall apply with regard to
proceedings in the small claims department of any justice court.
(8) If a justice court is located in
the same city as a circuit court, the justice court need not have a small
claims department if the justice court and the circuit court enter into an
intergovernmental agreement that provides that only the circuit court will
operate a small claims department. If an intergovernmental agreement is entered
into under this subsection, the agreement must establish appropriate procedures
for referring small claims cases to the circuit court.
SECTION 53a. ORS 55.095 is amended to
read:
55.095. (1) The defendant in an action
in the small claims department may assert as a counterclaim any claim that, on
the date of issuance of notice pursuant to ORS 55.045, the defendant may have
against the plaintiff and that arises out of the same transaction or occurrence
that is the subject matter of the claim filed by the plaintiff.
(2) If the amount of the counterclaim
asserted by the defendant exceeds [$7,500]
$10,000, the justice of the peace shall strike the counterclaim and proceed
to hear and dispose of the case as though the counterclaim had not been
asserted unless the defendant files with the counterclaim a motion requesting
that the case be transferred from the small claims department to a court of
appropriate jurisdiction and an amount to pay the costs of the transfer. After
the transfer the plaintiff’s claim will not be limited to the amount stated in
the claim filed with the justice of the peace, though it must involve the same
controversy.
(3)(a) If the amount or value of the
counterclaim exceeds the jurisdictional limit of the justice court for a
counterclaim and the defendant files a motion requesting transfer and an amount
to pay the costs of transfer as provided in subsection (2) of this section, the
case shall be transferred to the circuit court for the county in which the justice
court is located and be governed as provided in ORS 52.320 for transfers to the
circuit court. The justice court shall notify the plaintiff and defendant, by
mail within 10 days following the order of transfer, of the transfer. The
notice to the plaintiff shall contain a copy of the counterclaim and shall
inform the plaintiff as to further pleading by the plaintiff in the court of
appropriate jurisdiction.
(b) Upon filing the motion requesting
transfer, the defendant shall pay to the court of appropriate jurisdiction an
amount equal to the difference between the fee paid by the defendant as
required by ORS 51.310 (1)(c) and the appearance fee for a defendant in the
court of appropriate jurisdiction.
SECTION 53b. ORS 133.055 is amended
to read:
133.055. (1) A peace officer may issue
a criminal citation to a person if the peace officer has probable cause to
believe that the person has committed a misdemeanor or has committed any felony
that is subject to misdemeanor treatment under ORS 161.705. The peace officer
shall deliver a copy of the criminal citation to the person. The criminal
citation shall require the person to appear at the court of the magistrate
before whom the person would be taken pursuant to ORS 133.450 if the person
were arrested for the offense.
(2)(a) Notwithstanding the provisions
of subsection (1) of this section, when a peace officer responds to an incident
of domestic disturbance and has probable cause to believe that an assault has
occurred between family or household members, as defined in ORS 107.705, or to
believe that one such person has placed the other in fear of imminent serious
physical injury, the officer shall arrest and take into custody the alleged
assailant or potential assailant.
(b) When the peace officer makes an
arrest under paragraph (a) of this subsection, the peace officer is not
required to arrest both persons.
(c) When a peace officer makes an
arrest under paragraph (a) of this subsection, the peace officer shall make
every effort to determine who is the assailant or potential assailant by
considering, among other factors:
(A) The comparative extent of the
injuries inflicted or the seriousness of threats creating a fear of physical
injury;
(B) If reasonably ascertainable, the
history of domestic violence between the persons involved;
(C) Whether any alleged crime was
committed in self-defense; and
(D) The potential for future assaults.
(3) Whenever any peace officer has
reason to believe that a family or household member, as defined in ORS 107.705,
has been abused as defined in ORS 107.705 or that an elderly person or a person
with a disability has been abused as defined in ORS 124.005, that officer shall
use all reasonable means to prevent further abuse, including advising each
person of the availability of a shelter or other services in the community and
giving each person immediate notice of the legal rights and remedies available.
The notice shall consist of handing each person a copy of the following
statement:
______________________________________________________________________________
IF YOU ARE THE VICTIM OF DOMESTIC
VIOLENCE OR ABUSE, you can ask the district attorney to file a criminal
complaint. You also have the right to go to the circuit court and file a
petition requesting any of the following orders for relief: (a) An order
restraining your attacker from abusing you; (b) an order directing your
attacker to leave your household; (c) an order preventing your attacker from
entering your residence, school, business or place of employment; (d) an order
awarding you or the other parent custody of or parenting time with a minor
child or children; (e) an order restraining your attacker from molesting or
interfering with minor children in your custody; (f) an order awarding you
other relief the court considers necessary to provide for your or your children’s
safety, including emergency monetary assistance. Such orders are enforceable in
every state.
You may also request an order awarding
support for minor children in your care or for your support if the other party
has a legal obligation to support you or your children.
You also have the right to sue for
losses suffered as a result of the abuse, including medical and moving
expenses, loss of earnings or support, and other out-of-pocket expenses for injuries
sustained and damage to your property. This can be done without an attorney in
the small claims department of a court if the total amount claimed is under [$7,500] $10,000.
Similar relief may also be available
in tribal courts.
For further information you may
contact:____.
______________________________________________________________________________
SECTION 54. The amendments to ORS
46.405, 46.425, 46.455, 46.461, 46.465, 46.475, 46.570, 51.080, 51.310, 55.011,
55.095 and 133.055 by sections 46 to 53b of this 2011 Act apply only to
proceedings commenced on or after October 1, 2011.
(Forcible
Entry or Wrongful Detainer)
SECTION 55. ORS 105.130 is amended to
read:
105.130. (1) Except as provided in
this section and ORS 105.135, 105.137 and 105.140 to 105.161, an action
pursuant to ORS 105.110 shall be conducted in all respects as other actions in
courts of this state.
(2) Upon filing a complaint in the
case of a dwelling unit to which ORS chapter 90 applies, the clerk shall:
(a) Collect a filing fee of [$13] $75;
(b) Collect any other fee authorized
by law or ordinance; and
(c) With the assistance of the
plaintiff or an agent of the plaintiff, complete the applicable summons and
provide to the plaintiff or an agent of the plaintiff sufficient copies of the
summons and complaint for service.
[(3)
After a complaint is filed under subsection (2) of this section, if the
defendant demands a trial, the plaintiff shall pay an additional filing fee of
$29 and the defendant shall pay a filing fee of $42.]
(3) The court shall collect a
filing fee of $75 from a defendant that demands a trial under this section.
(4) An action pursuant to ORS 105.110
shall be brought in the name of a person entitled to possession as plaintiff.
The plaintiff may appear in person or through an attorney. In an action to
which ORS chapter 90 applies, the plaintiff may also appear through a
nonattorney who is an agent or employee of the plaintiff or an agent or
employee of an agent of the plaintiff.
(5) Notwithstanding ORS 9.160, 9.320
and ORS chapter 180, a state agency may appear in an action brought pursuant to
ORS 105.110 through an officer or employee of the agency if:
(a) The Attorney General consents to
the representation of the agency by an officer or employee in the particular
action or in the class of actions that includes the particular action; and
(b) The agency, by rule, authorizes an
officer or employee to appear on its behalf in the particular type of action
being conducted.
[(6)
In addition to the fees charged under subsection (2) of this section, the clerk
shall collect a surcharge from the plaintiff at the time a complaint is filed
that is subject to the filing fees established by subsection (2) of this
section and from a defendant at the time a defendant demands a trial in the
action. The surcharge shall be deposited by the State Court Administrator into
the State Treasury to the credit of the Housing and Community Services
Department Low Income Rental Housing Fund established by ORS 458.350. The
amount of the surcharge shall be $10.]
[(7)
A document or pleading shall be filed by the clerk only if the fees and
surcharges required under this section are paid by the person filing the
document or pleading or if an application for a waiver or deferral of fees and
court costs is granted by the court under ORS 21.680 to 21.698. Fees and
surcharges provided for in this section may not be refunded.]
[(8)]
(6) An action brought under ORS 105.110 by a person entitled to possession
of premises on the basis of circumstances described in ORS 105.115 (1)(d), (e)
or (f) is subject to the filing fees and other court or sheriff fees applicable
to an action concerning a dwelling unit that is subject to ORS chapter 90. The
procedure under ORS 105.105 to 105.168 that is applicable to an action
concerning a dwelling unit subject to ORS chapter 90 shall also apply to an
action brought under ORS 105.115 (1)(d), (e) or (f), except that the complaint
must be in the form prescribed in ORS 105.126.
SECTION 56. The amendments to ORS 105.130
by section 55 of this 2011 Act apply only to proceedings commenced on or after
October 1, 2011.
(Post-Conviction
Relief)
SECTION 57. ORS 138.560 is amended to
read:
138.560. (1) A proceeding for
post-conviction relief pursuant to ORS 138.510 to 138.680 shall be commenced by
filing a petition and two copies thereof with the clerk of the circuit court
for the county in which the petitioner is imprisoned or, if the petitioner is
not imprisoned, with the clerk of the circuit court for the county in which the
petitioner’s conviction and sentence was rendered. Except as otherwise provided
in ORS 138.590, the petitioner [shall]
must pay [a $28] the
filing fee established under section 8 of this 2011 Act at the time of
filing a petition under this section. If the petitioner prevails, the
petitioner shall recover the fee pursuant to the Oregon Rules of Civil
Procedure. The clerk of the court in which the petition is filed shall enter
and file the petition and bring it promptly to the attention of such court. A
copy of the petition need not be served by petitioner on the defendant, but, in
lieu thereof, the clerk of the court in which the petition is filed shall
immediately forward a copy of the petition to the Attorney General or other
attorney for the defendant named in ORS 138.570.
(2) For the purposes of ORS 138.510 to
138.680, a person released on parole or conditional pardon shall be deemed to
be imprisoned in the institution from which the person is so released.
(3) Except when petitioner’s conviction
was for a misdemeanor, the release of the petitioner from imprisonment during
the pendency of proceedings instituted pursuant to ORS 138.510 to 138.680 shall
not cause the proceedings to become moot. Such release of petitioner shall not
change the venue of the proceedings out of the circuit court in which they were
commenced and shall not affect the power of such court to transfer the
proceedings as provided in subsection (4) of this section.
(4) Whenever the petitioner is
imprisoned in a Department of Corrections institution and the circuit court for
the county in which the petitioner is imprisoned finds that the hearing upon
the petition can be more expeditiously conducted in the county in which the
petitioner was convicted and sentenced, the circuit court upon its own motion
or the motion of a party may order the petitioner’s case to be transferred to
the circuit court for the county in which petitioner’s conviction and sentence
were rendered. The court’s order is not reviewable by any court of this state.
(5) When a petitioner who is
imprisoned in a Department of Corrections institution is transferred to another
Department of Corrections institution, the circuit court in which a
post-conviction relief proceeding is pending may deny a motion for a change of
venue to the county where the petitioner is transferred. The court’s order is
not reviewable by any court of this state.
SECTION 58. The amendments to ORS
138.560 by section 57 of this 2011 Act apply only to proceedings commenced on
or after October 1, 2011.
(Firearm
Permits)
SECTION 59. ORS 166.274, as amended
by section 19, chapter 826, Oregon Laws 2009, and section 2, chapter 86, Oregon
Laws 2010, is amended to read:
166.274. (1) A person barred from
possessing or purchasing a firearm may file a petition for relief from the bar
in accordance with subsection (2) of this section if:
(a) The person is barred from
possessing a firearm under ORS 166.250 (1)(c)(A) to (C) or 166.270; or
(b) The person is barred from
purchasing a firearm under ORS 166.470 (1)(a) to (d) or (g).
(2) A petition for relief described in
this section must be filed in the circuit court in the petitioner’s county of
residence.
(3) A person may apply once per
calendar year for relief under the provisions of this section.
(4)(a) A person petitioning for relief
under this section shall serve a copy of the petition on:
(A) The city chief of police if the
court in which the petition is filed is located in a city; or
(B) The sheriff of the county in which
the court is located.
(b) The copy of the petition shall be
served on the chief of police or sheriff at the same time the petition is filed
at the court.
(5)(a) When a petition is denied, the
judge shall cause that information to be entered into the Department of State
Police computerized criminal history files.
(b) When a petition is granted, the
judge shall cause that information and a fingerprint card of the petitioner to
be entered into the Department of State Police computerized criminal history
files. If, after a petition is granted, the petitioner is arrested and
convicted of a crime that would disqualify the petitioner from purchasing or
possessing a firearm, the Department of State Police shall notify the court
that granted relief under this section. The court shall review the order
granting relief and determine whether to rescind the order. The Department of
State Police may charge a reasonable fee, under ORS 192.440, for the entry and
maintenance of information under this section.
(6) Notwithstanding the provisions of
ORS 9.320, a corporation, the state or any city, county, district or other
political subdivision or public corporation in this state, without appearance
by attorney, may appear as a party to an action under this section.
(7) If the petitioner seeks relief
from the bar on possessing or purchasing a firearm, relief shall be granted
when the petitioner demonstrates, by clear and convincing evidence, that the
petitioner does not pose a threat to the safety of the public or the
petitioner.
(8) A person barred from possessing or
purchasing a firearm because the person, while a minor, was found to be within
the jurisdiction of the juvenile court for committing an act which, if
committed by an adult, would have constituted a felony or a misdemeanor
involving violence, is not eligible to petition for relief under this section
until more than four years have passed since the person was discharged from the
jurisdiction of the juvenile court.
(9) Petitions filed under this section
shall be heard and disposed of within 15 judicial days of filing or as soon as
is practicable thereafter, but not more than 30 days thereafter. The judge
shall then make findings and conclusions and issue a judgment based on the
findings and conclusions in accordance with the requirements of law.
(10) [Filing fees shall be as for any civil action filed in the court.] A
person filing a petition under this section must pay the filing fee established
under section 8 of this 2011 Act.
(11)(a) Initial appeals of petitions
shall be heard de novo.
(b) Any party to a judgment under this
subsection may appeal to the Court of Appeals in the same manner as for any
other civil action.
(c) If the governmental entity files
an appeal under this subsection and does not prevail, it shall be ordered to pay
the attorney fees for the prevailing party.
SECTION 60. ORS 166.274, as amended
by sections 19 and 20, chapter 826, Oregon Laws 2009, and section 3, chapter
86, Oregon Laws 2010, is amended to read:
166.274. (1) A person barred from
possessing a firearm under ORS 166.250 (1)(c)(A) to (E) or 166.270 or barred
from purchasing a firearm under ORS 166.470 (1)(a) to (g) may file a petition
for relief from the bar in the circuit court in the petitioner’s county of
residence.
(2) A person may apply once per calendar
year for relief under the provisions of this section.
(3)(a) A person petitioning for relief
under this section shall serve a copy of the petition on:
(A) The city chief of police if the
court in which the petition is filed is located in a city; or
(B) The sheriff of the county in which
the court is located.
(b) The copy of the petition shall be
served on the chief of police or sheriff at the same time the petition is filed
at the court.
(4)(a) When a petition is denied, the
judge shall cause that information to be entered into the Department of State
Police computerized criminal history files.
(b) When a petition is granted, the
judge shall cause that information and a fingerprint card of the petitioner to
be entered into the Department of State Police computerized criminal history
files. If, after a petition is granted, the petitioner is arrested and
convicted of a crime that would disqualify the petitioner from purchasing or
possessing a firearm, the Department of State Police shall notify the court
that granted relief under this section. The court shall review the order
granting relief and determine whether to rescind the order. The Department of
State Police may charge a reasonable fee, under ORS 192.440, for the entry and
maintenance of information under this section.
(5) Notwithstanding the provisions of
ORS 9.320, a corporation, the state or any city, county, district or other
political subdivision or public corporation in this state, without appearance
by attorney, may appear as a party to an action under this section.
(6) If the petitioner seeks relief
from the bar on possessing or purchasing a firearm, relief shall be granted
when the petitioner demonstrates, by clear and convincing evidence, that the
petitioner does not pose a threat to the safety of the public or the
petitioner.
(7) A person barred from possessing or
purchasing a firearm because the person, while a minor, was found to be within
the jurisdiction of the juvenile court for committing an act which, if
committed by an adult, would have constituted a felony or a misdemeanor
involving violence, is not eligible to petition for relief under this section
until more than four years have passed since the person was discharged from the
jurisdiction of the juvenile court.
(8) Petitions filed under this section
shall be heard and disposed of within 15 judicial days of filing or as soon as
is practicable thereafter, but not more than 30 days thereafter. The judge
shall then make findings and conclusions and issue a judgment based on the
findings and conclusions in accordance with the requirements of law.
(9) [Filing fees shall be as for any civil action filed in the court.] A
person filing a petition under this section must pay the filing fee established
under section 8 of this 2011 Act.
(10)(a) Initial appeals of petitions
shall be heard de novo.
(b) Any party to a judgment under this
subsection may appeal to the Court of Appeals in the same manner as for any
other civil action.
(c) If the governmental entity files
an appeal under this subsection and does not prevail, it shall be ordered to
pay the attorney fees for the prevailing party.
SECTION 61. The amendments to ORS
166.274 by sections 59 and 60 of this 2011 Act apply only to proceedings
commenced on or after October 1, 2011.
(Tax Court)
SECTION 62. ORS 305.490 is amended to
read:
305.490. (1) Plaintiffs or petitioners
filing a complaint or petition in the tax court shall pay [a] the filing fee established under section 8 of this
2011 Act at the time of filing for each complaint or petition. [as follows:]
[(a)
For a complaint or petition in the magistrate division, $25.]
[(b)
For a complaint or petition in the regular division, $50.]
[(c)
If a complaint or petition is specially designated under ORS 305.501 for
hearing in the regular division, a fee of $50.]
(2) Neither the State of Oregon, nor
any county, school district, municipal corporation or other public corporation
therein, nor any officer of any such public political division or corporation,
appearing in the representative capacity of the officer of any public political
division or corporation, shall be required to pay the fee prescribed under this
section. The party entitled to costs and disbursements on such appeal shall
recover from the opponent of the party the amount so paid upon order of the
court, as in equity suits in the circuit court.
(3)(a) If, in any proceeding before
the tax court judge involving taxes upon or measured by net income in which an
individual taxpayer is a party, or involving inheritance taxes, the court
grants a refund claimed by the executor or taxpayer or denies in part or wholly
an additional assessment of taxes claimed by the Department of Revenue to be
due from the estate or taxpayer, the court may allow the taxpayer, in addition to
costs and disbursements, the following:
(A) Reasonable attorney fees for the
proceeding under this subsection and for the prior proceeding in the matter, if
any, before the magistrate; and
(B) Reasonable expenses as determined
by the court. Expenses include accountant fees and fees of other experts
incurred by the executor or individual taxpayer in preparing for and conducting
the proceeding before the tax court judge and the prior proceeding in the
matter, if any, before the magistrate.
(b) Payment of attorney fees or
reasonable expenses under this subsection shall be made by the Department of
Revenue in the manner provided by ORS 305.790.
(4)(a) If, in any proceeding before
the tax court judge involving ad valorem property taxation, exemptions, special
assessments or omitted property, the court finds in favor of the taxpayer, the
court may allow the taxpayer, in addition to costs and disbursements, the
following:
(A) Reasonable attorney fees for the
proceeding under this subsection and for the prior proceeding in the matter, if
any, before the magistrate; and
(B) Reasonable expenses as determined
by the court. Expenses include fees of experts incurred by the individual
taxpayer in preparing for and conducting the proceeding before the tax court
judge and the prior proceeding in the matter, if any, before the magistrate.
(b) Payment of attorney fees or
reasonable expenses under this subsection shall be made by the Department of
Revenue in the manner provided by ORS 305.790.
(5) All fees and other moneys received
or collected by the clerk by virtue of the office of the clerk shall be paid
over to the State Treasurer and shall be held by the clerk in the General Fund
as miscellaneous receipts.
SECTION 63. The amendments to ORS
305.490 by section 62 of this 2011 Act apply only to proceedings commenced on
or after October 1, 2011.
(Emancipation)
SECTION 64. ORS 419B.555 is amended
to read:
419B.555. (1) The juvenile court shall
conduct a preliminary hearing on the minor’s application for emancipation within
10 days of the date on which it is filed or as soon as possible thereafter. At
the time of the preliminary hearing, the court may issue a temporary custody
order, stay any pending proceedings or enter any other temporary order
appropriate to the circumstances. No action of the court pursuant to this
subsection may be extended beyond the date set for a final hearing.
(2) The final hearing shall be held no
later than 60 days or as soon as possible after the date on which the
application is filed.
(3) Notice to the parent or parents of
the applicant shall be made pursuant to ORS 419B.812 to 419B.839.
(4) At the preliminary hearing, the
court shall advise the minor of the civil and criminal rights and civil and
criminal liabilities of an emancipated minor. This advice shall be recited in
the judgment of emancipation.
(5) The hearing mentioned in
subsection (2) of this section may be waived by the minor and parent or
parents.
(6) [A uniform] The filing fee [of $77] established under section 8 of this 2011 Act shall
be charged and collected by the court for each application for emancipation. [In addition, the court shall collect any
other fees required by law.]
SECTION 65. The amendments to ORS
419B.555 by section 64 of this 2011 Act apply only to proceedings commenced on
or after October 1, 2011.
APPELLATE
COURT FILING FEES
SECTION 66. ORS 21.010, as amended by
section 30, chapter 659, Oregon Laws 2009, and section 37f, chapter 885, Oregon
Laws 2009, is amended to read:
21.010. (1) Except as provided in this
section, the appellant in an appeal or the petitioner in a judicial review in
the Supreme Court or the Court of Appeals shall pay a filing fee of [$154] $355 in the manner
prescribed by ORS 19.265. The respondent in such case and any other person
appearing in the appeal, upon entering first appearance or filing first brief
in the court, shall pay to the State Court Administrator [the sum] a filing fee of [$154] $355. The party entitled to costs and disbursements on
such appeal shall recover from the opponent the amount so paid.
(2) Filing and appearance fees may not
be assessed in appeals from habeas corpus proceedings under ORS 34.710,
post-conviction relief proceedings under ORS 138.650, juvenile court under ORS
419A.200 and the involuntary commitment of persons determined to be mentally
ill under ORS 426.135 or persons determined to be mentally retarded under ORS
427.295, or on judicial review of orders of the Psychiatric Security Review
Board under ORS 161.385 (9) or orders of the State Board of Parole and
Post-Prison Supervision.
(3) Filing and appearance fees shall
be assessed in an appeal from an appeal to a circuit court from a justice court
or municipal court in an action alleging commission of a state offense
designated as a violation or an action alleging violation of a city charter or
ordinance, but not in an action alleging commission of a state crime.
(4) Filing and appearance fees shall
only be assessed in an appeal in a contempt proceeding seeking imposition of
remedial sanctions under the provisions of ORS 33.055.
(5) The filing and appearance fees
established by this section apply to cases of original jurisdiction in the
Supreme Court.
SECTION 67. The amendments to ORS
21.010 by section 66 of this 2011 Act apply only to proceedings commenced on or
after October 1, 2011.
SECTION 68. ORS 21.040 is
repealed.
SECTION 68a. ORS 2.565 is
repealed.
SECTION 68b. Any funds in the
Appellate Mediation Program Revolving Account on the effective date of this
2011 Act shall be transferred by the State Treasurer to the General Fund.
OTHER COURT
FEES
(Document Fee)
SECTION 69. ORS 21.325 and 21.580
are repealed.
SECTION 70. Document fee.
(1) A circuit court shall collect a fee of $15 for:
(a) Making or entering a transcript of
a judgment.
(b) Preparing a certified copy of a
satisfaction document under ORS 18.225 (5).
(c) Issuing notices of restitution as
provided in ORS 105.151.
(d) Any other service that is
statutorily made subject to the fee established in this section.
(2) A circuit court shall collect a
fee of $35 for issuing a writ of execution or a writ of garnishment.
SECTION 71. Section 70 of this
2011 Act applies to all services described in section 70 of this 2011 Act that
are rendered on or after October 1, 2011.
(Other Court
Services)
SECTION 72. Other court
services. (1) A circuit court may collect such fees as the Chief
Justice of the Supreme Court may establish or authorize for any service the
court may be required or authorized to perform and for which no fee is provided
by law.
(2) A fee may not be established under
this section for location or inspection of court records.
(Motion Fees
in Circuit Court)
SECTION 73. ORS 21.125 is amended to
read:
21.125. [(1) In any action, suit or proceeding subject to a fee under ORS
21.110, or in any civil appeal or petition subject to a fee under ORS 21.010,
the Chief Justice of the Supreme Court may require that a $50 fee be paid at
the time of filing a motion identified by the Chief Justice as being subject to
a fee under this section. If the Chief Justice has identified a motion as being
subject to a fee under this section, the responding party must file a fee of
$35 upon the filing of a response to the motion. The Chief Justice by order
shall identify motions that are subject to fees under this section.]
(1) In any action or other
proceeding subject to a fee under sections 8, 13 or 15 of this 2011 Act, a $100
fee must be paid by the party filing one of the following motions and by the
party responding to the motion:
(a) A motion for summary judgment
under ORCP 47.
(b) A motion for judgment
notwithstanding the verdict under ORCP 63.
(c) A motion for new trial under ORCP
64.
(d) A motion for relief from judgment
under ORCP 71.
(e) A motion for preliminary
injunction under ORCP 79.
(f) A motion seeking remedies for
contempt of court.
(2) The fees provided for in this
section may not be collected from the state, a county, a city or a school
district.
[(3)
The fees provided for in this section may not be collected for motions for
judgment by voluntary dismissal under ORCP 54 A(1), for motions for judgment by
written stipulation under ORCP 67 F or for motions for entry of default
judgment under ORCP 69 B(1).]
[(4)]
(3) The fees provided for in this section may not be collected for motions
made to an arbitrator or mediator in an arbitration or mediation required or
offered by a court, or to any motion relating to an arbitration or mediation
required or offered by a court.
[(5)]
(4) The clerk shall file a motion or response that is subject to a fee
under this section only if the fee required by this section is paid when the
motion or response is submitted for filing.
SECTION 74. Motion fees in
domestic relation cases. (1) In any action or other proceeding
subject to a fee under section 11 of this 2011 Act, a $150 fee must be paid by
the party filing a motion that seeks entry of a supplemental judgment and by a
party responding to the motion.
(2) The fee provided for in subsection
(1) of this section does not apply to any motion under ORCP 68, 69 or 71.
(3) In any action or other proceeding
subject to a fee under section 11 of this 2011 Act, a $50 fee must be paid by
the party filing one of the following motions and by a party responding to the
motion:
(a) A motion filed under ORS 107.434;
and
(b) A motion seeking remedies for
contempt of court.
(4) Only the fees specified by
subsection (1) of this section may be collected if a party concurrently files a
motion that seeks entry of a supplemental judgment and a motion seeking
remedies for contempt of court.
SECTION 75. ORS 107.434 is amended to
read:
107.434. (1) The presiding judge of
each judicial district shall establish an expedited parenting time enforcement
procedure that may or may not include a requirement for mediation. The
procedure must be easy to understand and initiate. Unless the parties otherwise
agree, the court shall conduct a hearing no later than 45 days after the filing
of a motion seeking enforcement of a parenting time order. [The court shall charge a filing fee of $50,
subject to waiver or deferral of the fee under ORS 21.680 to 21.698.] The
court shall provide forms for:
(a) A motion filed by either party
alleging a violation of parenting time or substantial violations of the
parenting plan. When a person files this form, the person must include a copy
of the order establishing the parenting time.
(b) An order requiring the parties to
appear and show cause why parenting time should not be enforced in a specified
manner. The party filing the motion shall serve a copy of the motion and the
order on the other party. The order must include:
(A) A notice of the remedies imposable
under subsection (2) of this section and the availability of a waiver of any
mediation requirement; and
(B) A notice in substantially the
following form:
______________________________________________________________________________
When pleaded and shown in a separate
legal action, violation of court orders, including visitation and parenting
time orders, may also result in a finding of contempt, which can lead to fines,
imprisonment or other penalties, including compulsory community service.
______________________________________________________________________________
(c) A motion, affidavit and order that
may be filed by either party and providing for waiver of any mediation
requirement on a showing of good cause.
(2) In addition to any other remedy
the court may impose to enforce the provisions of a judgment relating to the
parenting plan, the court may:
(a) Modify the provisions relating to
the parenting plan by:
(A) Specifying a detailed parenting
time schedule;
(B) Imposing additional terms and
conditions on the existing parenting time schedule; or
(C) Ordering additional parenting
time, in the best interests of the child, to compensate for wrongful
deprivation of parenting time;
(b) Order the party who is violating
the parenting plan provisions to post bond or security;
(c) Order either or both parties to
attend counseling or educational sessions that focus on the impact of violation
of the parenting plan on children;
(d) Award the prevailing party
expenses, including, but not limited to, attorney fees, filing fees and court
costs, incurred in enforcing the party’s parenting plan;
(e) Terminate, suspend or modify
spousal support;
(f) Terminate, suspend or modify child
support as provided in ORS 107.431; or
(g) Schedule a hearing for
modification of custody as provided in ORS 107.135 (11).
(Motion Fees
in Appellate Courts)
SECTION 76. Motion fees in
appellate courts. In any appeal or petition for review subject to a
fee under ORS 21.010, a $50 fee must be paid by the party filing one of the
following motions and by the party responding to the motion:
(1) A motion to dismiss filed by a
respondent.
(2) A motion to determine
jurisdiction.
(3) A motion for continuance.
(4) A motion for an extension of time
for the filing of a brief or other document in the proceeding.
SECTION 77. Sections 74 and 76 of
this 2011 Act and the amendments to ORS 21.125 and 107.434 by sections 73 and
75 of this 2011 Act apply to all motions that are filed on or after October 1,
2011.
(Hearing and
Trial Fees)
SECTION 78. ORS 21.275 is
repealed.
SECTION 79. ORS 21.270 is amended to
read:
21.270. (1) In any civil action, suit
or proceeding in the circuit court, other than a protective proceeding under
ORS chapter 125 or a probate, adoption or change of name proceeding, trial fees
shall be collected as provided in this section.
(2) The clerk of the circuit court
shall collect from the plaintiff, appellant or moving party, for a trial on the
merits without a jury, a trial fee of [$77]
$125 for each full or partial day of the trial. The amount of the fee for
the first day of trial shall be collected in advance and is due and payable
when the action, suit or proceeding is set for trial. The amount of the fee for
subsequent days of trial shall be collected on the day the trial concludes.
(3)(a) The clerk shall collect from
the plaintiff or appellant, for a trial by a jury of more than six persons, a
jury trial fee of [$193] $225
for each full or partial day of the trial. The clerk shall collect from the
plaintiff or appellant, for a trial by a jury of six persons, a jury trial fee
of [$110] $150 for each full
or partial day of the trial. The amount of the fee for the first day of trial
shall be collected in advance and is due and payable when the action, suit or
proceeding is set for trial by jury. The amount of the fee for subsequent days
of trial shall be collected on the day the trial concludes.
(b) If the plaintiff or appellant
waives a trial by jury, and the defendant or respondent desires a trial by
jury, the clerk shall collect the jury trial fee from the defendant or
respondent, and not from the plaintiff or appellant.
(c) A case in which the jury trial fee
for the first day of trial has not been paid shall be tried by the court
without a jury, unless the court otherwise orders. If a case in which the jury
trial fee for the first day of trial has not been paid is tried by a jury, the
clerk shall tax against the losing party the total amount of the jury trial
fee. The jury trial fee constitutes a monetary obligation payable to the court,
and may be made part of the judgment in the case by the clerk without further
notice to the debtor or further order of the court.
(4) If a counterclaim, cross-claim or
third party claim is tried on any day other than a day on which the claim of
the plaintiff is tried, the clerk shall collect from the party asserting the
counterclaim, cross-claim or third party claim the trial fee or jury trial fee,
whichever is applicable, for that day, and shall not collect the applicable fee
for that day from the plaintiff. If the party asserting a counterclaim,
cross-claim or third party claim waives a trial by jury on the claim, and the
party defending against the claim desires a trial by jury on the claim, the
clerk shall collect the jury trial fee from the defending party and not from
the asserting party.
(5) The fees provided for in this
section include any reporting of the trial proceedings, but not the preparation
of transcripts of a report.
(6) Except as otherwise provided in
subsection (3)(c) of this section, the fees provided for in this section that
are paid by a party shall be considered costs and disbursements and may be
taxed and collected as other costs and disbursements by the prevailing party.
(7) A court shall order that a trial
fee paid under the provisions of this section be refunded to the party that
paid the fee if all claims in the action or proceeding are decided without the
commencement of a trial and the party that paid the fee files a motion and
affidavit requesting refund of the fee not more than 15 days after entry of
judgment disposing of the action or proceeding.
SECTION 80. The amendments to ORS
21.270 by section 79 of this 2011 Act apply to all trials conducted on or after
October 1, 2011.
(Third-Party
Complaints)
SECTION 81. Section 13, chapter 659,
Oregon Laws 2009, as amended by section 27, chapter 107, Oregon Laws 2010, is
amended to read:
Sec. 13. (1) Notwithstanding
ORS 21.110 (11)(g), when a person files a third-party complaint in a civil
action, suit or proceeding in circuit court, the clerk of the court shall
collect from the third-party plaintiff the same fees, charges and surcharges
that would be required of a plaintiff filing the same complaint in an original
action. Fees collected under this section are subject to ORS 21.110 (9).
(2) When a third-party defendant files
an appearance in a civil action, suit or proceeding in circuit court, the clerk
of the court shall collect the same fees, charges and surcharges that would be
required of a defendant filing the same appearance in an original action.
(3) This section applies only to
third-party complaints and appearances filed on or after October 1, 2009, and
before [July] October 1, 2011.
[(4)
All amounts imposed as fees under this section shall be deposited in the
Judicial System Surcharge Account.]
[(5)
The collections and revenue management program established under ORS 1.204 may
not be reimbursed under ORS 1.204 from amounts imposed under this section.]
SECTION 81a. Section 13, chapter 659,
Oregon Laws 2009, as amended by section 27, chapter 107, Oregon Laws 2010, and
section 81 of this 2011 Act, is amended to read:
Sec. 13. (1) [Notwithstanding ORS 21.110 (11)(g),]
When a person files a third-party complaint in a civil action[, suit] or proceeding in circuit court
and the complaint names a defendant who has not already appeared in the
proceeding, the clerk of the court shall collect from the third-party
plaintiff the same [fees, charges and
surcharges] filing fee that would be required of a plaintiff filing
the same complaint in an original action. [Fees
collected under this section are subject to ORS 21.110 (9).]
(2) When a third-party defendant files
an appearance in a civil action[, suit]
or proceeding in circuit court, the clerk of the court shall collect the same [fees, charges and surcharges] filing
fee that would be required of a defendant filing the same appearance in an
original action.
[(3)
This section applies only to third-party complaints and appearances filed on or
after October 1, 2009, and before October 1, 2011.]
SECTION 82. The amendments to
section 13, chapter 659, Oregon Laws 2009, by section 81a of this 2011 Act
apply only to proceedings commenced on or after October 1, 2011.
(Settlement
Conference Fees)
SECTION 83. Section 32, chapter 659,
Oregon Laws 2009, is amended to read:
Sec. 32. (1) In any civil
proceeding subject to a fee under ORS 21.110, 21.111, 21.114 or 21.310 in which
the parties request a settlement conference before a judge, or in which a
settlement conference before a judge is required by law or by the court, each
party participating in the conference shall pay a $50 fee to the court before
the conference is conducted.
(2) Notwithstanding ORS 3.428 (3), the
fee required under subsection (1) of this section must be paid when parties
request a settlement conference through a family law facilitation program.
(3) The fee imposed under this section
applies only to settlement conferences conducted on or after October 1, 2009,
and before [July] October 1,
2011.
[(4)
All fees imposed under this section shall be deposited in the Judicial System
Surcharge Account.]
[(5)
The collections and revenue management program established under ORS 1.204 may
not be reimbursed under ORS 1.204 from fees imposed under this section.]
SECTION 83a. Section 32, chapter 659,
Oregon Laws 2009, as amended by section 83 of this 2011 Act, is amended to
read:
Sec. 32. (1) In any civil
proceeding subject to a fee under [ORS
21.110, 21.111, 21.114 or 21.310] section 11 of this 2011 Act in
which the parties request a settlement conference before a judge, or in which a
settlement conference before a judge is required by law or by the court, each
party participating in the conference shall pay a [$50] $100 fee to the court [before] for each day or partial day during which the
conference is conducted.
(2) Notwithstanding ORS 3.428 (3), the
fee required under subsection (1) of this section must be paid when parties
request a settlement conference through a family law facilitation program.
[(3)
The fee imposed under this section applies only to settlement conferences
conducted on or after October 1, 2009, and before October 1, 2011.]
(3) In civil proceedings other than
those described in subsection (1) of this section, if the parties request a
settlement conference before a judge, or a settlement conference before a judge
is required by law or by the court, each party participating in the conference
shall pay a $200 fee to the court for each day or partial day during which the
conference is conducted.
(4) The fees required by this section
shall be collected in advance, and are due and payable on the first day of the
settlement conference.
SECTION 84. The amendments to
section 32, chapter 659, Oregon Laws 2009, by section 83a of this 2011 Act
apply to all settlement conferences conducted on or after October 1, 2011.
SECTION 85. ORS 2.560 is amended to
read:
2.560. (1) The Court of Appeals shall
sit primarily in Salem, but also may sit in other locations designated under
ORS 1.085 (2).
(2) The Court of Appeals may make and
enforce all rules necessary for the prompt and orderly dispatch of the business
of the court, and the remanding of causes to the lower courts, and not
inconsistent with applicable rules made or orders issued by the Chief Justice
of the Supreme Court or the Chief Judge of the Court of Appeals.
(3) The Court of Appeals shall
establish an appellate mediation program and make and enforce all rules
necessary for the prompt and orderly dispatch of the business of the program. [The parties to the appeal shall pay the fees
of a mediator providing services under the program, unless those fees are waived
or deferred by the Court of Appeals.] The parties to the appeal must pay
the following fees for the mediator:
(a) $150 for an appeal related to
workers’ compensation under ORS chapter 656; and
(b) $350 for all other appeals.
SECTION 86. The amendments to ORS
2.560 by section 85 of this 2011 Act apply to all mediations conducted under
ORS 2.560 on or after October 1, 2011.
(Motion for
Order Setting Aside Conviction)
SECTION 87. ORS 137.225 is amended to
read:
137.225. (1)(a) At any time after the
lapse of three years from the date of pronouncement of judgment, any defendant
who has fully complied with and performed the sentence of the court and whose
conviction is described in subsection (5) of this section by motion may apply
to the court where the conviction was entered for entry of an order setting
aside the conviction; or
(b) At any time after the lapse of one
year from the date of any arrest, if no accusatory instrument was filed, or at
any time after an acquittal or a dismissal of the charge, the arrested person
may apply to the court that would have jurisdiction over the crime for which
the person was arrested, for entry of an order setting aside the record of the
arrest. For the purpose of computing the one-year period, time during which the
arrested person has secreted himself or herself within or without the state is
not included.
(2)(a) A copy of the motion and a full
set of the defendant’s fingerprints shall be served upon the office of the
prosecuting attorney who prosecuted the crime or violation, or who had
authority to prosecute the charge if there was no accusatory instrument filed,
and opportunity shall be given to contest the motion. The fingerprint card with
the notation “motion for setting aside conviction,” or “motion for setting
aside arrest record” as the case may be, shall be forwarded to the Department
of State Police bureau of criminal identification. Information resulting from
the fingerprint search along with the fingerprint card shall be returned to the
prosecuting attorney.
(b) When a prosecuting attorney is
served with a copy of a motion to set aside a conviction under this section,
the prosecuting attorney shall provide a copy of the motion and notice of the
hearing date to the victim, if any, of the crime by mailing a copy of the
motion and notice to the victim’s last-known address.
(c) When a person makes a motion under
subsection (1)(a) of this section, the person must pay a fee of $80 to the
Department of State Police. The person shall attach a certified check payable
to the Department of State Police in the amount of $80 to the fingerprint card
that is served upon the prosecuting attorney. The office of the prosecuting
attorney shall forward the check with the fingerprint card to the Department of
State Police bureau of criminal identification.
(d) In addition to the fee
established under paragraph (c) of this subsection, when a person makes a
motion under subsection (1)(a) of this section the person must pay the filing
fee established under section 8 of this 2011 Act.
(3) Upon hearing the motion, the court
may require the filing of such affidavits and may require the taking of such
proofs as it deems proper. The court shall allow the victim to make a statement
at the hearing. Except as otherwise provided in subsection (12) of this
section, if the court determines that the circumstances and behavior of the
applicant from the date of conviction, or from the date of arrest as the case
may be, to the date of the hearing on the motion warrant setting aside the conviction,
or the arrest record as the case may be, it shall enter an appropriate order
that shall state the original arrest charge and the conviction charge, if any
and if different from the original, date of charge, submitting agency and
disposition. The order shall further state that positive identification has
been established by the bureau and further identified as to state bureau number
or submitting agency number. Upon the entry of the order, the applicant for
purposes of the law shall be deemed not to have been previously convicted, or
arrested as the case may be, and the court shall issue an order sealing the
record of conviction and other official records in the case, including the
records of arrest whether or not the arrest resulted in a further criminal
proceeding.
(4) The clerk of the court shall
forward a certified copy of the order to such agencies as directed by the
court. A certified copy must be sent to the Department of Corrections when the
person has been in the custody of the Department of Corrections. Upon entry of
the order, the conviction, arrest or other proceeding shall be deemed not to
have occurred, and the applicant may answer accordingly any questions relating
to its occurrence.
(5) The provisions of subsection
(1)(a) of this section apply to a conviction of:
(a) A Class C felony, except for
criminal mistreatment in the first degree under ORS 163.205 when it would
constitute child abuse, as defined in ORS 419B.005, or any sex crime.
(b) The crime of possession of the
narcotic drug marijuana when that crime was punishable as a felony only.
(c) A crime punishable as either a
felony or a misdemeanor, in the discretion of the court, except for:
(A) Any sex crime; and
(B) The following crimes when they
would constitute child abuse as defined in ORS 419B.005:
(i) Criminal mistreatment in the first
degree under ORS 163.205; and
(ii) Endangering the welfare of a
minor under ORS 163.575 (1)(a).
(d) A misdemeanor, including a
violation of a municipal ordinance, for which a jail sentence may be imposed,
except for endangering the welfare of a minor under ORS 163.575 (1)(a) when it
would constitute child abuse, as defined in ORS 419B.005, or any sex crime.
(e) A violation, whether under state
law or local ordinance.
(f) An offense committed before
January 1, 1972, that if committed after that date would be:
(A) A Class C felony, except for any
sex crime or for the following crimes when they would constitute child abuse as
defined in ORS 419B.005:
(i) Criminal mistreatment in the first
degree under ORS 163.205; and
(ii) Endangering the welfare of a
minor under ORS 163.575 (1)(a).
(B) A crime punishable as either a
felony or a misdemeanor, in the discretion of the court, except for any sex
crime or for the following crimes when they would constitute child abuse as
defined in ORS 419B.005:
(i) Criminal mistreatment in the first
degree under ORS 163.205; and
(ii) Endangering the welfare of a
minor under ORS 163.575 (1)(a).
(C) A misdemeanor, except for
endangering the welfare of a minor under ORS 163.575 (1)(a) when it would
constitute child abuse, as defined in ORS 419B.005, or any sex crime.
(D) A violation.
(6) Notwithstanding subsection (5) of
this section, the provisions of subsection (1) of this section do not apply to:
(a) A conviction for a state or
municipal traffic offense.
(b) A person convicted, within the
10-year period immediately preceding the filing of the motion pursuant to
subsection (1) of this section, of any other offense, excluding motor vehicle
violations, whether or not the other conviction is for conduct associated with
the same criminal episode that caused the arrest or conviction that is sought
to be set aside. Notwithstanding subsection (1) of this section, a conviction
that has been set aside under this section shall be considered for the purpose
of determining whether this paragraph is applicable.
(c) A person who at the time the
motion authorized by subsection (1) of this section is pending before the court
is under charge of commission of any crime.
(7) Notwithstanding subsection (5) of
this section, the provisions of subsection (1)(a) of this section do not apply
to criminally negligent homicide under ORS 163.145, when that offense was
punishable as a Class C felony.
(8) The provisions of subsection (1)(b)
of this section do not apply to:
(a) A person arrested within the
three-year period immediately preceding the filing of the motion for any
offense, excluding motor vehicle violations, and excluding arrests for conduct
associated with the same criminal episode that caused the arrest that is sought
to be set aside.
(b) An arrest for driving while under
the influence of intoxicants if the charge is dismissed as a result of the
person’s successful completion of a diversion agreement described in ORS 813.200.
(9) The provisions of subsection (1)
of this section apply to convictions and arrests that occurred before, as well
as those that occurred after, September 9, 1971. There is no time limit for
making an application.
(10) For purposes of any civil action
in which truth is an element of a claim for relief or affirmative defense, the
provisions of subsection (3) of this section providing that the conviction,
arrest or other proceeding be deemed not to have occurred do not apply and a
party may apply to the court for an order requiring disclosure of the official
records in the case as may be necessary in the interest of justice.
(11) Upon motion of any prosecutor or
defendant in a case involving records sealed under this section, supported by
affidavit showing good cause, the court with jurisdiction may order the
reopening and disclosure of any records sealed under this section for the
limited purpose of assisting the investigation of the movant. However, such an
order has no other effect on the orders setting aside the conviction or the
arrest record.
(12) Unless the court makes written
findings by clear and convincing evidence that granting the motion would not be
in the best interests of justice, the court shall grant the motion and enter an
order as provided in subsection (3) of this section if the defendant has been
convicted of one of the following crimes and is otherwise eligible for relief
under this section:
(a) Abandonment of a child, ORS
163.535.
(b) Attempted assault in the second
degree, ORS 163.175.
(c) Assault in the third degree, ORS
163.165.
(d) Coercion, ORS 163.275.
(e) Criminal mistreatment in the first
degree, ORS 163.205.
(f) Attempted escape in the first
degree, ORS 162.165.
(g) Incest, ORS 163.525, if the victim
was at least 18 years of age.
(h) Intimidation in the first degree,
ORS 166.165.
(i) Attempted kidnapping in the second
degree, ORS 163.225.
(j) Attempted robbery in the second
degree, ORS 164.405.
(k) Robbery in the third degree, ORS
164.395.
(L) Supplying contraband, ORS 162.185.
(m) Unlawful use of a weapon, ORS
166.220.
(13) As used in this section, “sex
crime” has the meaning given that term in ORS 181.594.
SECTION 88. The amendments to ORS
137.225 by section 87 of this 2011 Act apply to all motions filed under ORS
137.225 on or after October 1, 2011.
(Marriage
Solemnization)
SECTION 89. ORS 106.120 is amended to
read:
106.120. (1) As used in this section, “judicial
officer” means:
(a) A judicial officer of this state
as that term is defined in ORS 1.210 and includes but is not limited to a judge
of a municipal court and a justice of the peace.
(b) An active judge of a federal
court.
(c) An active United States magistrate
judge.
(2) Marriages may be solemnized by:
(a) A judicial officer;
(b) A county clerk;
(c) Religious congregations or
organizations as indicated in ORS 106.150 (2); or
(d) A clergyperson of any religious
congregation or organization who is authorized by the congregation or
organization to solemnize marriages.
(3) A person authorized to solemnize
marriages under subsection (2) of this section may solemnize a marriage
anywhere in this state.
(4)(a) When a marriage is solemnized
by a tax, appellate or circuit judge of this state, the clerk of the court or
the county clerk shall collect a fee of [$25]
$100 and deposit the fee in the Judicial Department Operating Account
established in ORS 1.009.
(b) When a marriage is solemnized by a
county clerk, the county clerk shall collect a fee of [$25] $100, as provided in ORS 205.320.
(c) The fee described in this
subsection may be collected only if:
(A) The marriage is solemnized during
normal working hours, excluding holidays;
(B) The marriage is solemnized in
court facilities or a county clerk’s office; or
(C) More than a minimal amount of
staff time or other court or county clerk’s office resources are used in
connection with the solemnization.
(d) The Chief Justice of the Supreme
Court or the county clerk may establish a written procedure for waiver of the
fee required under this subsection in exigent circumstances, including but not
limited to indigency of the parties to the marriage.
(5) In addition to any fee collected
under subsection (4) of this section, a judicial officer of this state and a
county clerk may charge and accept an agreed upon personal payment not to
exceed $100 plus actual costs for the solemnization of a marriage if that
solemnization is performed:
(a) At a place other than the
courthouse where the judicial officer or county clerk serves; or
(b) Outside of the judicial officer’s
or county clerk’s normal working hours.
(6) The charging and accepting of a
personal payment by a judicial officer of this state or a county clerk under
subsection (5) of this section does not constitute a violation of any of the
provisions of ORS chapter 244.
(7) The amount of actual costs charged
by a judicial officer of this state or a county clerk under subsection (5) of
this section may not exceed:
(a) Actual expenses for food and
lodging as verified by receipts.
(b) If travel is made by personal
vehicle, the actual number of round-trip miles from the judicial officer’s or
county clerk’s home or office, whichever is greater, compensated at the rate of
reimbursement then provided by the State of Oregon to its employees or, if
travel is made by a commercial carrier, reimbursement shall be made of the
actual costs thereof, verified by receipts.
(8) A judicial officer of this state
or a county clerk shall maintain records of the amount of personal payments
received for performing marriages, of actual costs and the supporting
documentation related thereto for a period of four years.
(9) The parties to a marriage
solemnized by a tax, appellate or circuit judge of this state shall show to the
judge proof of payment of the fee required under subsection (4)(a) of this
section before solemnization. Except as provided in subsection (4)(d) of this
section, the judge may not solemnize a marriage without proof of payment of the
fee.
SECTION 90. The amendments to ORS
106.120 by section 89 of this 2011 Act apply to all marriages solemnized under
ORS 106.120 on or after October 1, 2011.
(Collection
Account Fees)
SECTION 91. Section 35, chapter 659,
Oregon Laws 2009, is amended to read:
Sec. 35. [(1)] The amendments to ORS 1.202 by section 34 [of this 2009 Act], chapter 659,
Oregon Laws 2009, apply only to judgments entered on or after October 1,
2009, and before [July] October
1, 2011.
[(2)
Notwithstanding ORS 1.202 (1), all fees imposed under ORS 1.202 (1) after
October 1, 2009, and before July 1, 2011, that are in excess of $100 shall be
deposited in the Judicial System Surcharge Account.]
[(3)
The collections and revenue management program established under ORS 1.204 may
not be reimbursed under ORS 1.204 from fees imposed under ORS 1.202 (1) that
are in excess of $100 pursuant to the amendments to ORS 1.202 by section 34 of
this 2009 Act.]
SECTION 91a. Section 37, chapter 659,
Oregon Laws 2009, is amended to read:
Sec. 37. (1) The amendments to
ORS 1.202 by section 36, chapter 659, Oregon Laws 2009, [of this 2009 Act] become operative on [July] October 1, 2011.
(2) The amendments to ORS 1.202 by
section 36, chapter 659, Oregon Laws 2009, [of this 2009 Act] do not affect any fee imposed before [July] October 1, 2011[, and all amounts added to judgments under
the amendments to ORS 1.202 by section 36 of this 2009 Act that are collected
on or after July 1, 2011, shall continue to be deposited in the Judicial System
Surcharge Account].
SECTION 92. ORS 1.202 is amended to
read:
1.202. (1) All circuit courts and
appellate courts of this state, and all commissions, departments and divisions
in the judicial branch of state government, shall add a fee of not less than
$50 and not more than $200 to any judgment that includes a monetary obligation
that the court or judicial branch is charged with collecting. The fee shall
cover the cost of establishing and administering an account for the debtor and
shall be added without further notice to the debtor or further order of the
court. The fee shall be added only if the court gives the defendant a period of
time in which to pay the obligation after the financial obligation is imposed.
Fees under this subsection shall be deposited in the General Fund.
(2) All circuit courts and appellate
courts of this state, and all commissions, departments and divisions in the
judicial branch of state government, that use private collection agencies, the
Department of Revenue or an offset of federal tax refunds pursuant to an
agreement entered into under ORS 1.196 shall add a fee to any judgment referred
for collection that includes a monetary obligation that the state court or the
commission, department or division is charged with collecting. A fee to cover
the costs of collecting judgments referred to the private collection agency,
the Department of Revenue, the United States Financial Management Service or
the Internal Revenue Service shall be added to the monetary obligation without
further notice to the debtor or further order of the court. The fee may not
exceed the actual costs of collecting the judgment. [Fees under this subsection shall be deposited in the Judicial
Department Collections Account established under ORS 1.204 and may be used only
for the purposes specified in ORS 1.204.]
(3) The Chief Justice of the Supreme
Court may authorize courts to waive or suspend the fees required to be added to
judgments under this section. Except to the extent authorized by the Chief
Justice, a court may not waive or suspend the fees required to be added to
judgments under this section.
SECTION 92a. ORS 1.202, as amended by
section 36, chapter 659, Oregon Laws 2009, is amended to read:
1.202. (1) All circuit courts and
appellate courts of this state, and all commissions, departments and divisions
in the judicial branch of state government, shall add a fee of not less than
$50 and not more than [$100] $200
to any judgment that includes a monetary obligation that the court or judicial
branch is charged with collecting. The fee shall cover the cost of establishing
and administering an account for the debtor and shall be added without further
notice to the debtor or further order of the court. The fee shall be added only
if the court gives the defendant a period of time in which to pay the
obligation after the financial obligation is imposed. Fees under this
subsection shall be deposited in the General Fund.
(2) All circuit courts and appellate
courts of this state, and all commissions, departments and divisions in the
judicial branch of state government, that use private collection agencies, the
Department of Revenue or an offset of federal tax refunds pursuant to an
agreement entered into under ORS 1.196 shall add a fee to any judgment referred
for collection that includes a monetary obligation that the state court or the
commission, department or division is charged with collecting. A fee to cover
the costs of collecting judgments referred to the private collection agency,
the Department of Revenue, the United States Financial Management Service or
the Internal Revenue Service shall be added to the monetary obligation without
further notice to the debtor or further order of the court. The fee may not
exceed the actual costs of collecting the judgment. [Fees under this subsection shall be deposited in the Judicial
Department Collections Account established under ORS 1.204 and may be used only
for the purposes specified in ORS 1.204.]
(3) The Chief Justice of the Supreme
Court may authorize courts to waive or suspend the fees required to be added to
judgments under this section. Except to the extent authorized by the Chief
Justice, a court may not waive or suspend the fees required to be added to
judgments under this section.
SECTION 93. The amendments to ORS
1.202 by section 92a of this 2011 Act apply to all judgments entered on or after
October 1, 2011.
(Relief From
Sex Offender Reporting)
SECTION 94. ORS 181.823 is amended to
read:
181.823. (1)(a) No sooner than two
years, but no later than five years, after the termination of juvenile court
jurisdiction or, if the person was placed under the jurisdiction of the
Psychiatric Security Review Board under ORS 419C.529, board jurisdiction over a
person required to report under ORS 181.595, 181.596 or 181.597, the person may
file a petition for relief from the duty to report. The person must file the
petition in the juvenile court in which the person was adjudicated for the act
that requires reporting. The person must pay the filing fee established
under section 8 of this 2011 Act.
(b) The juvenile court in which a
petition under this section is filed may transfer the matter to the juvenile
court of the county that last supervised the person if the court determines
that the convenience of the parties, the victim and witnesses require the
transfer.
(c) The juvenile court has exclusive original
jurisdiction in any proceeding under this section.
(d) The person, the district attorney
and the juvenile department are parties to a hearing on a petition filed under
this section.
(2) When a person files a petition
under this section and the petition was filed:
(a) No later than three years after
the termination of juvenile court jurisdiction or, if the person was placed
under the jurisdiction of the Psychiatric Security Review Board under ORS
419C.529, board jurisdiction, the state has the burden of proving by clear and
convincing evidence that the person is not rehabilitated and continues to pose
a threat to the safety of the public.
(b) More than three years, but no
later than five years, after the termination of juvenile court jurisdiction or,
if the person was placed under the jurisdiction of the Psychiatric Security
Review Board under ORS 419C.529, board jurisdiction, the person has the burden
of proving by clear and convincing evidence that the person is rehabilitated
and does not pose a threat to the safety of the public.
(3) In determining whether the state
or the person has met the burden of proof established in subsection (2) of this
section, the juvenile court may consider but need not be limited to
considering:
(a) The extent and impact of any
physical or emotional injury to the victim;
(b) The nature of the act that
subjected the person to the duty of reporting as a sex offender;
(c) Whether the person used or
threatened to use force in committing the act;
(d) Whether the act was premeditated;
(e) Whether the person took advantage
of a position of authority or trust in committing the act;
(f) The age of any victim at the time
of the act, the age difference between any victim and the person and the number
of victims;
(g) The vulnerability of the victim;
(h) Other acts committed by the person
that would be crimes if committed by an adult and criminal activities engaged
in by the person before and after the adjudication;
(i) Statements, documents and
recommendations by or on behalf of the victim or the parents of the victim;
(j) The person’s willingness to accept
personal responsibility for the act and personal accountability for the
consequences of the act;
(k) The person’s ability and efforts
to pay the victim’s expenses for counseling and other trauma-related expenses
or other efforts to mitigate the effects of the act;
(L) Whether the person has
participated in and satisfactorily completed a sex offender treatment program
or any other intervention, and if so the juvenile court may also consider:
(A) The availability, duration and
extent of the treatment activities;
(B) Reports and recommendations from
the providers of the treatment;
(C) The person’s compliance with
court, board or supervision requirements regarding treatment; and
(D) The quality and thoroughness of
the treatment program;
(m) The person’s academic and
employment history;
(n) The person’s use of drugs or
alcohol before and after the adjudication;
(o) The person’s history of public or
private indecency;
(p) The person’s compliance with and
success in completing the terms of supervision;
(q) The results of psychological
examinations of the person;
(r) The protection afforded the public
by the continued existence of the records; and
(s) Any other relevant factors.
(4) In a hearing under this section,
the juvenile court may receive testimony, reports and other evidence without
regard to whether the evidence is admissible under ORS 40.010 to 40.210 and
40.310 to 40.585 if the evidence is relevant to the determination and findings
required under this section. As used in this subsection, “relevant evidence”
has the meaning given that term in ORS 40.150.
(5) When a petition is filed under
this section, the state has the right to have a psychosexual evaluation of the
person conducted. The state shall file notice with the juvenile court of its
intention to have the person evaluated. If the person objects to the evaluator
chosen by the state, the juvenile court for good cause shown may direct the
state to select a different evaluator.
(6) As soon as practicable after a
petition has been filed under this section, the district attorney or juvenile
department shall make a reasonable effort to notify the victim of the crime
that the person has filed a petition seeking relief under this section and, if
the victim has requested, to inform the victim of the date, time and place of a
hearing on the petition in advance of the hearing.
(7)(a) When a petition has been filed
under this section and the petition was filed:
(A) No later than three years after
the termination of juvenile court jurisdiction or, if the person was placed
under the jurisdiction of the Psychiatric Security Review Board under ORS
419C.529, board jurisdiction, the court shall hold a hearing on the petition no
sooner than 60 days and no later than 120 days after the date of filing.
(B) More than three years, but no
later than five years, after the termination of juvenile court jurisdiction or,
if the person was placed under the jurisdiction of the Psychiatric Security
Review Board under ORS 419C.529, board jurisdiction, the court shall hold a
hearing no sooner than 90 days and no later than 150 days after the date of
filing.
(b) Notwithstanding paragraph (a) of
this subsection, upon a showing of good cause, the court may extend the period
of time in which a hearing on the petition must be held.
(8) When the state has the burden of
proof under subsection (2) of this section and proves by clear and convincing
evidence that the person is not rehabilitated and continues to pose a threat to
the safety of the public, the court shall deny the petition. When the person
has the burden of proof under subsection (2) of this section and proves by
clear and convincing evidence that the person is rehabilitated and does not
pose a threat to the safety of the public, the court shall grant the petition.
(9) When a juvenile court enters an
order relieving a person of the requirement to report under ORS 181.595,
181.596 or 181.597, the person shall send a certified copy of the juvenile
court order to the Department of State Police.
(10) If a person commits an act that
could be charged as a sex crime listed in ORS 137.707 and the person is 15, 16
or 17 years of age at the time the act is committed, the state and the person may
stipulate that the person may not petition for relief under this section as
part of an agreement that the person be subject to the jurisdiction of the
juvenile court rather than being prosecuted as an adult under ORS 137.707.
SECTION 95. ORS 181.826 is amended to
read:
181.826. (1) Except as provided in
subsection (6) of this section, when a person is required to report under ORS
181.595, 181.596 or 181.597 as a result of having been found in a juvenile
adjudication in another United States court to have committed an act while the
person was under 18 years of age that would constitute a sex crime if committed
in this state by an adult, the person may file a petition in the circuit court
of the county in which the person resides for an order relieving the person of
the duty to report. The person must pay the filing fee established under
section 8 of this 2011 Act. A petition may be filed under this section only
if:
(a) The person has been registered as
a sex offender in this state for at least two years;
(b) At least two years, but not more
than five years, have elapsed since the termination of supervision on probation
or parole; and
(c) The person submits with the
petition all releases and waivers necessary to allow the district attorney for
the county in which the petition is filed to obtain the following documents
from the jurisdiction in which the person was adjudicated for the act for which
reporting is required:
(A) The juvenile court petition;
(B) The dispositional report to the
court;
(C) The order of adjudication or
jurisdiction;
(D) Any other relevant court
documents;
(E) The police report relating to the
act for which reporting is required;
(F) The order terminating jurisdiction
for the act for which reporting is required; and
(G) The evaluation and treatment
records or reports of the person that are related to the act for which
reporting is required.
(2) A person filing a petition under
this section has the burden of proving by clear and convincing evidence that
the person is rehabilitated and does not pose a threat to the safety of the
public.
(3) Unless the court finds good cause
for a continuance, the court shall hold a hearing on the petition no sooner
than 90 days and no later than 150 days after the date the petition is filed.
(4) Notwithstanding subsection (1)(b)
of this section, if a person has not been registered as a sex offender in this
state for two years until more than five years have elapsed since the
termination of supervision on probation or parole, the person may file a
petition seeking relief under this section if the person files the petition no
later than 90 days after the date on which the person has been registered as a
sex offender in this state for two years.
(5) If a person who files a petition
under this section is required to report as a sex offender for having committed
an act that if committed in this state could have subjected the person to
prosecution as an adult under ORS 137.707, the court may not grant the petition
notwithstanding the fact that the person has met the burden of proof
established in subsection (2) of this section unless the court determines that
to do so is in the interest of public safety.
(6) This section does not apply to a
person who is required to register as a sex offender for life in the
jurisdiction in which the offense occurred.
(7) In a hearing under this section,
the court may receive testimony, reports and other evidence without regard to
whether the evidence is admissible under ORS 40.010 to 40.210 and 40.310 to
40.585 if the evidence is relevant to the determination and findings required
under this section. As used in this subsection, “relevant evidence” has the
meaning given that term in ORS 40.150.
(8) If the court is satisfied by clear
and convincing evidence that the person is rehabilitated and that the person
does not pose a threat to the safety of the public, the court shall enter an
order relieving the person of the duty to report. When the court enters an
order under this subsection, the person shall send a certified copy of the
court order to the Department of State Police.
SECTION 96. The amendments to ORS
181.823 and 181.826 by sections 94 and 95 of this 2011 Act apply only to
proceedings commenced on or after October 1, 2011.
“ADD-ONS”
(Generally)
SECTION 97. (1) Notwithstanding
any other provision of law, during the period commencing on July 1, 2011, and
ending September 30, 2011, all fees, charges and surcharges under ORS 21.111
(4), 21.112, 21.350, 21.480, 36.170, 105.130 (6) and 417.825 (1)(c) shall continue
to be collected and shall be paid into the General Fund and be available for
general governmental purposes.
(2) Notwithstanding any other
provision of law, an ordinance, resolution or other provision increasing the
fee established under ORS 21.112 that takes effect on or after July 1, 2011, is
void. The amount of the fee established under ORS 21.112 that is in effect on
June 30, 2011, for the county shall continue in effect for the period
commencing on July 1, 2011, and ending September 30, 2011.
(Legal Aid)
SECTION 97a. ORS 9.574 and 21.480
are repealed.
SECTION 97b. The repeal of ORS
21.480 by section 97a of this 2011 Act becomes operative immediately after the
amendments to ORS 21.480 by section 34, chapter 107, Oregon Laws 2010, become
operative under section 35, chapter 107, Oregon Laws 2010, as amended by
section 151 of this 2011 Act.
NOTE: Section 98 was
deleted by amendment. Subsequent sections were not renumbered.
SECTION 99. ORS 9.572 is amended to
read:
9.572. (1) The Oregon State Bar shall
by rule establish a Legal Services Program. The program shall provide standards
and guidelines for legal service providers receiving funding from [fees collected under ORS 21.480] the
program. The rules shall also provide methods for evaluating legal service
providers. Funding received under the program may be used only for the
provision of legal services to the poor without charge and for expenses
incurred by the Oregon State Bar in the administration of the Legal Services
Program.
(2) The Oregon State Bar shall appoint
a director of the Legal Services Program established under this section. The
bar shall prescribe the duties of the director and fix the salary of the
director.
(3) The Oregon State Bar may establish
any advisory or technical committees it deems necessary to advise the bar in
establishing and operating the Legal Services Program.
SECTION 100. ORS 9.576 is amended to
read:
9.576. (1) The director of the Legal
Services Program appointed under ORS 9.572 shall periodically review legal
service providers who receive funding from [fees
collected under ORS 21.480] the program. If the director determines
that there are reasonable grounds to believe that a provider is not in
substantial compliance with the standards and guidelines adopted under ORS
9.572, the director shall negotiate with the provider in an attempt to bring
the program into compliance.
(2) If the director of the Legal
Services Program is unable to negotiate satisfactory compliance with the
standards and guidelines of the program established by the Oregon State Bar
under ORS 9.572, the director shall give the provider 30 days in which to bring
the program into compliance. If the director concludes that the program is not
in compliance at the end of the 30-day period, the matter shall be submitted to
mediation. The director and the provider shall jointly select a mediator. If
the director and provider are unable to select a mediator within 15 days after
the expiration of the 30-day period, any presiding judge for a judicial district
may appoint a mediator upon the petition of the director.
(3) If mediation under subsection (2)
of this section fails to produce a resolution of the matter, the director shall
give the provider notice that a hearing will be held not sooner than 30 days
after the date the notice is given. If, after hearing, the director determines
that the provider is not in compliance with the standards and guidelines of the
program and that the provider has failed to show satisfactory progress towards
achieving compliance, the director shall suspend further funding of the program
until such time as the provider makes a showing of compliance.
SECTION 101. ORS 21.615 is amended to
read:
21.615. (1) In an appeal to a circuit
court from a justice court or municipal court in an action for commission of a
state violation or an action for violation of a city charter or ordinance, but
not in an action for commission of a state crime,[:]
[(a)]
the filing[,] and trial [and law library] fees required by section
8 of this 2011 Act and ORS [21.110,]
21.270 [and 21.350] are required of
the appellant and respondent.
[(b)
The legal aid fee required by ORS 21.480 is required of the appellant.]
(2) Payment of fees required by
subsection (1) of this section is subject to ORS 20.140.
(3) Fees required by subsection (1) of
this section may be waived or deferred by a judge of the circuit court for the
reason and in the manner provided in ORS 21.680 to 21.698.
SECTION 102. ORS 180.345 is amended
to read:
180.345. (1) The Department of Justice
is responsible for the administration, supervision and operation of the program
authorized by Title IV-D of the Social Security Act (42 U.S.C. 651 et seq.),
hereinafter the Child Support Program. The Administrator of the Division of
Child Support of the Department of Justice is the Child Support Program
Director for the State of Oregon.
(2) The Department of Justice, by and
through the director, may:
(a) Enter into cooperative agreements
with appropriate courts, law enforcement officials, district attorneys, Indian
tribes or tribal organizations and state agencies to provide assistance in
carrying out Child Support Program services and any other matters of common
concern;
(b) Provide billing, receipting,
record keeping, accounting and distribution services for child and spousal
support cases that receive services required under state and federal law;
(c) Maintain the state plan required
under federal law and act as the liaison for the Child Support Program with the
United States Department of Health and Human Services;
(d) Establish policy and adopt rules
for the operation of the Child Support Program by the Department of Justice and
by entities entering into cooperative agreements under this section;
(e) Conduct performance and program
audits of entities entering into cooperative agreements under this section; and
(f) Perform any other act necessary or
desirable to ensure the effective administration of the Child Support Program
under state and federal law.
(3) The Department of Justice shall
accept and disburse federal funds made available to the state for provision of
the Child Support Program and all related functions in a manner consistent with
federal law. The department may retain the state share of moneys recovered
under child support assignments for the administration of the Child Support
Program as allowed under federal regulations.
(4) It is the policy of the Child
Support Program to inform persons served by the program, in a manner consistent
with federal law, of resources not provided by the program that are available
for assistance in family law matters including, but not limited to, services
provided through the courts of this state, the Oregon State Bar, law schools
and legal service providers that receive funding from [fees collected under ORS 21.480] the Legal Services Program
established under ORS 9.572. The program shall consult with the local
family law advisory committees established under ORS 3.434 to ensure that
eligible individuals are aware of the services offered by the program. The
policy described in this subsection shall be incorporated into staff training
and is applicable to all entities that have entered into cooperative agreements
with the Department of Justice under this section.
(5) The director shall ensure that
Child Support Program policy and rules, to the maximum extent practicable, meet
the needs of the majority of families served by the program. The director shall
guide program staff regarding implementation of the policy and rules.
SECTION 103. ORS 352.066 is amended
to read:
352.066. (1) Pursuant to ORS 351.870,
there is created within the Oregon University System the Mark O. Hatfield
School of Government. The Mark O. Hatfield School of Government shall be
administered by Portland State University. The president of Portland State
University shall appoint the director of the Mark O. Hatfield School of
Government.
(2) The purposes of the Mark O.
Hatfield School of Government are:
(a) To prepare students for careers in
political service, public administration and the administration of justice;
(b) To perform the duties required of
the school under ORS [21.480,]
36.179, 183.502 and 390.240; and
(c) To assist the Criminal Justice
Research and Policy Institute in carrying out the duties under subsection (3)
of this section.
(3) There is created within the Mark
O. Hatfield School of Government the Criminal Justice Research and Policy
Institute. The institute may assist the Legislative Assembly and state and
local governments in developing policies to reduce crime and delinquency by:
(a) Providing the Legislative Assembly
with objective, nonpartisan analyses of existing or proposed state criminal
justice policies, which analyses may not be inconsistent with state or federal
law or the Oregon or United States Constitution;
(b) Evaluating programs, including but
not limited to programs dealing with public safety professionalism, ethics in
leadership and childhood development, funded directly or indirectly by the
State of Oregon that are intended to reduce criminal and delinquent behavior or
to improve professionalism in public safety careers;
(c) Managing reviews and evaluations
relating to major long-term issues confronting the state involving criminal and
juvenile justice, public safety professionalism, ethics in leadership and early
childhood development programs;
(d) Initiating, sponsoring, conducting
and publishing research on criminal and juvenile justice, public safety
professionalism, ethics in leadership and early childhood development that is
peer reviewed and directly useful to policymakers;
(e) Organizing conferences on current
state issues that bring together policymakers, public agencies and leading
academicians; and
(f) Seeking to strengthen the links
among the Legislative Assembly, state and local governments, the Oregon
Criminal Justice Commission, the Department of Public Safety Standards and
Training and the academic community in the interest of more informed
policymaking, the application of best practices and more relevant academic
research.
(4) The Governor, the Chief Justice of
the Supreme Court, the President of the Senate, the Speaker of the House of
Representatives or the chairperson of a legislative committee with
responsibility over criminal or juvenile justice systems or childhood development
programs may request the assistance of the Criminal Justice Research and Policy
Institute in evaluating criminal or juvenile justice programs developed for,
but not necessarily limited to, preventing delinquency, reducing crime and
improving professionalism in public safety careers.
(5) Agencies, departments and officers
of state and local governments may assist the Criminal Justice Research and
Policy Institute in the performance of its functions and furnish information,
data and advice as requested by the institute.
(Law
Libraries)
SECTION 104. ORS 9.830, 9.840,
9.850 and 21.350 are repealed.
SECTION 105. ORS 9.820 is amended to
read:
9.820. In all counties containing more
than 400,000 inhabitants, according to the latest federal decennial census, the
governing body of the county [court
or board of county commissioners] may contract with any law library
association or corporation owning and maintaining a law library in the county
at or convenient to the courthouse, for the use of the library by the judges of
the circuit and county courts, county commissioners, district attorney and all
members of the bar[, and shall, if the
association permits the use of its library by all members of the bar without
charge, pay therefor all library fees collected pursuant to ORS 21.350 (1) to
the library association or corporation for the use of the library].
SECTION 106. ORS 8.125 is amended to
read:
8.125. The State Court Administrator
shall, to the extent directed by the Chief Justice of the Supreme Court:
(1) Assist the Chief Justice in
exercising administrative authority and supervision under ORS 1.002.
(2) Consistent with applicable
provisions of law and rules made thereunder:
(a) Supervise the personnel plan for
officers, other than judges, and employees of the courts of this state who are
state officers or employees.
(b) Prescribe the form and content and
supervise the preparation of consolidated budgets, for submission to the
Legislative Assembly, applicable to expenditures made and revenues received by
the state in respect to the courts of this state.
(c) Supervise an accounting system for
the recording, monitoring and auditing of expenditures made and revenues
received by the state in respect to the courts of this state.
(d) Establish and maintain inventory
records of property of the state in the custody or control of the courts of
this state or any judge, other officer or employee thereof.
(3) Conduct a continuing survey of the
administrative methods and activities, records, business and facilities of the
courts of this state and make recommendations to the Chief Justice based on the
survey.
(4) Collect and compile statistical
and other data relating to the courts of this state and municipal courts,
including the caseload, workload, performance, status, management, expenses and
revenues of those courts, and make reports on the business and condition of
those courts.
(5) Establish and supervise a
statewide public information service concerning the courts of this state.
(6) Establish and supervise education
programs for judges, other officers and employees of the courts of this state
and municipal courts pertinent to the performance of the functions of those
judges, other officers and employees.
(7) Provide to the judges, other
officers and employees of the courts of this state, to attorneys and to the
public appropriate assistance services relating to the administration and
management of the courts of this state.
(8) Prepare and maintain a continuing
long-range plan for improvement and future needs of the courts of this state.
(9) Supervise and maintain the law
libraries of the judicial department of government of this state, including the
State of Oregon Law Library, and excluding county law libraries [established under ORS 9.820 and 9.840].
(10) Enter into contracts on behalf of
the Judicial Department, including but not limited to financing agreements
entered into pursuant to ORS 283.087.
(11) Prescribe minimum retention
schedules and standards for all records of the state courts and the
administrative offices of the state courts, including but not limited to
minimum retention schedules and standards for registers, dockets, indexes,
files, citations, notes, audio records, video records, stenographic records,
exhibits, jury records and fiscal and administrative documents, whether
maintained in paper, micrographic, electronic or other storage form. The State
Court Administrator shall ensure that the minimum record retention schedules
and standards prescribed under this subsection conform with policies and
standards established by the State Archivist under ORS 192.105, 357.825 and
357.835 (1) for public records valued for legal, administrative or research
purposes.
(Dispute
Resolution Programs)
SECTION 107. ORS 36.170 is
repealed.
SECTION 107a. The repeal of ORS
36.170 by section 107 of this 2011 Act becomes operative immediately after the
amendments to ORS 36.170 by section 38, chapter 107, Oregon Laws 2010, become
operative under section 20, chapter 659, Oregon Laws 2009, as amended by
section 144 of this 2011 Act.
(Domestic
Relations Services)
SECTION 108. ORS 21.112 is
repealed.
SECTION 109. ORS 107.795 is amended
to read:
107.795. Nothing in ORS [21.112,] 107.615 and 107.755 to 107.795
shall preclude a party from obtaining any orders available under ORS 107.700 to
107.735 or ORS 124.005 to 124.040 before or during mediation.
NOTE: Section 110 was
deleted by amendment. Subsequent sections were not renumbered.
(Office of
Children’s Advocate)
SECTION 111. ORS 417.825 is amended
to read:
417.825. (1) In addition to any other
fees provided by law, the appropriate agency:
(a) When birth certificates are
registered with the state, shall pay a $1 fee on each birth certificate
registered with the agency.
(b) That issues birth certificates for
the state or a county, shall collect a $1 fee on each birth certificate issued
by the agency.
[(c)
When adoptions and divorces are filed with the court, shall collect a $1 fee on
each adoption and divorce filed with the agency.]
(2) The agencies paying or collecting
the fees described in subsection (1) of this section shall transfer moneys from
the fees imposed by this section to the State Treasurer for deposit in the
Department of Human Services Account established under ORS 409.060. The moneys
deposited under this section are appropriated continuously to the Department of
Human Services for use by the Office of Children’s Advocate for the
administration of ORS 417.805, 417.810 and 417.815.
(Domestic
Violence Clinical Programs)
SECTION 112. ORS 352.655 is
repealed.
SECTION 112a. Any funds in the
Domestic Violence Clinical Legal Education Account on the effective date of
this 2011 Act shall be transferred by the State Treasurer to the General Fund.
(Low Income
Housing)
SECTION 113. ORS 458.350, 458.355,
458.360 and 458.365 are repealed.
SECTION 113a. Any funds in the
Housing and Community Services Department Low Income Rental Housing Fund on the
effective date of this 2011 Act shall be transferred by the State Treasurer to
the General Fund.
MISCELLANEOUS
SECTION 114. ORS 21.335, 21.420,
21.660, 21.670, 21.730 and 21.990 are repealed.
SECTION 114a. Section 8, chapter 659,
Oregon Laws 2009, is amended to read:
Sec. 8. (1) The amendments to
ORS 18.999 by section 7, chapter 659, Oregon Laws 2009, [of this 2009 Act] become operative [July] October 1, 2011.
(2) The amendments to ORS 18.999 by
section 7, chapter 659, Oregon Laws 2009, [of this 2009 Act] do not affect the amount that may be recovered
under ORS 18.999, as in effect immediately before [July] October 1, 2011, for writs of garnishment issued on or
after October 1, 2009, and before [July]
October 1, 2011.
SECTION 114b. Section 6, chapter 659,
Oregon Laws 2009, is amended to read:
Sec. 6. The amendments to ORS
18.999 by section 5, chapter 659, Oregon Laws 2009, [of this 2009 Act] become operative
October 1, 2009, and apply only to writs of garnishment issued on or after
October 1, 2009, and before [July]
October 1, 2011.
SECTION 115. ORS 18.999, as amended
by section 7, chapter 659, Oregon Laws 2009, is amended to read:
18.999. This section establishes the
right of a plaintiff to recover certain moneys the plaintiff has expended to
recover a debt under ORS 18.854 or to enforce a judgment and establishes
procedures for that recovery. The following apply to this section:
(1) When a plaintiff receives moneys
under a garnishment, attachment or payment, the plaintiff may proceed as
follows:
(a) Before crediting the total amount
of moneys received against the judgment or debt, the plaintiff may recover and
keep from the total amount received under the garnishment, attachment or
payment any moneys allowed to be recovered under this section.
(b) After recovering moneys as allowed
under paragraph (a) of this subsection, the plaintiff shall credit the
remainder of the moneys received against the judgment or debt as provided by
law.
(2) Moneys recovered under subsection
(1)(a) of this section shall not be considered moneys paid on and to be
credited against the original judgment or debt sought to be enforced. No
additional judgment is necessary to recover moneys in the manner provided in
subsection (1)(a) of this section.
(3) The only moneys a plaintiff may
recover under subsection (1)(a) of this section are those described in subsection
(4) of this section that the plaintiff has paid to enforce the existing
specific judgment or debt that the specific garnishment or attachment was
issued to enforce or upon which the payment was received. Moneys recoverable
under subsection (1)(a) of this section remain recoverable and, except as
provided under subsection (8) of this section, may be recovered from moneys
received by the plaintiff under subsequent garnishments, attachments or
payments on the same specific judgment or debt.
(4) This section allows the recovery
only of the following:
(a) Statutorily established moneys
that meet the requirements under subsection (3) of this section, as follows:
(A) Garnishee’s search fees under ORS
18.790.
(B) Fees for delivery of writs of
garnishment under ORS 18.652.
(C) Circuit court fees as provided
under [ORS 21.325] sections 70 and
72 of this 2011 Act.
(D) County court fees as provided
under ORS 5.125.
(E) County clerk recording fees as
provided in ORS 205.320.
(F) Actual fees or disbursements made
under ORS 21.410.
(G) Costs of execution as provided in
ORS 105.112.
(H) Fees paid to an attorney for
issuing a garnishment in an amount not to exceed [$12] $35 for each garnishment.
(I) Costs of an execution sale as
described in ORS 18.950 (2).
(J) Fees paid under ORS 21.125 for
motions and responses to motions filed after entry of a judgment.
(b) Interest on the amounts specified
in paragraph (a) of this subsection at the rate provided for judgments in ORS
82.010 for the period of time beginning with the expenditure of the amount and
ending upon recovery of the amount under this section.
(5) The plaintiff shall be responsible
for doing all of the following:
(a) Maintaining a precise accounting
of moneys recovered under subsection (1)(a) of this section and making the
accounting available for any proceeding relating to that judgment or debt.
(b) Providing reasonable notice to the
defendant of moneys the plaintiff recovers under subsection (1)(a) of this
section.
(6) Moneys recovered under subsection
(1)(a) of this section remain subject to all other provisions of law relating
to payments, or garnished or attached moneys including, but not limited to,
those relating to exemption, claim of exemption, overpayment and holding
periods.
(7) Nothing in this section limits the
right of a plaintiff to recover moneys described in this section or other
moneys in any manner otherwise allowed by law.
(8) A writ of garnishment or
attachment is not valid if issued solely to recover moneys recoverable under
subsection (1)(a) of this section unless the right to collect the moneys is
first reduced to a judgment or to a debt enforceable under ORS 18.854.
SECTION 116. (1) The amendments to
ORS 18.999 (4)(a)(C) by section 115 of this 2011 Act apply only to circuit court
fees paid on or after October 1, 2011. Any circuit court fee paid under ORS
21.325, as in effect immediately before October 1, 2011, may continue to be
collected in the manner provided by ORS 18.999 on and after October 1, 2011.
(2) The amendments to ORS 18.999
(4)(a)(H) by section 115 of this 2011 Act apply only to writs of garnishment
issued on or after October 1, 2011.
SECTION 117. ORS 24.190 is amended to
read:
24.190. (1) For the purposes of this
section:
(a) “Foreign restraining order” means
a restraining order that is a foreign judgment as defined by ORS 24.105.
(b)(A) “Restraining order” means an
injunction or other order issued for the purpose of preventing:
(i) Violent or threatening acts or
harassment against another person;
(ii) Contact or communication with
another person; or
(iii) Physical proximity to another
person.
(B) “Restraining order” includes
temporary and final orders, other than support or child custody orders, issued
by a civil or criminal court regardless of whether the order was obtained by
filing an independent action or as a pendente lite order in another proceeding.
However, for a civil order to be considered a restraining order, the civil
order must have been issued in response to a complaint, petition or motion filed
by or on behalf of a person seeking protection.
(2)(a) Except as otherwise provided in
paragraph (b) of this subsection, immediately upon the arrival in this state of
a person protected by a foreign restraining order, the foreign restraining
order is enforceable as an Oregon order without the necessity of filing and
continues to be enforceable as an Oregon order without any further action by
the protected person.
(b) A foreign restraining order is not
enforceable as an Oregon order if:
(A) The person restrained by the order
shows that:
(i) The court that issued the order
lacked jurisdiction over the subject matter or lacked personal jurisdiction
over the person restrained by the order; or
(ii) The person restrained by the
order was not given reasonable notice and an opportunity to be heard under the
law of the jurisdiction in which the order was issued; or
(B) The foreign restraining order was
issued against a person who had petitioned for a restraining order unless:
(i) The person protected by the
foreign restraining order filed a separate petition seeking the restraining
order; and
(ii) The court issuing the foreign
restraining order made specific findings that the person was entitled to the
order.
(3)(a) A person protected by a foreign
restraining order may present a true copy of the order to a county sheriff for
entry into the Law Enforcement Data System maintained by the Department of
State Police. Subject to paragraph (b) of this subsection, the county sheriff
shall enter the order into the Law Enforcement Data System if the person
certifies that the order is the most recent order in effect between the parties
and provides proof of service or other written certification that the person
restrained by the order has been personally served with a copy of the order or
has actual notice of the order. Entry into the Law Enforcement Data System
constitutes notice to all law enforcement agencies of the existence of the
restraining order. Law enforcement agencies shall establish procedures adequate
to ensure that an officer at the scene of an alleged violation of the order may
be informed of the existence and terms of the order. The order is fully
enforceable as an Oregon order in any county or tribal land in this state.
(b) The Department of State Police
shall specify information that is required for a foreign restraining order to
be entered into the Law Enforcement Data System.
(c) At the time a county sheriff
enters an order into the Law Enforcement Data System under paragraph (a) of
this subsection, the sheriff shall also enter the order into the databases of
the National Crime Information Center of the United States Department of
Justice.
(4) Pending a contempt hearing for
alleged violation of a foreign restraining order, a person arrested and taken
into custody pursuant to ORS 133.310 may be released as provided in ORS 135.230
to 135.290. Unless the order provides otherwise, the security amount for
release is $5,000.
(5) ORS 24.115, 24.125, 24.129,
24.135, 24.140, 24.150 and 24.155 do not apply to a foreign restraining order.
(6) A person protected by a foreign
restraining order may file a certified copy of the order and proof of service
in the office of the clerk of any circuit court of any county of this state. A
judgment so filed has the same effect and is subject to the same procedures,
defenses and proceedings for reopening, vacating or staying as a judgment of
the circuit court in which the foreign judgment is filed, and may be enforced
or satisfied in like manner. The court may not collect a filing fee [provided for in ORS 21.325 (3) shall not
apply to] for a filing under this section.
SECTION 118. ORS 36.610 is amended to
read:
36.610. (1) Except as otherwise
provided in this section, a party to an agreement to arbitrate or to an
arbitration proceeding may waive, or the parties may vary the effect of, the
requirements of ORS 36.600 to 36.740 to the extent permitted by law.
(2) Before a controversy arises that
is subject to an agreement to arbitrate, a party to the agreement may not:
(a) Waive or agree to vary the effect
of the requirements of this section or ORS 36.615 [(1)], 36.620 (1), 36.630, 36.675 (1) or (2), 36.720 or 36.730;
(b) Agree to unreasonably restrict the
right under ORS 36.635 to notice of the initiation of an arbitration proceeding;
(c) Agree to unreasonably restrict the
right under ORS 36.650 to disclosure of any facts by a neutral arbitrator; or
(d) Waive the right under ORS 36.670
of a party to an agreement to arbitrate to be represented by a lawyer at any
proceeding or hearing under ORS 36.600 to 36.740, but an employer and a labor
organization may waive the right to representation by a lawyer in a labor
arbitration.
(3) A party to an agreement to
arbitrate or arbitration proceeding may not waive, or the parties may not vary
the effect of, the requirements of this section or ORS 36.625, 36.660, 36.680,
36.690 (4) or (5), 36.700, 36.705, 36.710, 36.715 (1) or (2), 36.735 or 36.740
or section 3 (1) or (3) or 31, chapter 598, Oregon Laws 2003.
(4) Subsections (2) and (3) of this
section do not apply to agreements to arbitrate entered into by two or more
insurers, as defined by ORS 731.106, or self-insured persons for the purpose of
arbitration of disputes arising out of the provision of insurance.
SECTION 119. ORS 46.488 is amended to
read:
46.488. (1) A judgment creditor may
not create a judgment lien for a judgment entered in the small claims
department of a circuit court if the money award is less than $10, exclusive of
costs and disbursements. A judgment creditor may create a judgment lien for a
judgment entered in the small claims department of a circuit court in an amount
of $10 or more and less than $3,000, exclusive of costs and disbursements, only
as provided in subsection (3) of this section.
(2) If a judgment is rendered in the
small claims department in an amount of $3,000 or more, the clerk shall note in
the register of the circuit court that the judgment creates a judgment lien if
the judgment otherwise complies with the requirements of ORS chapter 18 for creating
a judgment lien. A judgment creditor may create a lien for the judgment in
other counties in the manner provided by ORS 18.152.
(3) When a judgment is entered in the
small claims department in an amount of $10 or more and less than $3,000,
exclusive of costs or disbursements, a judgment creditor may at any time before
expiration of judgment remedies for the judgment under ORS 18.180 create a
judgment lien for the judgment by paying to the clerk of the court that entered
the judgment the fees established [by ORS
21.325 (1) and (2)] under section 70 (1)(a) of this 2011 Act and
requesting that the clerk of the court note in the register and in the judgment
lien record that the judgment creates a judgment lien. Upon receipt of the fees
and request for creating a judgment lien, the clerk shall note in the register
that the judgment creates a judgment lien. Upon entry of the notation in the
register, the judgment creates a lien as described in ORS 18.150, and a
judgment creditor may create a lien for the judgment in other counties in the
manner provided by ORS 18.152.
SECTION 120. ORS 52.635 is amended to
read:
52.635. (1) After a judgment that
includes a money award is docketed in a justice court, a certified copy of the
judgment or a lien record abstract for the judgment may be recorded in the
County Clerk Lien Record for the county that contains the justice court that
rendered the judgment. The certified copy or lien record abstract may be
recorded by the judgment creditor or by the agent of the judgment creditor at
any time after the judgment is rendered and before the judgment expires under
ORS 18.194 or is fully satisfied. From the time the certified copy of the
judgment or the lien record abstract is recorded in the County Clerk Lien
Record, the judgment is a lien upon the real property of the defendant in the
county.
(2) In lieu of recording a certified
copy of a judgment or a lien record abstract for a judgment under subsection
(1) of this section, a judgment that includes a money award rendered by a
justice court in a civil action may be transcribed to the circuit court for the
county that contains the justice court that rendered the judgment. The judgment
may be transcribed by the filing of a certified transcript of the judgment with
the clerk of the circuit court. The transcript must contain a copy of all the
docket entries made in the case and the judgment as rendered by the justice
court, certified to be a true and correct transcript from the original entries
by the justice court. Upon filing of the certified transcript, the clerk shall
enter the transcribed judgment in the register of the circuit court and in the
judgment lien record. The clerk shall note in the register that the transcribed
judgment creates a judgment lien. A judgment in a criminal action may not be
transcribed to circuit court under the provisions of this subsection.
(3) A certified copy of a judgment
docketed in a justice court, or a lien record abstract for the judgment, may be
recorded in any County Clerk Lien Record. The judgment or lien record abstract
may be recorded in a county other than the county that contains the justice
court that rendered the judgment without transcribing the justice court
judgment to the circuit court for the county that contains the justice court
that rendered the judgment, or recording a certified copy of the judgment or a
lien record abstract for the judgment in the County Clerk Lien Record for the
county that contains the justice court. If the judgment has been transcribed to
circuit court, or a certified copy of the judgment or a lien record abstract
for the judgment has been recorded in any County Clerk Lien Record, a lien
record abstract for the judgment in the form provided by ORS 18.170 may be
recorded in the County Clerk Lien Record for any other county. From the time
the certified copy of the judgment or lien record abstract for the judgment is
recorded in the County Clerk Lien Record of another county, the judgment is a
lien upon the real property of the defendant in that county.
(4) A certified copy of a certificate
of extension filed under ORS 18.194, or a lien record abstract for the
certificate of extension, may be transcribed to circuit court or recorded in a
County Clerk Lien Record in the same manner as provided for judgments under
this section and with like effect.
(5) The transcribing of a justice
court judgment to circuit court under this section, or the recording of a
certified copy of a justice court judgment or a lien record abstract under this
section, does not extend the lien of the judgment more than 10 years from the
original entry of the judgment in the justice court.
(6) The fee for filing a transcript
with the clerk of the circuit court under subsection (2) of this section shall
be as provided in [ORS 21.325 (2)]
section 70 (1) of this 2011 Act. The fee for recording a certified copy of
a justice court judgment or a lien record abstract under this section shall be
as provided in ORS 205.320.
(7) A justice court and circuit court
may enter into an agreement to allow for electronic transcription of justice
court judgments under this section. A justice court and county clerk may enter
into an agreement to allow for electronic recording of judgments and lien
record abstracts under this section.
SECTION 121. The amendments to ORS
52.635 by section 120 of this 2011 Act apply only to transcripts filed in
circuit courts on or after October 1, 2011.
SECTION 122. ORS 105.938 is amended
to read:
105.938. (1) Upon petition of an
insurer, a court may order that data from a motor vehicle event data recorder
be retrieved or used without the consent of the owner of the motor vehicle
after an accident if the court determines that:
(a) The owner has a policy of
insurance for the vehicle issued by the insurer;
(b) The data is necessary to
reconstruct the facts of the accident and to allow the insurer to determine the
obligations of the insurer under the insurance policy; and
(c) An accurate and timely
determination of the facts of the accident cannot occur without the data.
(2) A petition under this section must
be filed in the circuit court for the county in which the owner of the motor
vehicle resides. The petition must be served on the owner in the manner
provided by ORCP 7 not less than 30 days before a hearing on the petition. An
insurer filing a petition under this section must pay the filing fee specified
by [ORS 21.110] section 8 of this
2011 Act.
SECTION 123. The amendments to ORS
105.938 by section 122 of this 2011 Act apply only to proceedings commenced on
or after October 1, 2011.
SECTION 124. ORS 109.100 is amended
to read:
109.100. (1) Any minor child or the
administrator may, in accordance with ORCP 27 A, apply to the circuit court in
the county in which the child resides, or in which the natural or adoptive
father or mother of the child may be found, for an order upon the child’s
father or mother, or both, to provide for the child’s support. The child or the
administrator may apply for the order by filing in the county a petition
setting forth the facts and circumstances relied upon for the order. If
satisfied that a just cause exists, the court shall direct that the father or
mother appear at a time set by the court to show cause why an order of support
should not be entered in the matter.
(2) The petitioner shall state in the
petition, to the extent known:
(a) Whether there is pending in this
state or any other jurisdiction any type of support proceeding involving the
minor child, including a proceeding brought under ORS 25.287, 107.085, 107.135,
107.431, 108.110, 109.103, 109.165, 125.025, 416.400 to 416.465, 419B.400 or
419C.590 or ORS chapter 110; and
(b) Whether there exists in this state
or any other jurisdiction a support order, as defined in ORS 110.303, involving
the minor child.
(3) The petitioner shall include with
the petition a certificate regarding any pending support proceeding and any
existing support order. The petitioner shall use a certificate that is in a
form established by court rule and include information required by court rule
and subsection (2) of this section.
(4) The judgment of a court under
subsection (1) of this section is final as to any installment or payment of
money that has accrued up to the time either party makes a motion to set aside,
alter or modify the judgment, and the court may not set aside, alter or modify
the judgment, or any portion thereof, that provides for any payment of money
that has accrued prior to the filing of the motion.
(5) The provisions of ORS 108.120 [and 108.130] apply to proceedings under
subsection (1) of this section.
(6) In any proceeding under this
section, both the child’s physical and legal custodians are parties to the
action.
SECTION 125. ORS 114.720 is amended
to read:
114.720. (1) A surviving spouse may
claim the elective share by filing a petition for the exercise of the election
in a circuit court within the time allowed by ORS 114.610 (1)(c). Venue for the
proceeding is as provided in ORS 113.015. A copy of the petition must be served
on all persons who would be entitled to receive information under ORS 113.145
and on all distributees and recipients of portions of the augmented estate
known to the surviving spouse who can be located with reasonable efforts. The
fee for filing a petition under this subsection shall be the amount prescribed
in [ORS 21.310] section 21 of this
2011 Act, based on the value of the nonprobate estate. The Oregon Rules of
Civil Procedure apply to proceedings under this section. Any party to a
proceeding under this section may request that the pleadings and records in the
proceeding be sealed.
(2) A surviving spouse may withdraw a
petition filed under this section at any time before entry of a judgment on the
petition.
(3) If a probate proceeding is
commenced for the estate of the deceased spouse under ORS 113.035 either before
or after a petition is filed under this section, the court shall consolidate
the proceedings under this section with the probate proceedings.
SECTION 126. The amendments to ORS
114.720 by section 125 of this 2011 Act apply only to proceedings commenced on
or after October 1, 2011.
SECTION 127. ORS 125.060 is amended
to read:
125.060. (1) The notices required by
this section must be given to all persons whose identities and addresses can be
ascertained in the exercise of reasonable diligence by the person required to
give the notice.
(2) Notice of the filing of a petition
for the appointment of a fiduciary or entry of other protective order must be
given by the petitioner to the following persons:
(a) The respondent, if the respondent
has attained 14 years of age.
(b) The spouse, parents and adult
children of the respondent.
(c) If the respondent does not have a
spouse, parent or adult child, the person or persons most closely related to
the respondent.
(d) Any person who is cohabiting with
the respondent and who is interested in the affairs or welfare of the
respondent.
(e) Any person who has been nominated
as fiduciary or appointed to act as fiduciary for the respondent by a court of
any state, any trustee for a trust established by or for the respondent, any
person appointed as a health care representative under the provisions of ORS
127.505 to 127.660 and any person acting as attorney-in-fact for the respondent
under a power of attorney.
(f) If the respondent is a minor, the
person who has exercised principal responsibility for the care and custody of
the respondent during the 60-day period before the filing of the petition.
(g) If the respondent is a minor and
has no living parents, any person nominated to act as fiduciary for the minor
in a will or other written instrument prepared by a parent of the minor.
(h) If the respondent is receiving
moneys paid or payable by the United States through the Department of Veterans
Affairs, a representative of the United States Department of Veterans Affairs
regional office that has responsibility for the payments to the protected
person.
(i) If the respondent is receiving
moneys paid or payable for public assistance provided under ORS chapter 411 by
the State of Oregon through the Department of Human Services, a representative
of the department.
(j) If the respondent is receiving
moneys paid or payable for medical assistance provided under ORS chapter 414 by
the State of Oregon through the Oregon Health Authority, a representative of
the authority.
(k) If the respondent is committed to
the legal and physical custody of the Department of Corrections, the Attorney
General and the superintendent or other officer in charge of the facility in
which the respondent is confined.
(L) If the respondent is a foreign
national, the consulate for the respondent’s country.
(m) Any other person that the court
requires.
(3) Notice of a motion for the
termination of the protective proceedings, for removal of a fiduciary, for
modification of the powers or authority of a fiduciary, for approval of a
fiduciary’s actions or for protective orders in addition to those sought in the
petition must be given by the person making the motion to the following
persons:
(a) The protected person, if the
protected person has attained 14 years of age.
(b) Any person who has filed a request
for notice in the proceedings.
(c) Except for a fiduciary who is
making a motion, any fiduciary who has been appointed for the protected person.
(d) If the protected person is
receiving moneys paid or payable by the United States through the Department of
Veterans Affairs, a representative of the United States Department of Veterans
Affairs regional office that has responsibility for the payments to the
protected person.
(e) If the protected person is
committed to the legal and physical custody of the Department of Corrections,
the Attorney General and the superintendent or other officer in charge of the
facility in which the protected person is confined.
(f) Any other person that the court
requires.
(4) A request for notice under
subsection (3)(b) of this section must be in writing and include the name,
address and phone number of the person requesting notice. A copy of the request
must be mailed by the person making the request to the petitioner or to the
fiduciary if a fiduciary has been appointed. The original request must be filed
with the court. The person filing the request must pay the fee specified by [ORS 21.310 (5)] section 8 of this
2011 Act.
(5) A person who files a request for
notice in the proceedings in the manner provided by subsection (4) of this
section is entitled to receive notice from the fiduciary of any motion
specified in subsection (3) of this section and of any other matter to which a
person listed in subsection (2) of this section is entitled to receive notice
under a specific provision of this chapter.
(6) If the Department of Human
Services is nominated as guardian for the purpose of consenting to the adoption
of a minor, the notice provided for in this section must also be given to the
minor’s brothers, sisters, aunts, uncles and grandparents.
(7) In addition to the requirements of
subsection (2) of this section, notice of the filing of a petition for the
appointment of a guardian for a person who is alleged to be incapacitated must
be given by the petitioner to the following persons:
(a) Any attorney who is representing
the respondent in any capacity.
(b) If the respondent is a resident of
a nursing home or residential facility, or if the person nominated to act as
fiduciary intends to place the respondent in a nursing home or residential
facility, the office of the Long Term Care Ombudsman.
(c) If the respondent is a resident of
a mental health treatment facility or a residential facility for individuals with
developmental disabilities, or if the person nominated to act as fiduciary
intends to place the respondent in such a facility, the system described in ORS
192.517 (1).
(8) In addition to the requirements of
subsection (3) of this section, in a protective proceeding in which a guardian
has been appointed, notice of the motions specified in subsection (3) of this
section must be given by the person making the motion to the following persons:
(a) Any attorney who represented the
protected person at any time during the protective proceeding.
(b) If the protected person is a
resident of a nursing home or residential facility, or if the motion seeks
authority to place the protected person in a nursing home or residential
facility, the office of the Long Term Care Ombudsman.
(c) If the protected person is a
resident of a mental health treatment facility or a residential facility for
individuals with developmental disabilities, or if the motion seeks authority
to place the protected person in such a facility, the system described in ORS
192.517 (1).
(9) A respondent or protected person
may not waive the notice required under this section.
(10) The requirement that notice be
served on an attorney for a respondent or protected person under subsection
(7)(a) or (8)(a) of this section does not impose any responsibility on the
attorney receiving the notice to represent the respondent or protected person
in the protective proceeding.
SECTION 128. The amendments to ORS
125.060 by section 127 of this 2011 Act apply only to proceedings commenced on
or after October 1, 2011.
SECTION 129. ORS 125.075 is amended
to read:
125.075. (1) Any person who is
interested in the affairs or welfare of a respondent or protected person may
present objections to a petition or to a motion in a protective proceeding,
including but not limited to:
(a) Any person entitled to receive
notice under ORS 125.060.
(b) Any stepparent or stepchild of the
respondent or protected person.
(c) Any other person the court may
allow.
(2) Objections to a petition may be
either written or oral. Objections to a motion must be in writing. Objections
to a petition or to a motion must be made or filed with the court within 15
days after notice of the petition or motion is served or mailed in the manner
prescribed by ORS 125.065. The court shall designate a place where oral
objections may be made. If a person appears within the time allowed at the
place designated by the court for the purpose of making oral objections, the
clerk of the court shall provide a means of reducing the oral objections to a
signed writing for the purpose of filing the objection.
(3) If objections are presented by any
of the persons listed in subsection (1) of this section, the court shall
schedule a hearing on the objections. The petitioner or person making the
motion shall give notice to all persons entitled to notice under ORS 125.060
(3) of the date, time and place of the scheduled hearing at least 15 days
before the date set for hearing. Notice shall be given in the manner prescribed
by ORS 125.065.
(4) Notwithstanding [ORS 21.310] section 21 of this 2011
Act, the court shall not charge or collect any fee from a respondent or
protected person for the filing of objections under the provisions of this
section or for the filing of any motion by a respondent or protected person.
(5) The court for good cause shown may
provide for a different method or time of giving notice under subsection (3) of
this section.
SECTION 130. ORS 125.605 is amended
to read:
125.605. (1) In addition to the
requirements of ORS 125.055, a petition for the appointment of a temporary
fiduciary must contain allegations of the conditions required under ORS
125.600.
(2) Notice of a petition for the
appointment of a temporary fiduciary must be given to the persons specified in
ORS 125.060 (2) in the manner provided by ORS 125.065 at least two days before
the appointment of a temporary fiduciary. The court may waive the requirement
that notice be given before appointment if the court finds that the immediate
and serious danger requires an immediate appointment. In no event may the
notice required by ORS 125.060 be given more than two days after the
appointment is made.
(3) Notice of a motion for the
extension of a temporary fiduciary’s authority beyond 30 days under ORS 125.600
(3) must be given to the persons specified in ORS 125.060 (2) in the manner
provided by ORS 125.065 at least two days before the entry of an order granting
the extension.
(4) The court shall appoint a visitor
if the petition seeks appointment of a temporary guardian. A visitor may be
appointed by the court if a petition seeks appointment of a temporary
conservator. Within three days after the appointment of the temporary
fiduciary, the visitor shall conduct an interview of the respondent. The
visitor shall report to the court within five days after the appointment of a
temporary fiduciary is made. The report of the visitor shall be limited to the
conditions alleged to support the appointment of a temporary fiduciary.
(5) If objections are made to the
appointment of a temporary fiduciary or to the extension of a temporary
fiduciary’s authority under ORS 125.600 (3), the court shall hear the
objections within two judicial days after the date on which the objections are
filed. Notwithstanding [ORS 21.310]
section 21 of this 2011 Act, no fee shall be charged to any person filing
an objection to the appointment of a temporary fiduciary or to the extension of
a temporary fiduciary’s authority under ORS 125.600 (3).
SECTION 131. ORS 130.355, as amended
by sections 43 and 44, chapter 107, Oregon Laws 2010, is amended to read:
130.355. (1) At any time after the
death of a settlor of a trust described in ORS 130.350 (2), a trustee of the
trust may petition the probate court to determine the claims of creditors of
the settlor. A petition under this section must include all of the following
information to the extent known by the trustee:
(a) The settlor’s name, the settlor’s
date of birth, the settlor’s date and place of death and the last four digits
of the settlor’s Social Security number.
(b) The name of the trustee.
(c) The address at which claims must
be presented.
(d) The name of the trust, if any, and
the date of the trust, including the dates of any amendments.
(e) The facts establishing venue in
the county where the petition is being filed.
(2) The clerk of the court shall
charge and collect in advance from the trustee the filing fee required from a
plaintiff under [ORS 21.110 (1)]
section 8 of this 2011 Act.
(3) A proceeding under this section
may be brought only:
(a) In the county where the settlor
had domicile or a place of abode at the time of death;
(b) In any county where assets of the
trust were located at the time of death or are located at the time the
proceeding is commenced; or
(c) In the county where the settlor
died.
(4) The court has personal
jurisdiction over a trustee that files a petition under this section, whether
the trustee is a resident or nonresident of this state, for the purposes of any
proceeding relating to the trust that may be instituted by an interested
person.
SECTION 132. The amendments to ORS
130.355 by section 131 of this 2011 Act apply only to proceedings commenced on
or after October 1, 2011.
SECTION 133. ORS 130.400, as amended
by sections 46 and 47, chapter 107, Oregon Laws 2010, is amended to read:
130.400. (1) The trustee may
compromise a claim against the trust estate.
(2) A claim presented to a trustee
under ORS 130.350 to 130.450 shall be considered allowed as presented unless
within 60 days after the date of presentment of the claim the trustee mails or
delivers a notice of disallowance of the claim in whole or in part to the
claimant and to the attorney of the claimant if the claimant has an attorney.
(3) A notice of disallowance of a
claim shall inform the claimant that the claim has been disallowed in whole or
in part and, to the extent disallowed, will be barred unless the claimant
requests a summary determination or brings an action in the manner provided by
subsection (4) of this section.
(4) If a trustee disallows a claim
submitted under ORS 130.350 to 130.450 in whole or in part, the claimant,
within 30 days after the date of mailing or delivery of the notice of
disallowance, may:
(a) File a request for summary
determination of the claim in the probate court, with proof of service of a
copy of the request upon the trustee or the attorney of the trustee; or
(b) Commence a separate action against
the trustee on the claim in the probate court.
(5) If the claimant fails either to request
a summary determination or commence a separate action as provided in subsection
(4) of this section, the claim is barred to the extent the claim has been
disallowed by the trustee.
(6) If a claimant prevails in a
proceeding or action under subsection (4) of this section, the claim shall be
allowed or judgment entered in the full amount determined to be due to the
claimant. The claim or judgment shall be paid from the assets of the trust
estate only to the extent that funds are available after payment of other
claims with higher priority under ORS 130.425.
(7) If the claimant files a request
for summary determination of a claim under subsection (4) of this section, the
trustee may notify the claimant in writing that the claimant must commence a
separate action against the trustee on the claim within 60 days after the
claimant receives the notice. Notice under this subsection must be given by the
trustee within 30 days after the request for summary determination is served on
the trustee or the attorney of the trustee. If the claimant fails to commence a
separate action within the time allowed, the claim is barred to the extent the
claim has been disallowed by the trustee.
(8) In a proceeding for summary
determination under this section:
(a) The trustee shall make response to
the claim as though the claim were a complaint filed in an action.
(b) The court shall hear the matter
without a jury, after notice to the claimant and trustee. The court shall
determine the claim in a summary manner, and shall make an order allowing or
disallowing the claim in whole or in part.
(c) No appeal may be taken from the
order of the court made in a proceeding for summary determination under this
section.
(9) If a civil action is commenced
under subsection (4) of this section, a trustee, or beneficiary, may petition
the court to approve a proposed disposition of claims or to provide
instructions on the treatment of claims.
(10) A claimant filing a request for
summary determination of a claim under subsection (4) of this section must pay
the filing fee required of a defendant or respondent under [ORS 21.110 (1)] section 8 of this
2011 Act and other fees applicable to civil actions in circuit court.
SECTION 134. The amendments to ORS
130.400 by section 133 of this 2011 Act apply only to proceedings commenced on
or after October 1, 2011.
SECTION 135. ORS 182.040 is amended
to read:
182.040. (1) All state boards and
commissions that are supported by fees, fines, licenses or taxes or other forms
of income not derived from a direct tax on tangible property shall pay the
various counties of the State of Oregon the same fees required of others for
services rendered.
(2) ORS 182.040 to 182.060 do not
apply to:
(a) Except for those fees required in
ORS 205.320, services rendered for the Bureau of Labor and Industries on wage
claims assigned to it for collection.
(b) Any of the provisions or
requirements of ORS [21.310,] 52.410
to 52.440, 156.160, 205.360 and 205.370 and section 21 of this 2011 Act.
SECTION 136. ORS 205.360 is amended
to read:
205.360. The clerk of the county court
shall receive and receipt for fees prescribed in [ORS 21.310] section 21 of this 2011 Act that are collected
by the clerk, stating in the receipt the amount so received, from whom received
and on what account the amount was received, specifying the cause or
proceeding. If it is ascertained at any time that the clerk has received any
such fees not so accounted for, or done service without collecting fees
therefor as provided in [ORS 21.310]
section 21 of this 2011 Act, or neglected duty in any other respect, the
payment of salary of the clerk shall be withheld until the matter is fully
rectified.
SECTION 137. ORS 701.133, as amended
by sections 49 and 50, chapter 107, Oregon Laws 2010, is amended to read:
701.133. (1) Unless otherwise provided
by the Construction Contractors Board by rule, before filing a complaint under
ORS 701.139, a person must send notice to the contractor that the person
intends to file the complaint. The person must send the notice at least 30 days
before filing the complaint. The notice must be mailed by certified mail to the
last known address of the contractor as shown in board records. The board by
rule may:
(a) Specify the manner in which the
person may show compliance with this subsection at the time of filing the
complaint.
(b) Provide that all or part of the
requirements for sending a notice under this subsection may be waived if the
contractor, by other means, has actual notice of the dispute with the person
filing the complaint.
(2) If the notice described in
subsection (1) of this section is mailed to the contractor fewer than 45 days
before expiration of the time limitation under ORS 701.143 for the board to
receive the complaint, the time limitation for the board to receive the
complaint does not expire until 60 days after the notice is mailed.
(3) The board by rule may impose a
processing fee for complaints filed under ORS 701.139. The fee amount may not
exceed [the amount of the filing fee
provided by ORS 21.110 (1) for a plaintiff filing a civil action in circuit
court] $100. The board may impose different processing fees for
complaints processed under ORS 701.145 than for complaints processed under ORS
701.146.
(4) If the board adopts rules under
subsection (3) of this section, the rules:
(a) Except as provided in paragraphs
(b) and (c) of this subsection, must provide that a prevailing complainant
recover processing fees as damages in the final order of the board.
(b) Must provide that the board may
waive or defer all or part of the processing fee upon application by the person
filing the complaint that shows the person is unable to pay all or part of the
fee. The application must be made under oath and notarized. The application
must show the average monthly income and expenses of the complainant, assets
and liabilities of the complainant and any other information required by board
rule.
(c) May provide for the processing fee
to be waived for all complaints that are based on the furnishing of labor by a
complainant to a contractor. The board may provide for processing fee waiver
under this paragraph only if, in the opinion of the board, a majority of
complainants who file complaints based on the furnishing of labor to
contractors are eligible for fee waivers as described in paragraph (b) of this
subsection.
CHAPTER 659,
OREGON LAWS 2009
(ENROLLED
HOUSE BILL 2287 (2009)),
SURCHARGES
(Elimination
of
Judicial
System Surcharge Account)
SECTION 138. Section 1, chapter
659, Oregon Laws 2009, is repealed.
SECTION 139. Any funds in the
Judicial System Surcharge Account on the effective date of this 2011 Act shall
be transferred by the State Treasurer to the General Fund.
(Offense
Surcharge)
SECTION 140. Section 2, chapter 659,
Oregon Laws 2009, as amended by section 20, chapter 107, Oregon Laws 2010, is
amended to read:
Sec. 2. (1) In all cases of
conviction for the commission of a crime or violation, excluding parking
violations, the trial court, whether a circuit, justice or municipal court,
shall impose upon the defendant, in addition to any fine, cost or other
monetary obligation imposed, an offense surcharge under this section. Except
when the person successfully asserts the defense set forth in ORS 419C.522, the
offense surcharge shall also be imposed by the circuit court and county court
in juvenile cases under ORS 419C.005 (1). The offense surcharge is a penal
obligation in the nature of a fine and shall be in an amount as follows:
(a) $35 in the case of a felony.
(b) $35 in the case of a misdemeanor.
(c) $45 in the case of a violation as
described in ORS 153.008.
(2) A court may waive all or part of
the offense surcharge required by this section only if the court imposes no
fine on the defendant.
(3) The offense surcharge required by
this section shall be imposed only for offenses that are committed on or after
October 1, 2009, and before July 1, 2011.
(4)(a) Offense surcharges imposed
under this section are part of the base fine for the purposes of ORS chapter
153.
(b) The provisions of ORS 153.093 do
not affect the amount of the offense surcharge imposed and collected under this
section, and the amount calculated under ORS 153.093 (1) includes the full
amount of the offense surcharge.
(5) Offense surcharges imposed in a
circuit court under this section are category 3 monetary obligations for the
purposes of ORS 137.295 and shall be collected as provided in ORS 137.295.
Offense surcharges imposed in a justice court, county court or municipal court
under this section are category 4 monetary obligations for the purposes of ORS
137.295 and shall be collected as provided in ORS 137.295. Amounts collected as
offense surcharges under this section [may
not be deposited in the Criminal Fine and Assessment Account, or transferred to
the Department of Revenue, under ORS 137.295 (5), but] must be deposited or
paid as follows:
(a) Offense surcharges imposed in
circuit courts shall be deposited by the Department of Revenue in the [Judicial System Surcharge Account]
General Fund.
(b) Offense surcharges imposed in a
justice court or county court shall be paid to the county treasurer.
(c) Offense surcharges imposed in a
municipal court shall be paid to the city treasurer.
[(6)
The collections and revenue management program established under ORS 1.204 may
not be reimbursed under ORS 1.204 from amounts imposed as offense surcharges
under this section.]
(Filing Fee
Surcharges and Temporary Fees)
SECTION 141. Section 4, chapter 659,
Oregon Laws 2009, as amended by section 25, chapter 107, Oregon Laws 2010, is
amended to read:
Sec. 4. (1) In addition to the
fees provided for in ORS 21.010 (1), for the period commencing October 1, 2009,
and ending [June 30] September 30,
2011, at the time of filing a response in the Court of Appeals or the Supreme
Court, the State Court Administrator shall collect a surcharge of $8.
(2)(a) In addition to the fees
provided for in ORS 21.111 (1), for the period commencing October 1, 2009, and
ending [June 30] September 30,
2011, in the proceedings specified in ORS 21.111 (2) the clerk of the circuit
court shall collect a surcharge of $5 from the petitioner at the time the
petition is filed, and shall collect a surcharge of $3 from the respondent upon
the respondent making an appearance.
(b) In addition to the fees provided
for in ORS 21.111 (3), for the period commencing October 1, 2009, and ending [June 30] September 30, 2011, the
clerk of the circuit court shall collect from the moving party a surcharge of
$3 at the time of the filing of a motion for the modification of a decree of marital
annulment, dissolution or separation, if the motion is filed more than one year
after the entry of the decree in the register of the court.
(3) In addition to the fees provided
for ORS 21.114 (1), for the period commencing October 1, 2009, and ending [June 30] September 30, 2011, the
clerk of the court shall collect:
(a) In an adoption proceeding, a
surcharge of $2 from the party filing the petition for adoption and a surcharge
of $1 from an objecting party appearing separately or objecting parties
appearing jointly.
(b) In a change of name proceeding, a
surcharge of $61 from the party filing the application for change of name and a
surcharge of $61 from an objecting party appearing separately or objecting
parties appearing jointly.
(4) In addition to the fee provided
for in ORS 21.114 (3), for the period commencing October 1, 2009, and ending [June 30] September 30, 2011, in
any adoption or change of name proceeding in a court having jurisdiction, the
clerk of the court shall collect from the party having the affirmative of the
issue, at the time the proceeding comes on for trial or hearing upon the issues
of fact or law involved therein, a surcharge of $2.
(5)(a) In addition to the trial fee
provided for in ORS 21.270 (2), for the period commencing October 1, 2009, and
ending [June 30] September 30,
2011, the clerk of the circuit court shall collect from the plaintiff,
appellant or moving party, for a trial on the merits without a jury, a
surcharge on the trial fee of $33 for each full or partial day of the trial.
(b) In addition to the jury trial fee
provided for in ORS 21.270 (3), for the period commencing October 1, 2009, and
ending [June 30] September 30,
2011, the clerk shall collect from the plaintiff or appellant, for a trial by a
jury of more than six persons, a surcharge on the jury trial fee of $32 for
each full or partial day of the trial. The clerk shall collect from the
plaintiff or appellant, for a trial by a jury of six persons, a surcharge on
the jury trial fee of $40 for each full or partial day of the trial.
(6) In addition to the hearing fee
provided for in ORS 21.275 (3), for the period commencing October 1, 2009, and
ending [June 30] September 30,
2011, the clerk of the circuit court shall collect a surcharge on the hearing
fee of $12 if the hearing period is not more than three hours or $33 if the
hearing period is more than three hours.
(7)(a) In addition to the fees
provided for in ORS 21.310 (1), for the period commencing October 1, 2009, and
ending [June 30] September 30,
2011, the clerk of the court shall collect the following surcharges for the
filing of the initial papers in any probate proceeding, including petitions for
the appointment of personal representatives, probate of wills and contest of
wills, or in any conservatorship proceeding:
____________________________________________________________________________
Where the amount of the estate is:
1. Not more than $10,000--a surcharge
of $1.
2. More than $10,000 and not more than
$25,000--a surcharge of $4.
3. More than $25,000 and not more than
$50,000--a surcharge of $8.
4. More than $50,000 and not more than
$100,000--a surcharge of $12.
5. More than $100,000 and not more
than $500,000--a surcharge of $15.
6. More than $500,000 and not more
than $1,000,000--a surcharge of $19.
7. More than $1,000,000--a surcharge
of $23.
____________________________________________________________________________
(b) In addition to the fee provided
for in ORS 21.310 (3), for the period commencing October 1, 2009, and ending [June 30] September 30, 2011, the
clerk shall collect a surcharge of $1 for the filing of the initial papers in
any guardianship proceeding.
(c) In addition to the fee provided
for in ORS 21.310 (5), for the period commencing October 1, 2009, and ending [June 30] September 30, 2011, at
the time of filing any answer, motion or objection in a probate proceeding or
protective proceeding under ORS chapter 125, the party filing the answer,
motion or objection shall pay a surcharge of $1 to the clerk.
(d) In addition to the fee provided
for in ORS 21.310 (7), for the period commencing October 1, 2009, and ending [June 30] September 30, 2011, the
clerk shall collect from the party having the affirmative of the issue, at the
time the proceeding comes on for trial or hearing upon the issues of fact or
law involved therein, a surcharge on the trial or hearing fee of $2.
(8) In addition to the fees provided
for in ORS 21.325 (3), for the period commencing October 1, 2009, and ending [June 30] September 30, 2011, the
clerk of the court shall collect a surcharge of $2 for the filing of a copy of
foreign judgment and affidavit filed as provided in ORS 24.115 and 24.125 or
the filing of a copy of child custody determination of another state filed as
provided in ORS 109.787.
(9) In addition to the fees provided
for in ORS 21.325 (4), for the period commencing October 1, 2009, and ending [June 30] September 30, 2011, the
clerk of the court shall collect a surcharge of $6 for issuing a writ of
execution or a writ of garnishment.
(10) In addition to the fee provided
for in ORS 34.340, for the period commencing October 1, 2009, and ending [June 30] September 30, 2011, the
clerk of the court shall collect a surcharge of $1 upon the filing of a
petition for a writ of habeas corpus.
(11) In addition to the fees provided
for in ORS 36.520 (5), for the period commencing October 1, 2009, and ending [June 30] September 30, 2011, the
clerk of the circuit court shall collect from the party making application for
setting aside under ORS 36.520 (1) a surcharge of $2 and from a party filing an
appearance in opposition to the application a surcharge of $1.
(12) In addition to the fee provided
for in ORS 36.522 (3), for the period commencing October 1, 2009, and ending [June 30] September 30, 2011, the
clerk of the circuit court shall collect a surcharge of $1 for the filing of an
arbitral award or application for enforcement of an arbitral award under ORS
36.522.
(13) In addition to the fee provided
for in ORS 36.524 (1), for the period commencing October 1, 2009, and ending [June 30] September 30, 2011, the
clerk of the circuit court shall collect a surcharge of $1 for the filing under
ORS 36.524 (1).
(14) In addition to the fee provided
for in ORS 36.615 (1)(b), for the period commencing October 1, 2009, and ending
[June 30] September 30, 2011,
the clerk of the circuit court shall collect a surcharge of $2 upon the filing
of a petition to seek confirmation, vacation, modification or correction of an
award under ORS 36.700, 36.705 or 36.710, and a surcharge of $1 from a person
filing an appearance in opposition to the petition.
(15) In addition to the fees provided
for in ORS 46.570 (1), for the period commencing October 1, 2009, and ending [June 30] September 30, 2011, in
the small claims department of a circuit court the clerk of the court shall
collect:
(a) A $24 surcharge when a defendant
demands a hearing and the amount or value claimed by the plaintiff does not
exceed $1,500; and
(b) A $50 surcharge when a defendant
demands a hearing and the amount or value claimed by the plaintiff exceeds
$1,500.
(16)(a) In addition to the fees
provided for in ORS 105.130 (2), for the period commencing October 1, 2009, and
ending [June 30] September 30,
2011, upon filing a complaint in the case of a dwelling unit to which ORS
chapter 90 applies, the clerk of the court shall collect a surcharge of $12.
(b) In addition to the fees provided
for in ORS 105.130 (3), for the period commencing October 1, 2009, and ending [June 30] September 30, 2011, if
the defendant demands a trial after a complaint is filed under ORS 105.130 (2),
the plaintiff shall pay a surcharge of $2.
(17) In addition to the fee provided
for in ORS 107.434 (1), for the period commencing October 1, 2009, and ending [June 30] September 30, 2011, the
clerk of the court shall collect a surcharge of $3 upon the filing of a motion
seeking enforcement of a parenting time order or a substantial violation of a
parenting plan.
(18) In addition to the fee provided
for in ORS 112.820 (1)(d), for the period commencing October 1, 2009, and
ending [June 30] September 30,
2011, the clerk of the probate court shall collect a surcharge of $1 for filing
of an affidavit under ORS 112.820 (1).
(19) In addition to the fee provided
for in ORS 114.515 (6), for the period commencing October 1, 2009, and ending [June 30] September 30, 2011, the
clerk of the probate court shall collect a surcharge of $1 upon the filing of
an affidavit under ORS 114.515.
(20) In addition to the fee provided
for in ORS 130.045 (7), for the period commencing October 1, 2009, and ending [June 30] September 30, 2011, the
clerk of the circuit court shall collect a surcharge of $3 for the filing of an
agreement or memorandum of agreement under ORS 130.045 (5) and a surcharge of
$2 for the filing of objections under ORS 130.045 (6).
(21) In addition to the fee provided
for in ORS 138.560, for the period commencing October 1, 2009, and ending [June 30] September 30, 2011, a
petitioner shall pay a surcharge of $1 at the time of filing a petition under
ORS 138.560.
(22) In addition to the fee provided
for in ORS 166.274, for the period commencing October 1, 2009, and ending [June 30] September 30, 2011, the
clerk of the court shall collect a surcharge of $5 for the filing of a petition
for relief under ORS 166.274.
(23) In addition to the fees provided
for in ORS 305.490, for the period commencing October 1, 2009, and ending [June 30] September 30, 2011, the
clerk of the tax court shall collect the following surcharges:
(a) For a complaint or petition in the
magistrate division, $50.
(b) For a complaint or petition in the
regular division, $100.
(c) If a complaint or petition is
specially designated under ORS 305.501 for hearing in the regular division, a
fee of $100.
(24) In addition to the fee provided
for in ORS 419B.555 (6), for the period commencing October 1, 2009, and ending
[June 30] September 30, 2011,
the clerk of the court shall collect a surcharge of $4 for each application for
emancipation under ORS 419B.555.
[(25)
Except as provided in subsection (26) of this section, surcharges imposed under
this section shall be deposited in the Judicial System Surcharge Account. The
collections and revenue management program established under ORS 1.204 may not
be reimbursed under ORS 1.204 from surcharges imposed under this section.]
[(26)]
(25) A surcharge imposed by a county court under subsection (7) of this
section or by a justice court under subsection (16) of this section shall be
paid to the county treasurer.
SECTION 142. Section 15, chapter 659,
Oregon Laws 2009, as amended by section 30a, chapter 107, Oregon Laws 2010, is
amended to read:
Sec. 15. (1) The amendments to
ORS 21.110 by section 14, chapter 659, Oregon Laws 2009, apply only to civil
actions, suits and proceedings filed on or after October 1, 2009, and before [July] October 1, 2011.
(2) The amendments to ORS 21.110 by
sections 28 and 29, chapter 107, Oregon Laws 2010, [of this 2010 Act] apply only to civil actions, suits and
proceedings filed on or after May 1, 2010, and before [July] October 1, 2011.
[(3)
All fees imposed pursuant to the amendments to ORS 21.110 by section 14,
chapter 659, Oregon Laws 2009, and by sections 28 and 29 of this 2010 Act shall
be deposited in the Judicial System Surcharge Account.]
[(4)
The collections and revenue management program established under ORS 1.204 may
not be reimbursed under ORS 1.204 from fees imposed pursuant to the amendments
to ORS 21.110 by section 14, chapter 659, Oregon Laws 2009, and by sections 28
and 29 of this 2010 Act.]
SECTION 143. Section 17, chapter 659,
Oregon Laws 2009, as amended by section 32, chapter 107, Oregon Laws 2010, is
amended to read:
Sec. 17. The amendments to ORS
21.110 by section 31, chapter 107, Oregon Laws 2010, [of this 2010 Act] become operative [July] October 1, 2011.
SECTION 144. Section 20, chapter 659,
Oregon Laws 2009, as amended by section 39, chapter 107, Oregon Laws 2010, is
amended to read:
Sec. 20. [(1) The amendments to ORS 36.170 by section 18, chapter 659, Oregon
Laws 2009, become operative October 1, 2009.]
[(2)]
The amendments to ORS 36.170 by section 38, chapter 107, Oregon Laws 2010,
[of this 2010 Act] become operative [July] October 1, 2011.
SECTION 145. Section 25, chapter 659,
Oregon Laws 2009, is amended to read:
Sec. 25. (1) In a court with
probate jurisdiction, the clerk shall charge and collect the following fees for
an annual or final accounting filed in a probate proceeding or a
conservatorship proceeding on or after October 1, 2009, and before [July] October1, 2011:
(a) If the amount of the estate is not
more than $500,000, a fee of $100.
(b) If the amount of the estate is
more than $500,000 and not more than $1 million, a fee of $200.
(c) If the amount of the estate is
more than $1 million, a fee of $300.
(2) In determining fees under
subsection (1) of this section in a probate proceeding, the amount of a
settlement in a wrongful death action brought for the benefit of the decedent’s
surviving spouse or dependents is not part of the estate.
(3) All fees imposed under this
section in a circuit court shall be deposited in the [Judicial System Surcharge Account] General Fund. All fees
imposed by a county court under this section shall be paid to the county
treasurer.
[(4)
The collections and revenue management program established under ORS 1.204 may
not be reimbursed under ORS 1.204 from fees imposed under this section.]
SECTION 146. Section 27, chapter 659,
Oregon Laws 2009, is amended to read:
Sec. 27. (1) In addition to the
fee provided in ORS 137.225, upon the filing of an application under ORS
137.225 (1), the court shall order the defendant to pay a fee of $250 to the
court.
(2) This section applies only to
applications filed under ORS 137.225 (1) on or after October 1, 2009, and
before [July] October1, 2011.
(3) Fees imposed under this section in
the circuit court shall be deposited by the clerk of the court in the [Judicial System Surcharge Account]
General Fund. Fees imposed in a justice court under this section shall be
paid to the county treasurer. Fees imposed in a municipal court under this
section shall be paid to the city treasurer.
[(4)
The collections and revenue management program established under ORS 1.204 may
not be reimbursed under ORS 1.204 from amounts imposed under this section.]
SECTION 147. Section 29, chapter 659,
Oregon Laws 2009, is amended to read:
Sec. 29. [(1)] The amendments to ORS 21.010 by section 28 [of this 2009 Act], chapter 659,
Oregon Laws 2009, apply only to filings and appearances made on or after
October 1, 2009, and before [July]
October 1, 2011.
[(2)
All fees imposed under the amendments to ORS 21.010 by section 28 of this 2009
Act shall be deposited in the Judicial System Surcharge Account.]
[(3)
The collections and revenue management program established under ORS 1.204 may
not be reimbursed under ORS 1.204 from fees imposed under the amendments to ORS
21.010 by section 28 of this 2009 Act.]
SECTION 147a. Section 37g, chapter
885, Oregon Laws 2009, is amended to read:
Sec. 37g. The amendments to ORS
21.010 by section 37f, chapter 885, Oregon Laws 2009, [of this 2009 Act] become operative [July] October 1, 2011.
SECTION 147b. Section 31, chapter
659, Oregon Laws 2009, is amended to read:
Sec. 31. The amendments to ORS
21.010 by section 30, chapter 659, Oregon Laws 2009, [of this 2009 Act] become operative [July] October 1, 2011.
SECTION 148. Section 33, chapter 659,
Oregon Laws 2009, as amended by section 37i, chapter 885, Oregon Laws 2009, is
amended to read:
Sec. 33. (1) In any appeal or
petition for review subject to a fee under ORS 21.010, the clerk of the court
shall collect a fee of $50 from any party filing a motion for continuance or a
motion for an extension of time for the filing of a brief or other document in
the proceeding.
(2) The fee imposed under this section
applies only to motions filed on or after October 1, 2009, and before [July] October 1, 2011.
[(3)
All fees imposed under this section shall be deposited in the Judicial System
Surcharge Account.]
[(4)
The collections and revenue management program established under ORS 1.204 may
not be reimbursed under ORS 1.204 from fees imposed under this section.]
SECTION 149. Section 38, chapter 659,
Oregon Laws 2009, as amended by section 37h, chapter 885, Oregon Laws 2009, is
amended to read:
Sec. 38. (1) In any civil
proceeding subject to a fee under ORS 21.110, 21.111, 21.114 or 21.310, the
clerk of a circuit court shall collect the sum of $10 for filing or submission
of an ex parte order or judgment for the purpose of signature by the judge and
entry.
(2) The fee established under this
section may not be collected for filings or submissions in small claims
actions. The Chief Justice by order may provide for exemptions from the fees
established by this section if exemptions are needed for the equitable
imposition of those fees.
(3) The fee imposed under this section
applies only to ex parte orders or judgments filed or submitted on or after
October 1, 2009, and before [July]
October 1, 2011.
[(4)
All fees imposed under this section shall be deposited in the Judicial System
Surcharge Account.]
[(5)
The collections and revenue management program established under ORS 1.204 may
not be reimbursed under ORS 1.204 from fees imposed under this section.]
NOTE: Section 150 was
deleted by amendment. Subsequent sections were not renumbered.
SECTION 151. Section 35, chapter 107,
Oregon Laws 2010, is amended to read:
Sec. 35. The amendments to ORS
21.480 by section 34, chapter 107, Oregon Laws 2010, [of this 2010 Act] become operative [July] October 1, 2011.
SECTION 152. Section 42, chapter 107,
Oregon Laws 2010, is amended to read:
Sec. 42. The amendments to ORS
36.615 by section 41, chapter 107, Oregon Laws 2010, [of this 2010 Act] become operative [July] October 1, 2011.
SECTION 153. Section 45, chapter 107,
Oregon Laws 2010, is amended to read:
Sec. 45. The amendments to ORS
130.355 by section 44, chapter 107, Oregon Laws 2010, [of this 2010 Act] become operative [July] October 1, 2011.
SECTION 154. Section 48, chapter 107,
Oregon Laws 2010, is amended to read:
Sec. 48. The amendments to ORS
130.400 by section 47, chapter 107, Oregon Laws 2010, [of this 2010 Act] become operative [July] October 1, 2011.
SECTION 155. Section 51, chapter 107,
Oregon Laws 2010, is amended to read:
Sec. 51. The amendments to ORS
701.133 by section 50, chapter 107, Oregon Laws 2010, [of this 2010 Act] become operative [July] October 1, 2011.
(Security
Release Amounts)
SECTION 156. Section 10, chapter 659,
Oregon Laws 2009, is amended to read:
Sec. 10. (1) The amendments to
ORS 135.265 by section 9, chapter 659, Oregon Laws 2009, [of this 2009 Act] apply only to security
deposits made on or after October 1, 2009, and before [July 1, 2011] October 1, 2011.
(2) All amounts retained in a circuit
court under ORS 135.265 as security deposit costs from security deposits made
on or after October 1, 2009, and before [July
1, 2011] October 1, 2011, that are in excess of $200 shall be
deposited in the [Judicial System
Surcharge Account] General Fund. All amounts retained in a justice
court under ORS 135.265 as security deposit costs from security deposits made
on or after October 1, 2009, and before [July
1, 2011] October 1, 2011, that are in excess of $200 shall be paid
to the county treasurer. All amounts retained in a municipal court under ORS
135.265 as security deposit costs from security deposits made on or after
October 1, 2009, and before [July 1, 2011]
October 1, 2011, that are in excess of $200 shall be paid to the city
treasurer.
[(3)
The collections and revenue management program established under ORS 1.204 may
not be reimbursed under ORS 1.204 from amounts retained as security deposit
costs that are in excess of $200 pursuant to the amendments to ORS 135.265 by
section 9 of this 2009 Act.]
SECTION 157. Section 12, chapter 659,
Oregon Laws 2009, is amended to read:
Sec. 12. (1) The amendments to
ORS 135.265 by section 11, chapter 659, Oregon Laws 2009, [of this 2009 Act] become operative [July 1, 2011] October 1, 2011.
(2) The amendments to ORS 135.265 by
section 11, chapter 659, Oregon Laws 2009, [of this 2009 Act] do not affect the amount of security release
costs that may be deducted from security amounts deposited on or after October
1, 2009, and before [July 1, 2011] October
1, 2011.
SECTION 158. ORS 135.265 is amended
to read:
135.265. (1) If the defendant is not
released on personal recognizance under ORS 135.255, or granted conditional
release under ORS 135.260, or fails to agree to the provisions of the
conditional release, the magistrate shall set a security amount that will
reasonably assure the defendant’s appearance. The defendant shall execute the
security release in the amount set by the magistrate.
(2) The defendant shall execute a
release agreement and deposit with the clerk of the court before which the
proceeding is pending a sum of money equal to 10 percent of the security
amount, but in no event shall such deposit be less than $25. The clerk shall
issue a receipt for the sum deposited. Upon depositing this sum the defendant
shall be released from custody subject to the condition that the defendant
appear to answer the charge in the court having jurisdiction on a day certain
and thereafter as ordered by the court until discharged or final order of the
court. Once security has been given and a charge is pending or is thereafter
filed in or transferred to a court of competent jurisdiction the latter court
shall continue the original security in that court subject to ORS 135.280 and
135.285. When conditions of the release agreement have been performed and the
defendant has been discharged from all obligations in the cause, the clerk of
the court shall return to the person shown by the receipt to have made the
deposit, unless the court orders otherwise, 85 percent of the sum which has
been deposited and shall retain as security release costs 15 percent, but not
less than $5, of the amount deposited. The interest that has accrued on the
full amount deposited shall also be retained by the clerk. The amount retained
by the clerk of a circuit court shall be paid over as directed by the State
Court Administrator for deposit in the [Criminal
Fine and Assessment Account created under ORS 137.300] General Fund.
The amount retained by a justice of the peace shall be deposited in the county
treasury. The amount retained by the clerk of a municipal court shall be
deposited in the municipal corporation treasury. At the request of the
defendant the court may order whatever amount is repayable to defendant from
such security amount to be paid to defendant’s attorney of record.
(3) Instead of the security deposit
provided for in subsection (2) of this section the defendant may deposit with
the clerk of the court an amount equal to the security amount in cash, stocks,
bonds, or real or personal property situated in this state with equity not
exempt owned by the defendant or sureties worth double the amount of security
set by the magistrate. The stocks, bonds, real or personal property shall in
all cases be justified by affidavit. The magistrate may further examine the
sufficiency of the security as the magistrate considers necessary.
SECTION 159. ORS 135.265, as amended
by section 11, chapter 659, Oregon Laws 2009, is amended to read:
135.265. (1) If the defendant is not
released on personal recognizance under ORS 135.255, or granted conditional
release under ORS 135.260, or fails to agree to the provisions of the
conditional release, the magistrate shall set a security amount that will
reasonably assure the defendant’s appearance. The defendant shall execute the
security release in the amount set by the magistrate.
(2) The defendant shall execute a
release agreement and deposit with the clerk of the court before which the
proceeding is pending a sum of money equal to 10 percent of the security amount,
but in no event shall such deposit be less than $25. The clerk shall issue a
receipt for the sum deposited. Upon depositing this sum the defendant shall be
released from custody subject to the condition that the defendant appear to
answer the charge in the court having jurisdiction on a day certain and
thereafter as ordered by the court until discharged or final order of the
court. Once security has been given and a charge is pending or is thereafter
filed in or transferred to a court of competent jurisdiction the latter court
shall continue the original security in that court subject to ORS 135.280 and
135.285. When conditions of the release agreement have been performed and the
defendant has been discharged from all obligations in the cause, the clerk of
the court shall return to the person shown by the receipt to have made the
deposit, unless the court orders otherwise, 85 percent of the sum which has
been deposited and shall retain as security release costs 15 percent, but not
less than $5 nor more than [$200]
$750, of the amount deposited. The interest that has accrued on the full
amount deposited shall also be retained by the clerk. The amount retained by
the clerk of a circuit court shall be paid over as directed by the State Court
Administrator for deposit in the [Criminal
Fine and Assessment Account created under ORS 137.300] General Fund.
The amount retained by a justice of the peace shall be deposited in the county
treasury. The amount retained by the clerk of a municipal court shall be
deposited in the municipal corporation treasury. At the request of the
defendant the court may order whatever amount is repayable to defendant from
such security amount to be paid to defendant’s attorney of record.
(3) Instead of the security deposit
provided for in subsection (2) of this section the defendant may deposit with
the clerk of the court an amount equal to the security amount in cash, stocks,
bonds, or real or personal property situated in this state with equity not
exempt owned by the defendant or sureties worth double the amount of security
set by the magistrate. The stocks, bonds, real or personal property shall in
all cases be justified by affidavit. The magistrate may further examine the
sufficiency of the security as the magistrate considers necessary.
SECTION 160. The amendments to ORS
135.265 by section 159 of this 2011 Act apply only to security deposits
returned on or after October 1, 2011.
(Bench
Probation Fees and
Probation
Violation Assessments)
SECTION 161. Section 22, chapter 659,
Oregon Laws 2009, is amended to read:
Sec. 22. [(1)] The amendments to ORS 137.540 by section 21, chapter 659,
Oregon Laws 2009, [of this 2009 Act]
apply only to orders of probation and probation violation determinations made
on or after October 1, 2009, and before July 1, 2011.
[(2)
The collections and revenue management program established under ORS 1.204 may
not be reimbursed under ORS 1.204 from assessments imposed by a court under the
amendments to ORS 137.540 by section 21 of this 2009 Act.]
SECTION 162. ORS 137.540, as amended
by section 23, chapter 659, Oregon Laws 2009, is amended to read:
137.540. (1) The court may sentence
the defendant to probation subject to the following general conditions unless
specifically deleted by the court. The probationer shall:
(a) Pay supervision fees, fines,
restitution or other fees ordered by the court.
(b) Not use or possess controlled
substances except pursuant to a medical prescription.
(c) Submit to testing for controlled
substance or alcohol use if the probationer has a history of substance abuse or
if there is a reasonable suspicion that the probationer has illegally used
controlled substances.
(d) Participate in a substance abuse
evaluation as directed by the supervising officer and follow the recommendations
of the evaluator if there are reasonable grounds to believe there is a history
of substance abuse.
(e) Remain in the State of Oregon
until written permission to leave is granted by the Department of Corrections
or a county community corrections agency.
(f) If physically able, find and
maintain gainful full-time employment, approved schooling, or a full-time
combination of both. Any waiver of this requirement must be based on a finding
by the court stating the reasons for the waiver.
(g) Change neither employment nor
residence without prior permission from the Department of Corrections or a
county community corrections agency.
(h) Permit the parole and probation
officer to visit the probationer or the probationer’s work site or residence
and to conduct a walk-through of the common areas and of the rooms in the
residence occupied by or under the control of the probationer.
(i) Consent to the search of person,
vehicle or premises upon the request of a representative of the supervising
officer if the supervising officer has reasonable grounds to believe that
evidence of a violation will be found, and submit to fingerprinting or
photographing, or both, when requested by the Department of Corrections or a
county community corrections agency for supervision purposes.
(j) Obey all laws, municipal, county,
state and federal.
(k) Promptly and truthfully answer all
reasonable inquiries by the Department of Corrections or a county community
corrections agency.
(L) Not possess weapons, firearms or
dangerous animals.
(m) If recommended by the supervising
officer, successfully complete a sex offender treatment program approved by the
supervising officer and submit to polygraph examinations at the direction of
the supervising officer if the probationer:
(A) Is under supervision for a sex
offense under ORS 163.305 to 163.467;
(B) Was previously convicted of a sex
offense under ORS 163.305 to 163.467; or
(C) Was previously convicted in
another jurisdiction of an offense that would constitute a sex offense under
ORS 163.305 to 163.467 if committed in this state.
(n) Participate in a mental health
evaluation as directed by the supervising officer and follow the recommendation
of the evaluator.
(o) Report as required and abide by
the direction of the supervising officer.
(p) If required to report as a sex
offender under ORS 181.596, report with the Department of State Police, a city
police department, a county sheriff’s office or the supervising agency:
(A) When supervision begins;
(B) Within 10 days of a change in
residence;
(C) Once each year within 10 days of
the probationer’s date of birth;
(D) Within 10 days of the first day
the person works at, carries on a vocation at or attends an institution of
higher education; and
(E) Within 10 days of a change in work,
vocation or attendance status at an institution of higher education.
(2) In addition to the general
conditions, the court may impose any special conditions of probation that are
reasonably related to the crime of conviction or the needs of the probationer
for the protection of the public or reformation of the probationer, or both,
including, but not limited to, that the probationer shall:
(a) For crimes committed prior to
November 1, 1989, and misdemeanors committed on or after November 1, 1989, be
confined to the county jail or be restricted to the probationer’s own residence
or to the premises thereof, or be subject to any combination of such
confinement and restriction, such confinement or restriction or combination
thereof to be for a period not to exceed one year or one-half of the maximum
period of confinement that could be imposed for the offense for which the
defendant is convicted, whichever is the lesser.
(b) For felonies committed on or after
November 1, 1989, be confined in the county jail, or be subject to other
custodial sanctions under community supervision, or both, as provided by rules
of the Oregon Criminal Justice Commission.
(c) For crimes committed on or after
December 5, 1996, sell any assets of the probationer as specifically ordered by
the court in order to pay restitution.
(3) When a person who is a sex
offender is released on probation, the court shall impose as a special
condition of probation that the person not reside in any dwelling in which
another sex offender who is on probation, parole or post-prison supervision
resides, without the approval of the person’s supervising parole and probation
officer, or in which more than one other sex offender who is on probation,
parole or post-prison supervision resides, without the approval of the director
of the probation agency that is supervising the person or of the county manager
of the Department of Corrections, or a designee of the director or manager. As
soon as practicable, the supervising parole and probation officer of a person
subject to the requirements of this subsection shall review the person’s living
arrangement with the person’s sex offender treatment provider to ensure that
the arrangement supports the goals of offender rehabilitation and community
safety. As used in this subsection:
(a) “Dwelling” has the meaning given
that term in ORS 469.160.
(b) “Dwelling” does not include a
residential treatment facility or a halfway house.
(c) “Halfway house” means a publicly
or privately operated profit or nonprofit residential facility that provides
rehabilitative care and treatment for sex offenders.
(d) “Sex offender” has the meaning
given that term in ORS 181.594.
(4)(a) If the person is released on
probation following conviction of a sex crime, as defined in ORS 181.594, or an
assault, as defined in ORS 163.175 or 163.185, and the victim was under 18
years of age, the court, if requested by the victim, shall include as a special
condition of the person’s probation that the person not reside within three
miles of the victim unless:
(A) The victim resides in a county
having a population of less than 130,000 and the person is required to reside
in that county;
(B) The person demonstrates to the
court by a preponderance of the evidence that no mental intimidation or
pressure was brought to bear during the commission of the crime;
(C) The person demonstrates to the
court by a preponderance of the evidence that imposition of the condition will
deprive the person of a residence that would be materially significant in
aiding in the rehabilitation of the person or in the success of the probation;
or
(D) The person resides in a halfway
house. As used in this subparagraph, “halfway house” means a publicly or
privately operated profit or nonprofit residential facility that provides rehabilitative
care and treatment for sex offenders.
(b) A victim may request imposition of
the special condition of probation described in this subsection at the time of
sentencing in person or through the prosecuting attorney.
(c) If the court imposes the special
condition of probation described in this subsection and if at any time during
the period of probation the victim moves to within three miles of the
probationer’s residence, the court may not require the probationer to change
the probationer’s residence in order to comply with the special condition of
probation.
(5) When a person who is a sex
offender, as defined in ORS 181.594, is released on probation, the Department
of Corrections or the county community corrections agency, whichever is appropriate,
shall notify the city police department, if the person is going to reside
within a city, and the county sheriff’s office of the county in which the
person is going to reside of the person’s release and the conditions of the
person’s release.
(6) Failure to abide by all general
and special conditions imposed by the court and supervised by the Department of
Corrections or a county community corrections agency may result in arrest,
modification of conditions, revocation of probation or imposition of structured,
intermediate sanctions in accordance with rules adopted under ORS 137.595.
(7) The court may order that
probation be supervised by the court. If the court orders that probation be
supervised by the court, the defendant shall pay a fee of $100 to the court.
Fees imposed under this subsection in the circuit court shall be deposited by
the clerk of the court in the General Fund. Fees imposed in a justice court
under this subsection shall be paid to the county treasurer. Fees imposed in a
municipal court under this subsection shall be paid to the city treasurer.
[(7)]
(8) The court may at any time modify the conditions of probation.
[(8)]
(9) A court may not order revocation of probation as a result of the
probationer’s failure to pay restitution unless the court determines from the
totality of the circumstances that the purposes of the probation are not being
served.
[(9)]
(10) It is not a cause for revocation of probation that the probationer
failed to apply for or accept employment at any workplace where there is a
labor dispute in progress. As used in this subsection, “labor dispute” has the
meaning for that term provided in ORS 662.010.
(11) If the court determines that a
defendant has violated the terms of probation, the court shall collect a $25
fee from the defendant. The fee becomes part of the judgment and may be
collected in the same manner as a fine. Fees collected under this subsection in
the circuit court shall be deposited by the clerk of the court in the General
Fund. Fees collected in a justice court under this subsection shall be paid to
the county treasurer. Fees collected in a municipal court under this subsection
shall be paid to the city treasurer.
[(10)]
(12) As used in this section, “attends,” “institution of higher education,”
“works” and “carries on a vocation” have the meanings given those terms in ORS
181.594.
SECTION 163. The amendments to ORS
137.540 by section 162 of this 2011 Act apply only to orders of probation and
probation violation determinations made on or after July 1, 2011.
(Diversion
Fees)
SECTION 164. Section 26, chapter 659,
Oregon Laws 2009, is amended to read:
Sec. 26. (1) In addition to the
fees provided in ORS 135.921 and 813.240, upon the filing of a petition for
diversion under ORS 135.909 or 813.210, the court shall order the defendant to
pay $100 to the court as a program administration fee.
(2) This section applies only to
petitions for diversion filed on or after October 1, 2009, and before [July 1, 2011] January 1, 2012.
(3) Fees imposed under this section in
the circuit court shall be deposited by the clerk of the court in the [Judicial System Surcharge Account]
Criminal Fine and Assessment Account. Fees imposed in a justice court under
this section shall be paid to the county treasurer. Fees imposed in a municipal
court under this section shall be paid to the city treasurer.
[(4)
The collections and revenue management program established under ORS 1.204 may
not be reimbursed under ORS 1.204 from fees imposed under this section.]
SECTION 165. ORS 135.921 is amended
to read:
135.921. (1) The filing fee paid by a
defendant at the time of filing a petition for a possession of marijuana
diversion agreement as provided in ORS 135.909 [shall be $233 and shall be ordered paid as follows if the petition is
allowed:]
[(a)
$123 to the Department of Revenue for deposit in the Criminal Fine and
Assessment Account; and]
[(b)
$110 to be distributed as provided for the disposition of costs under ORS
153.630.] is $335. A fee collected under this section in the circuit
court shall be deposited by the clerk of the court in the Criminal Fine and
Assessment Account. If the fee is collected in a municipal or justice court,
$125 of the fee shall be forwarded by the court to the Department of Revenue
for deposit in the Criminal Fine and Assessment Account, and the remainder of
the fee shall be paid to the city or county treasurer.
(2) If less than the [$233] full filing fee is [paid to the court by the defendant under
subsection (1) of this section] collected under this section in a
justice or municipal court, the money [actually]
received shall be allocated [in the
amounts provided] first to the [State
Treasurer and the remainder as provided for the disposition of costs under ORS
153.630] Department of Revenue for deposit in the Criminal Fine and
Assessment Account.
(3) In addition to the filing fee
under subsection (1) of this section, the court shall order the defendant to
pay $90 directly to the agency or organization providing the diagnostic
assessment.
[(4)
The Chief Justice of the Supreme Court may require that any or all fees
distributed by circuit courts under this section be distributed through the
offices of the State Court Administrator.]
SECTION 166. The amendments to ORS
135.921 by section 165 of this 2011 Act apply only to petitions for diversion
filed on or after January 1, 2012.
SECTION 167. ORS 813.240 is amended
to read:
813.240. (1) The filing fee paid by a
defendant at the time of filing a petition for a driving while under the
influence of intoxicants diversion agreement as provided in ORS 813.210 is
$363. A fee collected under this subsection in the circuit court shall be
deposited by the clerk of the court in the Criminal Fine and Assessment
Account. If the fee is collected in a municipal or justice court, $163 of the
fee shall be forwarded by the court to the Department of Revenue for deposit in
the Criminal Fine and Assessment Account, and the remainder of the fee shall be
paid to the city or county treasurer. [shall
be $261 and shall be ordered paid as follows if the petition is allowed:]
[(a)
$136 to be credited and distributed under ORS 137.295 as an obligation payable
to the state;]
[(b)
$100 to be treated as provided for disposition of fines and costs under ORS
153.630; and]
[(c)
$25 to be paid to the Director of the Oregon Health Authority for deposit in
the Intoxicated Driver Program Fund created under ORS 813.270, to be used for
purposes of the fund.]
(2) If less than the full filing
fee is collected under subsection (1) of this section in a municipal or justice
court, the money received shall be allocated first to the Department of Revenue
for deposit in the Criminal Fine and Assessment Account.
[(2)]
(3) In addition to the filing fee under subsection (1) of this section, the
court shall order the defendant to pay $150 directly to the agency or
organization providing the diagnostic assessment.
SECTION 168. The amendments to ORS
813.240 by section 167 of this 2011 Act apply only to petitions for diversion
filed on or after January 1, 2012.
NOTE: Section 169 was
deleted by amendment. Subsequent sections were not renumbered.
SECTION 170. ORS 813.210 is amended
to read:
813.210. (1) After an accusatory
instrument has been filed charging the defendant with the offense of driving
while under the influence of intoxicants, a defendant may file with the court a
petition for a driving while under the influence of intoxicants diversion
agreement described in ORS 813.200. The petition:
(a) Must be filed within 30 days after
the date of the defendant’s first appearance on the summons, unless a later
filing date is allowed by the court upon a showing of good cause. For purposes
of this paragraph, the filing of a demurrer, a motion to suppress or a motion
for an omnibus hearing does not constitute good cause.
(b) Notwithstanding paragraph (a) of
this subsection, may not be filed after entry of a guilty plea or a no contest
plea or after commencement of any trial on the charge whether or not a new
trial or retrial is ordered for any reason.
(2) The defendant shall pay to the
court, at the time of filing a petition for a driving while under the influence
of intoxicants diversion agreement, a filing fee established under ORS 813.240.
The court may make provision for payment of the filing fee by the defendant on
an installment basis. The court may waive all or part of the filing fee in
cases involving indigent defendants. The filing fee paid to the court under
this subsection shall be retained by the court if the petition is allowed. The
filing fee shall be distributed as provided by ORS 813.240.
(3) The defendant shall pay to the
agency or organization providing the diagnostic assessment, at the time the
petition is allowed, the fee required by ORS 813.240 [(2)] (3).
(4)(a) Unless otherwise provided under
paragraph (b) of this subsection, the defendant shall pay to the court any
court-appointed attorney fees agreed to under ORS 813.200 (4)(i). Payments
shall be made prior to the end of the diversion period on a schedule determined
by the court.
(b) The court may waive all or part of
the court-appointed attorney fees agreed to under ORS 813.200 (4)(i).
(5) The defendant shall cause a copy
of the petition for a driving while under the influence of intoxicants
diversion agreement to be served upon the district attorney or city attorney.
The district attorney or city attorney may file with the court, within 15 days
after the date of service, a written objection to the petition and a request
for a hearing.
PREVAILING
PARTY FEES
SECTION 170a. ORS 20.190 is amended
to read:
20.190. (1) Except as provided in
subsections (2) to (5) of this section, a prevailing party in a civil action or
proceeding who has a right to recover costs and disbursements in the following
cases also has a right to recover, as a part of the costs and disbursements,
the following additional amounts:
(a) In the Supreme Court or Court of
Appeals, on an appeal, $100.
(b) In a circuit court:
(A) When judgment is given without
trial of an issue of law or fact or on an appeal, $60; or
(B) When judgment is given after trial
of an issue of law or fact, $85.
(c) In a small claims department, a
county court or justice court, one-half of the amount provided for in paragraph
(b) of this subsection.
(2) In lieu of the prevailing party
fee provided for in subsection (1) of this section, in any civil action or
proceeding in which recovery of money or damages is sought, a prevailing party
who has a right to recover costs and disbursements also has a right to recover,
as a part of the costs and disbursements, the following additional amounts:
(a) In a circuit court:
(A) When judgment is given without
trial of an issue of law or fact, $275; or
(B) When judgment is given after trial
of an issue of law or fact, $550.
(b) In a small claims department, a
county court or justice court:
(A) When judgment is given without
trial of an issue of law or fact, [$85]
$93; or
(B) When judgment is given after trial
of an issue of law or fact, [$100]
$108.
(3) In addition to the amounts
provided for in subsection (2) of this section, in any civil action or
proceeding in a circuit court in which recovery of money or damages is sought,
the court may award to the prevailing party up to an additional $5,000 as a
prevailing party fee. The court shall consider the following factors in making
an award under the provisions of this subsection:
(a) The conduct of the parties in the
transactions or occurrences that gave rise to the litigation, including any
conduct of a party that was reckless, willful, malicious, in bad faith or
illegal.
(b) The objective reasonableness of
the claims and defenses asserted by the parties.
(c) The extent to which an award of a
larger prevailing party fee in the case would deter others from asserting good
faith claims or defenses in similar cases.
(d) The extent to which an award of a
larger prevailing party fee in the case would deter others from asserting
meritless claims and defenses.
(e) The objective reasonableness of
the parties and the diligence of the parties and their attorneys during the
proceedings.
(f) The objective reasonableness of
the parties and the diligence of the parties in pursuing settlement of the
dispute.
(g) Any award of attorney fees made to
the prevailing party as part of the judgment.
(h) Such other factors as the court
may consider appropriate under the circumstances of the case.
(4) Nonprevailing parties are jointly
liable for the prevailing party fees provided for in this section. A court may
not award more than one prevailing party fee to a prevailing party under this
section, or more than one prevailing party fee against a nonprevailing party
regardless of the number of parties in the action, and, upon being paid the
amount of the award, the prevailing party may not seek recovery of any additional
amounts under the provisions of this section from any other nonprevailing
party.
(5) In any appeal from the award or
denial of a prevailing party fee under subsection (2) of this section, the
court reviewing the award may not modify the decision of the court in making or
denying an award, or the decision of the court as to the amount of the award,
except upon a finding of an abuse of discretion.
(6) The prevailing party fees provided
for in this section may not be awarded in the following proceedings:
(a) A class action proceeding under
ORCP 32.
(b) A condemnation proceeding.
(c) Proceedings under the provisions
of ORS chapters 25, 107, 108, 109 and 110.
(7) Mandatory arbitration under ORS
36.400 to 36.425 does not constitute a trial of an issue of law or fact for the
purposes of this section.
SECTION 170b. The amendments to
ORS 20.190 by section 170a of this 2011 Act apply only to actions commenced on
or after the effective date of this 2011 Act.
JOINT
COMMITTEE ON
STATE COURTS
REVENUE STRUCTURE
SECTION 171. (1) There is created
a Joint Committee on State Courts Revenue Structure, consisting of three
members of the Senate appointed by the President of the Senate and three
members of the House of Representatives appointed by the Speaker of the House
of Representatives. The Chief Justice of the Supreme Court, the Oregon State
Bar Association, the League of Oregon Cities and the Association of Oregon
Counties shall each designate a nonvoting liaison to the committee.
(2) The committee shall conduct a
review of all state court fees and fines. In conducting this review, the
committee shall consider the following principles:
(a) Fee and fine amounts should be
transparent and easy to access and administer.
(b) Fee and fine amounts should be
equitable and fair.
(c) The court fee structure should not
adversely impact access to justice.
(d) The court fee structure should not
adversely affect judicial authority to waive or defer fees or to establish a
payment plan for litigants.
(e) The statutory fee structure and
fee amounts should be uniform across this state.
(f) All state court revenue sources
should be easily identifiable and reflected in statute.
(g) The court fee structure should
generate biennial revenue commensurate with the end-of-session revenue
forecast.
(h) Fees and fines should be a fixed
dollar amount.
(i) Surcharges and assessments should
not be imposed on fees or fines.
(j) Fines for violations should be
uniform in state courts, justice courts and municipal court.
(k) Revenues from fees and fines
should not be dedicated.
(3) In conducting the review required
by subsection (2) of this section and making recommendations relating to the
court fee structure, the committee shall give due consideration to the fairness
of those fees and the financial burdens placed on the parties who are
ultimately responsible for the payment of the fees.
(4) The committee shall identify
statutes and court practices that are not in conformity with the principles
listed in subsection (2) of this section.
(5) The committee shall monitor all
legislation passed by the Seventy-sixth Legislative Assembly relating to court
fees and fines, and evaluate the effect of the exercise of judicial discretion
on revenues generated by fines.
(6) The committee shall study funding
of court security, court facilities and county law libraries, and make
recommendations on the manner in which court security, court facilities and
county law libraries should be funded.
(7) The committee shall issue a report
not later than January 1, 2013. The report must describe statutes and court
practices identified by the committee as failing to conform with the principles
listed in subsection (2) of this section, and recommend statutory and other
changes. A copy of the report shall be delivered to the House Committee on
Judiciary, the Senate Committee on Judiciary and the Joint Committee on Ways
and Means.
(8) A majority of the members of the
Joint Committee on State Courts Revenue Structure constitutes a quorum for the
transaction of business.
(9) Official action by the committee
requires the approval of a majority of the members of the committee.
(10) The President of the Senate shall
designate one of the members appointed by the President to serve as cochair of
the committee. The Speaker of the House of Representatives shall designate one
of the members appointed by the Speaker to serve as cochair of the committee.
(11) If there is a vacancy for any
cause, the appointing authority shall make an appointment. The appointment
becomes effective immediately.
(12) The committee shall meet at times
and places specified by the call of a cochair or of a majority of the members
of the committee.
(13) The committee may adopt rules
necessary for the operation of the committee.
(14) The Legislative Administrator,
the Legislative Fiscal Office and the Legislative Revenue Office shall provide
administrative support to the committee.
(15) All agencies of state government,
as defined in ORS 174.111, are directed to assist the committee in the
performance of its duties and, to the extent permitted by laws relating to
confidentiality, to furnish such information and advice as the members of the
committee consider necessary to perform their duties.
SECTION 172. Section 171 of this
2011 Act is repealed on the date of the convening of the 2013 regular session
of the Legislative Assembly as specified in ORS 171.010.
ELIMINATION OF
COLLECTIONS AND
REVENUE
MANAGEMENT PROGRAM
SECTION 173. ORS 1.204 is
repealed.
SECTION 174. Any funds in the
Judicial Department Collections Account on the effective date of this 2011 Act
shall be transferred by the State Treasurer to the General Fund.
OPERATIVE DATE
SECTION 175. Sections 3, 4, 5, 6,
7a, 8, 9, 11 to 16a, 19, 21, 23 to 28, 31, 38, 40, 45, 54, 56, 58, 61, 63, 65,
67, 70, 71, 72, 74, 76, 77, 80, 82, 84, 86, 88, 90, 93, 96, 97b, 107a, 116,
121, 123, 126, 128, 132, 134 and 160 of this 2011 Act, the amendments to ORS
1.202, 2.560, 8.125, 9.820, 18.999, 21.010, 21.125, 21.270, 21.615, 24.115,
24.135, 24.190, 34.340, 36.520, 36.522, 36.524, 36.610, 36.615, 46.405, 46.425,
46.455, 46.461, 46.465, 46.475, 46.488, 46.570, 51.080, 51.310, 52.635, 55.011,
55.095, 105.130, 105.938, 106.120, 107.434, 107.795, 109.100, 109.787, 110.426,
112.820, 114.515, 114.720, 125.060, 125.075, 125.605, 125.842, 125.845,
130.045, 130.355, 130.400, 133.055, 135.265, 137.225, 138.560, 166.274,
181.823, 181.826, 182.040, 205.360, 305.490, 417.825, 419B.529, 419B.555 and
701.133 and sections 13 and 32, chapter 659, Oregon Laws 2009, by sections 18,
22, 29, 30, 32 to 37, 39, 41 to 44, 46 to 53b, 55, 57, 59, 60, 62, 64, 66, 73,
75, 79, 81a, 83a, 85, 87, 89, 92a, 94, 95, 101, 105, 106, 109, 111, 115, 117 to
120, 122, 124, 125, 127, 129, 130, 131, 133, 135, 136, 137 and 159 of this 2011
Act and the repeal of ORS 9.574, 9.830, 9.840, 9.850, 21.040, 21.111, 21.112,
21.114, 21.275, 21.310, 21.325, 21.335, 21.350, 21.420, 21.580, 21.660, 21.670,
21.730, 21.990 and 108.130 by sections 10, 17, 20, 68, 69, 78, 97a, 104, 108
and 114 of this 2011 Act become operative October 1, 2011.
CONFLICT
AMENDMENTS
SECTION 176. Section 1, chapter 224,
Oregon Laws 2011 (Enrolled House Bill 2367), is amended to read:
Sec. 1. [If the county governing body has passed a resolution under ORS 9.840
providing for the operation of a law library or the provision of law library
services, the county governing body may enter into a contract with a law
library association or other organization for the operation of the law library
or provision of law library services. A county governing body entering into a
contract under this section may use fees collected and paid to the county under
ORS 9.840 to pay all amounts agreed to under the contract.]
(1) Each county shall:
(a) Operate a free law library at a
location that is convenient and available at reasonable hours; or
(b) Provide free law library services
at one or more locations that are convenient and available at reasonable hours.
(2) A county governing body may enter
into a contract with a law library association or other organization for the
operation of the law library, or the provision of law library services,
required by this section.
SECTION 177. If Senate Bill 408
becomes law, section 3, chapter 271, Oregon Laws 2011 (Enrolled Senate Bill
408) (amending ORS 181.823), is repealed and ORS 181.823, as amended by section
94 of this 2011 Act, is amended to read:
181.823. [(1)(a)] (1) [No sooner
than two years, but no later than five years, after the termination of juvenile
court jurisdiction or, if the person was placed under the jurisdiction of the
Psychiatric Security Review Board under ORS 419C.529, board jurisdiction over a
person required to report under ORS 181.595, 181.596 or 181.597, the person may
file a petition for relief from the duty to report. The person must file the
petition] A person required to report as a sex offender under section 1
(1)(a), chapter 271, Oregon Laws 2011 (Enrolled Senate Bill 408), may file a
petition for an order relieving the person of the duty to report. The person
must pay the filing fee established under section 8 of this 2011 Act. If the
person resides:
(a) In this state and is required to
report under section 1 (2) or (3), chapter 271, Oregon Laws 2011 (Enrolled
Senate Bill 408), the petition must be filed in the
juvenile court in which the person was adjudicated for the act that requires
reporting. [The person must pay the
filing fee established under section 8 of this 2011 Act.]
(b) In another state and is
required to report under section 1 (4), chapter 271, Oregon Laws 2011 (Enrolled
Senate Bill 408), the petition must be filed in the juvenile court in the
county in which the person attends school or works.
(2) If the act giving rise to the
obligation to report would constitute:
(a) A Class A or Class B felony sex
crime if committed by an adult, the petition may be filed no sooner than two
years after the termination of juvenile court jurisdiction over the person or,
if the person is placed under the jurisdiction of the Psychiatric Security
Review Board, no sooner than two years after the person is discharged from the
jurisdiction of the board.
(b) A Class C felony sex crime if
committed by an adult, the petition may be filed no sooner than 30 days before
the termination of juvenile court jurisdiction over the person or, if the person
is placed under the jurisdiction of the Psychiatric Security Review Board, no
sooner than 30 days before the person is discharged from the jurisdiction of
the board.
[(b)]
(3)(a) The juvenile court in which a petition under this section is filed
may transfer the matter to the juvenile court of the county that last
supervised the person if the court determines that the convenience of the
parties, the victim and witnesses require the transfer.
[(c)]
(b) The juvenile court has exclusive original jurisdiction in any
proceeding under this section.
[(d)]
(c) The person, the district attorney and the juvenile department are
parties to a hearing on a petition filed under this section.
[(2)
When a person files a petition under this section and the petition was filed:]
[(a)
No later than three years after the termination of juvenile court jurisdiction
or, if the person was placed under the jurisdiction of the Psychiatric Security
Review Board under ORS 419C.529, board jurisdiction, the state has the burden
of proving by clear and convincing evidence that the person is not
rehabilitated and continues to pose a threat to the safety of the public.]
[(b)
More than three years, but no later than five years, after the termination of
juvenile court jurisdiction or, if the person was placed under the jurisdiction
of the Psychiatric Security Review Board under ORS 419C.529, board
jurisdiction,]
(4) The person filing the
petition has the burden of proving by clear and convincing evidence that
the person is rehabilitated and does not pose a threat to the safety of the
public.
[(3)]
In determining whether [the state or]
the person has met the burden of proof [established
in subsection (2) of this section], the juvenile court may consider but
need not be limited to considering:
(a) The extent and impact of any
physical or emotional injury to the victim;
(b) The nature of the act that
subjected the person to the duty of reporting as a sex offender;
(c) Whether the person used or
threatened to use force in committing the act;
(d) Whether the act was premeditated;
(e) Whether the person took advantage
of a position of authority or trust in committing the act;
(f) The age of any victim at the time
of the act, the age difference between any victim and the person and the number
of victims;
(g) The vulnerability of the victim;
(h) Other acts committed by the person
that would be crimes if committed by an adult and criminal activities engaged
in by the person before and after the adjudication;
(i) Statements, documents and recommendations
by or on behalf of the victim or the parents of the victim;
(j) The person’s willingness to accept
personal responsibility for the act and personal accountability for the
consequences of the act;
(k) The person’s ability and efforts
to pay the victim’s expenses for counseling and other trauma-related expenses
or other efforts to mitigate the effects of the act;
(L) Whether the person has
participated in and satisfactorily completed a sex offender treatment program
or any other intervention, and if so the juvenile court may also consider:
(A) The availability, duration and
extent of the treatment activities;
(B) Reports and recommendations from
the providers of the treatment;
(C) The person’s compliance with
court, board or supervision requirements regarding treatment; and
(D) The quality and thoroughness of
the treatment program;
(m) The person’s academic and
employment history;
(n) The person’s use of drugs or
alcohol before and after the adjudication;
(o) The person’s history of public or
private indecency;
(p) The person’s compliance with and
success in completing the terms of supervision;
(q) The results of psychological
examinations of the person;
(r) The protection afforded the public
by the continued existence of the records; and
(s) Any other relevant factors.
[(4)]
(5) In a hearing under this section, the juvenile court may receive
testimony, reports and other evidence without regard to whether the evidence is
admissible under ORS 40.010 to 40.210 and 40.310 to 40.585 if the evidence is
relevant to the determination and findings required under this section. As used
in this subsection, “relevant evidence” has the meaning given that term in ORS
40.150.
[(5)]
(6) When a petition is filed under this section, the state has the right to
have a psychosexual evaluation of the person conducted. The state shall file
notice with the juvenile court of its intention to have the person evaluated.
If the person objects to the evaluator chosen by the state, the juvenile court
for good cause shown may direct the state to select a different evaluator.
[(6)]
(7) As soon as practicable after a petition has been filed under
this section, the district attorney or juvenile department shall make a
reasonable effort to notify the victim of the crime that the person has filed a
petition seeking relief under this section and, if the victim has requested, to
inform the victim of the date, time and place of a hearing on the petition in
advance of the hearing.
[(7)(a)]
(8)(a) [When a petition has been
filed under this section and the petition was] When a petition filed
under this section is filed:
(A) [No later than three years after the termination of juvenile court
jurisdiction or, if the person was placed under the jurisdiction of the
Psychiatric Security Review Board under ORS 419C.529, board jurisdiction,]
While the person is under the jurisdiction of the juvenile court or the
Psychiatric Security Review Board or less than three years after the date the
jurisdiction is terminated, the court shall hold a hearing [on the petition] no sooner than
60 days and no later than 120 days after the date of filing.
(B) [More than three years, but no later than five years, after the
termination of juvenile court jurisdiction or, if the person was placed under
the jurisdiction of the Psychiatric Security Review Board under ORS 419C.529,
board jurisdiction,] Three years or more after the date the juvenile
court or board jurisdiction is terminated, the court shall hold a hearing
no sooner than 90 days and no later than 150 days after the date of filing.
(b) Notwithstanding paragraph (a) of
this subsection, upon a showing of good cause, the court may extend the period
of time in which a hearing on the petition must be held.
[(8)]
(9)(a) [When the state has the burden
of proof under subsection (2) of this section and proves by clear and
convincing evidence that the person is not rehabilitated and continues to pose
a threat to the safety of the public, the court shall deny the petition. When
the person has the burden of proof under subsection (2) of this section and]
When the person proves by clear and convincing evidence that the person
is rehabilitated and does not pose a threat to the safety of the public, the
court shall grant the petition.
(b) Notwithstanding paragraph (a)
of this subsection, the court may not grant a petition filed under this section
before the date the juvenile court or board jurisdiction over the person is
terminated.
[(9)]
(10) When a juvenile court enters an order relieving a person of the requirement
to report under [ORS 181.595, 181.596 or
181.597] section 1, chapter 271, Oregon Laws 2011 (Enrolled Senate Bill
408), the person shall send a certified copy of the juvenile court order to
the Department of State Police.
[(10)]
(11) If a person commits an act that could be charged as a sex crime listed
in ORS 137.707 and the person is 15, 16 or 17 years of age at the time the act
is committed, the state and the person may stipulate that the person may not
petition for relief under this section as part of an agreement that the person
be subject to the jurisdiction of the juvenile court rather than being
prosecuted as an adult under ORS 137.707.
(12) When a petition is filed under
subsection (2)(b) of this section before the termination of juvenile court or
board jurisdiction, if the person, or the parent or guardian of the person if
the person is less than 18 years of age, requests counsel and is without
sufficient financial means to employ suitable counsel to represent the person,
for purposes of the petition described in this section, the court shall appoint
suitable counsel to represent the person. Appointment of counsel under this
subsection is subject to ORS 419C.200, 419C.203, 419C.206 and 419C.209.
SECTION 178. If Senate Bill 408
becomes law, section 4, chapter 271, Oregon Laws 2011 (Enrolled Senate Bill
408) (amending ORS 181.826), is repealed and ORS 181.826, as amended by section
95 of this 2011 Act, is amended to read:
181.826. (1) Except as provided in
subsection [(6)] (7) of this
section, [when a person is required to
report under ORS 181.595, 181.596 or 181.597 as a result of having been found
in a juvenile adjudication in another United States court to have committed an
act while the person was under 18 years of age that would constitute a sex
crime if committed in this state by an adult, the person may file a petition in
the circuit court of the county in which the person resides for] a
person required to report under section 1 (1)(b), chapter 271, Oregon Laws 2011
(Enrolled Senate Bill 408), may file a petition in the juvenile court for
an order relieving the person of the duty to report. [The person must pay the filing fee established under section 8 of this
2011 Act. A petition may be filed under this section only if:] The
person must pay the filing fee established under section 8 of this 2011 Act. If
the person resides:
(a) [The person has been registered as a sex offender in this state for at
least two years;] In this state and is required to report under section
1 (2) or (3), chapter 271, Oregon Laws 2011 (Enrolled Senate Bill 408), the
petition must be filed in the juvenile court of the county in which the person
resides.
(b) [At least two years, but not more than five years, have elapsed since
the termination of supervision on probation or parole; and] In another
state and is required to report under section 1 (4), chapter 271, Oregon Laws
2011 (Enrolled Senate Bill 408), the petition must be filed in the juvenile
court of the county in which the person attends school or works.
(2) If the act giving rise to the
obligation to report would constitute:
(a) A Class A or Class B felony sex
crime if committed in this state by an adult, the petition may be filed no
sooner than two years after the termination of the other United States court’s
jurisdiction over the person.
(b) A Class C felony sex crime if
committed in this state by an adult, the petition may be filed no sooner than
30 days before the termination of the other United States court’s jurisdiction
over the person.
[(c)]
(3) The person [submits] filing
the petition must submit with the petition all releases and waivers
necessary to allow the district attorney for the county in which the petition
is filed to obtain the following documents from the jurisdiction in which the
person was adjudicated for the act for which reporting is required:
[(A)]
(a) The juvenile court petition;
[(B)]
(b) The dispositional report to the court;
[(C)]
(c) The order of adjudication or jurisdiction;
[(D)]
(d) Any other relevant court documents;
[(E)]
(e) The police report relating to the act for which reporting is required;
[(F)]
(f) The order terminating jurisdiction for the act for which reporting is
required; and
[(G)]
(g) The evaluation and treatment records or reports of the person that are
related to the act for which reporting is required.
[(2)]
(4) A person filing a petition under this section has the burden of proving
by clear and convincing evidence that the person is rehabilitated and does not
pose a threat to the safety of the public.
[(3)]
(5) Unless the court finds good cause for a continuance, the court shall
hold a hearing on the petition no sooner than 90 days and no later than 150
days after the date the petition is filed.
[(4)
Notwithstanding subsection (1)(b) of this section, if a person has not been
registered as a sex offender in this state for two years until more than five
years have elapsed since the termination of supervision on probation or parole,
the person may file a petition seeking relief under this section if the person
files the petition no later than 90 days after the date on which the person has
been registered as a sex offender in this state for two years.]
[(5)]
(6) If a person who files a petition under this section is required to
report as a sex offender for having committed an act that if committed in this
state could have subjected the person to prosecution as an adult under ORS
137.707, the court may not grant the petition notwithstanding the fact that the
person has met the burden of proof established in subsection [(2)] (4) of this section unless
the court determines that to do so is in the interest of public safety.
[(6)]
(7) This section does not apply to a person who is required to register as
a sex offender for life in the jurisdiction in which the offense occurred.
[(7)]
(8) In a hearing under this section, the court may receive testimony,
reports and other evidence without regard to whether the evidence is admissible
under ORS 40.010 to 40.210 and 40.310 to 40.585 if the evidence is relevant to
the determination and findings required under this section. As used in this
subsection, “relevant evidence” has the meaning given that term in ORS 40.150.
[(8)]
(9) If the court is satisfied by clear and convincing evidence that the
person is rehabilitated and that the person does not pose a threat to the
safety of the public, the court shall enter an order relieving the person of
the duty to report. When the court enters an order under this subsection, the
person shall send a certified copy of the court order to the Department of
State Police.
SECTION 179. If Senate Bill 68 and
House Bill 3204 do not become law, section 27, chapter 271, Oregon Laws 2011
(Enrolled Senate Bill 408), is amended to read:
Sec. 27. (1) Sections 1 and 2 [of this 2011 Act], chapter 271,
Oregon Laws 2011 (Enrolled Senate Bill 408), and the amendments to ORS
93.275, 181.589, 181.590, 181.592, 181.594, 181.595, 181.596, 181.597, 181.598,
181.599, 181.602, 181.604, 181.606, 181.820, 181.823, 181.826, 181.830,
181.875, 417.042 and 696.880 by sections [3,
4 and] 7 to 24 [of this 2011 Act],
chapter 271, Oregon Laws 2011 (Enrolled Senate Bill 408), and sections
177 and 178 of this 2011 Act become operative on January 1, 2012.
(2) Sections 1 and 2 [of this 2011 Act], chapter 271, Oregon
Laws 2011 (Enrolled Senate Bill 408), and the amendments to ORS 21.110,
93.275, 181.589, 181.590, 181.592, 181.594, 181.595, 181.596, 181.597, 181.598,
181.599, 181.602, 181.604, 181.606, 181.820, 181.823, 181.826, 181.830,
181.875, 417.042 and 696.880 by sections [3]
5 to 24 [of this 2011 Act],
chapter 271, Oregon Laws 2011 (Enrolled Senate Bill 408), and sections 177 and
178 of this 2011 Act apply to persons adjudicated before, on or after [the effective date of this 2011 Act]
June 7, 2011.
(3) A person who is adjudicated before
January 1, 2012, and, but for the amendments to ORS 181.595, 181.596 and
181.597 by sections 11, 12 and 13, chapter 271, Oregon Laws 2011 (Enrolled
Senate Bill 408), would be required to make an initial report as a sex
offender on or after January 1, 2012, shall make an initial report that
complies with section 1 (6) [of this 2011
Act], chapter 271, Oregon Laws 2011 (Enrolled Senate Bill 408), no
later than the date described in section 1 (2) [of this 2011 Act], chapter 271, Oregon Laws 2011 (Enrolled
Senate Bill 408), as applicable.
SECTION 180. If Senate Bill 68
becomes law and House Bill 3204 does not become law, section 27, chapter 271,
Oregon Laws 2011 (Enrolled Senate Bill 408), as amended by section 36b, chapter
547, Oregon Laws 2011 (Enrolled Senate Bill 68), is amended to read:
Sec. 27. (1) Sections 1 and 2,
chapter 271, Oregon Laws 2011 (Enrolled Senate Bill 408), and the amendments to
ORS 93.275, 181.589, 181.590, 181.592, 181.594, 181.595, 181.596, 181.597,
181.598, 181.599, 181.602, 181.604, 181.606, 181.820, 181.823, 181.826,
181.830, 181.875, 417.042 and 696.880 by sections [3, 4,] 7 to 11 and 13 to 24, chapter 271, Oregon Laws 2011
(Enrolled Senate Bill 408), [and]
section 36a [of this 2011 Act],
chapter 547, Oregon Laws 2011 (Enrolled Senate Bill 68), and sections 177 and
178 of this 2011 Act become operative on January 1, 2012.
(2) Sections 1 and 2, chapter 271,
Oregon Laws 2011 (Enrolled Senate Bill 408), and the amendments to ORS 21.110,
93.275, 181.589, 181.590, 181.592, 181.594, 181.595, 181.596, 181.597, 181.598,
181.599, 181.602, 181.604, 181.606, 181.820, 181.823, 181.826, 181.830,
181.875, 417.042 and 696.880 by sections [3]
5to 11 and 13 to 24, chapter 271, Oregon Laws 2011 (Enrolled Senate Bill
408), [and] section 36a [of this 2011 Act], chapter 547,
Oregon Laws 2011 (Enrolled Senate Bill 68), and sections 177 and 178 of this
2011 Act apply to persons adjudicated before, on or after [the effective date of chapter 271, Oregon
Laws 2011 (Enrolled Senate Bill 408)] June 7, 2011.
(3) A person who is adjudicated before
January 1, 2012, and, but for the amendments to ORS 181.595, 181.596 and
181.597 by sections 11 and 13, chapter 271, Oregon Laws 2011 (Enrolled Senate
Bill 408), and section 36a [of this 2011
Act], chapter 547, Oregon Laws 2011 (Enrolled Senate Bill 68), would
be required to make an initial report as a sex offender on or after January 1,
2012, shall make an initial report that complies with section 1 (6), chapter
271, Oregon Laws 2011 (Enrolled Senate Bill 408), no later than the date
described in section 1 (2), chapter 271, Oregon Laws 2011 (Enrolled Senate Bill
408), as applicable.
SECTION 181. If Senate Bill 68 does
not become law and House Bill 3204 becomes law, section 27, chapter 271, Oregon
Laws 2011 (Enrolled Senate Bill 408), as amended by section 9, chapter 675,
Oregon Laws 2011 (Enrolled House Bill 3204), is amended to read:
Sec. 27. (1) Sections 1 and 2,
chapter 271, Oregon Laws 2011 (Enrolled Senate Bill 408), and the amendments to
ORS 93.275, 181.589, 181.590, 181.592, 181.594, 181.595, 181.596, 181.597,
181.598, 181.599, 181.602, 181.604, 181.606, 181.820, 181.823, 181.826,
181.830, 181.875, 417.042 and 696.880 by sections [3, 4,] 7 to 10, 13, 14 and 16 to 24, chapter 271, Oregon Laws 2011
(Enrolled Senate Bill 408), [and]
sections 6 to 8 [of this 2011 Act],
chapter 675, Oregon Laws 2011 (Enrolled House Bill 3204), and sections 177 and
178 of this 2011 Act become operative on January 1, 2012.
(2) Sections 1 and 2, chapter 271, Oregon
Laws 2011 (Enrolled Senate Bill 408), and the amendments to ORS 21.110, 93.275,
181.589, 181.590, 181.592, 181.594, 181.595, 181.596, 181.597, 181.598,
181.599, 181.602, 181.604, 181.606, 181.820, 181.823, 181.826, 181.830,
181.875, 417.042 and 696.880 by sections [3]
5to 10, 13, 14 and 16 to 24, chapter 271, Oregon Laws 2011 (Enrolled
Senate Bill 408), [and] sections 6 to
8 [of this 2011 Act], chapter 675,
Oregon Laws 2011 (Enrolled House Bill 3204), and sections 177 and 178 of this
2011 Act apply to persons adjudicated before, on or after [the effective date of chapter 271, Oregon
Laws 2011 (Enrolled Senate Bill 408)] June 7, 2011.
(3) A person who is adjudicated before
January 1, 2012, and, but for the amendments to ORS 181.595, 181.596 and
181.597 by section 13, chapter 271, Oregon Laws 2011 (Enrolled Senate Bill
408), and sections 6 and 7 [of this 2011
Act], chapter 675, Oregon Laws 2011 (Enrolled House Bill 3204),
would be required to make an initial report as a sex offender on or after
January 1, 2012, shall make an initial report that complies with section 1 (6),
chapter 271, Oregon Laws 2011 (Enrolled Senate Bill 408), no later than the
date described in section 1 (2), chapter 271, Oregon Laws 2011 (Enrolled Senate
Bill 408), as applicable.
SECTION 182. If House Bill 3075
becomes law and House Bill 2104 does not become law, section 4, chapter 671,
Oregon Laws 2011 (Enrolled House Bill 3075) (amending ORS 813.240), is
repealed.
SECTION 183. If House Bill 3075
becomes law and House Bill 2104 does not become law, section 5, chapter 671,
Oregon Laws 2011 (Enrolled House Bill 3075), is amended to read:
Sec. 5. The amendments to ORS
813.030[, 813.240] and 813.602 by
sections 2 [to 4 of this 2011 Act] and
3, chapter 671, Oregon Laws 2011 (Enrolled House Bill 3075), apply to
offenses that occur on or after the effective date of [this 2011 Act] chapter 671, Oregon Laws 2011 (Enrolled House
Bill 3075).
SECTION 184. If House Bill 3075
does not become law and House Bill 2104 becomes law, section 2, chapter 719,
Oregon Laws 2011 (Enrolled House Bill 2104) (amending ORS 813.240), is
repealed.
SECTION 185. If House Bill 3075 does
not become law and House Bill 2104 becomes law, section 3, chapter 719, Oregon
Laws 2011 (Enrolled House Bill 2104), is amended to read:
Sec. 3. The amendments to ORS
813.030 [and 813.240 by sections 1 and 2
of this 2011 Act] by section 1, chapter 719, Oregon Laws 2011 (Enrolled
House Bill 2104), apply to persons convicted of driving while under the
influence of intoxicants on or after the effective date of [this 2011 Act] chapter 719, Oregon
Laws 2011 (Enrolled House Bill 2104), and to persons who file a petition
for a driving while under the influence of intoxicants diversion agreement on
or after the effective date of [this 2011
Act] chapter 719, Oregon Laws 2011 (Enrolled House Bill 2104).
SECTION 186. If both House Bill
3075 and House Bill 2104 become law, sections 2 and 5, chapter 719, Oregon Laws
2011 (Enrolled House Bill 2104) (both amending ORS 813.240), are repealed and ORS
813.240, as amended by section 167 of this 2011 Act, is amended to read:
813.240. (1) The filing fee paid by a
defendant at the time of filing a petition for a driving while under the
influence of intoxicants diversion agreement as provided in ORS 813.210 is [$363] $386. A fee collected under
this subsection in the circuit court shall be deposited by the clerk of the
court in the Criminal Fine and Assessment Account. If the fee is collected in a
municipal or justice court, $163 of the fee shall be forwarded by the court to
the Department of Revenue for deposit in the Criminal Fine and Assessment
Account, and the remainder of the fee shall be paid to the city or county
treasurer.
(2) If less than the full filing fee
is collected under subsection (1) of this section in a municipal or justice
court, the money received shall be allocated first to the Department of Revenue
for deposit in the Criminal Fine and Assessment Account.
(3) In addition to the filing fee
under subsection (1) of this section, the court shall order the defendant to
pay $150 directly to the agency or organization providing the diagnostic
assessment.
SECTION 187. If both House Bill 3075
and House Bill 2104 become law, section 3, chapter 719, Oregon Laws 2011
(Enrolled House Bill 2104), as amended by section 6, chapter 719, Oregon Laws
2011 (Enrolled House Bill 2104), is amended to read:
Sec. 3. The amendments to ORS
813.030 and 813.240 by [sections 4 and 5
of this 2011 Act] section 4, chapter 719, Oregon Laws 2011 (Enrolled
House Bill 2104), and section 186 of this 2011 Act apply to persons
convicted of driving while under the influence of intoxicants on or after the
effective date of [this 2011 Act] chapter
719, Oregon Laws 2011 (Enrolled House Bill 2104), and to persons who file a
petition for a driving while under the influence of intoxicants diversion
agreement on or after the effective date of [this 2011 Act] chapter 719, Oregon Laws 2011 (Enrolled House
Bill 2104).
CAPTIONS
SECTION 188. The unit and section
captions used in this 2011 Act are provided only for the convenience of the
reader and do not become part of the statutory law of this state or express any
legislative intent in the enactment of this 2011 Act.
EMERGENCY
CLAUSE
SECTION 189. This 2011 Act being
necessary for the immediate preservation of the public peace, health and
safety, an emergency is declared to exist, and this 2011 Act takes effect on
July 1, 2011.
Approved by
the Governor June 30, 2011
Filed in the
office of Secretary of State July 1, 2011
Effective date
July 1, 2011
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