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Frequently Asked Questions (FAQs)

Questions About Justice Participation, General Protocols

If the court has a vacancy or if one or more justices have a conflict at the point of a discretionary "allow" decision -- such as whether to allow a petition for review from the Court of Appeals or a petition for a writ of mandamus or habeas corpus -- then the court makes the discretionary decision with only the participating members.  See ORS 2.111(5) (majority of judges "participating" is necessary to pronounce judgment as to decision being reviewed); ORAP 9.20(1) (petitions to review Court of Appeals decisions may be allowed if one less than a majority of judges who are "eligible to vote" votes to allow); see also ORS 2.100 (quorum of judges is required for the transaction of any business). (6/25/24)​

​If the court has a vacancy or if a justice has a conflict on a case scheduled for oral argument, then a Court of Appeals judge participates on the case; if two justices have conflicts, then two Court of Appeals judges participate.  (Last updated 6/25/24)​

The court's process is designed to utilize the service of duly appointed or elected Court of Appeals judges, on a rotation basis and assigning cases based on availability, with the particular case(s) identified to the Court of Appeals judge only after the assignment is made.  Court staff rotates through a seniority-based list of the Court of Appeals judges (not including the Chief Judge), confirming assignments based on availability on scheduled argument dates.


If no Court of Appeals judge is available to participate, the court utilizes the services of retired justices (now senior judges) on a rotation basis, prioritizing those who have post-retirement service time remaining as part of their state judge retirement plan.  Court staff rotates through a list of those senior judges with service time remaining, confirming assignments based on availability on scheduled argument dates, with the particular case(s) identified to the senior justice only after the assignment is made.  If no senior judge with remaining service time is available to sit on a particular date, court staff uses a similar process to determine whether a retired member is available to sit on a volunteer basis.  (Last updated 6/4/24)​


The court's current practice is that a new justice participates on decisions already under advisement in two scenarios, assuming that the justice has no conflict:  (1) when a draft of the opinion had not yet been considered at a court conference at the time when the new justice joined the court; or (2) even if a draft of the opinion already had been submitted before the new justice joined the court, when fewer than seven total justices otherwise are participating on the case (typically due to a combination of conflicts and a limitation on the number of senior judges who may participate).  See ORS 2.111(8)(a) (Supreme Court justice may participate, without resubmission of the case, when the justice was appointed or elected to the court after submission of the case); ORS 2.111(5) (no more than two senior judges may sit on a Supreme Court case considered en banc). ​  (Last updated 10/24/23)​