(Reasons given below for particular actions of the Uniform Trial Court Rules Committee are not approved by the committee, but are abstracted by the Reporter from committee discussions.)

The Uniform Trial Court Rules (UTCR) Committee is authorized to make recommendations to the Chief Justice of the Oregon Supreme Court about proposals for changes to the UTCR. Before the UTCR Committee makes final recommendations to the Chief Justice for changes to the UTCR, the initial recommendations are published for public comment, see UTCR 1.020.

At its fall meeting on October 22, 1999, the UTCR Committee made initial recommendations to the Chief Justice on proposals for changes to the UTCR. The initial recommendations of the UTCR Committee are described below in this notice.

This notice solicits public comment on the recommendations and proposals. Written comments should be submitted to:

Any comment on the actions set out below must be received by the UTCR Committee at or before the date of its spring meeting (shown below) to consider public comment. Comment may be made both on proposals to make UTCR amendments, whether conditionally approved or conditionally disapproved, and on other actions taken by the committee or set out below. At the spring meeting, the committee may consider amendments to proposals, may reconsider proposals entirely, may reconsider conditionally disapproved proposals, and may reconsider other actions taken by the committee whether or not the actions resulted in proposed changes to the UTCR.

The committee will review timely received public comment on these actions before the committee makes final recommendations to the Chief Justice on proposals or changes. Any final recommendations made by the committee and adopted by the Chief Justice will take effect August 1, 2000, and will be published in the Oregon Appellate Courts Advance Sheets in June 2000 (No. 11).

SHORT SUMMARY OF ACTIONS

Committee proposed changes. The following summarizes proposals conditionally approved by the committee as recommended changes to the UTCR (they are explained more fully under the "Committee Actions Taken, Conditionally Approved Changes That Would Amend UTCR" in section "A" below):

1. UTCR 1.050, clarify form for submitting proposed SLR changes for review.

2. UTCR 1.010 and 1.080 to remove references to infractions.

3. UTCR 2.010, clarify requirements for double-sided printing of documents.

4. PROPOSED NEW UTCR to require SLR announcing available legal services.

5. UTCR Chapter 9 changes in probate accounting and reporting.

6. UTCR 9.120, clarification of posting requirements in name/sex change cases.

7. UTCR 13.060, clarification of requirements for pleading titles in civil cases.

Committee disapproved proposals. The following summarizes proposals conditionally disapproved by the committee. These are proposals or issues that came before the UTCR Committee on which the committee is currently NOT recommending any change to the UTCR (they are explained more fully under the "Committee Actions Taken, Conditionally Disapproved Proposals" in section "B" below):

1. UTCR 3.170, clarification of which laws out-of-state counsel must certify to following.

2. UTCR 3.170, requirement for out-of-state counsel to certify to professionalism standards.

3. UTCR 3.180, changes to media in the courtroom rules.

4. UTCR Chapter 5 proposal to require punitive damage motions to be filed 60 days before trial.

5. UTCR Chapter 5 proposal to establish statewide deposition guidelines.

6. UTCR Chapter 6 proposal to require parties to state on motion whether other party opposes.

7. UTCR Chapter 6 proposal on bringing animals into courtrooms.

8. UTCR 7.010(2) request for clarification of 35-day rule.

9. UTCR 7.030 proposal to allow presiding judge to designate complex cases on own motion.

10. UTCR Chapter 7 proposal to add new UTCR creating priority for cases involving children.

11. UTCR Chapter 7 proposal to set 14-day limit on submitting settlement papers in dom rel cases.

12. UTCR Chapter 9 proposals on notices in guardianship cases for non-minors.

13. UTCR Chapter 9 proposal on probate accounting and reporting.

Other actions taken. The following summarizes actions taken by the committee that are not subject to reconsideration at its regular spring meeting. These are proposals or issues that came before the UTCR Committee on which the committee has already taken final action (they are explained more fully under the "Other Actions Taken By The Committee" in section "C" below):

1. UTCR Subcommittee to rewrite UTCR 3.170 on out-of-state attorney appearance formed, (Rapoport and Campbell members).

2. UTCR Subcommittee on filing motions and orders on same page discontinued (Miller, Darling, and Lamvik members).

3. UTCR Subcommittee on arbitration discontinued (Rapoport, Larson, and Lamvik members).

4. UTCR Subcommittee on domestic relations and mediation rules discontinued (Miller, Darling, Campbell, and Lamvik members).

5. UTCR Subcommittee on pretrial conference rules created (Shipsey member).

6. UTCR Subcommittee on developing UTCR to standardize parent education program rules established (Miller, Henry, and Campbell members).

7. UTCR Subcommittee on probate still open (Deras, Lamvik, and Reynolds members).

8. Committee decides to make bigger effort to make people aware of what is going on with the committee.

NOTE ON FORMAT OF PROPOSED CHANGES TO THE UTCR: Material proposed to be taken out of existing UTCR sections is in italics and bracketed. New material proposed to be added to existing UTCR is in bold and underlined. New material in entirely new sections is not underlined, unless for emphasis. Repealed UTCR are not set out.

A. COMMITTEE ACTIONS TAKEN, CONDITIONALLY APPROVED PROPOSALS THAT WOULD AMEND UTCR. The following are conditionally approved proposals. The committee actions on these proposals resulted in proposed changes to the UTCR by the committee. The committee may reconsider whether these merit UTCR changes or other action at its spring meeting:

1. Amend UTCR 1.050 to clarify how to submit proposed SLR changes to the UTCR Committee for review.

ACTION. Conditionally approve amendments to UTCR 1.050 (from agenda item C. of the committee's fall meeting materials).

REASON. In its review of SLR, the committee was having difficulty telling what was proposed for deletion and what was proposed for addition in the proposals to change SLR. The committee felt the following proposed changes to how SLR are presented to the committee would make the committee's job easier.

VOTE. Motion 42: 12 yes, 1 abstain, 1 excused.

The proposed amendments to UTCR 1.050 are as follows:

1.050 PROMULGATION OF SLR; REVIEW OF SLR; ENFORCEABILITY OF LOCAL PRACTICES

(1) Promulgation of SLR

(a) * * *

* * * * *

(2) Review of SLR

(a) * * *

(b) Proposed local rules submitted to the Chief Justice for review under subsection (2)(a) of this rule must show the proposed changes to the local rule as follows: proposed new language in the SLR and proposed new SLR will be bold and underlined, language proposed to be deleted and SLR proposed to be repealed will be in italics and have brackets placed before and after the deleted language ([...])[, and SLR that are proposed to be deleted must be repealed]. When final SLR are submitted to the State Court Administrator after review under subsection (2)(a) of this rule, changes will not be indicated as required by this subsection.

(c) * * *

* * * * *

2. Amend UTCR 1.010(3) and 1.080(3) to conform to statute changes.

ACTION. Conditionally approve amendments to UTCR 1.080(3) and 1.080(3) (from agenda item C., page 875, of the committee's fall meeting materials).

REASON. The UTCR reporter noted that chapter 1051, Oregon Laws 1999 would remove "infractions" from statute, but that there were still two references to infractions in the UTCR. The suggestion was to change the references so they conformed to the statutory scheme for nonjail offenses.

VOTE. Motion 85: 10 yes, 1 abstain, 3 excused.

The proposed amendments to UTCR 1.010 and 1.080 are as follows:

1.010 SCOPE OF THESE RULES

(1) * * *

* * * * *

(3) Chapters 2 to 13 of the UTCR do not apply to small claims [or infractions] or violations or parking violations, except that:

(a) * * *

* * * * *

1.080 FORMAT AND LOCATION OF COURT RULES

(1) * * *

* * * * *

(3) SLR must be numbered as closely as possible to and in the same chapter as related UTCR, without using numbers reserved for UTCR. The following chapter numbers are reserved for the placement of SLR related to the subjects described for the chapter numbers:

(a) * * *

* * * * *

(d) Chapter 16, SLR relating to [traffic infractions and] violations.

(e) * * *

* * * * *

3. Amend UTCR 2.010(2) and (4) on document margins.

ACTION. Conditionally approve amendments to UTCR 2.010(2) and (4) (from agenda item C., pages 873 and 874, of the committee's fall meeting materials).

REASON. Statute requires courts to encourage two-sided copying of filings. This has created an issue with the margins on two-sided pleadings and how the margins needed to be set so the pleadings could be placed in files and folders. Member Warren Deras made the proposal shown below, and the committee felt it should go out for comment.

VOTE. Motion 84: 10 yes, 1 abstain, 3 excused.

The proposed amendments to UTCR 2.010(2) and (4) are as follows:

2.010 FORM OF DOCUMENTS

The form of all documents, including pleadings and motions, except where a different procedure is specified by statute or rule, must be:

(1) Definitions

(a) * * *

* * * * *

(2) Size of Documents

All documents, except exhibits and wills, must be prepared on letter-size (8-1/2 x 11 inches) paper [with at least a one-inch top margin], except that smaller size paper may be used for bench warrants, commitments, uniform citations and complaints and other documents otherwise designated by the court.

(3) Documents Must be Printed or Typed

* * *

(4) Spacing, Paging and Numbered Lines

(a) * * *

* * * * *

(d) All documents, except exhibits and wills, shall be prepared with at least a one-inch binding margin. The binding margin shall be at the edge of each sheet of paper in the document corresponding to the top of the first page printed on the sheet of paper, unless a different location is specified by SLR.

(5) Backing Sheets

* * *

* * * * *

4. Proposed New UTCR in Chapter 9 to require local SLR on available legal services

ACTION. Conditionally approve NEW UTCR 1.200 (from agenda item C. of the committee's fall meeting materials).

REASON. In the discussion concerning the amendments to ORS 125.070 by section 3, chapter 775, Oregon Laws 1999, the committee noted that the amendments appeared to limit the requirement under ORS 125.070(2)(c) that notice in protective proceedings include information regarding any free or low-cost legal services and other relevant services available in the area to notices in cases involving minors and not in similar cases involving incapacitated persons. The committee noted that some courts already have SLR providing this information. The committee felt that it would be a good idea for SLR to contain information about where people could get free or low-cost legal or other relevant services in the area and asked the Reporter to draft language for public comment that would add a new UTCR requiring courts to adopt an SLR providing this information and setting a specific SLR number where the information would be placed.

VOTE. Motion 2: 11 yes, 1 abstain, 1 excused.

The proposed new UTCR 1.200 would read as follows:

1.200 SLR DESIGNATING PHONE NUMBERS FOR FREE LOCAL LEGAL SERVICES

"Each judicial district must adopt an SLR to announce information, including the telephone numbers, of any free or low-cost legal services and other relevant services available in the district and the nature of those services. SLR 1.201 is reserved for SLR adopted under this section."

5. Amend UTCR Chapter 9 on accounting and other procedures in probate.

ACTION. Conditionally approve amendments to UTCR Chapter 9 to establish accounting and reporting procedures for probate and protective proceeding cases (from agenda item B.14., pages 841 through 862, of the committee's fall meeting materials).

REASON. A proposal was submitted by the probate subcommittee of the UTCR Committee (Deras, Chair; Lamvik; Reynolds; see item B.13. below) to make changes to UTCR Chapter 9 to respond to chapter 592, Oregon Laws 1999 and specify the form and content of accounts filed by personal representatives and Conservators. At the meeting, Judge Welch (Circuit Court Multnomah County), Sarah Rinehart, Jennifer Todd (Marion County Probate Department), Rita Cobb (Washington County Probate), Sam Friedenberg, Robert Dirsenski (?), Alice Wheeler (?), Sally Landauer, and others showed up to discuss the proposals and to present alternate proposals prepared by some of the members of the Estate Planning and Administration Section and Elder Law Section of the Oregon State Bar. The committee spent considerable time discussing the need for uniformity and the differences between the two proposals. Much of the presentation by the members of the Bar sections that spoke to the committee expressed their concern that the UTCR Subcommittee proposals were too extensive and too great a change from current law. The committee appeared to believe that some changes need to be made, but was sympathetic with concerns raised by the Bar Section members present. The committee made a preliminary recommendation to conditionally approve the proposals of the Bar Section members (with some minor changes) and to send that proposal out for publication to receive public comment. The committee was clear that it intended to review this proposal and to consider it along with issues raised by the UTCR Subcommittee proposals (see item B.13. below) at its spring meeting. The committee did not believe they had the time to thoroughly review either of the proposals at the fall meeting and wanted to take time to compare the proposals at their spring meeting. BOTH proposals are published and will be considered at the spring meeting.

VOTE. Motion 3: 9 yes, 2 no, 1 abstain, 1 excused.

The proposed amendments to UTCR Chapter 9 are as follows. (Please note, the entire UTCR chapter is set out even though it is not all proposed for amendment. This is done because that is how the proposal was submitted and because it appears to be helpful to have the whole chapter available when reviewing the proposed changes) :

"CHAPTER 9--Probate and Adoption Proceedings

"9.010 MAILING PROBATE MATERIALS TO THE COURT

"Petitions, motions, orders and judgments not requiring a court appearance may be mailed to the trial court administrator, with self-addressed stamped envelopes or postcards for responses.

"9.020 APPROVAL OF BONDS

"A supporting affidavit, signed by the guardian, conservator, personal representative or attorney of record, must be filed if there is a request for approval of a surety bond in an amount less than the aggregate value of the property in the estate as disclosed by the petition. The requirement of this section may be satisfied by a statement in the petition for appointment.

"9.030 ADDRESSES AND TELEPHONE NUMBERS REQUIRED

"The name, address, telephone number and bar number of the attorney of record must be typed or printed on the last page of every petition, motion and order. The name, address and telephone number of the guardian, conservator or personal representative must be typed or printed on the last page of every order. The trial court administrator must be promptly notified by separate letter of any change in address or telephone number of any attorney of record, unrepresented party, guardian, conservator or personal representative.

"[9.040 PETITION TO APPOINT A GUARDIAN OR CONSERVATOR

"A petition to appoint a guardian or a conservator must contain facts sufficient to establish a prima facie case for the appointment.] NOTE: Omit 9.040 entirely. ORS 125.055(2)(g) requires a prima facie case.

"9.050 SETTLEMENT OF PERSONAL INJURY CLAIMS IN PROBATE CASES

"A petition for approval of a settlement of a personal injury claim must be accompanied by an affidavit setting forth all relevant information concerning the settlement, including medical reports covering the nature and extent of the injuries sustained and the prognosis. The court may require further information.

"9.060 VOUCHERS AND DEPOSITORY STATEMENTS [AND DISBURSEMENTS]

"(1) [A list of disbursements, including voucher numbers, in chronological order must be submitted concurrently with interim or final accounts.] Unless otherwise [ordered] provided by statute or order of the court, a voucher for each disbursement reported in the accounting [vouchers] must accompany the [accounts] accounting. A voucher is an original document evidencing a disbursement and showing the name of the payee and the date and amount paid.

"[(2) Statements from the depositories showing the current balances must be attached to interim and final accountings.]

"(2) Unless otherwise provided by statute or order of the court, an original statement for each depository account reported in the accounting must accompany the accounting. The statement must show the assets of the estate held by the depository on a date within 30 days of the close of the fiduciary's accounting period. The accounting shall include for each account a reconciliation of any difference between the closing balance shown on the depository statement and the closing balance shown in the account.

"(3) For purposes of this rule, a "depository" is an entity holding assets of the estate, including a bank, stock and bond broker, mutual fund, or similar entity.

"(4) The voucher information shall be highlighted for vouchers contained in lengthy statements. The ending balance shall be highlighted on depository statements.

"(5) Copies of vouchers and depository statements need not be served on persons entitled to copies of the accountings or on persons who have requested notice in the proceedings.

"9.070 RETURN OF VOUCHERS

"Vouchers and depository statements submitted under UTCR 9.060 may, in the court's discretion, be returned to a personal representative, conservator, guardian or attorney of record at any time after expiration of the time for appeal or, if an appeal is taken, after final determination of the case. A person requesting return of vouchers or depository statements shall submit a self-addressed envelope with adequate postage with the documents filed.

"9.080 RESTRICTED [ACCOUNTS] ASSETS

"When [funds] assets of an estate are placed with a depository subject to withdrawal only on order of the court, [a writing signed by the depository showing the dollar amount of the funds held and that they are subject to withdrawal only on further order must be placed in the file] an acknowledgment must be filed with the court. This acknowledgment must be substantially in the form set out in the Appendix of Forms to these rules and must be signed by an officer with authority to bind the depository. The acknowledgment should reflect any special provisions set out in the order restricting assets. Prompt procurement of the writing is the responsibility of the attorney for the fiduciary. Any asset restricted by court order shall be identified in the inventory/annual accountings as restricted with reference to the date and title of the order imposing the restriction.

"9.090 FEES IN ESTATES, GUARDIANSHIPS AND CONSERVATORSHIPS

"(1) Attorney fees requested for guardianships or conservatorships must be supported by affidavit setting out the justification for the amount requested.

"(2) Attorney [Attorneys] fees requested for a decedent's estate must be supported by affidavit in compliance with ORS 116.183.

"(3) Personal representative fees requested in excess of the statutory amounts provided in ORS 116.173(1) must be supported by affidavit setting out justification for the additional claimed amount. Fiduciary fees requested pursuant to ORS 125.095 must be supported by affidavit setting out justification for the amount.

"(4) All fiduciary and attorney fee applications and accountings in decedents' estates, guardianships and conservatorships must be served in the manner and on the persons described in ORS 116.093, 125.475, and acts amendatory thereof.

"9.100 APPOINTMENT OF TEMPORARY GUARDIANS IN ADOPTIONS

"Except in cases when one or more of the petitioners, or a state or private agency, is the legal or natural guardian of the minor child, when a petition is filed for leave to adopt a minor child and the required consent thereto has been filed, the attorney for the petitioner [petitioners] must prepare and submit to the court an order providing for the appointment of the petitioner [petitioners], or other suitable person [persons], as guardian [temporary guardians] of the person of the minor child pending further order of the court or entry of a decree. NOTE: a temporary guardian may be appointed for up to 30 days with one 30-day extension of appointment. ORS 125.600(3). The adoption petition may be pending for more than 30 days, so appointment of a guardian is appropriate.

"9.110 PRESENTATION OF ADOPTION DECREES

"Proposed adoption decrees may be presented to the court without the necessity of a personal appearance by the attorney or the adoptive parents.

"9.120 CHANGE OF NAME AND CHANGE OF SEX PROCEEDINGS

"The public notice required by ORS 33.420 or ORS 33.460 may be given either by posting in a public place or publication in a newspaper of general circulation. The notice must give 14 days from the date of posting or publication for all persons to appear and show cause. If no appearance is made, the decree or order may be entered 15 days after posting or publication. After entry of the decree or order, public notice of the change must be given by posting in a public place or publication in a newspaper of general circulation. [On return of proof of such notice, a] A certificate of posting or publication [pursuant to ORS 33.420] must be submitted to the trial court administrator.

"9.130 SUMMARY DETERMINATION OF CLAIM UNDER ORS 115.145(1)(a) AND 115.165

"A party requesting a summary determination of a claim under ORS 115.145(1)(a) and 115.165 must:

"(1) indicate in the caption of the request that a summary determination is being requested, and

"(2) tender the appropriate fee with the request.

"9.160 FORM OF ACCOUNTINGS

"Unless waived by the court, all accountings shall meet the following requirements:

"(1) Narrative. There shall be a narrative that includes:

"(a) The first and last date of the accounting period. For annual accountings, the last day of the accounting period shall be withing 30 days of the anniversary of appointment.

"(b) The amount of the current bond, the current value of restricted assets, the estimated income for the next accounting period and the difference between the sum of these and the value of assets on hand on the last day of the current accounting period.

"(c) A description of changes in the assets of the estate or the financial life of the protected person including, but not limited to, corrections to previously declared values, omitted assets, the closing of an account, the sale or purchase of an asset, a significant change in living expenses, or a stock split.

"(2) Asset summary. There shall be a separate summary of all assets of the estate of the protected person.

"(a) This summary shall have at least three columns.

"(i) The first column shall describe each asset in existence at any point during the accounting period.

"(ii) The second column shall include the value of the asset at the beginning of the accounting period or when acquired during that period.

"(iii) The third column shall include the value of the asset at the last day of the accounting period or when disposed of by the fiduciary.

"(iv) The summary may have additional information such as original cost or increase/decrease in value.

"(b) If the value shown in the summary is for a date different from the first or the last day of the accounting period, there shall be a notation of the date of the value.

"(c) There shall be a notation showing an asset that has been restricted pursuant to court order and the date of the court order.

"(d) All assets listed in the inventory or the previous accounting shall be accounted for in this exhibit.

"(3) Receipts and Disbursements. Each asset with receipts or disbursements shall have an accounting of receipts and disbursements that meets the following requirements:

"(a) Receipts and disbursements shall be listed chronologically.

"(b) Receipts and disbursements shall be listed with the date and value of each transaction, and with the sum of receipts and of disbursements.

"(c) Receipts, credits or deposits shall show the source and shall have a brief explanation of the source or purpose of the entry.

"(d) Disbursements, withdrawals or charges shall show the payee or recipient, and shall have a brief explanation of its purpose, if the disbursement is by check or similar instrument, the name on the schedule shall match the payee on the instrument.

"(e) The vouchers shall be attached as a separate exhibit.

"(f) A sale of real property shall be evidenced by a copy of the seller's closing statement from escrow, or, if none is available, third-party documentation of the particulars of the transaction.

"(g) Any inter-or intra-account transfers shall be so labeled with reference to the source or destination of the deposit or withdrawal.

"(h) The asset beginning balance shall be evidenced by a depository statement, unless one was submitted with the previous accounting.

"(i) The asset ending balance shall be evidenced by a depository statement and shall be reconciled with the statement balance.

"9.170 FIDUCIARY DISCLOSURE IN ACCOUNTINGS

"The narrative of an accounting shall specifically disclose and explain any financial transactions between the fiduciary and a member of the fiduciary's family, or a friend of the fiduciary or the fiduciary's family. The disclosure shall be of payment for services, rent, reimbursement of expenses, gifts, and any transaction where there is a potential conflict of interest.

"9.180 NO-ASSET WRONGFUL DEATH PROBATE FILINGS

"In a decedent's estate for which the personal representative has disclosed that the sole purpose of the proceeding is to enable the personal representative to pursue a wrongful death claim under ORS 30.020:

"(1) The personal representative need not comply with any of the provisions of ORS chapters 111 through 116, other than the petition for appointment of personal representative.

"(2) For estates open more than one year, the personal representative shall file a statement of the status of the wrongful death claim. The status statement shall be filed annually within 30 days after the anniversary date of the personal representative's appointment. The statement may be filed in letter form by the attorney for the personal representative.

IN THE CIRCUIT COURT OF THE STATE OF OREGON

FOR THE COUNTY OF ________________

In the Matter of the Estate/Conservatorship of

______________________,

Deceased/Protected Person.

)

)

)

)

)

Case no. ____________

ACKNOWLEDGMENT OF RESTRICTED STATUS OF ASSETS

We acknowledge receipt of (1) a copy of the court order signed on _____________ ("the Order") that restricts access to the assets of the above estate and (2) the assets described below. We acknowledge the restrictions placed on the assets and will not allow ANY withdrawal of principal or income from these assets or use of the assets as security for any debt or other obligation without a specific order from the Court.

The assets on deposit with us which are subject to the Order are:

Account Assets in Maturity

Number Account Type of Account [if any]

______________ ___________ ________________ ________

The name of the personal representative/conservator shown on our records as the holder of the account is _________________________________.

We understand that the personal representative/conservator may without order of the Court transfer restricted assets to other accounts with us, including new accounts not listed above, provided that all such other accounts shall be held by us subject to the same restrictions as the accounts listed above.

WE agree to abide by the Order. We understand that if assets are removed from a restricted account without Court order, this institution shall be required to pay the value of those assets to the estate.

Dated ___________________

Name of bank/financial institution/brokerage:

ACTION. Conditionally approve amendments to UTCR 9.120 (from agenda item B.12., page 837 and 838, of the committee's fall meeting materials).

REASON. The issue was brought to the committee by committee member Nancy Lamvik. She noted that section 22, chapter 872, Oregon Laws 1997 amended ORS 33.420 to remove a requirement that is still referenced in UTCR 9.120. The committee felt the UTCR should be amended to delete the outdated reference.

VOTE. Motion 5: 11 yes, 1 abstain, 1 excused.

The proposed amendments to UTCR 9.120 are as follows:

9.120 CHANGE OF NAME AND CHANGE OF SEX PROCEEDINGS

The public notice required by ORS 33.420 or ORS 33.460 may be given either by posting in a public place or publication in a newspaper of general circulation. The notice must give 14 days from the date of posting or publication for all persons to appear and show cause. If no appearance is made, the decree or order may be entered 15 days after posting or publication. After entry of the decree or order, public notice of the change must be given by posting in a public place or publication in a newspaper of general circulation. [On return of proof of such notice, a certificate pursuant to ORS 33.420 must be submitted to the trial court administrator.] Proof by affidavit of posting or publication must be filed with the trial court administrator.

7. Amend UTCR 13.060 for clarification of information that must be added to pleadings concerning arbitration.

ACTION. Conditionally approve amendments to UTCR 13.060 (from agenda item B.15., page 863, of the committee's fall meeting materials).

REASON. The issue was raised by Mark Comstock who noted that UTCR 13.060 appeared to receive contradictory interpretations about how it applied to civil cases that were not subject to mandatory court annexed arbitration. After discussing the issue, the committee decided that the rule needed clarification. It was originally intended to provide notice to court clerks of whether a civil case was or was not subject to mandatory arbitration. The committee asked the reporter to draft language for public comment.

VOTE. Motion 69: 11 yes, 1 abstain, 1 excused.

The proposed amendments to UTCR 13.060 are as follows:

13.060 PLEADINGS IN CASES SUBJECT OR NOT SUBJECT TO

ARBITRATION

(1) All civil actions (including domestic relations cases described under ORS 36.405(1)(b)) will be assigned to arbitration unless one of the following occurs:

(a) The title of a pleading [in the case (including a claim, counterclaim, cross claim, third-party claim, petition, and response)] contains the words "CLAIM NOT SUBJECT TO MANDATORY ARBITRATION" [When a party places this language in the title of the pleading, the party gives notice to the court and other parties that the party will seek an amount in excess of the mandatory arbitration limit. This language must not be in the title of a pleading for any other purpose. A party's signature on pleadings containing such language constitutes the party's certificate of such notice under ORCP 17.] in compliance with subsection (3) of this rule.

(b) Any party files a notice, prior to the assignment to arbitration, that the case is not subject to mandatory arbitration. The notice must state grounds sufficient, under ORS 36.405(1), to remove the case from mandatory arbitration.

(c) The court orders the case removed from mandatory arbitration under ORS 36.405(2).

(2) Notice under part (1)(a) or (1)(b) of this rule does not prevent any party from asserting by appropriate motion, that the case is subject to mandatory arbitration.

(3) A party must place one or the other of the following [language] in the title of a pleading in the case (including a claim, counterclaim, cross claim, third-party claim, petition, and response) [when the case will be subject to the mandatory arbitration program]: "SUBJECT TO MANDATORY ARBITRATION" or "CLAIM NOT SUBJECT TO MANDATORY ARBITRATION." When a party places the "NOT SUBJECT" language in the title of the pleading, the party gives notice to the court and other parties that the case is exempted from mandatory arbitration either clearly by statute or under these rules. This language must not be in the title of a pleading for any other purpose. A party's signature on pleadings containing such language constitutes the party's certificate of such notice under ORCP 17. In all other instances, the party will place the language in the title indicating the case is subject to mandatory arbitration.

B. COMMITTEE ACTIONS TAKEN, CONDITIONALLY DISAPPROVED PROPOSALS. The following are conditionally disapproved proposals. The committee actions on these proposals did not result in proposed changes to the UTCR or other recommendation for change by the committee. The committee may reconsider whether some of these merit UTCR changes or other action at its spring meeting:

1. Proposal to amend UTCR 3.170 to clarify what is being certified.

ACTION TAKEN. Two motions were made on the proposal, both died for lack of a second, leaving the proposal conditionally disapproved. (From agenda item C. and agenda item B.2., page 828, of the committee's fall meeting materials.)

REASON. This issue arose during a discussion of Multnomah SLR 3.005; the committee questioned whether that SLR was redundant of UTCR 3.170(1)(d) and thought about disapproving the SLR as redundant. The committee subsequently decided that the SLR was not redundant because the UTCR appeared to be not clear. It was then that the committee discussed two amendments to make the UTCR clearer.

While both motions failed, the UTCR Committee did form a subcommittee to work on cleaning up the rule to make it clearer what laws the pro hac vice attorneys must certify they will comply with and whether the issue of professionalism raised by the Multnomah Bar Association can be addressed. See item C.1. below.

VOTE. Motion 76 and Motion 38 (to change specific language) each dies for lack of a second; Motion 77 (to form subcommittee) passes 10 yes, 1 abstain, 2 excused.

There was no draft of language presented with the proposal, but in its motions, the committee discussed the following change to UTCR 3.170:

3.170 ASSOCIATION OF OUT-OF-STATE COUNSEL (PRO HAC VICE)

(1) An attorney authorized to practice law before the highest court of record in any state or country ("out-of-state attorney") may appear on behalf of a party in any action, suit, or proceeding pending in this state even though that attorney is not licensed to practice law in this state, if the attorney satisfies all of the following requirements:

(a) * * *

* * * * *

(d) The out-of-state attorney must certify that the attorney will: comply with applicable statutes, law, [and procedural rules of the state of Oregon] ORCP, UTCR and appropriate SLR for the county where appearing; be familiar with and comply with the disciplinary rules of the Oregon State Bar; and submit to the jurisdiction of the Oregon courts and the Oregon State Bar with respect to acts and omissions occurring during the out-of-state attorney's admission under this rule.

(e) * * *

* * * * *

2. Proposal to amend UTCR 3.170 to add requirement that pro hac vice attorneys certify that they comply with the Oregon Supreme Court Guidelines on Professionalism.

ACTION TAKEN. Proposed in a report from the Multnomah County Bar Association, motions to form subcommittee to address and schedule for next fall, leaving the proposal for 2000 UTCR change conditionally disapproved. (From agenda item B.2., pages 822 and 828 (item III.E.) of the committee's fall meeting materials.)

REASON. This issue arose because the UTCR Committee had been sent a copy of the Multnomah County Bar Association "Summit on Professionalism" from March 1998. In the report (page 3, item III.E. of the report, page 828 of the UTCR Committee fall meeting materials) there was a suggestion that UTCR 3.170 be amended to require pro hac vice attorneys to certify that they have read the Oregon Supreme Court Guidelines on professionalism prior to being allowed to practice in Oregon. The UTCR Committee was unable to determine exactly what the Supreme Court Guidelines were that were being referred to in the report.

While both motions failed, the UTCR Committee did form a subcommittee to work on cleaning up the rule to make it clearer what laws the pro hac vice attorneys must certify they will comply with and whether the issue of professionalism raised by the Multnomah Bar Association can be addressed. See item C.1. below.

VOTE. Motion 77 (to form subcommittee) passes 10 yes, 1 abstain, 2 excused; Motion 78 (to get Multnomah Bar to clarify what they wanted) passes 10 yes, 1 abstain, 2 excused.

There was no draft of language presented with the proposal. But, the language from their report reads as follows: "E. Pro Hac Vice lawyers should be required to certify that they have read the Oregon Supreme Court Guidelines, prior to being allowed to practice in Oregon. (This would require a UTCR 3.170 amendment.)"

3. Proposal to amend UTCR 3.180 regarding media in the courtroom.

ACTION TAKEN. No motion was made, leaving the proposal conditionally disapproved. (From agenda item B.3., page 831, of the committee's fall meeting materials.)

REASON. This issue was raised by several judges contacting the UTCR Reporter expressing concern about the process for adopting changes to UTCR 3.180 in the previous year. No specific proposal was made. While the committee did not make a motion to propose specific changes to UTCR 3.180, they did consider that they should be making a bigger effort to keep people apprized of what the committee is doing (see item C.8. below).

VOTE. No Motion.

There was no draft of language presented with the proposal.

4. Proposal to amend UTCR Chapter 5 to require motions to amend to assert a claim for punitive damages be filed 60 days before the trial date.

ACTION TAKEN. No motion was made concerning proposal to adopt this amendment statewide as a UTCR, leaving the proposal conditionally disapproved. (From agenda item B.4., pages 832 and 833, of the committee's fall meeting materials.)

REASON. This issue was raised by a letter from attorney Joyce A. Hyne. She wrote to Judge Selander (Circuit Court, Clackamas County) expressing concern about motion practice concerning punitive damages under ORS 18.535. In her letter she noted that Lane County had an SLR 5.005(5) that required a motion under ORS 18.535 to be filed 60 days before trial. She suggested that a similar rule in Clackamas County would prevent ambush at trial. Committee member Judge Eve Miller sent a copy of the letter to the UTCR Committee asking if it could be placed on the fall agenda for consideration.

In considering the proposal, the committee liked the idea but felt that it might be inconsistent with the provision of ORS 18.535(2) that says these motions can be filed at any time.

VOTE. No Motion.

There was no draft of language presented with the proposal. The former Lane County SLR that was referred to reads as follows: SLR 5.005 "(5) A motion pursuant to ORS 18.535 to amend to assert a claim for punitive damages shall be filed at least sixty (60) days prior to the trial date and will be considered by the court on the motion docket on the fourth Monday following the date of filing."

5. Proposal to amend UTCR Chapter 5 to adopt new UTCR to establish deposition guidelines similar to those in Multnomah County.

ACTION TAKEN. The committee made no motion concerning this proposal, leaving the proposal conditionally disapproved. (From agenda item B.5., page 833a, of the committee's fall meeting materials.)

REASON. This issue was raised by Judge Reynolds at the spring meeting when he asked that the issue be placed on the fall agenda for consideration. The committee looked at the deposition guidelines and decided that this was still a local issue best addressed by local rule and practice.

VOTE. No Motion.

There was no draft of language presented with the proposal. The Multnomah County deposition guidelines considered by the committee in relation to this proposal are as follows:

"GUIDELINES. These guidelines are designed to provide uniformity and thereby reduce disputes during discovery depositions. No attempt is made to cover every potential area of dispute; instead, the intent is to cover the majority of avoidable problems arising during discovery depositions.

"SCOPE OF DEPOSITION. ORCP 36B91) provides that any matter not privileged may be inquired into during a deposition if reasonably calculated to lead to admissible evidence. If unreasonable or bad faith deposition techniques are being used, the deposition may be suspended briefly, and a motion to limit pursuant to ORCP 39D may be made and heard by an available judge.

"OBJECTIONS. ORCP 39(d) creates a mechanism so that the attorney whose question is objected to may accept the objection as an invitation to correct an alleged defect in the question; rejection of the invitation may result in exclusion of the question and answer at trial. Attorneys should not state anything more than the legal grounds for the objection to preserve the record, and objection should be made without comment to avoid contamination of the answers of the witness. Argument in response to the objection is neither necessary nor desirable.

"INSTRUCTIONS NOT TO ANSWER. The only basis for an instruction not to answer a question reasonably calculated to lead to the discovery of admissible evidence is in response to an attempt by the attorney taking the deposition to inquire into an area of privacy right, privilege, an area protected by the constitution, statute, work product, or questioning amounting to harassment of the witness. Any other objection to inquiry, such as lack of foundation, competence, asked and answered, etc., can be preserved with recitation of a brief objection.

"DEPOSITION DISPUTES. If the parties have a problem which may be solved by assistance from the court, they should briefly suspend the deposition and contact the Presiding Court for hearing on the record by phone or at the courthouse. Presiding Court will provide names of judges and will give preference to judges who have previously heard matters in the case or judges on the Multnomah County Motion Panel.

"PENDING QUESTIONS. If a break in questioning is requested, it shall be allowed so long as a question is not pending. If a question is pending it shall be answered before a break is taken, unless the question involves a matter of privacy right, privilege or an area protected by the constitution, statute or work product.

"PERSONS PRESENT. Any party may attend a deposition. Non-party witnesses are excluded at the request of any party. Parties and non-witnesses may be excluded by the court upon hearing, or if they disrupt the proceedings.

"Approved, MBA Board of Directors, September 1992. Revised December 1992."

6. Proposal to amend UTCR Chapter 6 to require parties to state on the motions whether the other party opposes the motion.

ACTION TAKEN. The committee made no motion concerning this proposal, leaving the proposal conditionally disapproved. (From agenda item B.6. of the committee's fall meeting materials.)

REASON. This issue was raised by a committee member at the 1998 fall meeting with a request for it to be placed on the agenda at the 1999 fall meeting. The committee considered the issue. Some thought it was a good idea and would be helpful for judges. Some thought it was sufficiently covered by UTCR 5.010(4) and not worth pursuing.

VOTE. No Motion.

There was no draft of language presented with the proposal.

7. Proposal to amend UTCR Chapter 6 to add new provision about bringing animals into the courtrooms.

ACTION TAKEN. No motion was made concerning this proposal, leaving the proposal conditionally disapproved. (From agenda item B.7., page 834, of the committee's fall meeting materials.)

REASON. This issue was raised by a letter to Chief Justice Carson from Judge Hodges of the Lane County Circuit Court. Justice Carson sent it to the committee for consideration. The issue arose because Judge Hodges was involved in more than one courtroom instance in landlord tenant cases where parties appeared in courts and tried to make their case by releasing cockroaches into the courtroom. He had apparently talked to other judges who had instances in cases where people had brought live animals into courts or courtrooms and caused disturbances in the court. He wondered if the issue should be addressed by UTCR that would apply statewide.

In its consideration of the issue, the committee concluded that this type of issue best needed to be handled on a local basis. The committee was not sure a rule was the appropriate approach because it might limit powers judges already have to control decorum in their courtrooms.

VOTE. No Motion.

There was no draft of language presented with the proposal.

8. Proposal to amend UTCR 7.010(2) to clarify the language.

ACTION TAKEN. Motion to not address issue, leaving the proposal conditionally disapproved. (From agenda item B.8., page 836, of the committee's fall meeting materials.)

REASON. This issue was raised by a question from the TCA in the Malheur County Court. She noted the District Attorney's office in that county had expressed concern that this rule reads to set a minimum of 42 days to trial for in-custody defendants. The committee agreed with this reading of the rule, but was not sure it exactly understood the concern this should create.

VOTE. Motion 64 (to leave issue alone): 11 yes, 1 abstain, 2 excused.

There was no draft of language presented with the proposal.

9. Proposal to amend UTCR 7.030(1) to add language allowing a presiding judge to designate cases as complex cases on the judge's own motion.

ACTION TAKEN. The motion on this proposal died for lack of a second, leaving the proposal conditionally disapproved. (From agenda item B.9. of the committee's fall meeting materials.)

REASON. This issue was raised by Presiding Judge Ellis of the Multnomah County Court. It was based on language proposed by the Chief Justice's Civil Law Advisory Committee (CLAC) that was considered by the UTCR Committee at its spring 1999 meeting. At that meeting the UTCR Committee adopted the rest of the language the CLAC proposed as an amendment to this UTCR, but decided not to adopt this specific language. Judge Ellis asked the committee to reconsider. The committee felt it had considered this issue in the spring and didn't feel that deletion of the language from the original proposal caused any practical problems.

VOTE. Motion 63, dies for lack of a second.

There was no draft of language presented with the proposal. But, the original language would have amended UTCR 7.030(1) as follows:

7.030 COMPLEX CASES

(1) Any party in a case may apply to the presiding judge to have the matter designated as a "complex case." A presiding judge may designate a case as a 'complex case' on the presiding judge's own motion at any time upon notice to the parties and the judge handling the case.

(2) * * *

* * * * *

10. Proposal to amend UTCR Chapter 7 to add a new UTCR creating a priority for cases involving children.

ACTION TAKEN. Motion to adopt proposal dies for lack of a second, leaving the proposal conditionally disapproved. (From agenda item B.10. of the committee's fall meeting materials.)

REASON. This issue was raised by committee member Judge Darling at the 1998 fall meeting of the committee, when she asked it to be placed in the 1999 fall meeting agenda for consideration. She noted that Klamath SLR 7.005 established a priority for cases involving children. In its consideration, the committee looked at ORS 419B.305(3) which already establishes a limited priority on hearing in certain juvenile cases. The committee felt that this was not an issue because judges already give considerable consideration to cases involving children. The committee couldn't think of a problem this proposal would solve.

VOTE. Motion 63 (to add Klamath Falls SLR 7.005 as a UTCR) fails for lack of second.

There was no draft of language presented with the proposal. The existing Klamath Falls SLR 7.005 is as follows:

"RULE 7.005. Matters Involving Children.

"(1) In all civil and criminal cases and juvenile fact-finding hearings involving a child victim, witness or subject of custody, the court and counsel shall take appropriate action to ensure a speedy trial. Such actions shall be given precedence over all others, except those in which a defendant in a criminal proceeding is being held in pretrial custody, or as may otherwise be required by law. In such actions, continuances shall be granted by the court only after a hearing and a determination of the necessity thereof. In ruling on any motion or other request for a delay or continuation of a proceeding, the court shall consider any adverse impact the delay or continuance may have on the child involved in the case.

"(2) Counsel for any party shall, upon determining that a child is involved as a victim, material witness or subject of custody, file with the court a document captioned "Notice--SLR 7.005 Applicable." Notice shall set forth the child's involvement in the case, and if known, the age of the child."

11. Proposal to amend UTCR Chapter 7 to add a new UTCR to set a 14-day limit on submitting settlement papers in domestic relations cases.

ACTION TAKEN. No motion was made on the proposal, leaving the proposal conditionally disapproved. (From agenda item B.11. of the committee's fall meeting materials.)

REASON. This issue was raised at the regular 1998 fall meeting of the committee when it noted that Lane SLR 7.005 established a time line for filing settlements. Some members felt it was a good idea and requested it be placed on the agenda for the regular fall 1999 meeting. At the meeting, the committee saw no reason to adopt this as a statewide rule.

VOTE. No Motion.

There was no draft of language presented with the proposal. The Lane County SLR 7.005 that was discussed reads as follows:

"7.005 SETTLEMENT OF DOMESTIC RELATIONS CASES

"Unless settlement documents have been previously tendered to the court, all parties in domestic relations cases and their attorneys must appear on the scheduled trial date at the 9:30 a.m. trial call prepared for trial. Settlement agreements and proposed orders or decrees that have been reduced to writing and not previously filed shall be presented to the court at that time. Settlements which have not been reduced to writing must be placed on the record at that time and must be full and complete settlements of all issues. Written documentation of any settlements so placed on the record must be presented to the court within fourteen (14) days thereafter, or the case will be dismissed.

"If the parties are unable to place a full and complete settlement on the record at call, the case will be referred out for trial. Upon request, the calendar clerk will place a case on the 9:30 a.m. trial call docket in advance of the scheduled trial date for the purpose of placing a settlement on the record."

12. Proposal to amend UTCR Chapter 9 to add a new UTCR to address issues raised by 1999 HB 2760.

ACTION TAKEN. Motion to draft new language for UTCR fails, leaving the proposal conditionally disapproved. (From agenda item B.13., page 839, of the committee's fall meeting materials.)

REASON. This issue was raised by a series of questions asked by the Trial Court Administrator of Multnomah County Courts. The concern was that an amendment to ORS 125.070 in section 3, chapter 775, Oregon Laws 1999 (HB 2760) made notice provision concerning rights and consequences of certain protective proceedings only applicable to cases involving minors when the provision used to be applicable to both minors and alleged incapacitated persons. After extensive discussion, including a number of discussions about what language to solve the problem might look like, the committee decided that any rule they adopted would simply try to get around a specific amendment of the legislature to limit the applicability of this statute. They weren't sure they could solve the problem by rule. There was discussion of whether this raised constitutional problems, but the committee was not sure it should solve this problem created by the 1999 Legislative Assembly . . . if it was a problem . . . or if it needed to be solved.

VOTE. Motion 1 (motion to recommend out-of-cycle UTCR to make provisions of ORS 125.070(2), as amended by section 3, chapter 775, Oregon Laws 1999, apply to notices of a petition for a conservatorship for an adult), MOTION FAILS, 5 yes, 6 no, 1 abstain, 1 excused.

There was no draft of language presented with the proposal.

13. Proposal to amend UTCR Chapter 9 to enact rules to respond to chapter 592, Oregon Laws 1999 and specify the form and content of accounts filed by personal representatives and conservators.

ACTION TAKEN. Alternate proposal adopted (see item B.5. above), leaving the proposal conditionally disapproved. (From agenda item B.14., pages 842 to 862, of the committee's fall meeting materials.)

REASON. This issue arose because of requirements in chapter 592, Oregon Laws 1999. A UTCR subcommittee was formed in the spring. The committee made a proposal. An alternate proposal was presented by members of two sections of the Oregon State Bar. The alternate proposal was conditionally recommended. The committee conditionally recommended the alternate proposal in the expectation that both proposals would be reviewed and commented on in at the regular spring meeting.

VOTE. NO MOTION on this proposal.

The following draft language was presented with the proposal and is quoted below in its entirety.