Order Adopting Temporary Amendments to ORAP 5.70, 13.10, and 11.35

IN THE SUPREME COURT OF THE STATE OF OREGON

IN THE COURT OF APPEALS OF THE STATE OF OREGON

In the Matter of the	)	Chief Justice Order 01-094
Adoption of Temporary	)	Chief Justice Order
Amendments to	)
Rules of Appellate Procedure	)	ORDER ADOPTING
5.70, 13.10, and 11.35	)	TEMPORARY
	)	AMENDMENTS

By order dated January 29, 1990, as modified by an amended order dated February 2, 2000, the Supreme Court and Court of Appeals have prescribed a procedure for adopting amendments to the Oregon Rules of Appellate Procedure. That procedure requires that all proposed amendments be published in the Oregon Appellate Courts Advance Sheets and requires a 49-day public comment period. However, the procedure also provides that the appellate courts may adopt temporary amendments without prior publication in the Advance Sheets and without opportunity for public comment, if the Supreme Court and Court of Appeals find that special circumstances justify adopting the temporary amendments.

Temporary Amendment to ORAP 5.70

The Supreme Court and the Court of Appeals find that special circumstances justify adopting an amendment to Rule of Appellate Procedure 5.70, without prior publication in the Advance Sheets, as follows: As last amended, ORAP 5.70(3) permits reply briefs to be filed as a matter of course in cases arising from juvenile court. However, allowing reply briefs as a matter of course in juvenile cases delays resolution of those cases, and it is the policy of the appellate courts to expedite as much as practicable final resolution of juvenile cases.

Temporary Amendments to ORAP 13.10

The Supreme Court and the Court of Appeals find that special circumstances justify adopting amendments to Rule of Appellate Procedure 13.10, without prior publication in the Advance Sheets, as follows: With increasing frequency, parties are requesting that the appellate courts make findings of fact in connection with a petition for attorney fees. Often, however, the request for findings is buried in a lengthy petition for attorney fees, objection, or memorandum in support of either a petition or an objection. Being aware as soon as possible that a party is requesting findings of fact will facilitate the ability of the appellate courts to make the requisite findings in the course of reviewing and disposing of petitions for attorney fees.

Temporary Amendments to ORAP 11.35

The Supreme Court and the Court of Appeals find that special circumstances justify adopting amendments to Rule of Appellate Procedure 11.35, without prior publication in the Advance Sheets, as follows: The State of Oregon is required to reapportion electoral districts in the year 2001. Under Article IV, section 6, of the Oregon Constitution, the Supreme Court may be called upon to review such reapportionment this year. The existing rule contains some confusing and inconsistent wording that might mislead the parties to a reapportionment review.

Therefore, the Supreme Court and the Court of Appeals adopt temporary amendments to Oregon Rules of Appellate Procedure 5.70, 13.10, and 11.35 as set forth in the pages attached to this order. The temporary amendments shall become effective as of the date of this order and will remain in effect until the effective date of the amendments adopted pursuant to the regular rulemaking process.

Wallace P. Carson, Jr.
Chief Justice
Date: July 30, 2001

Mary J. Deits
Chief Judge
Date: July 30, 2001

[The deleted text is bracketed and set out in italics and the new text is in boldface.]

RULE 5.70
REPLY BRIEF

(1) (a) Except as provided in subsection (3) of this rule, a party may file a reply brief to a respondent's brief or an answering brief of a cross-respondent.

(b) A reply brief shall be confined to matters raised in the respondent's brief or the answering brief of a cross-respondent; reply briefs that merely restate arguments made in the opening brief are discouraged.

(c) The court encourages a party who decides not to file a reply brief, as soon as practicable thereafter, to notify the court in writing to that effect.

(2) The form of a reply brief shall be similar to a respondent's brief. A reply brief shall have an index and shall contain a summary of argument.

(3) (a) Except on request of the appellate court or on motion of a party that demonstrates the need for a reply brief, reply briefs shall not be submitted in the following cases:

(i) traffic, boating, wildlife and other violations;

(ii) criminal, probation revocation, habeas corpus, and post-conviction relief;

(iii) juvenile court;

[(iii)](iv) mental commitment;

[(iv)](v) forcible entry and detainer; and

[(v)](vi) judicial review of orders of the Land Use Board of Appeals, as provided in Rule 4.66(3).

(b) A motion for leave to file a reply brief shall be submitted, without copies, within 14 days after the filing of the brief to which permission to reply is sought.

RULE 13.10
PETITION FOR ATTORNEY FEES

(1) This rule governs the procedure for petitioning for attorney fees in all cases except the recovery of compensation and expenses of court-appointed counsel under ORS 138.500(3).⁽¹⁾

(2) A petition for attorney fees shall be served and filed within 21 days after the date of decision. The filing of a petition for review or a petition for reconsideration does not suspend the time for filing the petition for attorney fees.

(3) When a party prevails on appeal or on review and the case is remanded for further proceedings in which the party who ultimately will prevail remains to be determined, the prevailing party on appeal or review may petition the appellate court for attorney fees within the time and in the manner provided in this rule.⁽²⁾ If the appellate court determines an amount of attorney fees under this subsection, it may condition the actual award of attorney fees on the ultimate outcome of the case. In that circumstance, an award of attorney fees shall not be included in the appellate judgment, but shall be awarded by the court or tribunal on remand in favor of the prevailing party on appeal or review, if that party also prevails on remand, and shall be awarded against the party designated on appeal or review as the party liable for attorney fees.

(4) When the Supreme Court denies a petition for review, a petition for attorney fees for preparing the petition for review or a response to the petition for review shall be filed in the Supreme Court.

(5)(a) A petition shall state the total amount of attorney fees claimed and the authority relied on for claiming the fees. The petition shall be supported by a statement of facts showing the total amount of attorney time involved, the amount of time devoted to each task, the reasonableness of the amount of time claimed, the hourly rate at which time is claimed and the reasonableness of the hourly rate.

(b) If a petition requests attorney fees pursuant to a statute, the petition shall address any factors, including, as relevant, those factors identified in ORS 20.075(1) and (2) or ORS 20.105(1), that the court may consider in determining whether and to what extent to award attorney fees.⁽³⁾

(6) Objections to a petition shall be served and filed within 14 days after the date when the petition is filed. A reply, if any, shall be served and filed within 14 days after the date of service of the objections.

(7) A party to a proceeding under this rule may request findings regarding the facts and legal criteria that relate to any claim or objection concerning attorney fees. A party requesting findings must state in the caption of the petition, objection, or reply that the party is requesting findings pursuant to this rule.⁽⁴⁾ A party's failure to request findings in a petition, objection or reply in the form specified in this rule constitutes a waiver of any objection to the absence of findings to support the court's decision.

(8) The original of any petition, objections or reply shall be filed with the Administrator, accompanied by five copies if filed in the Court of Appeals and eight copies if filed in the Supreme Court, together with proof of service on all other parties to the appeal, judicial review or proceeding.

(9) In the absence of timely filed objections to a petition under this rule, the Supreme Court and the Court of Appeals, respectively, will allow attorney fees in the amount sought in the petition, except in cases in which:

(a) the entity from whom fees are sought was not a party to the proceeding; or

(b) the Supreme Court or the Court of Appeals is without authority to award fees.

RULE 11.35
REAPPORTIONMENT REVIEW

The practice and procedure for review of reapportionment under Oregon Constitution, Article IV, Section 6, shall be as follows:

(1) Any qualified elector of the state seeking review of reapportionment shall file a petition on or before August 1 of the year in which the Legislative Assembly enacts the reapportionment[, or, if the Legislative Assembly fails to enact a reapportionment and the Secretary of State makes a reapportionment, on or before September 15 of that year].

(2) The petition shall be prepared in compliance with Rule 7.10, governing motions, and shall contain:

(a) A title page containing a caption identifying the person or persons seeking review of reapportionment as the petitioner or petitioners, and the Legislative Assembly or the Secretary of State as the respondent, as appropriate, and the name, address and telephone number of each petitioner, or the name, bar number, address and telephone number of each petitioner's attorney if the petitioner is represented by counsel.

(b) A statement showing that the petitioner is a qualified elector of the state.

(c) A succinct statement of the particulars of why the petitioner believes the reapportionment is invalid.

(d) A prayer for specific relief.

(e) The signature of the petitioner or the petitioner's attorney.

(f) A copy of the reapportionment plan sought to be reviewed, as an appendix to the petition.

(3) The petitioner shall file with the Administrator the original petition and nine copies, together with proof of service of a copy of the petition on the Secretary of the Senate, the Chief Clerk of the House, the Secretary of State and the Attorney General.

(4) A petitioner shall serve and file a brief in support of the petition no later than August 7 of the year of reapportionment[, if the petition seeks review of a reapportionment enacted by the Legislative Assembly, or September 30, if the petition seeks review of a reapportionment plan made by the Secretary of State.] The petition shall be accompanied by the filing fee prescribed in ORS 21.040.

(5)(a) The Legislative Assembly, the Secretary of State or any other person who desires to oppose a petition shall, no later than August 14 of the year of reapportionment, file with the Administrator an original and nine copies of a brief in opposition and, if not exempt from payment of filing fees, pay the respondent's first appearance fee prescribed in ORS 21.040. Any party who files a brief in opposition shall be known in the review proceeding as a "respondent."

(b) A respondent shall serve the response on the petitioner, and proof of service shall be endorsed on or attached to the brief in opposition. If the brief in opposition responds to a petition by more than one petitioner, service of the brief in opposition need only be made on the petitioner whose name is first identified in the caption as a petitioner or on the attorney for the petitioners.

(6) Any brief in support of or in opposition to a petition, insofar as practicable, shall be filed in form and in numbers of copies as a brief on appeal in a civil action under these rules.

(7) The Supreme Court may invite oral argument from any petitioner or respondent. However, Rule 6.10 governs who will be allowed to argue.

(8) Review of a [plan of] reapportionment made by the Secretary of State under Article IV, section 6, subsection (3), of the Oregon Constitution, shall be the same as for a [plan of] reapportionment enacted by the Legislative Assembly except:

(a) The caption of the petition shall identify the Secretary of State as the respondent;

(b) The petition shall be served on or before September 15 of the year of reapportionment;

(c) Petitioner's brief shall be served and filed by September 21 of the year of reapportionment; and

(d) Any respondent's brief shall be served and filed by September 28 of the year of reapportionment.

1. With respect to the recovery of compensation and expenses of court-appointed counsel under ORS 138.500(4), see Rule 13.15.

See Appendix P.

Return to previous location.

2. This subsection does not create a substantive right to attorney fees, but merely prescribes the procedure for claiming and determining attorney fees under the circumstances described in this subsection.

Return to previous location.

3. See, e.g., Tyler v. Hartford Insurance Group, 307 Or 603, 771 P2d 274 (1989), and Matizza v. Foster, 311 Or 1,803 P2d 723 (1990), with respect to ORS 20.105(1), and McCarthy v. Oregon Freeze Dry, Inc., 327 Or 84, 957 P2d 1200 (1998), on recons 327 Or 185, 957 P2d 1207 (1998), with respect to ORS 20.075.

Return to previous location.

4. For example: "Appellant's Petition for Attorney Fees and Request for Findings Under ORAP 13.10(7)" or "Respondent's Objection to Petition for Attorney Fees and Request for Findings Under ORAP 13.10(7)."

Return to previous location.