Chapter EDITION. Enforcement and Recognition of Foreign Judgments; Foreign -Money Claims Variation of application by agreement

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1 Chapter EDITION Enforcement and Recognition of Foreign Judgments; Foreign -Money Claims UNIFORM ENFORCEMENT OF FOREIGN JUDGMENTS ACT Definitions for ORS to Filing of foreign judgment; effect Notice of filing of judgment; delay in enforcement Certification of filing in single court; filing of certified copy or lien record abstract for other counties Grounds for staying enforcement of judgment; security for satisfaction of judgment Interest and costs Satisfaction of judgment; filing Optional procedure Construction of ORS to Short title Continuing effectiveness of foreign restraining order, filing of foreign restraining order; delivery to sheriff, termination UNIFORM FOREIGN MONEYJUDGMENTS RECOGNITION ACT Definitions for ORS to Nonexclusive construction of ORS to Recognition of foreign judgment; conclusiveness; exceptions Discretion of court to stay proceedings during appeal Jurisdiction Uniformity of interpretation Short title UNIFORM FOREIGN -MONEY CLAIMS ACT Definitions for ORS to Scope of application of ORS to Variation of application by agreement Determining proper money of the claim Determining amount of money of certain contract claims Asserting and defending foreign -money claim Judgments and awards on foreign -money claims; times of money conversion; form of judgment; postjudgment enforcement Conversions of foreign money in distrib- ution proceeding Prejudgment and judgment interest Enforcement of foreign judgments 24,310 Determining United States dollar value of foreign -money claims for limited purposes Effect of currency revalorization Supplementary general principles of law Uniformity of application and construction Severability Short title CROSS REFERENCES Adoption certificate of foreign nation, effect, Domicile of decedents for death tax purposes, settlement of disputes respecting, to Enforcement of: Duties relating to judicial administration, Judgments and decrees generally, Ch. 23 Support orders or decrees, Ch. 25 Executions and exemptions generally, Ch. 23 Foreign restraining order, arrest to enforce, Judicial record of sister state enforced in Oregon only by action, suit or proceeding, Judicial records, proof and effect, to Statute of limitations,

2 PROCEDURE IN CIVEL PROCEEDINGS 2-96

3 FOREIGN JUDGMENTS; FOREIGN -MONEY CLAIMS UNIFORM ENFORCEMENT OF FOREIGN JUDGMENTS ACT [ 1955 c.647 l; repealed by 1979 c [ 1955 c.647 2; repealed by 1979 c [ 1955 c.647 3; repealed by 1979 c [ 1955 c.647 4; repealed by 1979 c [ 1955 c.647 5; repealed by 1979 c [ 1955 c.647 6; repealed by 1979 c [ 1955 c.647 7; repealed by 1979 c [ 1955 c.647 8; repealed by 1979 c [ 1955 c.647 9; repealed by 1979 c [ 1955 c ; repealed by 1979 c Definitions for ORS to In ORS to , and to " foreign judgment" means any judgment, decree or order of a court of the United States or of any other court which is entitled to full faith and credit in this state. [ 1979 c [ 1955 c ; repealed by 1979 c Filing of foreign judgment; effect. ( 1) A copy of any foreign udgment authenticated in accordance with t e 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. The clerk shall treat the foreign judgment in the same manner as a judgment of the court of any county of this state. 2) A certified copy of an foreign judg- ment 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 docketed, in order to become a lien upon the real property of the udgment debtor in that county as provide in ORS and ) 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 a court of any county of this state and may be en- forced or satisfied in like manner. [ 1979 c.577 2; 1985 c.343 5; 1987 c [ 1955 c ; repealed by 1979 c Notice of filing of judgment; delay in enforcement. ( 1) At the time of the filing of the foreign judgment, the judgment creditor or the creditors lawyer shall make and file with the clerk of the court an affidavit setting forth the names and last -known post -office addresses of the judgment debtor and the judgment creditor, together with a separate statement containing the information required to be contained in a judgment under ORCP 70 A.(2)( a). 2) Promptly upon the filing of the foreign judgment and the affidavit, the clerk shall mail notice of the filing of the foreign judgment to the judgment debtor at the ad- dress given and shall make a note of the mailing in the docket. The notice shall include the name and post -office address of the judgment creditor and the judgment creditor's lawyer, if any, in this state. In addition, the judgment creditor may mail a notice of the filing of the udgment to the judgment debtor and may file proof of mailing with the clerk. Lack of mailing notice of filing by the clerk shall not affect the enforcement pro- ceedings if proof of mailing by the judgment creditor has been filed. 3) No execution or other process for enforcement of a foreign judgment filed pursuant to ORS to , and to , except a udgment, decree or order of a court of the ljnited States, shall issue until five days after the date the judgment, affidavit and separate statement required in subsection ( 1) of this section are filed. [ 1979 c.577 3; 1985 c.343 6; 1987 c ; Certification of Sling in single court; filing of certified copy or lien re- cord abstract for other counties. At the time of filing of any foreign udgment as provided in ORS , the judgment creditor shall certify that the judgment creditor is filing such judgment in only one court in Oregon. Thereafter, a certified copy of the judgment or a lien record abstract may be recorded in the County Clerk Lien Record of any other county in this state as provided in ORS and [ 1985 c.343 9; 1987 e [ 1955 c ; repealed by 1979 c Grounds for staying enforcement of judgment; security for satisfac- tion of judgment. (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 requinng the same security for satisfaction of the judgment which is required in this state c Interest and costs. When a registered foreign judgment becomes a final judgment of this state, the court shall include as part of the judgment interest payable on the foreign judgment under the law 2-97

4 PROCEDURE IN CIVIL PROCEEDINGS of the state in which it was rendered, and the cost of obtaining the authenticated copy of the original judgment. The court shall include as part of its judgment court costs incidental to the oceeding in accordance with the law of thi prs state and the costs of recording documents as permitted by statute c ; 1987 c Satisfaction of judgment; filing. Satisfaction, either partial or complete, of the oniginal judgment or of a judgment entered thereupon in any other state shall operate to the same extent as satisfaction of the judgment in this state, except as to costs authorized by ORS When such judg- ment in this state has been satisfied, including costs authorized by ORS , it shall be the responsibility of the judgment creditor to provide an executed satisfaction to this judgment debtor. The judgment debtor may file the satisfaction in the records of the court in which the judgment was originally filed in this state, and may record the satisfaction in every county in this state in which a certified copy of the judgment or alien record abstract has been recorded. [ 1955 c ; 1985 c.343 7; 1987 c Optional procedure. The right of a judgment creditor to bring an action to enforce the judgment instead of proceeding under ORS to , and to remains unimpaired. [ 1979 c [ 1955 x ; repealed by 1979 c Construction of ORS to ORS to , and to shall be interpreted and construed in order to effectuate its general purpose to make uniform the law of those states which enact it. [ 1979 c [ 1955 c ; repealed by 1979 c Short title. ORS to , and to may be cited as the Uniform Enforcement of Foreign Judgments Act. [ 1979 c.577 7] [ 1955 c ; repealed by 1979 c Continuing effectiveness of foreign restraining order; filing of foreign restraining order; delivery to sheriff, termination. ( 1) Notwithstanding ORS , a foreign judgment, as defined in ORS , that includes a restraining order or is a restraining order, shall be treated as having been filed under ORS immediately upon the arrival in this state by the person protected by the restraining order and shall continue to be so treated for a period of 30 days without any further action by the protected person. 2) At any time during the 30 -day period provided for in subsection ( 1) of this section or thereafter, a person protected under a foreign restraining order may file the judg- ment reflecting the restraining order pursuant to ORS with the effect provided for in ORS ( 3). The filing fee provided for in ORS ( 3) shall not apply to a filing under this section. 3) If a foreign restraining order is filed under the provisions of ORS , and the person filing the order provides written certification to the court at the time of filing that the person restrained by the order was personally served in the proceedings that resulted in the restraining order, the clerk of the court shall deliver forthwith to a county sheriff a true copy of the foreign restraining order. Upon receipt of a true copy of the order, the county sheriff shall forthwith enter the order into the Law Enforcement Data System maintained by the Executive Department. 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 insure that an officer at the scene of an alleged vi- olation of such order may be informed of the existence and terms of such order. Such order shall be fully enforceable in any county in the state. 4) A foreign restraining order shall be enforceable in this state until the order expires pursuant to its own terms, or until the restraining order is terminated by an order of a court of this state. 5) If a foreign restraining order is terminated by a court of this state before the expiration date reflected in the foreign restraining order, the clerk of the court shall deliver forthwith a true copy of the termination order to the county sheriff with whom the original restraining order was filed in this state. Upon receipt of such termination order the county sheriff shall promptly remove the original order from the Law Enforcement Data System. 6) For the purposes of this section: a) " Foreign restraining order" means a restraining order that is a foreign judgment as defined by ORS b) " Restraining order" means a judgment, decree or order restraining a person from molesting, menacing, abusing, harassing, intimidating, communicating with, telephoning, following or otherwise interfering 2-98 with another person in a manner specified by the judgment, decree or order. 7) ORS , , , , and do not apply ' to a foreign restraining order. [ 1991 c Note: was enacted into law by the Legislative Assembly but was not added to or made a part of ORS chapter 24 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

5 FOREIGN JUDGMENTS; FOREIGN -MONEY CLAIMS UNIFORM FOREIGN MONEY- JUDGMENTS RECOGNITION ACT Definitions for ORS to As used in ORS to : 1) " Foreign state" means any governmental unit other than the United States, or any state, district, commonwealth, territory, insular _possession thereof, or the Panama Canal one, the Trust Territory of the Pacific Islands, or the Ryukyu Islands; 2) " Foreign judgment" means any judg- ment of a foreign state granting or denying recovery of a sum of money, other than a judgment for taxes, a fine or other penalty, or a judgment for' support in matrimonial or family matters. [ 1977 c.61 l; 1991 c Nonexclusive construction of ORS to ORS to do not prevent the recognition of a foreign judgment in situations not covered by ORS to [ 1977 c Recognition of foreign judg- Ex- ment; conclusiveness; exceptions. ( 1) cept as provided in subsections ( 3) and ( 4) of this section, a foreign judgment meeting the requirements of subsection ( 2) of this section is conclusive between the parties to the extent that it grants or denies recovery of a sum of money. The foreign judgment is enforceable in the same manner as the judgment of a sister state which is entitled to full faith and credit. 2) ORS to applies to any foreign judgment that- is final and conclusive and enforceable where rendered even though an appeal therefrom is pending or it is subject to appeal. if: 3) A foreign judgment is not conclusive a) The judgment was rendered under a system which does not provide impartial tribunals or procedures compatible with the requirements of due process of law; b) The foreign court did not have personal jurisdiction over the defendant; or c) The foreign court did not have jurisdiction over the subject matter. 4) A foreign judgment need not be recognized if: a) The defendant in the proceedings in the foreign court did not receive notice of the proceedings in sufficient time to enable the defendant to defend; b) The judgment was obtained by fraud; c) The cause of action on which the judgment is based is repugnant to the public policy of this state; d) The judgment conflicts with another final and conclusive judgment; e) The proceeding in the foreign court was contrary to an agreement between -thd parties under which the dispute in question was to be settled otherwise than by proceedings in that court; or f) In the case of jurisdiction based only on personal service, the foreign court was a seriously inconvenient forum for the trial. of the action. [ 1977 c.61 2, 3, Discretion of court to stay proceedings during appeal If the defendant satisfies the court either that an appeal is ending or that the defendant is entitled and intends to appeal from the foreign judgment, the court may stay the proceedings until -the appeal has been determined or until the ex- piration of a period of time sufficient to enable the defendant to prosecute the appeal a " Jurisdiction. ( 1) The foreign udgment shall not be refused recognition for ack of personal jurisdiction if: a) The defendant was served personally in the foreign state; b) The defendant voluntarily appeared in the proceedings, other than for the purpose of protecting property seized or threatened with seizure in the proceedings or of con - testing the jurisdiction of the court over the defendant; c) The defendant prior to. the commencement of the proceedings had agreed to submit to the jurisdiction of the foreign court with respect to the subject matter in- volved; d) The defendant was domiciled in the foreign state when the proceedings were instituted, or, being a body, corporate had its principal place of business, was incorporated, or had otherwise acquired corporate status, in the foreign state; e) The defendant had a business office in the foreign state and the proceedings in the foreign court involved a cause of action arising out of business done by the defendant through that office in the foreign state; or 2-99 f) The defendant operated a motor vehicle or airplane in the foreign state and the proceedings involved a cause of action arising out of such operation. 2) The courts of this state may recognize other bases of jurisdiction. [ 1977 c Uniformity of interpretation. ORS to shall be so construed as to effectuate their general purpose to make uniform the law of those states which enact them. [ 1977 c.61 81

6 24255 PROCEDURE IN CIVIL PROCEEDINGS Short title. ORS to may be cited as the Uniform Foreign Money - Judgments Recognition Act. ( 1977 c UNIFORM FOREIGN -MONEY CLAIMS ACT Note: to apply only to actions and distribution proceedings commenced on or after January 1, See sections 18 and 22, chapter 202, Oregon Laws Definitions for ORS to For the purposes of ORS to : 1) " Action" means a judicial proceeding or arbitration in which a payment in money may be awarded or enforced with respect to a foreign -money claim. 2) " Bank- offered spot rate" means the spot rate of exchange at which a bank will sell foreign money at a spot rate. 3) " Conversion date" means the banking day next preceding the date on which money, in accordance with ORS to , is. a) Paid to a claimant in an action or distribution proceeding; b) Paid to the official designated by law to enforce a judgment or award on behalf of a claimant; or c) Used to recoup, setoff or counterclaim in different moneys in an action or distrib- ution proceeding. 4) " Distribution proceeding" means a u dicial or nonjudicial proceeding for the Zistribution of a fund in which one or more foreign -money claims is asserted and includes an accounting, an assignment for the benefit of creditors, a foreclosure, the liquidation or rehabilitation of a corporation or other en- tity, and the distribution of an estate, trust or other fund. 5) " Foreign money" means money other than money of the United States of America. 6) " Foreign -money claim" means a claim upon an obligation to pay, or a claim for recovery of a loss, expressed in or measured by a foreign money. 7) " Money" means a medium of exchange for the payment of obligations or a store of value authorized or adopted by a government or by intergovernmental agree- ment. 8) " Money of the claim" means the money determined as proper pursuant to ORS ) " Person" means an individual, a cor- poration, government or governmental subdivision or agency, business trust, estate, trust, joint venture, partnership, association, two or more persons having a joint or common interest or any other legal or commercial entity. 10) " Rate of exchange" means the rate at which money of one country may be converted into money of another country in a free financial market convenient to or reasonably usable by a person obligated to pay or to state a rate of conversion. If separate rates of exchange apply to different kinds of transactions, the term means the rate applicable to the particular transaction giving rise to the foreign -money claim. 11) " Spot rate" means the rate of exchange at which foreign money is sold by a bank or other dealer in foreign exchange for immediate or next day availability or for settlement by immediate payment in cash or equivalent, by charge to an account, or by an agreed delayed settlement not exceeding two days. 12) " State" means a state of the United States, the District of Columbia, the Com- monwealth of Puerto Rico or a territory or insular possession subject to the jurisdiction of the United States. [ 1991 c Scope of application of ORS to ( 1) ORS to apply only to a foreign -money claim in an action or distribution proceeding. 2) ORS to apply to foreign - money issues even if other law under the conflict of laws rules of this state applies to other issues in the action or distribution proceeding. [ 1991 c Variation of application by agreement. ( 1) The effect of ORS to may be varied by agreement of the parties made before or after commencement of an action or distribution proceeding or the entry of judgment. The right of the parties to vary the effect of ORS to includes, but is not limited to, the selection of the date and time for conversion or of a specified rate of exchange to be applied to a particular transaction or a portion thereof and, after the entry of judgment, any agreement as to how the judgment is to be satisfied ) Parties to a transaction may agree upon the money to be used in a transaction giving rise to a foreign -money claim and may agree to use different moneys for different aspects of the transaction. Stating the price in a foreign money for one aspect of a transaction does not alone require the use of that money for other aspects of the transaction c Determining proper money of the claim. ( 1) The money in which the parties to a transaction have agreed that payment is to be made is the proper money of the claim for payment.

7 FOREIGN JUDGMENTS; FOREIGN -MONEY CLAIMS ) If the parties to a transaction have not otherwise agreed, the money of the claim, as in each case may be appropriate, is the money: a) Regularly used between the parties as a matter of usage or course of dealing; b) Used at the time of a transaction in international trade, by trade usage or common practice, for valuing or settling transactions in the particular commodity or service involved; or c) In which the loss was ultimately felt or will be incurred by the party claimant c Determining amount of money of certain contract claims. ( 1) If an amount contracted to be paid in a foreign money is measured by a specified amount of a dif Brent money, the amount to be paid is determined on the conversion date. 2) If an amount contracted to be paid in a foreign money is to be measured by a different money at the rate of exchange prevailing on a date before default, that rate of exchange applies only to payments made within a reasonable time after default, not exceeding 30 days. Thereafter, conversion is made at the bank- offered spot rate on the conversion date. 3) A monetary claim is neither usurious nor unconscionable because the agreement on which it is based provides that the amount of the debtor' s obligation to be paid in the debtors money, when received by the creditor, must equal a specified amount of the foreign money of the country of the creditor. If, because of unexcused delay in payment of a judgment or award, the amount received by the creditor does not equal the amount of the foreign money specified in the agreement, the court or arbitrator shall, upon the motion of any party, amend the judgment or award accordingly. [ 1991 c Asserting and defending fore money claim. ( 1) A person may assert aclaim in a specified foreign money. If a foreign -money claim is not asserted, the claimant makes the claim in United States dollars. 2) An opposing party may allege and prove that a claim, in whole or in part, is in a different money than that asserted by the claimant. 3) A person may assert a defense, setoff, recoupment or counterclaim in any money without regard to the money of other claims. 4) The determination of the proper money of the claim is a question of law. ( 1991 c Judgments and awards on foreign -money claims; times of money conversion; form of jud ent; post - judgment enforcement. ( 1) Except as provided in subsection ( 3) of this section, a judgment or award on a foreign -money claim must be stated in an amount of the money of the claim. 2) A judgment or award on a foreign - money claim is payable in that foreign money or, at the option of the debtor, in the amount of United States dollars which will purchase that foreign money on the conversion date at a bank - offered spot rate, except that any payment made through a court pursuant to ORS must be made in United States dollars. When a payment is made to the court, the judgment debtor shall simultaneously file with the court an affidavit or certificate executed in good faith by its counsel or a bank officer stating the rate of exchange used and how it was obtained and setting forth the calculation and the amount of the money of the claim that will be satisfied by the payment. Affected court officials incur no liability, after a filing of the affidavit or certificate, for acting as if the judgment were in the amount of United States dollars stated in the affidavit or certificate. The court clerk shall record every payment that is made pursuant to ORS in the appropriate court records and shall pay the money over to the person entitled thereto. 3) Assessed costs, disbursements and attorney fees must be entered in United States dollars. 4) Each payment in United States dollars must be accepted and credited on a judgment or award on a foreign -money claim in the amount of the foreign money that could be purchased by the dollars at a bank - offered spot rate of exchange at or near the close of business on the conversion date for that payment. 5) A judgment or award made in an action or distribution proceeding on both a defense, setoff, recoupment or counterclaim and the adverse party' s claim, must be netted by converting the money of the smaller into the money of the larger, and by subtracting the smaller from the larger, and specify the rates of exchange used. 6) A judgment or award substantially complies with subsection ( 1) of this section when it is plainly titled as a judgment, it complies with the requirements of ORCP 70 A.(1) and it includes all of the following: a) The names of the judgment creditor, the judgment creditor' s attorney and the judgment debtor. b) The amount of the judgment in the foreign money of the claim, the type of foreign money and the foreign state, as defined

8 PROCEDURE IN CIVIL PROCEEDINGS by ORS ( 1), utilizing the money that ( 8) When a judgment is given on a the claim is denominated in. foreign -money claim, the clerk shall comply c) The interest owed to the date of the with the following: judgment, either as a specific amount in the foreign money or as accrual information, including the rate or rates of interest as determined by ORS , the balance or balances upon which the interest accrues, the date or dates from which interest at each rate on each balance runs, and whether interest is simple or compounded and, if compounded, at what intervals. d) Postjudgment interest accrual information, including the rate or rates of interest as determined by ORS , the balance or balances upon which interest accrues, the date or dates from which interest at each rate on each balance runs, and whether interest is simple or compounded and, if compounded, at what intervals. e) For judgments that accrued on a periodic basis, any accrued arrearages, required further payments per period in the foreign money and accrual dates. f) A statement that the judgment debtor has the option to pay the judgment or award, including the interest owed on the date of audgment and the postjudgment interest, unless the parties have agreed otherwise as ac- cording to ORS , in the amount of United States dollars that will purchase that foreign money on the conversion date at a bank- offered spot rate at or near the close of business on the banking day before the day of payment. g) A statement that, if the judgment debtor pays the judgment through a court pursuant to ORS , then the payment must be in United States dollars as provided in subsection ( 2) of this section. h) The amount of assessed costs, disbursements and attorney fees in United States dollars, if they are awarded, and anyy specific amounts awarded. This paragrapph does not require inclusion of specific amounts where such will be determined later under ORCP 68 C. i) The terms of any agreement made by the parties, before the entry of the judgment, to vary the effect of ORS to , and ORCP 70A. 7) If a contract claim is of the type cov- ered by ORS ( 1) or ( 2), the judgment or award must be entered for the amount of money stated to measure the obligation to be paid in the money specified for payment or, at the option of the debtor, the number of United States dollars which will purchase the computed amount of the money of payment on the conversion date at a bank - offered spot rate. a) If the judgment is given by the circuit court, the clerk shall enter the,judgment in the register and shall docket the money judgment portion of the judgment in the judgment docket. The judgment shall have the same force and effect as any other judgment obtained in the circuit court. b) If the judgment is given by the district court, the clerk shall enter the judgment in the register and may docket the money udgment portion of the judgment in the judgment docket. The judgment shall have the same force and effect as any other judgment obtained in the district court. 9) A judgment or award may be discharged by payment. 10) A party seeking enforcement of a judgment entered as provided in this section shall file with each request or application an affidavit or certificate executed in good faith by its counsel or a bank officer, stating the rate of exchange used and how it was obtained and setting forth the calculation and the amount of United States dollars that would satisfy the judgment on the date of the affidavit or certificate by applying said rate of exchange. Affected court officials incur no liability, after a filing of the affidavit or certificate, for acting as if the judgment were in the amount of United States dollars stated in the affidavit or certificate. The computation contained in the affidavit or certificate shall remain in effect for 60 days following the filing of the affidavit or certificate and may be recomputed before the expiration of 60 days by the filing of additional affidavits or certificates provided that recomputation shall not affect any payment obtained before the filing of the recomputation t Conversions of foreign money in distribution proceeding. The rate of exchange prevailing at or near the close of business on the day the distribution proceeding is initiated governs all exchanges of foreign money in a distribution proceeding. A foreign -money claimant in a distribution proceeding shall assert its claim in the named foreign money and show the amount of United States dollars resulting from a conversion as of the date the proceeding was initiated. [ 1991 c Prejudgment and judgment interest. ( 1) With respect to a foreign -money claim, recovery of prejudgment or preaward interest and the rate of interest to be applied in the action or distribution proceeding, except as provided in subsection ( 2) of this section, are matters of the substantive law 2-102

9 FOREIGN JUDGMENTS; FOREIGN -MONEY CLAIMS governing the right to recovery under the conflict of laws rules of this state. 2) The court or arbitrator shall increase or decrease the amount of prejudgment or preaward interest otherwise payable in a judgment or award in foreign money to the extent required by the law of this state governing a failure to make or accept an offer of settlement or offer of judgment, or conduct by a party or its attorney causing undue delay or expense. 3) A judgment or award on a foreign - money claim bears interest at the rate applicable to judgments of this state. [ 1991 c Enforcement of foreign judgments. ( 1) If an action is brought to enforce a judgment of another ' urisdiction expressed in a foreign money ani the judgment is recognized in this state as enforceable, the enforcing judgment must be entered as provided in ORS , whether or not the foreign judgment confers an option to pay in an equivalent amount of United States dollars. 2) A foreign judgment may be entered in the register and docketed in the judgment docket in accordance with any rule or statute of this state providing a procedure for its recognition and enforcement. 3) A satisfaction or partial payment made upon the foreign judgment, on proof thereof, shall operate to the same extent as a satisfaction of the judgment in this state, except as to costs authorized by ORS , notwithstanding the entry of judgment in this state. 4) A judgment entered on a foreign - money claim only in United States dollars in another state must be enforced in this state in United States dollars only. [ 1991 c Determining United States dollar value of foreign -money claims for limited purposes. ( 1) Computations under this section are for the limited purposes of the section and do not affect computation of the United States dollar equivalent of the money of the judgment for the purpose of payment. 2) For the limited purpose of facilitating the enforcement of provisional remedies in an action, the value in United States dollars of assets to be seized or restrained pursuant to a writ of attachment, garnishment, execution or other legal process, the amount of the United States dollars at issue for assessing costs or the amount of United States dollars involved for a surety bond or other court- required undertaking, must be ascertained as provided in subsections ( 3) and ( 4) of this section. 3) A party seeking process, costs, bond or other undertaking under subsection ( 2) of this section shall compute in United States dollars the amount of the foreign money claimed from a bank - offered spot rate prevailing at or near the close of business on the banking day next preceding the filing of a request or application for the issuance of process or for the determination of costs, or an application for a bond or other court - required undertaking. 4) A party seeking the process, costs, bond or other undertaking under subsection 2) of this section shall file with each request or application an affidavit or certificate exe- cuted in good faith by its counsel or a bank officer, stating the market quotation used and how it was obtained and setting forth the calculation. Affected court officials incur no liability, after a filing of the affidavit or certificate, for acting as if the judgment were in the amount of United States dollars stated in the affidavit or certificate. [ 1991 c Effect of currency revalorization. ( 1) If, after an obligation is expressed or a loss is incurred in a foreign money, the country issuing or adopting that money substitutes a new money in place of that money, the obligation or the loss is treated as if expressed or incurred in the new money at the rate of conversion the issuing country establishes for the payment of like obligations or losses denominated in the former money. 2) If substitution under subsection ( 1) of this section occurs after a judgment or award is entered on a foreign -money claim, the court or arbitrator shall amend, upon the motion of any party, the judgment or award by a like conversion of the former money c Supplementary general principles of law. Unless displaced by particular provisions of ORS to , the principles of law and equity, including the law merchant, and the law relative to capacity to contract, principal and agent, estoppel, fraud, misrepresentation, duress, coercion, mistake, bankruptcy or other validating or invalidating causes supplement its provisions. [ 1991 c Uniformity of application and construction. ORS to shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of ORS to among states enacting it. [ 1991 c Severability. If any provision of ORS to or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of ORS to which 2-103

10 PROCEDURE IN CIVIL PROCEEDINGS can be given effect without the invalid pro Short title. ORS to vision or application, and to this end the may be cited as the Uniform Foreign -Money provisions of ORS to are Claims Act. [ 1991 c ] severable. ( 1991 c

11 Chapter EDITION Support Enforcement M GENERAL PROVISIONS Definitions for support enforcement laws When support payment to be made to Department of Human Resources; duties of department When payment payable to clerk of court, bank account or obligee; discontinuance of payment to clerk When support payments payable to clerk of court Order to withhold wages, compensation or other benefit; minimum and maximum percentages subject to withholding, procedure Clerk of court to notify district attorney of continued delinquencies; when other agencies to be notified Order may include payment of support enforcement fees; limitation; use Agency primarily responsible for support enforcement services Compelling payment to clerk of court or department for transmission to benefici- ary; transmittal; notice Transfer of files to county where party resides or property located Jurisdiction of circuit court in county to which files transferred Transfer of files when party or child is re- cipient of public assistance Election of alternative support payment method; termination of election Copies of new or modified support orders to department Department or clerk to collect fees for services Referral of support cases by district attorney to department; duration of collection services Proceedings to require delinquent obligor to appear and make financial disclosure; order for appearance; contents; service Examination of obligor, conduct and scope of examination; record Continuance of proceedings; service of notice to obligor Arrest of obligor for failure to appear Use of obligor' s property for delinquent support payments Department of Human Resources computer printouts; evidence of authenticity not required in support proceedings; evidentiary effect Court authorized to require security for support payments Order to pay support by parent with legal custody of minor Rebuttable presumption of inability to pay child support when parent receiving certain assistance payments State collection of support arrears; maffi- mum withholding Obligor to provide health and dental insurance; reduction of support for such coverage; notice to insurance provider, duties of insurance provider 252M Confidentiality of records FORMULA FOR DETERMINING AMOUNT OF CHU SUPPORT Legislative findings for ORS to Criteria to be considered; mandated stand- ards; reduction Formula amount presumed correct; rebuttal of presumption; criteria Proceedings to modify orders to comply with formula; when proceeding may be initiated; issues considered INCOME WITHHOLDING AND PAYMENT RECORDS Withholding of income from obligor, notice to obligor and employer effect of non. compliance; maximum amounts subject to withholding Payment of support through Department of Human Resources Procedure for determining arrearages Establishing of income withholding as method of paying support; records 253M Order to employer or trustee to withhold delinquent payments from money otherwise due Service of withholding order Statement on withholding in support order INTERSTATE INCOME WITHHOLDING 2SA10 Definitions for ORS to Construction of ORS to Status of remedy under ORS to A40 Withholding in another jurisdiction; notice of contest Withholding on support order from another jurisdiction; documentation Service of notice on obligor, notice of hearing Evidentiary status of order from another Irisdiction; defenses of obligor, other evidence Income withholding notice to obligor, employer and requesting agency Application of ORS to order from other jurisdiction 25ZW Transmittal of payment; effect on order in this jurisdiction Procedure if order modified; duty if obligor obtains employment or income m another state Voluntary income withholding 2-105

12 PROCEDURE IN CIVEL PROCEEDINGS Law applicable to income withholding based on order from other jurisdiction Penalties PENALTIES STATE TAX INTERCEPT Procedure to collect support orders from tax refunds; voluntary withholding Procedures to collect past due support from tax refunds CONSUMER REPORTING AGENCIES 25XM Information on overdue support to con- sumer reporting agencies LIENS ON PERSONAL PROPERTY Judgment lien on personal property Effect of lien; priority Foreclosure of lien MISCELLANEOUS Duty of district attorney When support assignable CROSS REFERENCES See cross references in Ch. 23 for enforcement of judgments generally Enforcement where public assistance involved, to Judgments, enforcement, generally, Ch. 23 Paternity determination, Satisfaction for judgment for payment of money, procedure for obtaining, Waiver of homestead exemption for child support, to Unemplo ent compensation; withholding for payment of child support obligations, Custodian of children receiving child support, duties, Juvenile and family - related matters, circuit court jurisdiction, to Definitions for ,

13 SUPPORT ENFORCEMENT GENERAL PROVISIONS Definitions for support enforcement laws. As used in ORS chapters 23, 107, 108, 293, 416 and 418 and ORS to , and and any other statutes providing for support payments or support enforcement procedures, unless the context requires otherwise: 1) " Department" means the Department of Human Resources. 2) " Obligee" means a child or caretaker parent or custodian, spouse, former spouse or other dependent person for whose benefit a court or the administrator, as defined in ORS , has ordered a payment of sup- port. 3) " Obligor" means any person who has been ordered by a court or the administrator, as defined in ORS , to make payments for the support of a child or a caretaker parent or custodian, spouse, former spouse or other dependent person. [ Formerly ; 1991 c.362 1) When support payment to be made to Department of Human Resources; duties of department. ( 1)( a) After October 1, 1981, when any court decrees, orders or modifies any preexisting order for support of any person under ORS chapter 107, 108, 109, 110, 416 or 419, or when any such order exists, the obligor shall make payment thereof to the Department of Human Resources when the obligee is receivine general or public assistance, as defined by ORS , or care, support or services pursuant to ORS , and for a period of three months from the month following the month in which the obligee ceased to receive assistance or care, support or services, and for any period of time following for which there remains unpaid support assigned to the State of Oregon, and for any case referred by the district attorney or the Support Enforcement Division of the Department of Justice, whichever is appropriate. The Department of Human Resources shall, except for amounts required by federal law or regulation to be paid to the obligee, retain either all of the support money or the amount equal to the general or public assistance or care, support or services paid, whichever is less. b) The department may immediately transmit payments received from any obligor who has not previously tendered any payment by a check or instrument which was not paid or was dishonored, to the obligee, without waiting for payment or clearance of the check or instrument received. c) The Department of Human Resources shall notify each obligor by mail when support payments shall be made to the depart- ment and when the obligation to make payments in this manner shall cease. 2) The decree or order shall contain the home address and Social Security number of the obligee and the home, business address and Social Security number of the obligor. Each person shall inform the court and the Department of Human Resources in writing of any change in home or business address within 10 days after such change. The Department of Human Resources may also require of the parties any additional information which is authorized by law and is necessary for the operation of support enforcement and collection activities. 3) When a support payment which is due the Department of Human Resources or the clerk of the court, whichever is appropriate is delinquent, the department or clerk shall promptly send notice to the defaulting party of the amount due. If payment is not made to the department or clerk within 10 days after the notice is sent, the department or clerk shall send to the Support Enforcement Division of the Department of Justice or to the district attorney, whichever is appropriate, a copy of the statement of the delinquent amount. 4) Whether or not any payments by an obligor are delinquent, payment of any money by an obligor direct to an obligee or on behalf of an obligee to a person other than the Department of Human Resources or the clerk of the court out of which the order is issued, whichever is appropriate, shall not be credited against the support obligation of the obligor during the period payments are required to be made to the department or clerk. 5) Subject to ORS , this section, to the extent it imposes any duty or function upon the Department of Human Resources, shall be deemed to supersede any provisions of ORS chapters 107, 108, 109, 110, 416 and 419 which would otherwise impose the same duties or functions upon the county clerk. Formerly ; 1991 c ) When payment payable to clerk of court, bank account or obligee; dis- continuance of payment to clerk. ( 1) Sup- port orders in respect of obligees not subject to ORS may provide for payment under the order: a) To the clerk of the court if the Chief Justice of the Supreme Court determines it is practicable and efficient that the clerk maintain support collection, accounting and disbursement services for those obligees and directs the clerk, by order, to maintain those services; b) To a checking or savings account established pursuant to ORS , if the 2-107

14 PROCEDURE IN CIVIL, PROCEEDINGS obligor and obligee have so elected or if the court in its discretion believes that checking or savings account payment will be in the best interest of the parties; or c) Directly to the obligee by deposit into the obligee' s bank account. 2) The maintenance by the clerk of a court of support collection, accounting and disbursement services under paragraph ( a) of subsection ( 1) of this section may be discontinued by the Chief Justice of the Suppreme Court by order. Immediately upon such discontinuance, the support due under orders of the court shall become payable as provided in paragraph ( c) of subsection ( 1) of this section. 3) If the clerk of a court maintains support collection, accounting and disbursement services under paragraph (a) of subsection ( 1) of this section, the clerk shall collect, from persons ordered to make support payments, such fees for those services as may be established under ORS ( 6) or ( 9). Those fees shall be a charge against the per- son ordered to make support payments and may be collected out of payments before transmitting the payments to the person for whose benefit the decree or order was made. Formerly ; 1989 x976 36; 1991 c When support payments payable to clerk of court. ( 1) When any court decrees or orders the payment of money for the support of any person under ORS , , , or , the person ordered to pay the money shall make payment thereof to the clerk of the court, if the clerk maintains support records pursuant to ORS The clerk shall transmit the payment to the person for whose benefit the decree or order was made. 2) The decree or order shall contain the home address of the person for whose benefit the decree or order was made and the home and business address of the person against whom the decree or order is directed. Each person shall inform the clerk in writing of any change in the home or business address of the person within 10 days after such change. 3) Within 10 days after the second payment is delinquent, the clerk shall send notice by certified mail to the defaulting party of the amount due and an explanation of the procedure for collection under this section, ORS and to [ Formerly Order to withhold wages, compensation or other benefit; minimum and maximum percentages subject to with- holding; procedure. ( 1) In addition to any other remedy provided in law for the en- forcement of support, the court, upon notice that support payments under orders entered under ORS chapters 24, 107 and 110 and ORS , , and , or any fees provided for in ORS , to , to , to , , , , ana , are delinquent and application by the obligee or by the district attorney or Support Enforcement Division of the Department of Justice, shall issue an order direct- ing any employer or trustee, including but not limited to a conservator, of the obligor to withhold and pay over to the Department of Human Resources or the clerk of the court out of which the order is issued, or to the obligee, by deposit into the obligee' s bank account whichever is appropriate, from the obligor' s disposable earnings, as defined in ORS , or unemployment compensation under ORS , workers' compensation benefits under ORS or any other federal or state benefit otherwise subject to such withholding for the collection of child support, the amount stated in the or- der, subject to the following: a) For as long as arrearsges are owed, the amount to be withheld shall not be less than 25 percent of the obligor' s disposable earnings plus any employer fee which the department may establish or the amount of the monthly support obligation plus $ 1 plus an employer fee, whichever is greater. b) When arrearsges are paid in full, the amount to be withheld shall equal the monthly support obligation plus an employer fee. c) Notwithstanding paragraph ( a) or ( b) of this subsection, the amount of earnings to be withheld shall not exceed the maximum amount permitted under section 303(b) of the Consumer Credit Protection Act ( 15 U.S.C. 1673(b)) as of January 3, d) Notwithstanding paragraph ( a), ( b) or c) of this subsection, the maximum amount of unemployment compensation to be withheld under ORS shall not exceed: A) One - fourth of the benefits paid or the amount of current support, whichever is less; or B) If the current child support has terminated, one -fourth of the benefits paid or the amount of the last ordered monthly support, whichever is less. 2)( a) An order entered pursuant to this section shall recite the amount of delinquent support amounts due, as shown on the records of the Department of Human Resources and the amount required to be paid as continuing support, if any. b) Effective October 1, 1981, the Department of Human Resources, the clerk of the court out of which the order is issued or the 2-108

15 SUPPORT ENFORCEMENT obligee, whichever is appropriate, shall notify anp employer or trustee upon whom such an order has been served whenever all delinquent support payment and interest have been paid in full, and whenever for any other reason the amount required to be withheld and paid over to the department under the order as to future pay periods is to be re- duced. c) If the obligor' s support obligation is required to be paid monthly and pay periods are at more frequent intervals, the employer or trustee may at the request of the obligor and with the consent of the department withhold and pay over to the department, after all delinquent amounts together with interest have been paid in full, an equal amount at each pay period cumulatively suf- ficient to pay the monthly support obligation plus any employer fee; otherwise the full amount of the support obligation ( or such larger proportion as the court may have ordered pursuant to subsection ( 3) of this section, of the disposable earnings coming due) plus any employer fee shall be withheld and paid from the obligor' s first pay periods each month. 3) Subject to the provisions of subsections ( 1) and ( 2) of this section, the court may in its discretion order the payment of a percentage or gross amount per pay period which is more than one - fourth of the disposable earnings due or becoming due the obligor at each pay period, if so requested in the application filed under subsection ( 1) of this section, and after citation and opportunity for hearing being accorded to the obligor and the employer or trustee. Upon application of the obligor, the court out of which the order was issued may provide for a hearing based upon affidavits and exhibits and such testimony as the court may find necessary to determine whether to continue the order of the court as it affects future earnings and future, unaccrued support obli- gations. 4) An order issued under subsection ( 1) or ( 3) of this section shall be a continuingg order and shall remain in effect and be binding upon any employer or trustee upon whom it is served until further order of the court. 5) An order to withhold issued and served pursuant to this section shall have priority over an notice of garnishment subsequently serve upon any employer or trustee of.an obligor. 6) No employer or trustee who complies according to its terms with an order under this section or the notice provided for in paragraph ( b) of subsection ( 2) of this section shall be liable to the obligor or to any other person claiming rights derived from the obligor for wrongful withholding. 7) An employer or trustee described in subsection ( 1) of this section who willfully fails or refuses to withhold or pay the amounts as ordered shall be deemed to be in contempt of the authority of the court and may be held personally liable for all amounts the employer or trustee should have withheld or failed to pay. 8) No employer shall discharge or refuse to hire an employee because of the entry or service of an order of withholding under this section. Any person who violates this subsection shall be deemed to be in contempt of the authority of the court. 9) If there is more than one order re- quiring withholding against a single obligor under this section, the employer shall honor all withholdings to the extent that the total amount withheld from the obligor' s income does not exceed the limits imposed under section 303(b) of the Consumer Credit Pro- tection Act ( 15 U.S.C. 1673( b)) as of Januaaryry 3, If the obligor' s income is not sufficient to fully comply with multiple orders requu7n withholding, the distribution of the withholding by the department shall be conducted pursuant to the department' s rules. 10) The order to withhold may be personally served upon the employer or the em- ployer' s registered agent, bookkeeper, accountant, person responsible for payroll or local manager, or may be served by any type of mail which requests a return receipt or other written acknowledgment of receipt and is addressed to one of the persons listed in this subsection. 11) No employer fee shall be charged or collected for the withholding of a child sup- port obligation from unemployment compensation benefits. [ Formerly ; 1989 c.633 4; 1989 c.726 4; 1991 c.519 1] Clerk of court to notify district attorney of continued delinquencies; when other agencies to be notified. (1) If payment is not made within 10 days after the notice is sent, the clerk shall send to the district attorney a copy of the support decree or order and a statement of the delinquent amount. If the person for whose benefit a payment described in ORS is decreed or ordered is a person to whom or for whom general assistance or public assistance, as the terms are defined in ORS , is granted, the clerk, if the clerk has notice thereof, or the district attorney, if the district attorney has notice thereof, shall send the notice of default to the Support Enforcement Division if such a division is functioning in that county; otherwise the district attorney shall proceed as the district attorney would in any other case under this section.

16 PROCEDURE IN CIVIL PROCEEDINGS 2) If the Adult and Family Services Division is required to grant or increase assistance for the benefit of any child because support payments under a court decree or order are not being paid when due, the division shall cause notice to be sent to the district attorney or to the Support Enforcement Division if such a division is functioning in that county. [ Formerly ] Order may include payment of support enforcement fees; limitation; use. Any decree, judgment or order entered in a proceeding for the enforcement of any delinquent support obligation, including an order entered under ORS , shall include, on the motion of the Support Enforcement Division of the Department of Justice or the district attorney, if either has appeared in the case, an order for payment of any support enforcement fees required by law in addition to any other costs chargeable to the obligor, and in addition to the support obligation. The Department of Human Resources or the clerk of the court out of which the order is issued, whichever is appropriate, shall deduct the amount of any previously imposed sup- port enforcement fees from any payment subsequently made by the obligor but the amount of the deduction shall not exceed 25 percent of any payment. The support enforcement fee, when collected, shall be paid to the Support Enforcement Division of the Department of Justice or the district attorney whichever appeared in the case. [ Formerly ] Agency, primarily responsible for support enforcement services. ( 1) This subsection describes the; entity primarily responsible for providing support enforcement services described in subsection ( 4) of this section for any order or decree that is or could be entered under ORS chapter 107, 108, 109, 110, 416 or 419. The entity shall provide the support enforcement services described in subsection ( 4) of this section on behalf of the State of Oregon and no other party or either parent. The following entity is prima- rily responsible: a) The Support Enforcement Division of the Department of Justice: A) If support rights are, or were within the past five months, assigned to the Department of Human Resources, one of its di- visions or a public assistance agency of another state; or a B) In any case where arrearages under support order are assigned or owed to or the right to recover back support or state debt is held by a government agency. b) Except as provided in subsection ( 5) of this section, the district attorney in cases other than those described in paragraph ( a) of this subsection if any of the following apply: A) The obligee, obligor, beneficiary or person having physical custody of a minor child regarding any support order that has been imposed or could be imposed requests support enforcement services; and B) The payment records are being maintained by the Department of Human ' Re- sources. 2) The Department of Human Resources shall establish rules addressing the provision of support enforcement services when the purposes of the state in providing those services may be contradictory in individual cases. 3) Notwithstanding the division of responsibility for providing support enforce- ment services between the Support Enforcement Division of the Department of Justice and the district attorney as described in subsection ( 1) of this section, provision of support enforcement services shall not be challenged on the basis that the entity providing the services in a particular case is not the entity responsible for the case under subsection ( 1) of this section. 4) When responsible for providing sup- port enforcement services and there is sufficient evidence available to support the action to be taken, the entity described in sub- section ( 1) of this section: a) Shall establish and enforce any child support obligation; b) Shall establish paternity; c) Shall enforce spousal support when the obligee is living with the obligor' s child for whom support enforcement services are being provided and those services are funded in part by federal moneys; d) May enforce any other order or decree for spousal support; e) Shall, on behalf of the state, initiate and respond to child support modification proceedings based upon a substantial change of circumstances; f) Shall, on behalf of the state, initiate and respond to child support modification proceedings based upon a modification conducted under ORS ( 1989 Edition) con- cerning existing child support orders; g) Shall establish and enforce obligations to provide medical insurance coverage for dependent children; h) Shall insure compliance with the provisions of 42 U.S. C. 651 to 669 and 45 CFR Chapter III as authorized by state law; i) Shall carry out the policy of the State of Oregon regarding child support obligations as expressed in ORS ; and 2-110

17 SUPPORT ENFORCEMENT Q) Shall insure that child support orders are in compliance with the formula established by this chapter.. t 5) The district attorney of any county the Department of Human Resources and th Support Enforcement Division of the Depart; ment of Justice may provide by agreement for assumption by the Support Enforcement Division of the functions of the district attorney under subsection ( 1) of this section. 6) All county governing bodies and all district attorneys shall enter into child sup port cooperative agreements with the De partment of Human Resources. The followin apply to this subsection: a) The agreements shall contain approj. priate terms and conditions sufficient for the state to comply with all child support enforcement service requirements under federal law; and b) If this state loses any federal funds due to the failure of a county governing body or district attorney to either enter into an agreement under this subsection or to pro- vide sufficient support enforcement service, the county shall be liable to the department for, and the liability shall be limited to, the amount of mone the state determines it lost because of the failure. The state shall offset the loss from any moneys the state is holding for or owes the county or from any moneys the state would pay to the county for any purpose. 7) The district attorney or the Support Enforcement Division, whichever is appropriate, shall provide the services specified in subsections ( 1) and ( 4) of this section to any person requesting them, but may in their discretion, upon a determination and notice to the person requesting the service that prospect of successful recovery from the obligor of a portion of the delinquency or future payments is remote, require payment to the district attorney or the Support Enforcement Division of an application fee, in ac- cordance with an application fee schedule established by rule by the Department of Human Resources. If service performed results in the district attorney or the Support Enforcement Division recovering any support enforcement fees, such fees shall be paid to the applicant in an amount equal to the amount of the application fee. 8) An obli,&ee may request the Support Enforcement Division of the Department of Justice or a district attorney to cease all collection efforts if it is anticipated that physical or emotional harm will be caused to the parent or caretaker relative or the child for whom support was to have been paid. The Department of Human Resources, by rule, shall set out the circumstances under which such requests shall be honored. [ Formerly ; Compelling payment to clerk of court or department for transmission to beneficiary; transmittal; notice. ( 1) Upon application by the obligee to the district attorney or the Support Enforcement Division of the Department of Justice, whichever is appropriate, for enforcement services, future payments shall be made to the clerk of the court or to the Department of Human Resources, whichever is appropri- ate. 2) The clerk or department, after deducting any fees required under ORS , shall transmit the payments to the person for whose benefit the decree or order was made. 3) The clerk or department shall notify each obligor by mail when support payments must be made to the clerk or department and when the obligation to make payments in this manner ends. ( Formerly ] W 611C C11Cl: L- '- G11iiG- Iaic i1v1u1iv La rua of sides in another county of this state, the court may, upon motion of the moving party, order that certified copies of the files, records and prepared transcripts of testimony in the original proceeding be transmitted to the clerk of the circuit court of the county in which the nonmoving party resides. 2) Any files, records and prepared transcripts of testimony maintained in the county to which certified copies have been transmitted as provided in subsection ( 1) of this section shall be auxiliary to those maintained in the county of origin, whose files, records and prepared transcripts shall remain the official record. 3) The original of any order entered in the auxiliary county under ORS shall be entered in the files and records of the auxiliary county and certified copies thereof shall be forwarded to the county of origin for filing. The party submitting the original order for signature shall submit an extra copy for forwarding by the clerk and shall indicate on that copy where it is to be forwarded. 4) Notwithstanding any file number assigned in the auxiliary county for purposes of identification, the file number assigned in the county of origin shall be the reference number for all purposes including su port payment records in the Department man Resources. [ Formerly Hu Jurisdiction of circuit court in county to which files transferred. ( 1) Upon receipt of such certified copies referred to in ORS , the circuit court of the county to which such certified copies have

18 PROCEDURE IN C1VII. PROCEEDINGS been transmitted shall have jurisdiction to compel compliance with such order or decree the same as if it were the court which made and entered the original order or decree for the payment of support. The only court having jurisdiction to modify any provision of the original order or decree is the court having original jurisdiction of the cause in which such order or decree was entered or the circuit court of the county in which either party resides if that court has received the certified copies referred to in ORS ) The provisions of ORS ( 2) to ( 4) shall apply to this section. [ Formerly Transfer of files when party or child is recipient of public assistance. The transmittal of such certified copies referred to in ORS may be made upon motion of the district attorney or of the Support Enforcement Division of the Department of Justice with respect to any suit or proceeding in which a party thereto, or a child of such party, is a recipient of public assist- ance, and with respect to an order made pursuant to ORS [ Formerly Election of alternative support payment method; termination of election. 1) Whenever the obligee is not a recipient of general or public assistance or is not a former recipient with unreimbursed past assistance, the obligee and obligor may elect not to make payments in the manner de- scribed in ORS ( 1)( a), but may instead elect to make payments directly into a checking or savings account established in the obligee' s name. The election shall be in writing and filed with the court that entered the support order if the clerk of the court maintains support collection services. The election must be signed by both the obligor and the obligee and must specify the amount of the support payment, the date payment is due, the court order number and the account number of the checking or savings account that is to be used. 2) The checking or savings account election does not alter the requirement set out in ORS ( 1)( a) providing for payments to the Department of Human Resources. The election may be filed subsequent to or contemporaneously with the order or decree. 3) The election authorized by this section is terminated if. a) The obligee becomes a recipient of general or public assistance, as defined by ORS , or care, support or services pursuant to ORS ; b) Either party requests cancellation; or c) The obligee applies to the district attorney or the Support Enforcement Division for enforcement services. 4) Notice of termination of the bank option and payment requirements pursuant to ORS or shall be sent by either the clerk or the department to the obligor' s last -known address. [ Formerly ] Copies of new or modified sup - port orders to department. Counties that have heretofore transferred the collection, accounting and disbursement responsibilities to the Department of Human Resources, or that have elected not to maintain support and disbursement collections, accounting services, and clerks of courts not maintain- ing support collection services, shall forward to the department copies of all new and modified support orders, satisfactions or other pertinent documents in a timely manner. [ Formerly Department or clerk to collect fees for services. ( 1) The Department of Human Resources shall assess and collect any fees for enforcement services and collection, accounting and disbursement ser- vices required by federal law or regulation, or state law or administrative rule. 2) The clerk of the court shall assess and collect any fees for enforcement services and collection, accounting and disbursement services required by federal law or regulation, state law, or county ordinance or res- olution. [ Formerly Referral of support cases by district attorney to department; duration of collection services. ( 1) For the purposes of ORS to , , , to and , any support case may be referred by the district attorney to the Department of Human Resources for provision of collection, accounting and disburse- ment services when: a) A written application for enforcement is made to the district attorney and the district attorney agrees to take enforcement action; or b) A written application for enforcement is made to the district attorney and any sup- port obligation due as current support within the preceding six months is more than 60 days overdue. 2)( a) The Department of Human Re- sources shall continue collection, accounting and disbursement services for any case referred under paragraph ( a) of subsection ( 1) of this section until notified by the district attorney that enforcement discontinued. action has been b) The Department of Human Resources shall continue collection, accounting and

19 SUPPORT ENFORCEMENT disbursement services for any case referred under paragraph ( b) of subsection ( 1) of this section for at least six months: If at the end of the six-month period, the district attorney has not agreed to provide enforcement services, the Department of Human Resources may discontinue collection, accounting and disbursement services. [ Formerly Proceedings to require delinquent obligor to appear and make financial disclosure; order for appearance; contents; service. When a support obligation is more than one month in arrears, the Attorney General or a district attorney may upon motion obtain an order requiring the obligor to appear for the purpose of examination regarding the obligors financial circumstances. The court shall require the obligor to appear at a time and date certain at such place as may be appropriate. The order to appear shall inform the obligor that the obligor' s answers may be used in subse- quent enforcement and possible criminal proceedings, and that the obligor has a right to be represented by an attorney at the ex- amination. The order shall be served upon the obligor in the same manner as service of summons. [ Formerly ; 1989 c Examination of obligor; conduct and scope of examination; record. The examination shall be conducted under oath by an employee of the Department of Justice or district attorney. The employee shall inform the obligor that the obligor' s answers may be used in subsequent enforce- ment and possible criminal proceedings, and that the obligor has a right to be represented by an attorney at the examination. A record of the examination may be made by either stenographic or electronic means. The obli gor may be examined in regard to the obligor' s income and property, and to any matter relevant to the obligors ability to pay support. [ Formerly ; 1989 c Continuance of proceedings; service of notice to obligor. The examination may be continued for further review of the obligor' s financial circumstances and employment, or the matter may be certified to the court for a contempt hearing on the issue of failure to pay support as ordered. If the examination is to be continued for further review or is to be certified to the court for a contempt hearing, the obligor shall be served at the examination with a notice stating the time, date and place for further examination or hearing before the court. Service may be made by an employee of the Department of Justice or district attorney. Formerly ; 1989 c Arrest of obligor for failure to appear. ( 1) If the obligor fails to appear for examination or further examination, the At- torney General or a district attorney may apply to the court which issued the order to appear for an order directing the issuance of a warrant for the arrest of the obligor. The motion shall be accompanied by an affidavit which shall state the relevant facts and whether the obligor contacted the Department of Justice or district attorney, as appropriate. If the court finds that the obligor had notice and failed to appear, the court shall order the issuance of a warrant for the arrest of the obligor in order to bring the obligor before the court to show cause why the obligor should not be held in contempt for a failure to appear as ordered. 2) If the matter has been certified to the court for a contempt hearing and the obligor, having been properly served, fails to appear, the court shall order the issuance of a warrant for the arrest of the obligor. Upon arrest, the obligor shall be brought before the court to show cause why the obligor should not be held in contempt for a failure to appear as ordered. [ Formerly ; 1989 c Use of obligor' s property for delinquent support payments. If by exam- ination of the obligor it appears that the obligor has any property liable to execution, the court, upon motion of the Attorney General or a district attorney, shall order that the obligor apply the same in satisfaction of the arrears or that the property be levied on by execution, or both. [ Formerly ; 1989 c Department of Human Re- sources computer printouts; evidence of authenticity not required in support proceedings; evidentiary effect. In any proceeding to establish, enforce or modify a support obligation, extrinsic evidence of au- thenticity is not required as a condition precedent to the admission of a Department of Human Resources computer printout which may reflect the employment records of a parent, the support payment record of an obligor, the payment of public assistance, the amounts paid, the period during which public assistance was paid the persons re ceiving or having received assistance and any other pertinent information, if the printout bears a seal purporting to be that of the department and is certified as a true copy by original or facsimile signature of a person purporting to be an officer or employee of the department. Printouts certified in accordance with this section constitute prima facie evidence of the existence of the facts stated therein. [ Formerly ; 1989 c Court authorized to require security for support payments. Whenever a court has entered an order for the payment of support, the court may provide for such security, bond or other guarantee satisfac-

20 25240 PROCEDURE IN CIVII. PROCEEDINGS for to the court to secure the obligation to make support payments. [ Formerly Order to pay support by arent with legal custody of minor. ( 1) Notwithstanding any other law, where a court or the administrator has the authority under ORS chapter 107, 108, 109, 110, 416 or 419 to require a parent without legal custody to pay support for a minor child, then the court or administrator may require a parent with legal custody to pay support for such a child as long as that parent does not have physical custody of such child or is not providing the child with the necessities of life, including but not limited to lodging, food and clothing. 2) For purposes of this section, " administrator" means an administrator as defined in ORS ( 1985 c Rebuttable presumption of ina- bility to pay child support when parent receiving certain assistance payments. ( 1) Notwithstanding any other provision of Oregon law, a parent who is eligible for and receiving cash payments made by the Department of Human Resources under Title IV -A of the Social Security Act or under the General Assistance or Oregon Supplemental Security Income Programs or cash payments made by the Social Security Administration under the Supplemental Security Income Program shall be rebuttably presumed unable to pay child support. 2) Each month, the Department of Human Resources shall identify those persons receiving cash payments under the programs listed in subsection ( 1) of this section and provide that information to the district attorney and the Support Enforcement Division of the Department of Justice. The district attorney and the Support Enforcement Divi- sion shall refer to the information prior to establishing any child support obligation. The Department of Human Resources shall provide notice of the presumption and modification rights provided for in subsections 1), ( 3) and ( 4) of this section to persons re- ceiving cash payments under the programs listed in subsection ( 1) of this section at the time the persons are first identified. 3) Receipt by a child support obligor of cash payments under any of the programs listed in subsection ( 1) of this section shall be sufficient cause to reduce the amount of an existing child support order to zero. 4) The entity responsible for support enforcement services under ORS shall initiate action to modify an existing child support order when an obligor receiving cash payments under the programs listed in subsection ( 1) of this section is identified. 5) The notice and finding of financial responsibility required by ORS shall include notice of the presumption provided for in subsection ( 1) of this section. 6) The presumption and modification rights created by this section shall apply whether or not child support enforcement services are being provided under Title IV -D of the Social Security Act. [ 1991 c State collection of support arrears; maximum withholding. In the case of orders entered under ORS , , , to , and where the state is collecting support arrears assigned to it and there is no current support order, the maximum part of the aggregate disposable earnings of an individual for any workweek that is subject to withholding under any of those sections may not exceed: 1) Twenty -five percent of the individual' s disposable earnings for that week; or 2) The amount by which the individual' s disposable earnings for that week exceed 40 times the applicable federal minimum hourly wage prescribed by section 6(a)( 1) of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 206) as that section is in effect on January 8, 1979, including future minimum-- hourly wages then prescribed in that section. [ 1987 c Obligor to provide health and dental insurance; reduction of support for such coverage; notice to insurance provider; duties of insurance provider. (1) All child support orders entered pursuant to ORS chapters 107, 108, 109 and 110 and ORS to and , and any modifications of those orders, shall provide, at the election of the obligee, assignee of the rights to medical support under the Medicaid program or the assignee of current support rights, that the obligor shall name the subject child as beneficiary on any health and dental insurance plan that is available to the obligor on a group basis or through an employer or union at a monthly cost not to exceed the amount of the monthly child support obligation determined under the formula provided by ORS and unless the group insurance is not accessible to the child or obligee. The Administrator of the Support Enforcement Division, an administrative hearings officer or a court may reduce the child support obligation determined by all or a portion of the cost of providing health and dental insurance when the obligee, assignee of the rights to medical support under the Medicaid program or the assignee of current support rights has elected such coverage. 2) In addition to the health and dental insurance coverage required in subsection ( 1) of this section, the order shall also require the obligor to provide dependent health and

21 SUPPORT ENFORCEMENT dental insurance for the benefit of the obligee if it is available at no additional cost to the obligor and in this case the provisions of this section apply. The remedy provided by this subsection is in addition to and not exclusive of any other remedy provided by law. 3) The obligee or entity responsible for support enforcement under ORS may serve a notice of order to provide for insur- ance coverage in a form prescribed by the Department of Human Resources on the obligors employer or union or the employer' s or union' s registered agent, bookkeeper, accountant, person responsible for payroll or local office manager in the manner prescribed for the service of summons in a civil action, or may be served by any type of mail which requests a return receipt or other written acknowledgment of receipt and is addressed to one of the persons listed in this subsection. Service of the notice may be made when the following conditions are met: a) The obligor fails to provide written proof to the obligee or the entity responsible for support enforcement within 30 days of receiving, notice of the order that the insurance has been obtained or that application for insurability has been made; b) The obligee or the entity responsible for support enforcement serves notice of its intent to enforce medical support on the obligor by mail at the obligors post - office address; and c) The obligor fails within 15 days after the mailing of the notice to provide written proof to the obligee or the entity responsible for support enforcement that the insurance coverage existed as of the date of mailing. 4) The notice of order requiring insurance coverage is binding on the employer or union when service has been effected. Upon receipt of the notice, or upon application of the obligor pursuant to the notice, the employer or union shall enroll the child as a beneficiary in the group insurance plan and withhold any required premium from the obligor' s income or wages. If more than one plan is offered by the employer or union, the child shall be enrolled in the insurance plan in which the obligor is enrolled or, if the obligor is not enrolled, the least costly plan otherwise available. 5) A child that an obligor is required to cover as a beneficiary pursuant to this section is eligible for insurance coverage as a dependent of the obligor. 6) The signature of the custodial parent or guardian of the insured dependent is a valid authorization to the insurer for purposes of processing an insurance reimbursement payment to the provider of the medical services. When an order for dependent insurance coverage is in effect and the obligor' s employment is terminated, or the insurance coverage is terminated, the insurer shall notify the obligee within 10 days of the termination date with notice of conversion privileges. 7) When an order for dependent insurance coverage is in effect, the obligor's employer or union shall release to the obligee or the entity responsible for support enforcement, upon request, the name of the insurer. 8) When an order for dependent insurance coverage is in effect, the insurer shall release to the obligee, or to the entity responsible for support enforcement, upon request, information about the dependent coverage. 9) The obligor who fails to maintain the medical or dental insurance for the benefit of the child as ordered shall be liable for any medical or dental expenses incurred from the date of the order. ( 1989 c.812 2; 1991 c.67 4; 1991 c Confidentiality of records. ( 1) For the protection of applicants for and re- cipients of support enforcement services and the protection of any other person who may be a party to a proceeding to establish, modify or enforce a support obligation or an obligation to provide medical insurance coverage, the Support Enforcement Division, the district attorney and the Department of Human Resources shall not disclose or use the contents of any records, files, papers or communications for purposes other than those directly connected with the establish- ment and enforcement of support obligations, including criminal nonsupport proceedings, and these records, files, papers and communications are considered confidential. In any judicial proceedings except proceedings directly connected with the establishment or enforcement of a support obligation, includ- ing a criminal nonsupport proceeding, their contents are considered privileged communi- cations. 2) Violation of subsection ( 1) of this section is punishable, upon conviction, by a fore of not more than $ 1, 000 or by imprisonment in the county jail for not more than 60 days, or by both. [ 1989 c ( 1); FORMULA FOR DETERMINING AMOUNT OF CHILD SUPPORT Legislative findings for ORS to The Legislative Assembly fords that: 1) The federal Family Support Act of 1988 mandates that the state must establish a formula for child support award amounts that is applicable in any judicial or adminis-

22 PROCEDURE IN CIVM PROCEEDINGS trative proceeding for the award of child support. 2) It is further mandated that the amount of child support determined by the formula must be presumed to be the correct amount unless rebutted by a specific finding on the record that the application of the formula would be unjust or inappropriate in the particular case as determined under criteria established by the state. 3) It is also mandated that the formula is to be reviewed at least once every four years to insure that the application of the formula results in appropriate child support awards. 4) There is a need for uniformity in child support awards, and child support awards of- ten are based upon noneconomic factors and are inadequate in terms of the needs of the child. 5) The Support Enforcement Division of the Department of Justice is the appropriate agency to establish the required formula c Criteria to be considered; mandated standards; reduction. ( 1) The Support Enforcement Division of the Department of Justice shall establish by rule a formula for determining child support awards in any judicial or administrative proceeding. In establishing the formula, the division shall take into consideration the following crite- ria: a) All earnings, income and resources of each parent, including real and personal property; b) The earnings history and potential of each parent; parent; c) The reasonable necessities of each d) The ability of each parent to borrow; e) The educational, physical and emotional needs of the child for whom the support is sought; f) The amount of assistance which would be paid to the child under the.full standard of need of the state' s IV -A plan; g) Preexisting support orders and cur- rent dependents; and h) Other reasonable criteria which the division may find to be appropriate. 2) The formula described in subsection 1) of this section must also comply with the following standards: a) The child is entitled to benefit from the income of both parents to the same extent that the child would have benefited had the family unit remained intact or if there had been an intact family unit consisting of both parents and the child. costs b) Both parents should share in the of supporting the child in the same proportion as each parent' s income bears to the combined income of both parents. 3) The formula described in subsection 1) of this section must be designed to insure, as a minimum, that the child for whom support is sought benefits from the income and resources of the absent parent on an equitable basis in comparison with any other minor children of the absent parent. 4) The Administrator of the Support Enforcement Division, an i administrative hearings officer or a court may reduce the child support obligation determined under the formula described in subsection ( 1) of this section by all or a portion of the cost of providing health and dental insurance when the obligee, the assignee of the rights to medical support under the Medicaid program or the assignee of current support rights has elected such coverage. [ 1989 c.811 3I Formula amount presumed correct; rebuttal of presumption; criteria. In any judicial or administrative proceeding for the establishment or modification,. of a child support obligation under ORS chapters 107, 108, 109, 110, 416 and 419, the amount of support determined by the formula established pursuant to ORS to , , , and shall be presumed to be the correct amount of the obligation. This shall be a rebuttable presumption and a written finding or a specific finding on the record that the application of the formula would be unjust or inappropriate in a particular case shall be sufficient to rebut the presumption. The following criteria shall be considered in making the finding: 1) Evidence of the other available re- sources of a parent; ent; 2) The reasonable necessities of a par- 3) The net income of a parent remaining after withholdings required by law or as a condition of employment; 4) A parent' s ability to borrow; 5) The number and needs of other de- pendents of a parent; 6) The special hardships of a parent; 7) The needs of the child; 8) The desirability of the custodial parent remaining in the home as a full -time parent and homemaker; 9) The tax consequences, if any, to both parents resulting from spousal support awarded and determination of which parent will name the child as a dependent; and 2-116

23 SUPPORT ENFORCEMENT ) The financial advantage afforded a parent's household by the income of a spouse or another person with whom the parent lives in a relationship similar to husband and Wife. [ 1989 c [ 1989 c.811 5; repealed by 1991 c Proceedings to modify orders to comply with formula; when proceeding may be initiated; issues considered. ( 1) If more than two years have elapsed since the entry of a support order under ORS chapter 24, 107, 108, 109, 110, 416 or 419 and the support obligation is not in substantial compliance with the formula established by ORS chapter 25, then the entity providing support enforcement services under ORS in regards to the support order may initiate proceedings to modify the support obligation to insure that the support obligation is in accordance with the formula established by ORS chapter 25. The court, the administrator or the hearings officer shall not consider any issue in the proceeding other than when the support obligation became effective and whether it is in substantial compliance with the formula established by ORS chapter 25. If the court, the administrator or the hearings officer finds that more than two years have elapsed since the entry of the support order and the support obligation is not in substantial compliance with the formula established by ORS chapter 25, the court, the administrator or the hearings officer shall modify the support order so that the amount of support to be paid is in accordance with the formula established by ORS chapter 25, whether or not there has been a substantial change of circumstances since the entry of the current support order. 2) Notwithstanding the provisions of this section, proceedings may be initiated at any time to modify a support obligation based upon a substantial change of circumstances under any other provision of law. [ 1991 c Note: was enacted into law by the Legislative Assembly but was not added to or made a part of ORS chapter 25 or any series therein by legislative action. See Preface to Oregon Revised Statutes for fur- ther explanation. INCOME WITHHOLDING AND PAYMENT RECORDS Withholding of income from obligor; notice to obligor and employer; effect of noncompliance; maximum 1) In ad- amounts subject to withholding.. ( dition to any other remedy provided by law for the enforcement of support, when a support order is or has been issued in Oregon y the circuit court or the administrator, as defined in ORS , or has been registered in Oregon, and current support pay- went records are being maintained by the Department of Human Resources, then so much of an obligors disposable earnings or unemployment insurance benefits under ORS must be withheld in accordance with subsections ( 2) to ( 15) of this section as is necessary to comply with the order and provide for the payment of any fee to the employer which may be required. Withholding shall occur without the need for any amendment to the support order involved or for any further action, other than those actions required under this section, by the court or administrator. 2) An obligor shall become subject to such withholding, and the advance notice required under subsection ( 3) of this section must be given, on the earliest of: a) The effective date of a support order or modification of a support order in a case for which support enforcement services are being provided pursuant to ORS , unless the Department of Human Resources or court finds that there is good cause not to require immediate withholding or the pparties provide by written agreement for an Xerna- tive arrangement; b) The date on which the payments which the obligor has failed to make under such order are at least equal to the support payable for one month; c) The date as of which the obligor requests that such withholding begin; or d) The date on which the obligee requests that such withholding begin, if good cause is shown for the withholding. 3) The advance notice regarding the delinqquency of support payments and potential withholding shall be issued and sent by regular mail by the Department of Human Resources to the last-known address of the obligor. A copy of the notice shall be mailed by the department to the last -known address of the obligee. The advance notice must state: a) The amount of arrearages and the amount to be withheld; b) That the provision for withholding applies to any current or subsequent em- ployer or period of employment; c) The procedures available for contesting the withholding and that the only basis for contesting the withholding is a mistake of fact, which means an error in the amount of current support or arrearages, or an error in the identity of the obligor; d) That the obligor has 14 days from the date of the notice to contact the district attorney or the Support Enforcement Division of the Department of Justice, as appropriate, in order to contest the withholding, and that

24 PROCEDURE IN CIVIL PROCEEDINGS failure to make such contact within 14 days will result in the department notifying the employer to begin withholding; and e) The actions that will be taken if the obligor contests the withholding. 4) Upon request of either the district attorney or the Support Enforcement Division, a new advance notice which increases the amount to be withheld may be issued by the department. 5) The amount to be withheld shall in- clude any fee to the employer, as defined in ORS , which the department may establish, and may include arrearages. 6) If the obligor does not make the con- tact within the period specified in paragrapph d) of subsection ( 3) of this section, the department shall immediately send notice to the employer to begin withholding. 7) If the obligor makes the appropriate contact outlined in paragraph ( d) of sub- section ( 3) of this section within the 14 -day period, then the district attorney or Support Enforcement Division, as appropriate, shall provide the obligor with an opportunity to show that there is an error in the amount of current support or arrearages, or an error in the identity of the obligor. Payment of all arrearages may not be the sole basis for not implementing withholding. The department shall by rule set additional criteria for not implementing withholding. The district attorney or Support Enforcement Division need not provide an opportunity for a contested case administrative hearing pursuant to ORS to or a hearing in circuit court. Within 45 days of the date of the advance notice, the district attorney or Support Enforcement Division must determine if the withholding shall occur based on an evaluation of the facts, notify the obligor whether or not the withholding is to occur, notify the obligor of the right to appeal the detern i- nation and send the employer' s notice with the information required by subsection ( 9) of this section. If withholding is to occur, the notice to the obligor shall state when with- holding will begin and shall include the in- formation given to the employer in the employer' s notice. 8) Any appeal of the district attorney' s or Support Enforcement Division' s decision made pursuant to subsection ( 7) of this sqction is to the circuit court for a hearing de novo. The appeal shall not act to stay withholding without a court order to that effect. No stay or partial stay shall be ordered by any court unless the obligor can show there is a substantial probability that the obligor would suffer irreparable injury and the obligee would not suffer irreparable injury ) The notice to the employer of the obligor shall inform the employer of all the following: a) The employer shall withhold from the obligor' s disposable earnings, as defined in ORS , the amount stated in the notice, subject to the following: A) For as long as arrearages are owed, the amount to be withheld shall not be less than 25 percent of the obligor' s disposable earnings plus an employer fee or the amount of the monthly support obligation plus $ 1 plus an employer fee, whichever is greater. B) When arrearages are paid in full, the amount to be withheld shall equal the monthly support obligation plus an employer fee. C) Notwithstanding subparagraph ( A) or B) of this paragraph, the amount to be withheld shall not exceed the maximum amount permitted under section 303( b) of the Consumer Credit Protection Act ( 15 U.S. C. 1673(b)) as of January 3, D) Notwithstanding subparagraph ( A), B) or ( C) of this paragraph the amount of unemployment benefits to be withheld under ORS shall not exceed: i) Twenty -five percent of the benefits paid or the amount of current support, whichever is less; or ii) If the current child support has terminated, 25 percent of the benefits paid or the amount of the last ordered monthly support, whichever is less. b) Out of the amount withheld, the employer may deduct an employer fee as stated in the notice, or the employer may waive the fee. If an employer waives the fee, the amount to be withheld under subparagraph A) or ( B) of paragraph ( a) of this subsection shall not include an employer fee. c) Payments of the amount withheld, less any employer fee, shall be identified and made to the department within 10 days of the date the obligor is paid. d) If the support obligation of the parent is required to be paid monthly and the pay periods of the parent are at more frequent intervals, the employer or trustee may, at the request of the parent and with the consent of the district attorney or Support Enforcement Division, withhold and pay over to the department, after all arrearages and fees have been paid in full, an equal amount at each pay period cumulatively sufficient to pay the monthly support obligation plus an employer fee; otherwise the full amount of the obligation plus an employer fee shall be withheld and paid from the first pay period of the parent each month, consistent with subsection ( 1) of this section.

25 SUPPORT ENFORCEMENT e) The employer shall implement withholding no later than the first payday that occurs after five days following the date the notice was received. f) The withholding required by this notice is a continuing obligation. This notice and the withholding required by it remain in effect and are binding upon the employer until further notice from the department or a court. g) The employer is liable for all amounts which the employer fails to withhold and pay to the department pursuant to this section. Upon motion to the court by the district attorney or Support Enforcement Division, the court may also fine the employer in an amount not to exceed $ 250 for a violation of this paragraph. h) The employer shall not inquire about the existence of a support or withholding obligation and shall not discharge, discipline or refuse to hire an obligor because of the existence of a withholding obligation under this section. Upon motion by the district attorney or Support Enforcement Division, the court may also fine the employer for a violation of this paragraph in an amount not to exceed $ 250. i) Withholding under this section has priority over any other legal process under Oregon law against the same income. Q) The employer may combine amounts from obligors' incomes in a single payment to the department, as long as such payment is accompanied by a list which separately identifies which portion of the payment is attributable to each obligor and the obligor' s name and case number. k) If there is more than one notice re- quiring withholding against a single obligor under this section, the employer shall honor all withholdings to the extent that the total amount withheld from the obligor's income does not exceed the limits imposed under section 303(b) of the Consumer Credit Pro- tection Act ( 15 U.S. C. 1673(b)) as of January 3, L) If the obligor' s income is not sufficient to fully comply with multiple notices requiring withholding, the distribution of the withholding by the department shall be conducted pursuant to the department' s rules, provided that withholding shall not occur with regard to an order under which arrearages only will be collected until the withholding for those orders requiring the payment of an ongoing support obligation is fully honored. However, arrears collected shall not exceed the amount of the last monthly support ordered or 25 percent of the disposa le earnings of the obligor, whichever is less. m) The employer shall notify the department promptly when the obligor terminates employment, and shall provide the obligor's last -known address and the name and address of the obligor's new employer, if known. 10) The employer is bound by and required to follow the notice and its provisions as set out in subsection ( 9) of this section. Failure to comply with the notice subjects the employer to the consequences set out in subsection ( 9) of this section. 11) Withholding under this section has priority over any other legal process under Oregon law against the same income. 12) Withholding under this section ma not be terminated solely because arrearages are paid. Withholding may be ter- minated if all arrearages are paid and: a) The duty to support under the support order no longer exists; or b) The obligor and obligee request termination in writing and public assistance is not being granted to either party, their mi- nor dependents or their children who are at- tending school, as defined in ORS ) The employer's notice may be personally served upon the employer or the em- ployer' s registered agent, bookkeeper, accountant, person responsible for payroll or local manager or may be served by any type of mail which requests a return receipt or other written acknowledgment of receipt and is addressed to one of the persons listed in this subsection. 14) No employer who complies with an employer' s notice issued pursuant to this section shall be liable to the obligor or to any other person claiming rights derived from the obligor for wrongful withholding. 15) No employer fee shall be charged or collected for the withholding of a child support obligation from unemployment insurance benefits. ( 1985 c.671 4; 1989 c.812 4; 1991 c Payment of support through Department of Human Resources. ( 1) If the payment method for support payments set forth in the governing support order does not require payments to be made through the Department of Human Resources, the obligor, obligee, district attorney or Support Enforcement Division of the Department of Justice may request to have subsequent payments made through the department. All of the following apply to the request: a) The request must be in writing; b) The request must include the last - known addresses of the obligor and the obligee; and 2-119

26 PROCEDURE IN CIVIL PROCEEDINGS c) The request must be filed with the department. 2) When a request is made under this section, all of the following apply: a) The existing method of support accounting shall terminate effective the first day of the month following the month the request was filed; b) The department shall commence support accounting and distribution when the existing method is terminated; and c) The request constitutes an application for support enforcement services and for the use of state and federal laws, regulations and rules relating to support payments and enforcement of orders. 3) If there is no appropriate record of support payments for purposes of this section, the department may establish a record of arrearages under ORS [ 1985 c Procedure for determining arrearages. This section establishes proce- dures for determining the amount of arrearages and for making a record of arrearages of support payments. All of the following apply to this section: 1) A record of support payment arrearages may be established by: a) Court order; b) Stipulation of the parties; or c) The procedures under subsection ( 2) of this section whenever an existing child or spousal support case enters the Department of Human Resources records system without a current,payment record maintained by any court clerk 2) When allowed under subsection ( 1) of this section, arrearage amounts may be established under this subsection. All of the following apply to this subsection: a) The obligee or obligor may execute an affidavit in a form acceptable to the Department of Human Resources that states the total amount owed or the payment history in as much detail as is necessary to demon- strate the periods and amounts of any arrearage. b) The person making the affidavit shall file the original affidavit with the court in which the decree was entered. c) The person making the affidavit shall serve a true copy of the affidavit upon the other party together with a notice that the affidavit will be the basis of a permanent record unless the other party files objections. d) For objections to be valid under paragraph ( c) of this subsection, the other party must file the objection with the court within 14 days from the date of service of the affi- davit and must mail or serve true copies of the objections on both the party who filed the affidavit and either: A) The district attorney; or B) If support rights are or have been assigned to the State of Oregon at any time within the last five months or if arrearages under the support order are so assigned, the Support Enforcement Division of the Department of Justice. e) If objections are filed within the time allowed, the party filing the affidavit must file a supplemental affidavit that is in a form acceptable to the department and that provides any information concerning the pay- ment history that the department determines necessary. f) If objections are filed within the time allowed, the district attorney or the Support Enforcement Division shall cause the case to be set for a court hearing. At the hearing, the court shall consider the correctness of the affidavit but shall not consider objections to the merits of the support order or decree. The parties may settle the case by written agreement anytime before the court hearing. Notice of the court hearing shall be served upon the party the objections as authorized in ORCPfiling 9 B. g) If no objections are filed under this subsection within the time allowed, the amount of arrearages stated in the affidavit is the amount owed for purposes of any subsequent action. The district attorney or the Support Enforcement Division shall file with the court a certificate stating the arrearage established under this paragraph. 3) When a request for accounting and distribution services is made under ORS , no agency or court shall take or allow any ex parte enforcement action on amounts owed as arrearages from before the time that the Department of Human Re- sources commences support accounting and distribution until the amount is established under this section. This subsection does not prohibit or limit any enforcement action on support payments that become due subsequent to the department' s commencement of support accounting and distribution under ORS ) In any determination under this section, a canceled check, payable to the obligee, indorsed by the obligee or deposited to an account of the obligee, drawn on the account of the obligor and marked as child support shall be prima facie evidence that child support was paid to the obligee in the amount shown on the face of the check. It is immaterial that the check was signed by a person other than the obligor, provided that the person who signed the check was an au

27 SUPPORT ENFORCEMENT thorized signatory of checks drawn on account. [ 1985 c.671 6; 1991 c.588 1] the Establishing of income with - holding as method of paying support; records. Whenever support rights are not and have not at any time during the past five months been assigned to the Department of Human Resources or one of its divisions, or to a public assistance agency of another state, and no arrearages under a support order are so assigned, the district attorney or, as appropriate, the Support Enforcement Division of the Department of Justice, shall provide, upon request of an obligor or obligee, services sufficient to permit estab- lishment of income withholding under ORS , including such services as are necessary to establish a support payment record under ORS and These services shall be provided to the obligee without the necessity of an application for support enforcement services under Title IV -D of the Social Security Act ( 42 U.S. C. 651, et seq.) c Order to employer or trustee to withhold delinquent pa ents from money otherwise due. ( 1) Any decree, judgment or order for the payment of support for the benefit of a spouse and child may in the discretion of the court include an order directing any employer or trustee, including but not limited to a conservator, of the obligor to withhold and pay over to the Department of Human Resources, the clerk of the court out of which the order is issued or to the obligee by deposit into the obligee' s bank account, whichever is appropriate, out of money due or to become due such obligor at each pay period, an amount ordered to be paid for support. 2)( a) The order shall recite the amount of the obligor' s continuing support obligation and shall require withholding from the gross amounts due or becoming due to the obligor at each pay period and payment to the De- partment of Human Resources, the clerk of the court out of which the order is issued or to the obligee by deposit into the obligee' s bank account, whichever is appropriate, of the amount of the support obligation. b) If the obligor' s support obligation is required to be paid monthly and pay periods are at more frequent intervals, the employer or trustee may at the request of the obligor and with the consent of the Department of Human Resources, the clerk of the court out of which the order is issued or the obligee, whichever is appropriate, withhold and pay over to the department, clerk or obligee by deposit into the obligee' s bank account an equal amount at each pay period cumulatively sufficient to pay the monthly support obligation. 3) An order issued under this section shall be a continuing order and shall remain in effect and be binding upon an employer or trustee upon whom it is served until further order of the court. 4) An order to withhold issued and served pursuant to this section shall have priority over any notice of garnishment subsequently served upon any employer or trustee of an obligor. 5) No employer or trustee who complies according to its terms with an order under this section served upon the employer or trustee shall be liable to the obligor or to any other person claiming rights derived from the obligor for wrongful withholding. 6) An employer or trustee described in subsection ( 1) of this section who willfully fails or refuses to withhold or pay the amounts as ordered shall be deemed to be in contempt of the authority of the court and may be held personally liable. 7) No employer shall discharge an em- ployee or refuse to hire a person because of the entry or service of an order of withhold- ing under this section. Any person who vio- lates this subsection shall be deemed to be in contempt of the authority of the court. Formerly Service of withholding order. An order directing an employer or trustee to withhold support payments under ORS and may be served upon the employer or trustee or the employer or trustee' s registered agent, bookkeeper, accountant, person responsible for payroll or local office man- ager in the manner provided by law for service of a summons or may be served by any type of mail which requests a return receipt or other written acknowledgment of receipt and is addressed to one of the persons listed above. [ Formerly Statement on withholding in support order. Any child support order is- sued or modified after October 1, 1989, shall include a statement in substantially the following form: NOTICE OF INCOME WITHHOLDING The support order is enforceable by income withholding under ORS Withholding may occur immediately, whenever there are arrearages at least equal to the support payment for one month, whenever the obligated parent requests such withholding or whenever the obligee requests withholding for good cause. The district attorney or, as appropriate, the Support Enforcement Division of the Department of Justice will assist in securing such withholding.

28 PROCEDURE IN CIVIL PROCEEDINGS 1985 c.671 8; 1989 c INTERSTATE INCOME WITHHOLDING Definitions for ORS to As used in ORS to : 1) " Agency" means the Department of Human Resources and, when the context requires, means either the court or agency of any other jurisdiction with functions similar to those provided in ORS to , including the issuance and enforcement of support orders. 2) " Court" means the circuit court of this state and, when the context requires, means either the court or agency of any other jurisdiction with functions similar to those provided in ORS to , including the issuance and enforcement of support orders. 3) " Employer" has the meaning given in ORS and includes any payer of in- come. 4) " Income" means " earnings" as defined in ORS ) " Income derived in this jurisdiction" means any income, the payer of which is subject to the jurisdiction of this state for the purpose of imposing and enforcing income withholding under ORS ) " Jurisdiction" means any state or political subdivision, territory or possession of the United States, the District of Columbia or the Commonwealth of Puerto Rico. 7) ", Obligee" means any person or entity which is entitled to receive support under an order of support and shall include an agency of another jurisdiction to which a person has assigned the right to support. 8) " Obligor" means any person required to make payments under the terms of a sup- port order for a child, spouse or former spouse. 9) " Support order" means any order, decree or judgment for the support or for the payment of arrearages on such support of a child, spouse or former spouse issued by a court or agency of another jurisdiction, whether interlocutory or final, whether or not prospectively or retroactively modifiable, whether incidental to a proceeding for dis- solution, judicial or legal separation, sepa- rate maintenance, paternity, guardianship, civil protection or otherwise. [ 1985 c a] Construction of ORS to ORS to shall be construed liberally in order to enhance the interstate enforcement of support obligations by providing a quick and effective procedure for withholding income derived in this jurisdiction to enforce support orders of other jurisdictions and by requiring that income withholding to enforce the support orders of this jurisdiction be sought in other jurisdictions. [ 1985 c Status of remedy under ORS to ( 1) The remedy provided in ORS to is in addition to, and not in substitution for, any other remedy otherwise available to enforce a support order of another jurisdiction. 2) Relief under ORS to shall not be denied, delayed or otherwise affected because of the availability of other remedies, nor shall relief, under, any other statute be delayed or denied because of the availability of this remedy. [ 1985 c b] Withholding in another juris- diction; notice of contest. ( 1) On behalf of any person for whom the support enforce- ment services are being provided, or on be- half of the Department of Human Resources, the district attorney or Support Enforcement Division of the Department of Justice shall promptly request the agency of another jurisdiction in which the obligor of a support order derives income to enter the order for the purpose of obtaining income withholding against such income. The district attorney or Support Enforcement Division shall compile and transmit promptly to the agency of the other jurisdiction all documentation required to enter a support order for this purpose. The district attorney or Support Enforcement Division also shall transmit immediately to the agency of the other jurisdiction a certified copy of any subsequent modifications of the support order. 2) If the district attorney or Support Enforcement Division receives notice that the obligor is contesting income withholding in another jurisdiction, the individual obligee shall be notified immediately of the date, time and place of the hearings and of the obligee' s right to attend. [ 1985 c Withholdingg on suppport order from another jurisdiction; documentation. ( 1) Upon receiving a support order of another jurisdiction with the documentation specified in subsection ( 2) of this section from an agency of another jurisdiction, the Department of Human Resources shall forward those documents to the district attorney or Support Enforcement Division of the Department of Justice. The district attorney or Support Enforcement Division shall file these documents with the clerk of the court in which withholding is being sought. The clerk shall accept and file the documents without requiring payment of fees, and such acceptance shall constitute entry of the sup-

29 SUPPORT ENFORCEMENT port order and arrearages under ORS , , , , , to , , to , , , to , , , , , , to , , , to , to , and ) The following documents are required for the entry of a support order of another jurisdiction: a) A certified copy of the support order with all modifications; b) A certified copy of an income withholding order or notice, if any, still in effect; c) A copy of the portion of the income withholding statutd of the ]' urisdiction which issued the support order which states the re- quirements for obtaining income withholding under the law of that jurisdiction; d) A sworn statement of the obligee or certified statement of the agency of the arrearages and the assignment of support rights, if any; and e) A statement of. A) The name, address and Social Secu- rity number of the obligor, if known; B) The name and address of the obligor' s employer or of any other source of income of the obligor derived in this state against which income withholding is sought; and C) The name and address of the agency or person to whom support payments col- lected by income withholding shall be trans- mitted. 3) If the documentation received by the district attorney or Support Enforcement Di- vision under subsection ( 1) of this section does not conform to the requirements of subsection ( 2) of this section, the district attorney or Support Enforcement Division shall make reasonable effort to remedy any defect without the assistance of the requesting agency. If the district attorney or Support Enforcement Division is unable to make such corrections, the requesting agency shall be notified immediately of the necessary additions or corrections. In neither case shall the documents be returned. The district attorney or Support Enforcement Division and court shall accept the documents required by subsections ( 1) and ( 2) of this section even if they are not in the usual form required by state or local rules, if the substantive requirements of subsections ( 1) and ( 2) of this section are met. 4) A support order and arrearages entered under subsection ( 1) of this section shall be enforceable by income withholding against income derived in this state in the manner and with the effect as set forth in ORS and to and by col- lection of income tax and homeowner and renter refunds under ORS Entry of the order and arrearages under subsection ( 1) of this section shall not confer jurisdiction on the courts of this state for any purpose other than income withholding. [ 1985 an 15; 1989 c.520 1] Service of notice on obligor; notice of hearing. (1) When a support order and arrearages are entered pursuant to ORS , the district attorney or Support En- forcement Division of the Department of Justice shall serve upon the obligor, in accordance with ORS , notice of a pro- posed income withholding. That notice shall contain the same information required in ORS The notice shall also advise the obligor that the income withholding was requested on the basis of a support order of another jurisdiction. The date of serving notice on the obligor shall be the equivalent of the date the advance notice was issued under ORS ( 2) for the purpose of measuring time for holding a hearing and rendering a decision. 2) If the obligor seeks a hearing under ORS ( 8) to contest the proposed income withholding, the district attorney or Support Enforcement Division shall immediately notify the requesting agency of the date, time and place of the hearing and of the obli ee' s right to attend the hearing c.671, 16] Evidentiary status of order from another jurisdiction; defenses of obligor; other evidence. ( 1) At any hearing under ORS concerning proposed income withholding where the withholding is based on a support order and arrearage entered under ORS , the entered order, accompanying sworn or certified statement and a certified copy of an income withholding order or notice, if any, still in effect shall constitute prima facie proof, without further proof or foundation, that the support order is valid, that the amount of current support payments and arrearages is as stated, and that the obligee would be entitled to income withholding under the law of the jurisdiction which issued the support order. 2) When a prima facie case has been established, the obligor may raise only the following additional defenses: a) That withholding is not proper because of a mistake of fact concerning matters which are not res judicata, such as an error in the amount of current support owed or accrued arrearage, mistaken identity of the obligor or error in the amount of income to be withheld; b) That the court or agency which issued the support order entered under ORS

30 PROCEDURE IN CIVIL PROCEEDINGS to lacked personal jurisdiction over the obligor; c) That the support order entered under ORS to was obtained by fraud; or d) That the statute of limitations under ORS ( 3) precludes enforcement of all or part of the arrearages. 3) If the obligor presents evidence which constitutes a full or partial defense, the district attorney r Support Enforcement Divi- sion of the Department of Justice shall, on the request of the obligee, continue the case to permit further evidence relative to the defense to be adduced by either party, pro- vided, however, that if the obligor acknowledges liability sufficient to entitle the obligee to income withholding, income withholding is required for the payment of current sup- port payments under the support order and of so much of any arrearage as is not in dispute, while the case is continued with respect to those matters still in dispute. Those matters still in dispute are to be determined as soon as possible, and if appropriate, the withholding order shall be modified to conform to that resolution. 4) In addition to other procedural devices available to a party, any party to the proceeding or a guardian ad litem or other representative of the child may adduce testimony of witnesses in another state, including the parties and any of the children, by deppo- sition, by written discovery, by photographic discovery such as videotaped depositions or by personal appearance before the court by telephone or photographic means. In any ap- peal pursuant to ORS ( 8), the court on its own motion may direct that the testimony of a person be taken in another state and may prescribe the manner in which and the terms upon which the testimony shall be taken. 5) In any appeal pursuant to ORS ), a court of this state may request the appropriate court or agency of another state to hold a hearing to adduce evidence, to permit a deposition to be taken before the court or agency, to order a party to produce or give evidence under other procedures of that state and to forward to the court of this state certified copies of the evidence adduced in compliance with the request. 6) In any appeal pursuant to ORS ), upon request of a court or agency of another state, the courts of this state which are competent to hear support matters may order a person in this state to appear at a hearing or deposition before the court to adduce evidence or to produce or give evidence under other procedures available in this state. A certified copy of the evidence adduced, such as a transcript or videotape, shall be forwarded by the clerk of the court to the requesting court or agency. 7) A person within this state may testify voluntarily by statement or affidavit in this state for use in a proceeding to obtain income withholding outside this state. [ 19&5 c Income withholding notice to obligor, employer and requesting agency. If the obligor does not request a hearing pursuant to ORS in the time provided, or if a hearing is held and it is determined that the obligee has or is entitled to income withholding under the local law of the juris- diction which issued the support order, the Department of Human Resources shall issue an income withholding notice to the obligor and employer pursuant to ORS ( 7) and 10). The district attorney or Support En- forcement Division of the Department of Justice shall notify the requesting agency of the date upon which withholding will begin c ] Application of ORS to order from other jurisdiction. The provisions of ORS ( 3) to ( 14) apply to in- come withholding based on a support order of another jurisdiction entered under ORS to , to the extent they are not inconsistent with ORS to [ 1985 c transmittal of payment; effect on order in this jurisdiction. ( 1) The in- come withholding notice issued pursuant to ORS shall direct payment to be made to the Department of Human Resources. The department shall promptly transmit payments received pursuant to an income withholding notice based on a support order of another jurisdiction entered under ORS to to the agency or person designated in ORS ( 2)( e)( C). 2) A support order entered pursuant to ORS does not nullify and is not nullified by a support order made by a court of this state pursuant to any other law or by a support order made by a court of any other state. Amounts collected by any withholding of income shall be credited against the amounts accruing or accrued for any period under any support orders issued by any ju risdiction. [ 1985 c Procedure if order modified; duty if obligor obtains employment or income in another state. ( 1) The district attorney or Support Enforcement Division of the Department of Justice, upon receiving a certified copy of any amendment or modification to a support order entered pursuant to ORS , shall initiate necessary procedures to amend or modify the income

31 SUPPORT ENFORCEMENT withholding notice of this state which was entered pursuant to ORS and was based upon the entered support order as though it were an order of this state. 2) If the district attorney or Support Enforcement Division determines that the obligor has obtained employment in another state or has a new or additional source of income in another state, then the district at- torney or Support Enforcement Division shall the agency of the state which requested the income withholding under ORS to the changes within 10 work- ing days of receiving that information and shall forward to that agency all information obtained or obtainable with respect to the obligor' s new address and the name and address of the obligor' s new employer or other source of income. The district attorney or Support Enforcement Division shall include with the notice a certified copy of the income withholding notice in effect in this state. [ 1985 c An Voluntary income withholding. person who is the obligor on a support or er of another jurisdiction may obtain voluntary income withholding by filing with the court a request for such withholding and a certified copy of the support order of another jurisdiction. The Department of Human Resources shall issue an income withholding notice under ORS Payment shall be made to the department. All protections, conditions and penalties set out in ORS apply to withholding pursuant to this section. [ 1985 c Law applicable to income withholding based on order from other jurisdiction. ( 1) The law of this state shall apply in all actions and proceedings concerningg the issuance, enforcement and duration of income withholding notice issued by the Department of Human Resources, which is based upon a support order of another jurisdiction entered pursuant to ORS , except as provided in subsections ( 2) and ( 3) of this section. 2) The law of the jurisdiction which issued the support order shall govern the following: a) The interpretation of the support order entered under ORS , including amount, form of payment and the duration of support; b) The amount of support arrearages necessary to require the issuance of an income withholding notice; and c) The definition of what costs, in addition to the periodic support obligation, are included as arrearages which are enforceable by income withholding, including, but not limited to, interest, attorney fees, court costs and costs of paternity testing. 3) The Department of Human Resources. shall upon request apply the statute of limitations for maintaining an action on arrearages of support payments of either the law of this state or of the state which issued the support order entered under this section and ORS to , whichever is longer. [ 1985 c STATE TAX INTERCEPT Procedure to collect support orders from tax refunds; voluntary withholding. ( 1) Whenever support enforcement services are being provided and those ser- vices are funded in part through Title IV -D of the Social Security Act (42 U.S.C. 651, et seq.), the district attorney or the Support Enforcement Division of the Department of Justice, whichever is appropriate, may re- quest the Department of Revenue, through the Department of Human Resources or its designee, to collect past due child and spousal support from income tax and homeowner or renter refunds due to the obligor. Such request shall be based upon the pay- ment record maintained pursuant to ORS ) If support payment records have not been maintained as provided in ORS , then such a payment record may be established pursuant to ORS and ) The Department of Human Resources may adopt rules setting out additional criteria for requests pursuant to subsection ( 1) of this section. 4) In cases where support rights are assigned to the State of Oregon or its departments or divisions at the time the refund is intercepted, any support collection made by the Department of Revenue shall be applied first to reimburse the state and Federal Government for assistance granted or paid to or on behalf of an obligee. 5) In those cases under this section where an obligee is not a recipient of public assistance, care, support or services at the time a tax intercept is made, and is receiving support enforcement services, any support collection made by the Department o Revenue shall be distributed to the obligee in the same manner as regular arrearage collections are distributed to the obligee ) The obligor must be sent a written notice of the intent to apply the refund to the obligors support obligation. The notice shall inform the obligor of a) The proposed action; b) The right to request a hearing to contest the proposed action; and

32 PROCEDURE IN CIVIL PROCEEDINGS c) That a hearing, if desired, must be requested within 30 days. 7) Hearings must be requested within 30 days. At the hearing, no issue may be considered if it was previously litigated or if the obligor failed to exercise rights to appear and. be heard or to appeal a decision which resulted in the accrual of the arrearage being used as a basis for a request under this section. 8) When the Department of Revenue has been requested to collect past due child and spousal support from income tax and homeowner' or renter refunds due to the obligor, the Department of Revenue shall not allow the obligor to apply any income tax refund to future taxes of the obligor. 9) Notwithstanding any other provision of this section, an obligor who is not delinquent in payment of child or spousal support may authorize the Department of Revenue, through the Department of Human Resources or its designee, to withhold any income tax and homeowner and renter refund owing to that obligor for the purpose of applying the moneys as a credit to the support account maintained by the Department of Human Resources. [ , 28; 1989 x519 6; 1991 c Procedures to collect past due support from tax refunds. ( 1) The Department of Revenue shall establish procedures consistent with ORS to collect past due child and spousal support from income tax and homeowner or renter refunds due to the obligor in the same manner that other delinquent accounts are collected under ORS ) The Department of Revenue shall establish procedures to insure that when an obligor has filed a joint income tax return, the obligor' s spouse may apply for a share of the refund, if any. 3) No collection shall be made by the Department of Revenue unless the debt is in a liquidated amount. 4) Notwithstanding the provisions of ORS , the Department of Revenue shall designate a single fee to retain from moneys collected for child support as a rea- sonable fee to cover only the actual cost. 5) The Department of Revenue shall forward the net proceeds of collections made under subsection ( 1) of this section to the Department of Human Resources. Such proceeds shall be applied pursuant to OR ( 4) and other applicable federal and state laws. 6) Notwithstanding any other law relating to the confidentiality of tax records, the Department of Revenue shall send the De- partment of Human Resources.. the obligor' s home address and Social Security number or numbers on each case submitted for collection pursuant to ORS [ 1985 c CONSUMER REPORTING AGENCIES Information on overdue support to consumer reporting agencies. ( 1) Not -' withstanding any other law, and subject to rules established by the Department of Hu- man Resources, for cases in which there is overdue upport, the department may make available to consumer reporting agencies upon their request information regarding the amount of overdue support owed by an absent parent. The department may charge the agency a fee not to exceed the actual cost to the state of providing this information. 2) The department must provide advance notice to the absent parent who owes the soport concerning the proposed release of rmation to the consumer reporting agency. The notice must inform the absent parent of the methods available for contesting the accuracy of the information. 3) As used in subsections ( 1) and ( 2) of this section, unless the context requires oth- erwise, " consumer reporting -agency" means any person which, for monetary fees, dues or on a cooperative nonprofit basis, regularly engages in whole or in part,in the practice of assembling or evaluating consumer credit information or other information on consum- ers for the purpose of furnishing consumer reports to third parties, and which uses any means or facility of interstate commerce for the purpose of preparing or. furnishing consumer reports. [ 1985 c , 461 LIENS ON PERSONAL PROPERTY Judgment lien on ' personal property. (1) Whenever there is a judgment for unpaid child or spousal support of at least $ 500, the district attorney or the Sup- port Enforcement Division of the Department of Justice may cause alien to be created on any personal property owned by. the obligor. The lien is created by filing a written notice of claim of lien with the county clerk of the, county in which the obligor resides or the property is located. 2) The notice of claim of lien required under subsection ( 1) of this section shall be a written statement and must include: a) A statement of the total amount due, as of the date of the filing of the notice of claim of lien; b) The name and address of the obligor; c) The name and address of the office of the district attorney or Support Enforcement

33 SUPPORT ENFORCEMENT Division filing the notice and the name of the obligee; d) A statement identifying the county where the underlying support order was entered and its case number; and e) A description of the personal property to be charged with the lien sufficient for identification. 3) The county clerk shall record the notice of claim of lien filed under subsection ( 1) of this section. 4) A written notice of claim of lien filed under this section is effective for a period,of five years from the date of filing. - 5) When a notice of claim of lien is filed pursuant to subsection ( 1) of this section, the district attorney or Support Enforcement Division, as appropriate, shall send forthwith a copy of the notice to the owner of the personal property to be charged with the lien by registered or certified mail sent to the owner' s last -known address. [ 1985 c Effect of lien; priority. ( 1) Whenever a notice of claim of lien has been filed, the owner of the personal property may not release, sell, transfer, pay over, encumber or convey the personal pro erty which is the subject of the lien until the district attorney or Support Enforcement Division of the Department of Justice releases the lien, the lien has been satisfied or a court has ordered release of such lien on the basis that no debt exists or that the debt has been satisfied. The limitations of this subsection shall not apply to transfers or conveyances of the property by the owner to the holder of a security interest that was in existence at the time the notice of claim of lien was filed. 2) The rights of bona fide purchasers for value or pefsons with a security interest in the personal property are not affected by the creation or the existence of the lien. 3) Liens filed under ORS do not have priority over previously perfected security interests. [ 1985 c Foreclosure of lien. A lien cre- ated pursuant to ORS may be fore- closed in the manner set out in ORS ' c AUSCELLANEOUS Duty of district attorney. ( 1) Notwithstanding ORS , the district attorney, except as provided in subsection ( 2) of this section, shall continue to enforce support enforcement cases until the Department of Human Resources otherwise directs if. a) The case was being enforced by the district attorney on October 1, 1985; and b) The case involves any arrearages assigned to any government agency. 2) This section does not apply where the obligor or beneficiary of the support decree or order is receiving any of the following: a) General or public assistance as defined in ORS ; or b) Care, support or services under ORS [ 1985 c a] When support assignable. ( 1) Except as provided in ORS , , , and subsection ( 2) of this section, the right to receive child or spousal support payments under ORS chapters 107, , 110, 416 and 419 is not assignable, ana any transaction in violation of this section is void. 2) Notwithstanding the provisions of of this section, the right to receive support payments is assignable as subsection ( 1) may be appropriate for the protection of a minor or other person under ORS chapters 126 and ) No person shall solicit or accept the assignment of support rights under subsection ( 1) of this section. ( 1985 c ( 1),( 2),01 PENALTIES Penalties. ( 1) Violation of ORS ( 3) is subject, upon conviction, to a fine not to exce $ 1, ) Violation of subsection ( 1) of this section is punishable, upon conviction, by a fine of not more than $ 1, 000 or by imprisonment in the county jail for not more than 60 days, or by both. [ 1985 c (4); 1989 c.812 3(2)] 2-127

34 PROCEDURE IN CIVEL PROCEEDINGS 2-128

35 Chapter EDITION Judgments and Decrees by Confession [ Repealed by 1981 c [ Repealed by 1981 c [ Amended by 1961 c ; repealed by 2& 120 [ Repealed by 1981 c c ] [ Repealed by 1981 c [ Repealed by 1981 c [ Repealed by 1981 c

36 REMEDIES AND SPECIAL ACTIONS AND PROCEEDINGS 2-130

37 Chapter EDITION Submitting Controversy Without Action or Suit Note: , and repealed by 1981 c

38 REMEDIES AND SPECIAL ACTIONS AND PROCEEDINGS 2-132

39 TITLE 3 REMEDIES AND SPECIAL ACTIONS AND PROCEEDINGS Chapter 28. Declaratory Judgments; Certification of Questions of Law 29. Provisional Process; Attachment and Garnishment 30. Actions and Suits in Particular Cases 33. Special Proceedings 34. Writs 35. Eminent Domain Procedure 36. Mediation and Arbitration Declaratory Judgments; DECLARATORY JUDGMENTS Power of courts; form of declaration Declarations as to writings and laws Construction of contract before or after breach Declaratory judgments on trusts or estates Enumeration not exclusive Discretion of court to refuse judgment or decree Appeal or review Supplemental relief Trial of issues of fact Costs Parties; service on Attorney General when constitutional question involved Construction and administration " Person" defined Provisions severable Uniformity of interpretation Short title Chapter EDITION Certification of Questions of Law CERTIFICATION QUESTIONS OF LAW Supreme Court authorized to answer questions of law certified by federal courts Procedure to invoke ORS to Certification order Form of certification order; submission of record Fees; apportionment between parties Procedure in certification matters 262;10 Opinion on certified question Certification to another state 2& W Procedure for certification to another state Severability Construction Short title CROSS REFERENCES Declaratory judgment on right to review public records, to Declaratory judgment on validity of state agency rule,

40 SPECIAL ACTIONS AND PROCEEDINGS 3-2

41 DECLARATORY JUDGMENTS; QUESTIONS OF LAW DECLARATORY JUDGMENTS Power of courts; form of declaration. Courts of record within their respective jurisdictions shall have power to declare rights, status, and other legal relations, whether or not further relief is or could be claimed. No action or proceeding shall be open to objection on the ground that a declaratory judgment or decree is prayed for. The declaration may be either affirmative or negative in form and effect, and such declarations shall have the force and effect of a final judgment or decree Declarations as to writings and laws. Any person interested under a deed, will, written contract or other writing constituting a contract, or whose nghts, status or other legal relations are affected by a constitution, statute, municipal charter, or- dinance, contract or franchise may have determined any question of construction or validity arising under any such instrument, constitution, statute, municipal charter, or- dinance, contract or franchise and obtain a declaration of rights, status or other legal relations thereunder Construction of contract before or after breach. A contract may be construed either before or after there has been a breach thereof Declaratory judgments on trusts or estates. Any person interested as or through an executor, administrator, trus- tee, guardian or other fiduciary, creditor, devisee, legatee, heir, next of kin, or cestui que trust, in the administration of a trust, or of the estate of a decedent, ward or insol- vent, may have a declaration of rights or le- gal relations in respect thereto: 1) To ascertain any class of creditors, devisees, legatees, heirs, next of kin or other; or 2) To direct the executors, administrators, trustees, guardians or conservators to do or abstain from doing any particular act in their fiduciary capacity; or 3) To determine any question arising in the administration of the estate or trust, in- cluding questions of construction of wills and other writings. [ Amended by 1961 x Enumeration not exclusive. The enumeration in ORS to does not limit or restrict the exercise of the general powers conferred in ORS , in any proceedings where declaratory relief is sought, in which a judgment or decree will terminate the controversy or remove an uncertainty Discretion of court to refuse judgment or decree. The court may refuse to render or enter a declaratory judgment or decree where such judgment or decree, if rendered or entered, would not terminate the uncertainty or controversy giving rise to the proceeding Appeal or review. All orders, judgments and decrees under this chapter may be appealed from or reviewed as other orders, judgments and decrees Supplemental relief. Further re- lief based on a declaratory judgment or decree may be granted whenever necessary or proper. The application thereof shall be by petition to a court having jurisdiction to grant the relief. If the application be deemed sufficient, the court shall, on reasonable notice, require any adverse party whose rights have been adjudicated by the declaratory judgment or decree, to show cause why further relief should not be granted forthwith Trial of issues of fact. When a proceeding under this chapter involves the determination of an issue of fact, such issue may be tried and determined in the same manner as issues of fact are tried and determined in other actions at law or suits in equity court in which the proceeding is Costs. In any proceeding under I chapter the court may make such award of costs as may seem equitable and just Parties; service on Attorney General when constitutional question involved. When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not par- t' -s to the proceeding. In any proceedingg which involves the validity of a municipal charter, ordinance or franchise, the municipality affected shall be made a party, and shall be entitled to be heard, and if the constitution, statute, charter, ordinance or franchise is alleged to be unconstitutional, the Attorney General of the state shall also be served with a copy of the proceeding and be entitled to be heard Construction and administration. This chapter is declared to be remedial; its purpose is to settle and to afford relief from uncertainty and insecurity with respect to rights, status and other legal relations, and is to be liberally construed and administered " Person" defined. The word person," wherever used in this chapter, shall be construed to mean any person, partnership, joint stock company, unincorporated association or society, or municipal or other corporation of any character whatsoever Provisions severable. The several sections and provisions of this chapter, 3-3

42 SPECIAL ACTIONS AND PROCEEDINGS except ORS and , are hereby declared independent and severable, and the invalidity, if any, of any part or feature thereof shall not affect or render the remainder of the chapter invalid or inoperative Uniformity of interpretation. This chapter shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of those states which enact it, and to harmonize, as far as possible, with federal laws and regulations on the subject of declaratory judgments and decrees Short title. This chapter may be cited as the " Uniform Declaratory Judgments Act." CERTIFICATION OF QUESTIONS OF LAW Supreme Court authorized to answer questions of law certified by federal courts. The Supreme Court may answer questions of law certified to it by the Supreme Court of the United States, a Court of Appeals of the United States, a United States District Court or the highest appellate court or the intermediate appellate court of any other state, when requested by the certifying court if there are involved in any proceedings before it questions of law of this state which may be determinative of the cause then pending in the certifying court and as to which it appears to the certifying court there is no controlling precedent in the decisions of the Supreme Court and the intermediate appellate courts of this state c Note: to were enacted into law by the Legislative Assembly but were not added to or made a part of ORS chapter 28 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation Procedure to invoke ORS to ORS to may be invoked by an order of any of the courts referred to in ORS upon the court' s own motion or upon the motion of any party to the cause. [ 1983 c. lo3 21 Note: See note under Certification order. A certification order shall set forth: and 1) The questions of law to be answered; 2) A statement of all facts relevant to the questions certified and showing fully the nature of the controversy in which the questions arose. [ 1983 c Note: See note under Form of certification order; submission of record. The certification or- der shall be prepared by the certifying court, signed by the judge presiding at the hearing, and forwarded to the Supreme Court by the clerk of the certifying court under its official seal. The Supreme Court may require the original or copies of all or of any portion of the record before the certifying court to be filed with the certification order, if, in. the opinion of the Supreme Court, the record or portion thereof may be necessary in answering the questions. [ 1983 c Note: See note under Fees; apportionment between parties. Fees and costs shall be the same as in civil appeals docketed before the Supreme Court and shall be equally divided between the parties unless otherwise ordered by the certifying court in its order of certification c Note: See note under Procedure in certification matters. Proceedings in the Supreme Court shall be those provided in rules of appellate procedure and statutes governing briefs and arguments. [ 1983 c Note: See note under Opinion on certified question. The written opinion of the Supreme Court stating the law governing the questions certified shall be sent by the clerk under the seal of the Supreme Court to the certifying court and to the parties. [ 1983 c Note: See note under Certification to another state. The Supreme Court or the Court of Appeals of this state, on their own motion or the motion of any arty, may order certification of questions of law to the highest court of any state when it appears to the certifying court that there are involved in any proceeding before the court questions of law of the receiving state which mayy be determinative of the cause then pending n the certifying court and it appears to the certifying court that there are no controlling precedents in the decisions of the highest court or intermediate appellate courts of the 3-4 receiving state. [ 1983 c Note: See note under Procedure for certification to another state. The procedures for certif- ication from this state to the receiving state shall be those provided in the laws of the receiving state. [ 1983 c Note: See note under Severability. If any provision of ORS to or the application thereof to any person, court, or circumstance is held invalid the invalidity does not affect other provisions or applications of ORS to which can be given effect

43 DECLARATORY JUDGMENTS; QUESTIONS OF LAW without the invalid provision or appplication and to this end the provisions of O'M to are severable. [ 1983 cam 10] Note: See note under Construction. ORS to shall be so construed as to effectuate its general purpose to make uniform the law of those states which enact it. [ 1983 c Note: See note under Short title. ORS to may be cited as the Uniform Certification of Questions of Law Act. [ 1983 c Note: See note under

44 SPECIAL ACTIONS AND PROCEEDINGS m 3-6

45 Chapter EDITION Provisional Process; Attachment and Garnishment pd )k) kp PROVISIONAL PROCESS Concealed property ATTACHMENT Notice of attachment to defendant; content; method of delivery*, plaintiff to provide address; sheriffs duty if address not known GARNISHMENT Definitions for ORS to and to Garnishment described Persons by and for whom writs are issued Writs issued by court clerks; procedure; payments; release of property Writs issued by attorneys; procedure; payments; release of property Claims of exemption; procedure Form for writ issued by court clerk Form for writ issued by attorney Garnishment of property of defendant held by another person Delivery of writ; insurance of deliverer-, fee Person to whom writ to be delivered Duty of garnishee Effect of delivery of writ on property of defendant; safety deposit boxes; property to which garnishment does not apply-, set off Copy to defendant; method of delivery; duty of plaintiff; civil penalty Form of notice of exemptions Certificate of garnishee; delivery of certificate Recei t of certificate of garnishee by sheriff; duties Procedure when property owned by de fendant and others Duty of garnishee when court directs or release is delivered; effect of due date of debt or sale of defendant' s interest; effect on personal representative; payment of exempt wages Disposition of property delivered to court clerk or sheriff, payment of expenses; claim of exemption Liability of garnishee who fails to file certificate or deliver property; discharge of liability When garnishee punishable for contempt Effect of order under ORS 292M Restraining garnishee from disposing or injuring property of defendant Appearance under order Answer of garnishee; effect of failure to answer Insufficient answer; amendment; plaintiffs response Witnesses; trial of issues as issues of law When judgment given against garnishee; amount 293M Execution and writ against garnishee; when execution to issue Procedure for writs issued by agency to enforce civil penalty orders; modification of forms; claims of exemption Release; effect Recovery of certain costs relating to enforcement of judgments and collection of taxes Authority of county to issue continuing writ of garnishment; duration; certificate of garnishee Authority of state agency to garnish property by warrant and notice; procedure Financial institution as garnishee; search fee Severability 29A01 29A05 29A11 29A15 WRIT OF CONTINUING GARNISHMENT Attachment of: Who may obtain writ; duration Multiple writs; priority Form of writ issued by clerk of court Form of writ issued by attorney CROSS REFERENCES Human remains prohibited, Investment securities, Proceeds of casualty and indemnity insurance, Property of insolvent institution, possession by director as bar, Wages, , Attachment of insurer prior to and during liquidation proceedings prohibited, Deposit in lieu of bond, to District court, attachment, Enforcement of duties relating to judicial administration, Justice' s court, attachment, Priority of attachment of a vessel, Property in custody of the law, no garnishment, Public officers as garnishees, Redelivery of attached vessel, Tax on personal property, attachment in action to collect, Unclaimed property held for owner, to Undertaking may be executed by surety company, Vessel, attachment for damage to person or property,

46 v SPECIAL ACTIONS AND PROCEEDINGS 3-8

47 ATTACHMENT & GARNISHMENT [ Repealed by 1981 c [ Repealed by 1981 c PROVISIONAL PROCESS [ l; repealed by 1981 c [ 1973 c.741 2; repealed by 1981 c [ 1973 c.741 3; 1979 c ; repealed by 1981 c [ ; repealed by 1981 c [ ; repealed by 1979 c [ ; repealed by 1981 c [ ; repealed by 1981 x [ ; repealed by 1981 c [ ; repealed by 1981 c [ ; repealed by 1981 c [ ; repealed by 1981 c [ ; repealed by 1981 c [ Formerly ; repealed by 1981 c [ Formerly ; repealed by 1981 c Concealed property. When a sheriff is required to take possession of per- sonal property under an order of provisional process that is claim and delivery under ORCP 85, and the property or any part thereof is concealed in a building or enclosure, the sheriff shall publicly demand its delivery. If it is not delivered, the sheriff shall cause the building or enclosure to be broken open, and take the property into pos- session. [ Formerly ; 1981 c [ Formerly ; repealed by 1981 c [ Formerly ; repealed by 1981 c [ Repealed by 1981 c ATTACHMENT Notice of attachment to defendant; content; method of delivery; plaintiff to provide address; sheriffs duty if address not known. ( 1) Following attachment by the sheriff pursuant to ORCP 84, the sheriff shall promptly mail or deliver the following to the defendant who is not a corporation at the last -known address of the defendant: a) A copy of the writ; b) A copy of the claim of lien filed pursuant to ORCP 84 C., if any; and c) The notice of exemptions and claim form described in ORS ) The sheriff may meet the requirements of subsection ( 1) of this section by mailing the documents to the last -known address of the defendant as provided by the plaintiff The she may withhold execution of the writ until the plaintiff either provides such address or a statement that the plaintiff has no knowledge of the defendant' s address. The sheriff shall have no duty under this section if the plaintiff provides a statement that the plaintiff has no knowledge of the defendants address. [ Formerly GARNISHMENT Definitions for ORS to and to As used in ORS to and to : 1) " Defendant" means a person whose piroperty is being garnished by a plaintiff and includes a judgment debtor after entry of judgment. 2) " Garnishee" means a person other than a plaintiff or a defendant who is in possession of property of a defendant and who has been garnished in accordance with the provisions of ORS to and to ) " Judgment" includes the support arrearagges as shown on the support records of the Department of Human Resources pursuant to ORS and , even though such records may not constitute a full record of the support arrearages owed. 4) " Person" includes individuals, part- nerships and corporations. 5) " Plaintiff means a person who is garnishing property of a defendant and includes a judgment creditor after entry of judgment. 6) " Sheriff" includes constables and their deputies. 7) " Stock" includes rights or shares in an association or corporation with interest and profits thereon. 8) " Writ of garnishment" includes writs issued under ORS to and to [ 1981 c.883 2; ; 1989 c [ Repealed by 1981 c Garnishment described. Garnishment is the procedure by which a plaintiff on whose behalf a writ of garnishment has been issued against a defendant reaches tangible or intangible per- sonal property of the defendant in the possession, control or custody of or debts or other monetary obligations owing by a third person. [ 1981 c Persons by and for whom writs are issued. This section establishes by whom and for whom writs of garnishment are issued. Such writs may be issued only by and for the following described persons: 1) The clerk of the court shall issue one or more writs of garnishment upon proper application and payment of the appropriate fee. Issuance under this subsection shall be by the clerk of the court for the county in which a judgment was originally entered or, if a judgment is from another urisdiction and is registered in this state, the clerk of the court for the county in which the judg-

48 SPECIAL ACTIONS AND PROCEEDINGS ment was first filed in this state. The- provisions of ORS apply to writs issued by a clerk under this subsection. Clerks will issue writs only for the following persons under this subsection: a) A person who complies with the regguirements of ORCP 82 A.(3), ( 5) and ( 6), 82 B: to G., 83 and 84. b) A person on whose behalf a judgment requiring the payment of money has been entered in the register of actions. 2) An attorney who is an active member of the Oregon State Bar may issue one or more writs of garnishment. The provisions of ORS apply to writs issued by attor- neys. Attorneys will issue writs under this subsection only for: a) A person on whose behalf a judgment requiring the payment of money as been entered in the register of actions of a court of this state; or b) An agency that has recorded a civil penalty order in the County Clerk Lien Record pursuant to ORS ( b). 3) Writs of garnishments for an agency under paragrapph ( b) of subsection ( 2) of this section shall be issued in the manner provided by ORS [ ; a] Writs issued by court clerks; procedure; payments; release of property. This section establishes provisions that apply to writs of garnishment issued by court clerks under ORS The following apply as described: 1) All the following apply to the issu- ance of the writ: a) The form of the writ shall be substantially as provided in ORS Notation on the writ of additional information for purposes of identifying the defendant or the property garnished shall not affect the validity or scope of the writ. The clerk shall refuse to issue any of the following: A) A writ that does not substantially comply with ORS and with this section. B) Any writ that is incomplete or contains improper instructions. Grounds for the clerk' s refusal to issue a writ of garnishment under this subparagraph include, but are not limited to, any of the following: i) The clerk' s inability to verify the existence of the action or judgment purported to be the basis for the writ. ii) The clerk's determination that such judgment is satisfied. b) The clerk is not responsible for verifying the amounts set forth on a writ issued by the clerk and is not liable for errors in the writ made by the plaintiff. The plaintiff shall be liable for any errors, in the writ made by the plaintiff or- for failure to complete the writ. c) Every writ issued by the clerk must be signed by the plaintiff or the plaintiffs agent or attorney. The signature constitutes a certificate by the person under ORCP 17 and is subject to the sanctions relating to such certification. d) The clerk shall in no way fill in or complete the writ other than to issue the writ or to certify copies of the writ. The plaintiff or the p aintiffs agent or attorney must complete the writ form and supply the necessary copies. e) Every writ issued by the clerk must include or have attached a notice informing the defendant that the clerk has not verified the figures in the writ. f) Upon receipt of a writ that complies with the requirements of this. section, the clerk shall promptly issue the writ. g) If the writ does not indicate that the writ is issued to enforce a udgment for the payment of money, the clerk shall attach to the writ and all copies of the writ a notice directing the garnishee as follows: A) If the garnishee owes a debt or other obligation to the debtor that is then due, the garnishee must deliver its certificate, together with any funds garnished by the writ,, to the court. B) If the garnishee owes a debt or other obligation to the debtor that is not then due but will become due within 45 days after the garnishee receives the writ, the garnishee must deliver its certificate to the court, and, unless otherwise directed by the court, the garnishee must pay any funds garnished to the court when the debt or other obligation becomes due. C) If the garnishee owes a debt or other obligation to the debtor which is not then due and which will not become due within 45 days or holds other personal property of the debtor, the garnishee must deliver its certificate to the sheriff and to the court and must comply with any further directions the garnishee receives from the court or the 3-10 sheriff. 2) A writ of garnishment shall be valid for 60 days after the date of issuance by the clerk. 3) All the following apply to payments made under the writ: a) Unless otherwise directed by the clerk, a garnishee shall deliver property under the writ directly to the plaintiff when provided under ORS , subject- to the provisions of ORS relating to claim of

49 ATTACHMENT & GAR.NISIMENT exemption and the provisions in ORS relating to garnishee duties. b) When the clerk of the court receives a claim of exemption under ORS , the clerk thereafter shall reject any item received as payment that is not payable to the court and shall return it to the garnishee with instructions to reissue the payment as payable to the court. If the clerk receives a claim of exemption under ORS , the clerk shall retain any payment the clerk receives from the garnishee or the plaintiff until the court determines the claim. The clerk shall then promptly disburse the funds as ordered by the court. c) If the garnishee sends payment to the court at any time other than when the clerk receives a claim of exemption, the clerk shall forward all payments payable to the plaintiff or to the plaintiffs attorney. When the defendant files a claim of exemption under ORS , the clerk shall comply with paragraph b) of this subsection. If a payment to be passed through under this paragraph is payable to the court, the, clerk may: A) Deposit and hold the payment until the payment is accepted. as final where the deposit is made under ORS or as otherwise allowed under law; and B) Then forward- the payment to the plaintiff or, if the plaintiff has an attorney known to the clerk, to the plaintiffs attor- ney. d) The clerk shall not be liable for interest on funds sent to the court in error if the clerk passes the funds through in a timely manner. e) The clerk shall not be liable for ac- cepting any amount of payment. This para- graph applies even if the payment: A) Exceeds the amount required to satisfy the judgment or debts owed to the plaintiff; or B) Exceeds amounts listed in the writ; C) Is sent to the clerk in error. f) Within 10 days of receipt, a plaintiff or the plaintiffs attorney shall return to the defendant any payment received that exceeds the amount listed in the writ of garnishment, Iess any additional payments not shown in the writ. If payment was made by check or other draft, the plaintiff or plaintiffs attorney is not required to return the payment until 10 days after the payment is accepted as final where the payment is deposited under ORS or as otherwise allowed under law. g) The clerk of the court may return to the garnishee any payment received from the Cif the garnishee fails to do one or the other of the following: A) Include the certificate of garnishee. B) Explain that the payment is a voluntary payment on behalf of the defendant under ORS or is a payment under another applicable statute, court order or legal process that requires or allows the garnishee to pay funds into the court. h) A payment by a. garnishee shall be credited agairist the udgment or debt owed by the defendant as follows: A) If the garnishee disburses payment to the plaintiff or the plaintiffs attorney, on the date the plaintiff or plaintiffs attorney re- ceives the payment. B) If the garnishee disburses payment to the court, on the date the clerk disburses payment to the plaintiff or the plaintiffs attorney, unless the court otherwise orders. This subparagraph applies even when the garnishee makes payment to the court in error or when the clerk holds funds pending a claim of exemption. i) Except as provided in paragraph ( f) of this subsection, the plaintiff shall hold an payment received for a period of 10 days after receipt. The ppayments shall be held in this state,. shall be clearly identifiable and shall be held separate and apart from any account used for operating a business or used to pay personal or business expenses; but they may be commingled with other garnished funds. 4) Any property subject to the writ may be released as provided under ORS c.873 3; 1991 c Writs issued by attorneys; pro- cedure; payments; release of property. This section establishes provisions that apply to writs of garnishment issued by an attorney under ORS The following apply as described: 1) All the following apply to the issu- ance of the writ: 3-11 a) The form of the writ shall be sub- stantially as provided in ORS Nota- tion on the writ of additional information for purposes of identifying the defendant or the property garnished shall not affect the validity or scope of the writ. b) Every writ issued by an attorney must be signed by the attorney. The signature constitutes a certificate by the attorney under ORCP 17 and is subject to the sanctions relating to such certification. c) The plaintiff or the plaintiffs agent or attorney must complete the writ form and supply the necessary copies.

50 SPECIAL ACTIONS AND PROCEEDINGS d) Every writ issued by an attorney must include or have attached a notice informin the defendant that the court has not verified the figures in the writ. 2) A writ of garnishment shall be valid for 60 days after the date of issuance by the attorney. 3) All the following apply to payments made under the writ: a) A ' garnishee shall deliver property under the writ directly to the plaintiff when provided under ORS , subject to the provisions of ORS relating to claim of exemption and the provisions in ORS relating to garnishee duties. b) When the clerk of the court receives a claim of exemption under ORS , the clerk thereafter shall reject any item received as payment that is not payable to the court and shall return it to the garnishee with instructions to reissue the payment as payable to the court. If the clerk receives a claim of exemption under ORS , the clerk shall retain any payment the clerk receives from the garnishee or the plaintiff until the court determines the claim. The clerk shall then promptly disburse the funds as ordered by the court. c) If the garnishee sends payment to the court at any tune other than when the clerk receives a claim of exemption, the clerk shall forward all payments payable to the plaintiff or to the plaintiffs attorney. When the de- fendant files a claim of exemption under ORS , the clerk shall comply with paragraph b) of this subsection. If a payment to be passed through under this paragraph is payable to the court, the clerk may: A) Deposit and hold the payment until the payment is accepted as final where the deposit is made under ORS or as otherwise allowed under law; and B) Then forward the payment to the plaintiff or, if the plaintiff has an attorney known to the clerk, to the plaintiffs attor- ney. d) The clerk shall not be liable for interest on funds sent to the court in error if the clerk passes the funds through in a timely manner. e) The clerk shall not be liable for ac- cepting any amount of payment. This para- graph applies even if the payment: A) Exceeds the amount required to satisfy the judgment owed to the plaintiff; B) Exceeds amounts listed in the writ; or C) Is sent to the clerk in error. f) Within 10 days of receipt, a plaintiff or the plaintiff' s attorney shall return to the defendant any payment received that exceeds the amount listed in the writ of garnishment, less any additional payments not shown in the writ. If payment was made by check or other draft, the plaintiff or plaintiffs attorney is not required to return the payment until 10 days after the payment is accepted as final where the payment is deposited under ORS or as otherwise allowed under law. g) The clerk of the court may return to the garnishee any payment received from the garnishee if the garnishee fails to do one or the other of the following: A) Include the certificate of garnishee. B) Explain that the payment is a voluntary payment on behalf of the defendant under ORS or is a payment under another applicable statute, court order or legal process that requires or allows the garnishee to pay funds into the court. h) A payment by a garnishee shall be credited against the judgment owed by the defendant as follows: A) If the garnishee disburses payment to the plaintiff or the plaintiffs attorney, on the date the garnishee disburses payment as required under ORS B) If the garnishee disburses payment to the court, on the date the clerk disburses payment to the plaintiff or the plaintiff s attorney, unless the court otherwise orders. This subparagraph applies even when the garnishee makes payment to the court in error or when the clerk holds funds pending a claim of exemption. i) Except as provided in paragraph ( f) of this subsection, the plaintiff shall hold an payment received for a period of 10 days after receipt. The payments shall be held in this state, shall be clearly identifiable and shall be held separate and apart from any account used for operating a business or used to pay personal or business expenses; but they may be commingled with other garnished funds. 4) Any property subject to the writ may 3-12 be released as provided under ORS x873 4; 1991 c [ Repealed by 1981 c Claims of exemption; proce- dure. When a defendant receives a copy of a writ of garnishment under ORS , the defendant. may claim such exemptions from garnishment as are permitted by law. This section establishes provisions and procedures applicable to a defendant' s claim of exemption. The following apply as described: 1) The defendant may claim an exemption by completing the claim of exemption form described in ORS or a

51 ATTACHMENT & GARNISHMENT substantially similar form and by delivering, in person or by first -class mail, the completed original form to the clerk of the court where the judgment was first obtained or, if a foreign judgment registered in this state, where the judgment was originally filed within 180 days after the writ of garnishment is delivered to the garnishee. 2) The clerk, upon receipt of a claim of exemption under subsection ( 1) of this section, shall retain payments as provided under ORS or and, without unreasonable delay, shall provide written notice of the claim of exemption as provided under this subsection. Upon receipt, the notice creates the duties under subsection ( 4) of this section. The notice may include the notice of hearing under subsection ( 5) of this section. The notice shall apprise garnishees, plaintiffs and plaintiffs' attorneys of consequences un- der this section of failure to comply with re- quirements under subsection ( 4) of this section. The clerk shall provide notice of claim of exemption as follows: a) To the plaintiff or the plaintiffs attorney. b) To the garnishee named in the writ. The clerk is not required to provide notice to the garnishee if the clerk knows that the garnishee has already forwarded any money or property subject to the garnishment. c) To the sheriff of the county where the writ was delivered to the garnishee. The clerk is not required to provide notice to the sheriff if the clerk knows that the garnishee was not required to notify the sheriff under ORS or that the sheriff has already forwarded any property or proceeds subject to the garnishment. 3) All the following apply to a defendant regarding a claim of exemption under this section: a) Nothing in the notice of exemption form under ORS and is intended either to expand or restrict the law relating to exempt property. Whether property is ex- empt from execution attachment and garnishment shall be determined by refer- ence to this section and other law. b) The court may impose sanctions on a defendant who files a claim of exemption in bad faith. The sanctions A court may impose under this paragraph are a fine of not more than $ 100 and responsibility for attorney fees under ORS A court' s imposition of sanctions under this paragraph does not limit any remedy otherwise available to the plaintiff. c) The defendant has the burden to prove timely delivery of the claim of exemption. d) In; addition to any other claims of exemption, the defendant may claim an exemption where the writ of garnishment claims an amount greater than the total amount the defendant asserts is. due the creditor. e) In addition to any other claims of exemption, the defendant may claim as exempt any property that may not be taken, by garnishment as described under ORS ) The following are duties imposed upon the described parties who have, received notice of claim of exemption from the clerk under this section:. a) The plaintiff or plaintiffs attorney shall send any garnished debt or obligation payable in money to the court by cash or by check or other. draft made payable to the court. If the funds have not reached the court by the time of the exemption hearing, the clerk shall so notify the udge presiding at the hearing. If the court jetermines that any of the garnished funds should be disbursed to the defendant and the funds have not reached the court by the time of that determination, the court shall issue an order that the person obligated to return the funds under this paragraph appear and show cause why the person should not be held in contempt.. In addition to contempt proceedings, the court may require the person to pay attorney fees under ORS A court' s nn- position of sanctions under this paragraph does not limit any remedy otherwise avail- able to the defendant. This paragraph does not apply in any circumstances where: A) The debt or obligation has not been forwarded to the plaintiff or plaintiffs attor- ney; or B) A garnishee is not required or allowed, by law, to disburse the- debt or obli- gation. b) A garnishee who holds and has not yet forwarded: A) A debt or obligation payable in money shall send or deliver the garnished debt or obligation to the court' by cash or by check or other draft made payable to the court. The garnishee shall make the delivery to the court within the time the garnishee would have otherwise been required to deliver or send the debt or obligation to the plaintiff. Any payments to be delivered from the garnishee to the clerk of the court under this paragraph shall be made payable to the court and not payable to the plaintiff. A garnishee who fails to comply with this paragraph is subject to ORS and B) Other property or a debt or obligation in existence but not yet due and which will not become due within 45 days shall comply

52 SPECIAL ACTIONS AND PROCEEDINGS with the direction of the sheriff under ORS and c) A sheriff who has received notice from a garnishee under ORS or who holds property under the writ shall hold the property as provided under ORS ) A defendant' s claim of exemption is subject to the procedures under ORS for a claim of exemption from execution. The clerk of the court shall immediatei set a hearing date and send notice of the hearing to the parties. Hearings on a claim of exemption may be held by telecommunication. 6) If a claim of exemption is allowed by the court, the clerk shall mail the amount of money or proceeds determined to be exempt to the defendant within 10 judicial days after the court' s order allowing the claim of exemption. 7) Any money or proceeds determined not to. be exempt after a hearingg shall be mailed to the plaintiff or plain attorney within 10 ' udicial days after the court' s order denylri t e exemption as to those funds c.873 6; 1989 c Form for writ issued by court clerk. This section establishes a form for a writ of garnishment issued by the clerk of the court as described in ORS and A writ of garnishment issued by the clerk of the court shall be in substantially the following form: This form is for garnishments issued under ORS and ) IN THE COURT OF THE STATE OF OREGON FOR THE COUNTY OF Plaintiff, Defendant. VS. WRIT OF GARNISHMENT ISSUED BY THE COURT CLERK Case No. IN THE NAME OF THE STATE OF OREGON, TO: You are now a Garnishee. AS A GARNISHEE, YOU NEED TO KNOW THE FOLLOWING ( the following information is to be filled in by the Creditor): On the day of, 19, cross out one) plaintiff/defen_ua_nt Creditor," as c eck one): filed an action named above and called obtained a judgment ( a court order for tie payment of money) against the ( cross one out) plaintiff/defendant named above and called De tor. The Debtor' s Social Security Number or Employer Identification Number is ( insert if known). The following amount is necessary to satisfy the Creditor's claim or judgment: Claim or Judgment Debt $ Prejudgment Interest $ Attorney Fees $ Cost Bill $ Post - Judgment Interest $ Delivery Fee for this Writ $ Issuance Fee for this Writ $ Sheriff's Fees other than Delivery Fees $ Other ( Explain. Attach additional sheets if necessary. NOTE: INSERTING ITEMS AND AMOUNTS NOT LAWFULLY SUBJECT TO COLLECTION BY GARNISHMENT MAY RESULT IN LIABILITY FOR WRONGFUL EXECUTION.) Total other from additional sheet if used) $ Past Writ Issuance Fees $ Past Delivery Fees $ Transcript and Filing Fees for other counties $ Subtotal $ LESS Payments Made $( ) TOTAL Amount Required to Satisfy in Full this Claim or Judgment $ THE CLERK OF THE COURT HAS NOT CALCULATED ANY AMOUNTS ON THE WRIT AND IS NOT LIABLE FOR ER- RORS MADE IN THE WRIT BY THE CREDITOR Witness the hand and seal of the court on this day of, 19 State of Oregon ) County of ) CLERK OF THE COURT By ss. I certify that the foregoing is a true and correct copy of the original - Writ of Garnishment in the above - entitled case. CLERK OF THE COURT By

53 ATTACHMENT & GARNISHMENT I certify that I have read the Writ of Garnishment; and to the best of my knowledge, information and belief, there is good ground to support it, and all sums included above are lawfully subject to collection by this garnishment. Creditor/Creditor's Attorney ( or Agent) Address Oregon State Bar Number if applicable) GARNISHEE' S DUTIES Telephone Number YOU MUST ANSWER THIS WRIT BY COMPLETING AND FILING A CERTIF- ICATE OF GARNISHEE WHETHER OR NOT YOU HOLD ANY OF THE DEBTOR'S PROPERTY OR OWE ANYTHING TO THE DEBTOR.' IF YOU FAIL TO ANSWER THIS WRIT, OR IF YOU ANSWER IT UNTRUTHFULLY, OR IF YOU FAIL TO DELIVER THE PROPERTY WHEN RE- QUIRED TO DO SO, YOU MAYBE SUB- JECT TO COURT PROCEEDINGS UNDER ORS AND MAY BE HELD LIABLE TO THE CREDITOR FOR THE LESSER OF: A) THE TOTAL AMOUNT CLAIMED IN THIS WRIT, OR B) THE AMOUNT YOU OWE THE DEBTOR OR THE VALUE OF PROPERTY YOU HOLD. NOTE: YOU MAY NOT LAWFULLY DISCHARGE THE DEBTOR FROM EM- PLOYMENT AS A RESULT OF THIS GARNISHMENT. As a Garnishee, you must take the following steps: STEP 1. COMPLETE THE CERTIFICATE AND SCHEDULE. Except where you have not received the original writ or a true copy thereof, four additional copies ' of the writ and, if you are a financial institution, a garnishee' s search fee of $5, within five days of receiving the writ, you must fill out and file the forms below called " Certificate of Garnishee" and, if required ( see schedule form), the '" Earnings Exemption Computation Schedule." In filling out the form, you must describe any garnished property or debts you know you have in your possession. This writ 3-15 garnishes only personal property of the Debtor you hold or debts you owe to the Debtor as of the date you received this writ, including debts that existed but were not yet due when you received this writ. You file these forms by following Step 2 below. If you have questions, you should contact an attorney. The clerk of court cannot give you legal advice. If, when the writ was delivered to you, you did not receive the original writ or a true copy thereof, four additional copies of the writ and, if you are a financial institution, a garnishee' s search fee of $ 5, the garnishment is not effective to garnish any property, you are not required to respond by filing the garnishee' s certificate and you may deal with any property of the Debtor as though the garnishment had not been issued. If the writ does not comply with Oregon law or if you cannot tell from the writ whether you hold any property or owe any debt to the Debtor, the writ does not garnish anything, but you must fill out the certificate anyway and follow Step 2. Keep a copy for your records. If the writ does comply with Oregon law and you can tell that you may hold property of or owe a debt to the Debtor but you are not sure what or how much, you must fill out the certificate anyway and explain why. You must then follow Step 2. When you find out whether or what you do owe the Debtor, you should amend the certificate, even if you find out you do not owe the Debtor anything. Follow Step 2 again and file the amended certificate. After filing the certificate under Step 2, go on to Step. 3 if you owe anything to the Debtor or hold property that belongs to the Debtor. STEP 2. FILE THE CERTIFICATE AND SCHEDUL. Within five days of receiving the writ, you must send all of the following ( information to be filledin by Creditor): The original certificate and schedule form to the clerk of ( cross one out) district/circuit court of Street address: City County State Zip code A copy of the certificate and County at: schedule form to t e Debtor at (last known address): Name Street address City State

54 SPECIAL ACTIONS AND PROCEEDINGS Zip Code Telephone number (if known) A copy of the certificate and schedule form to the Creditor at: Name Street address City State Zip Code Telephone number A copy of the certificate to the Sheriff of the county where this writ was delivered to you. You will need to look up the address. You are required to send a copy to the Sheriff only if you hold personal property of the Debtor or owe a debt or other obligation payable to the Debtor other than a debt or other obligation payable that is due now or will become due within 45 days. STEP 3. DELIVER. THE FUNDS OR OTHER PROPERTY. If, after exercising any applicable right of setoff, you owe anything to the Debtor or hold property that belongs to the Debtor, you must do ( a) or ( b) below, or both, after you file the certificate under Step 2, depending on what you owe or hold: a) MONEY OR OTHER OBLIGATION DUE WITHIN 45 DAYS. If you owe or hold a debt or other obligation payable in money that is due now or will become due in 45 days, do the following: Unless you receive a notice of claim of exemption or other direction from the court a document or other notice from the clerk of the court telling you what to do with the money or informing you that the Debtor is claiming that all or some of the money cannot be garnished), when you send your certificate or when the debt or other obligation becomes due, whichever is later, make your check or other draft payable to the Creditor and send the payment directly to the Creditor at the address shown in Step 2. In making payments under this writ, you may first deduct any garnishment processing fee which you levy as permitted in ORS , and you need to prorate any wages or periodic payments, so that you pay only the amount you owe the Debtor on the date you receive this writ. If you receive a notice of claim of exemption from the court or direction from the court to deliver the money to the court and have not yet forwarded the money, send or deliver the payment directly to the clerk of the court. You must send the payment promptly with the Certificate of Garnishee if it is now due; otherwise, send it when it becomes due and send the Certificate of Garnishee as required under Step 2. If you make payment by check or other draft, make it Rffable to the court. Because you may be liable for money that does not reach the court, it is better not to send cash by mail. AND /OR b) DEBTS DUE AFTER 45 DAYS AND OTHER PROPERTY. If you filed your certificate with the Sheriff under Step 2, do the following even if you receive a notice of claim of exemption from the court: Hold subject to this garnishment the debt or property now in your possession, control or custody until you receive written notice from the Sheriff. The Sheriff's notice should tell you what to do with the debt or property. If the debt or property is not convenient for you to deliver to the Sheriff and you want the Sheriff to come get the property, you must explain this fact on the certificate. If you have followed all of the steps in this writ and you receive no notice from the Sheriff within 30 days after this writ was delivered to you, you may treat this garnishment as being of no further force or effect. As long as this writ is in effect, you may be liable to the Creditor if you pay any debt or turn over any property to the Debtor, except the exempt portion of any wages you owe to the Debtor unless you are otherwise directed by the court or unless the claim or judgment for which this writ of garnishment was given is satisfied in full. EARNINGS EXEMPTION COMPUTATION SCHEDULE The Garnishee must complete the following form and fill in the correct amounts only if the Garnishee is an employer of the Debtor under ORS Debtor' s gross weekly 3-16 earnings... $ 2. Amounts required to be withheld by law Federal and state withholding, social security, etc.)... $ 3. Debtor' s " disposable earnings" for week - Subtract line 2 from line 1... $ 4. Minimum Exemption a) For wages payable before June 30, $ 150

55 ATTACIEVIENT & GARNISE31ENT b) For wages payable before June 30, c) For wages payable on or after July 1, Maximum Exemption - Enter 75 percent of line Earnings exempt from garnishment - Line 4 or 5, whichever is greater.. 7. Nonexempt earnings - Subtract line 6 from line Amounts withheld pursuant to a support order under ORS or payment of delinquent support under ORS Earnings subject to garnishment - Subtract line 8 from line 7... Case caption to be completed IN THE by Creditor) COURT OF THE STATE OF OREGON FOR THE COUNTY OF Plaintiff, ) Defendant. ) VS. ) CERTIFICATE OF GARNISHEE Case No. TO: The Clerk of Court, Debtor, Creditor /Creditor' s Attorney and ( if applicable) Sheriff Following to be completed by Garnishee) State of County of I hereby certify that at the time of delivery to me of the foregoing Writ of Garnishment on the day of, 19 I had in my possession, control or custody only the following property, money, debts, rights, dues or credits due or to become due, belonging or owing to the Debtor named in said Writ of Garnishment ( include due date if not yet due): I have placed a check in front of all the fol lowing statements that apply ( more than one may apply): I do not owe money to or hold personal property of the Debtor. The Writ of Garnishment does not comply on its face with Oregon garnishment law or I am unable to determine from the information in the writ whether I hold any property of the Debtor. ( Explain) The writ does comply with Oregon law and I am able to determine that I may owe money to or hold property of the Debtor, but I am not sure what or how much it might be. I will file an amended certificate when I find out. (Explain) I owe a debt or other obligation to the Debtor, which is not now due but will become due within 45 days. I will forward the money when the debt or other obligation becomes due. I am holding personal property of or owe a debt or other obligation to the Debtor other than a debt or obligation due within 45 days. I am sending this certificate to the Sheriff and if I receive instructions from the Sheriff within 30 days I will follow those instructions even if I receive notice of claim of exemption. I owe a debt or other obligation to the Debtor which is now due and I am forwarding the money owed or enough of it to satisfy the garnishment to the Creditor. For FINANCIAL INSTITUTIONS only): I owe a debt or other obligation to the Debtor, and the Debtor owes a debt or other obligation to me, which I certify was due at the time I received the Writ of Garnishment. Pursuant to ORS ), I have offset the sum of $ and applied it to the debt owed and I am forwarding the balance of the money I owe the Debtor, or

56 SPECIAL ACTIONS AND PROCEEDINGS enough of it to satisfy the IN THE NAME OF THE STATE OF garnishment, to the Creditor. OREGON, TO: I am holding personal property other You are now a Garnishee. than money, but it is inconvenient to AS A GARNISHEE, YOU NEED TO deliver the property to the Sheriff. I will hold the property until the Sheriff picks it up. ( Explain) KNOW THE FOLLOWING ( the following information is to be filled in by the Creditor): On the day of, 19, ( cross out one) plainti a en ant named above and called Cre itor," has obtained a judgment ( a court order for the payment of money) against the I have received a notice of claim of cross one out) plaintifvdefendant exemption P or other direction from the named above and called clerk of court and am forwarding Debtor.- The Debtor' s Social Security funds to the clerk of court. Number or Employer Identification Number Other ( Explain) is ( insert if known). The following amount is necessary to satisfy the Creditofs judgment: Judgment Debt $ Prejudgment Interest $ Attorney Fees $ Dated 19 Cost Bill $ Post - Judgment Interest $ Name of Garnis ee Delivery Fee for this Writ $ Sheriffs Fees other Signature than Delivery Fees $ r Other ( Explain. Attach additional sheets Address if necessary. NOTE: INSERTING ITEMS Statutes affectingg arnishee responses P AND AMOUNTS NOT LAWFULLY SUBJECT include ORS , , , , TO COLLECTION BY GARNISHMENT MAY , , , , and RESULT IN LIABILITY FOR WRONGFUL ) EXECUTION.) 1981 c.883 4; 1987 c.873 7; 1989 c.810' 3; 1989 c.876 9, 11; 1991 c Total other from Forth for writ issued by attoradditional sheet ney. This section establishes a form for a if used) $ writ of garnishment issued by an attorney as described in ORS and A writ Past Delivery Fees $ of garnishment issued by an attorney shall Transcript and Filing be in substantially the following form: Fees for other counties $ This form is for garnishments issued under ORS and ) IN THE COURT OF THE STATE OF OREGON FOR THE COUNTY OF Plaintiff, ) Defendant. ) VS. ) WRIT OF GARNISHMENT ISSUED BY ATTORNEY Case No. Past Writ Issuance Fees $ Subtotal $ LESS Payments Made V. ) Total Amount Required to Satisfy in Full this Judgment $ THE CLERK OF THE COURT HAS NOT CALCULATED ANY AMOUNTS 014 THE WRIT AND IS NOT LIABLE FOR ER- RORS MADE IN THE WRIT BY THE CREDITOR. I certify that I have read the Writ of Garnishment; and to the best of my knowledge, information and belief, there is good ground to support it, and all sums included 3-18

57 ATTACHMENT & GARNISHMENT above are -lawfully subject to collection by this garnishment. Creditors Attorney Address Oregon State Bar Number Date of Issuance GARNISHEE' S DUTIES Telephone Number YOU MUST ANSWER THIS WRIT BY COMPLETING AND FILING A CERTIF- ICATE OF GARNISHEE WHETHER OR NOT YOU HOLD ANY OF THE DEBTOR'S PROPERTY OR OWE ANYTHING TO THE DEBTOR. IF YOU FAIL TO ANSWER THIS WRIT, OR IF YOU ANSWER IT UNTRUTHFULLY, OR IF YOU FAIL TO DELIVER THE PROPERTY WHEN RE- QUIRED TO DO SO, YOU MAY BE SUB- JECT TO COURT PROCEEDINGS UNDER ORS AND MAY BE HELD LIABLE TO THE CREDITOR FOR THE LESSER OF: A) THE TOTAL AMOUNT CLAIMED IN THIS WRIT, OR B) THE AMOUNT YOU OWE THE DEBTOR OR THE VALUE OF THE PROP- ERTY YOU HOLD. NOTE: YOU MAY NOT LAWFULLY DISCHARGE THE DEBTOR FROM EM- PLOYMENT AS A RESULT OF THIS GARNISHMENT. As Garnishee, you must take the following steps: STEP 1. COMPLETE THE CERTIFICATE AND SCHEDULE. Except where you have not received the original writ or a true copy thereof, four additional copies of the writ and, if you are a financial institution, a garnishee' s search fee of $5, within five days of receiving the writ, you must fill out and file the forms below called " Certificate of Garnishee" and, if re- quired ( see schedule form), the " Earnings Exemption Computation Schedule." In filling out the form, you must describe any garnished property or debts you know you have in your possession. This writ garnishes only personal property of the Debtor you hold or debts you owe to the Debtor as of the date you received this writ, including debts that existed but were not yet due when you received this writ. You file these forms by following Step 2 below. If you have questions, you should contact an attorney. The clerk of court cannot give you legal advice. If, when the writ was delivered to you, you did not receive the original writ or a true copy thereof, four additional copies of the writ and, if you are a financial institution, a garnishee' s search fee of $ 5, the garnishment is not effective to garnish any property, you are not required to respond by filing the garnishee' s certificate and you may deal with any property of the Debtor as though the garnishment had not been issued. If the writ does not comply with Oregon law or if you cannot tell from the writ whether you hold any property or owe any debt to the Debtor, the writ does not garnish anything, but you must fill out the certificate anyway and follow Step 2. Keep a copy for your records. If the writ does comply with Oregon law and you can tell that you may hold property of or owe a debt to the Debtor but you are not sure what or how much, you must fill out the certificate anyway and explain why. You must then follow Step 2. When you find out whether or what you do owe the Debtor, you should amend the certificate, even if you find out you do not owe the Debtor anything. Follow Step 2 again and file the amended certificate. After filing the certificate under Step 2, go on to Step 3 if you owe anything to the Debtor or hold property that belongs to the Debtor. STEP 2. FILE THE CERTIFICATE AND SCHEDULE. Within five days of receiving this writ, you must send all of the following ( information to be filledin by Creditor): 3-19 A copy of the certificate and form to the Creditor at: Name Street address City Zip Code Telephone number State schedule The original cert ificate and schedule form to the clerk of ( cross one out, district/circuit court of County at: Street address City State County Zip Code

58 SPECIAL ACTIONS AND PROCEEDINGS A copy of the certificate and schedule form to the Debtor at (last known address): Name Street address City State Zip Code Telephone number ( if known) A copy of the certificate to the Sheriff of the county where this writ was delivered to you. You will need to look up this address. You are required to send a copy to the Sheriff only if you hold personal property of the Debtor or owe a debt or other obligation payable to the Debtor other than a debt or other obligation payable in money that is due now or will become due within 45 days. However, if you, after exercising any applicable right of setoff, have no property of the Debtor and owe no debt to the Debtor, you are only required to send your certificate to the Creditor at the address shown above. You do not have to send anything to the clerk or the Debtor. STEP 3. DELIVER THE FUNDS OR OTHER PROPERTY_ If, after exercising, any applicable right of setoff, you owe anything to the Debtor or hold property that belongs to the Debtor, you must do ( a) or ( b) below, or both, after you file the certificate under Step 2, depending on what you owe or hold: a) MONEY OR OTHER OBLIGATION DUE WITHIN 45 DAYS. If, after exercising any applicable right of setoff, you owe or hold a debt or other obligation payable in money that is due now or will become due in 45 days, do the following: Unless you receive a notice of claim of exemption or other direction from the court a document or other notice from the clerk of the court telling you what to do with the money or informing you that the Debtor is claiming that all or some of the money can- not be garnished), when you send your certificate or when the debt or other obligation becomes due, whichever is later, make your check- or other draft payable to the Creditor and send the payment directly to the Creditor at the address shown in Step 2. In making payments under this writ, you may first deduct any garnishment processing fee which you levy as permitted in ORS , and you need to prorate any wages or periodic payments so that you pay only the amount you owe the Debtor on the date you receive this writ. If you receive a notice of claim of ex- emption from the court or direction from the court to deliver the money to the court and have not yet forwarded the money, send or deliver the payment directly to the clerk of the court. You must send the payment promptly with the Certificate of Garnishee if it is now due; otherwise, send it when it be- comes due and send the Certificate of Garnishee as required under Step 2. If you make payment by check or other draft, make it a able to the court. Because you may be liable for money that does not reach the court, it is better not to send cash by mail. AND /OR b) DEBTS DUE AFTER 45 DAYS AND OTHER PROPERTY. If you filed your certif- icate with the Sheriff under Step 2, do the following even if you receive a notice of claim of exemption from the court: Hold subject to this garnishment the debt or property now in your possession, control or custody until you receive written notice from the Sheriff. The Sheriffs notice should tell you what to do with the debt or property. If the debt or property is not convenient for you to deliver to the Sheriff and you want the Sheriff to come get the property, you must explain this fact on the certificate. If you have followed all of the steps in this writ and you receive no notice from the Sheriff within 30 days after this writ was delivered to you, you may treat this garnishment as being of no further force or effect. As long as this writ is in effect, you may be liable to the Creditor if you pay any debt or turn over any property to the Debtor, except the exempt portion of any wages you owe to the Debtor unless you are otherwise directed by the court or unless the claim or judgment for which this Writ of Garnishment was given is satisfied in full EARNINGS EXEMPTION COMPUTATION SCHEDULE The Garnishee must complete the following form and fill in the correct amounts only if the Garnishee is an employer of the Debtor under ORS Debtor' s gross weekly earnings Amounts required to be withheld by law Federal and state withholding, social security, etc.)... $

59 ATTACHIVIENT & GARNISHMENT Debtor' s " disposable earnings" for week - Subtract line 2 from line Minimum Exemption a) For wages payable before June 30, b) For wages payable before June 30, c) For wages payable on or after July 1, Maximum Exemption - L Enter 75 percent ofline Earnings exempt from garnishment - Line 4 or 5, whichever is greater Nonexempt earnings - Subtract line 6 from line Amounts withheld pursuant to a support order under ORS or for payment of delinquent support under ORS Earnings subject to garnishment - Subtract line 8 from line 7... Case caption to. be completed IN THE by Creditor) COURT OF THE STATE OF OREGON FOR THE COUNTY OF Plaintiff, ) VS. ) CERTIFICATE OF GARNISHEE Case No. Defendant. ) TO: The Clerk of Court, Creditor' s Attorney, Debtor and ( if applicable) Sheriff Following to be completed by Garnishee) State of _ County of I hereby certify that at the time of delivery to me of the foregoing Writ of Garnishment on the day of 19, I a my pos- session, contro o tody only the following property, money, debts, rights, dues or credits due or to become due, belonging or owing to the Debtor named in the Writ of Garnishment ( include due date if not yet due): I have placed a check in front of all the following statements that apply ( more than one may apply): I do not owe money to or hold personal property of the Debtor. The Writ of Garnishment does not comply on its face with Oregon garnishment law or I am unable to determine from the information in the writ whether I hold any property of the Debtor. ( Explain) The writ does comply with Oregon law and I am able to determine that I may owe money to or hold property of the Debtor' I am not Buie what or how much it might be. I will file an amended certificate when I find out. (Explain) I owe a debt or other obligation to the Debtor, which is not now due but will become due within 45 days. I will forward the money when the debt or other obligation becomes due. I am holding personal property of or owe a debt or other obligation to the Debtor other than a debt or obligation due within 45 days. I am sending this certificate to the Sheriff and if I receive instructions from the Sheriff within 30 days I will follow those instructions even if I receive notice of claim of exemption. I owe a debt or other obligation to the Debtor which is now due and I am forwarding the money owed or enough of it to satisfy the garnishment to the Creditor. For FINANCIAL INSTITUTIONS only): 3-21

60 SPECIAL ACTIONS AND PROCEEDINGS I owe a debt or other obligation to the Debtor, and the Debtor owes a debt or other obligation to me, which I certify was due at the time I received the Writ of Garnishment. Pursuant to subsection ( 4) of ORS , I have offset the sum of $ and applied it to the debt owed to me, and I am forwarding the balance of the money I owe the Debtor, or enough of it to satisfy the garnishment, to the Creditor. I am holding personal property other than money, but it is inconvenient to deliver the property to the Sheriff. I will hold the property until the Sheriff picks it up. ( Explain) I have received a notice of claim of exemption and am forwarding funds to the clerk of court. Other (Explain) Dated, 19 Name of Garnishee Signature Address Statutes affecting Garnishee responses include ORS , , , , , , , , and ) 1987 c.873 8; 1989 c.810 4; 1989 c , 1991 c [ Repealed by 1981 c Garnishment of property of defendant held by another person. ( 1) Property of a defendant in the possession of a person other than the plaintiff or defendant shall be garnished by delivery of all of the following to such person: a) A writ of garnishment or a true copy thereof to such person. b) Four copies of the writ of garnishment in addition to any requirements under paragraph ( a) of this subsection. c) Any garnishee' s search fee payable as provided for in ORS ) If any of the items described in subsection ( 1) of this section are not delivered to the garnishee, the garnishment shall not be effective to garnish any property of the defendant, and the garnishee shall not be required to respond to the garnishment and may proceed to deal with any property of the defendant as though the writ of garnishment had not been issued. [ 1981 c.883 5; 1987 c.873 9; 1989 c.171 4; 1989 c.810 5] [ Repealed by 1981 c Deliverryy of writ; insurance of deliverer; fee. To be valid, a writ of garnishment must be delivered to the garnishee in one of the following ways: 1) By certified mail, return receipt re- quested. If the garnishee refuses to accept delivery by certified mail, the plaintiff may provide for delivery under subsection ( 2) of this section, but must have a new writ issued in order to claim additional delivery fees. 2) In person. The following apply when a writ is delivered under this subsection: a) The writ may be delivered by any of the following: A) The sheriff of the county where the writ of garnishment is to be delivered. B) Any competent person 18 years of age or older who is a resident of the State of Oregon and is not a party or attorney in the action. b) Notwithstanding paragraph ( a) of this subsection, no person other than the sheriff shall deliver a writ of garnishment unless the person has filed with the Secretary of State a current certificate of errors and omissions insurance with limits of not less than $ 100,000 per occurrence from a company authorized to do business in this state. c) The fee for delivery of a writ of garnishment under this subsection shall be no more than the following, based upon population as determined by the most recent federal decennial census: A) $ if the writ is delivered in a county with less than 400,000 population. B) $ if the writ is delivered in a county with not less than 400,000 population c.883 6; 1987 c ] [ Amended by , 1965 c.108 l; 1969 c.95 l; 1969 c 576 l; 1977 c.786 1; repealed by 1981 c and 1981 c [ Repealed by 1981 c [ 1977 c.623 2; repealed by 1981 c ; renumbered ] [ Repealed by 1981 c Person to whom writ to be delivered. ( 1) Property shall be garnished by delivering the writ of garnishment to the person specified in this section. 3-22

61 ATTACETAENT & GARNISMIENT ) Except as otherwise provided in this section, a writ of garnishment shall be delivered to: a) The individual having possession of the property, if the property is in possession of an individual; b) Any person designated by the part - nershipp to accept delivery of a writ of garnishment or any partner, if the property is in possession of a partnership; provided, however, that if the partnership is a limited partnership, the writ of garnishment shall be delivered to any person designated by the partnership to accept delivery of a writ of garnishment or any general partner; c) Any person designated by the corporation to accept delivery of a writ of garnishment, or any officer or managing agent of the corporation, if the property is in the possession of a corporation; d) If the property is held by a financial institution, as defined in ORS , the manager, assistant manager or other designated person at any depository office or branch of the financial institution where a writ of garnishment is delivered; delivery of a writ of garnishment to the manager, assistant manager or other designated person at any depository office or branch of the financial institution shall be effective to garnish all property of the defendant held at all offices and branches of the financial institution located in the state; or e) The board, department, institution, commission or officer charged with approv- ing a claim for the property, if the property is held by the state, any county, city, school district, or other political subdivision therein, or any board, department, institution or commission of the same. 3) Notwithstanding ORS ( 2), if the property is a debt, other than a debt evidenced by a negotiable instrument, negotiable document or the like, the writ of garnishment shall be delivered to the debtor thereon in accordance with subsection ( 2) of this section. 4) Notwithstanding ORS ( 2), if the property is stock of the defendant in a corporation, other than stock represented by a negotiable certificate or the like, the writ of garnishment shall be delivered to the corporation in accordance with subsection ( 2) of this section. 5) If the property is a negotiable instrument, certificate, document or the like, the writ of garnishment shall, notwithstanding ORS and , be delivered to the person having possession of the same in accordance with subsection ( 2) of this section. Any such garnishment shall not limit the rights of a holder in due course of a negoti- able instrument under ORS , a holder to whom a negotiable document has been duly negotiated under ORS or a bona fide purchaser of a security under ORS ) If the property is an interest of an heir or legatee in an estate of a decedent, the writ of garnishment shall be delivered to the personal representative of the estate in accordance with subsection ( 2) of this section. 7) For purposes of this section, a savings and loan association, including such an association doing business in this state and or- ganized under the laws of another state or of the United States, shall be deemed the debtor of a defendant to whom a certificate, account or obligation, or an interest therein, of the association has been issued, established or transferred and in such case the provisions of subsection ( 4) of this section shall not apply; provided, however, ownership by a defendant of reserve fund capital stock, or comparable equity stock, or of an interest therein, of any such association shall not be deemed to create such a relationship and the provisions of subsection ( 4) of this section shall apply. [ 1981 c.883 7; 1985 c ; 1991 c.104 3] provides: Note: Section 5, chapter 104, Oregon Laws 1991, Sec. 5. The amendments to ORS and by sections 3 and 4 of this Act shall apply only to writs of garnishment delivered on or after the effective date of this Act [ September 29, 1991]. [ 1991 c ] [ Repealed by 1981 c Duty of garnishee. ( 1) The garnishee shall examine the writ of garnishment to determine whether the writ complies on its face with ORS , , or , as appropriate. The garnishee shall have no duty to determine whether the plaintiff or sheriff or other person has complied with the requirements of ORS to and to or to otherwise determine the effectiveness of the garnishment. 2) In searching its records for the property of the defendant, the garnishee shall use 3-23 all of the information contained in the writ of garnishment pertaining to the identity of the defendant. [ 1981 c.883 8; 1987 c ; 1989 c.876 6] [ Repealed by 1981 c Effect of delivery of writ on property of defendant; safety deposit boxes; property to which garnishment does not apply; set off. ( 1) Delivery of a writ of garnishment in accordance with ORS to shall be effective to garnish all property of the defendant which is in the garnishee' s possession, control or custody at the time of delivery of the writ of garnishment to the garnishee, including but

62 SPECIAL ACTIONS AND PROCEEDINGS not limited to property in safe deposit boxes, stock, debts and other obligations then in existence and payable in money, whether due or to become due, property held on expired and unexpired bailments and leases, and property held by the garnishee pursuant to a security interest granted by defendant to garnishee. 2) Notwithstanding any other provision of this chapter, the duty of a garnishee to deliver any property of the defendant which may be contained in a safe deposit box which is in the garnishee' s possession, control or custody at the time of delivery of the writ of garnishment to the garnishee is conditioned upon the plaintiffs first paying to the garnishee, in addition to the search fee provided for in ORS ( 1), all reasonable costs incurred by the garnishee in gaming entry to the safe deposit box. The costs shall be paid to the garnishee by the plaintiff on or before the date the pw tiiff pays the sheriffs fees under ORS If the plaintiff fails to pay such costs to the Fthe garnishment shall not be ef- fective to garnish any propert of the defendant which may be contained in any such safe deposit box and the garnishee may proceed to deal with the safe deposit box and its contents as though the-,writ of garnishment had not been issued. Nothing in this section limits the right of a plaintiff to reach the contents of any safe deposit box in any manner otherwise provided by law. 3) Notwithstanding subsection ( 1) of this section, property which may not be taken by garnishment shall include but is not limited to equitable interests, property in the custody of the law, property in the possession of a conservator and property in the pos- session of a personal representative consti- tuting the subject matter of a trust contained in a duly probated will of a decedent. 4) In addition to such rights as the garnishee may have at law, in equity or otherwise, if the garnishee is a financial institution, the garnishee may, following delivery of a writ of garnishment or warrant and notice of garnishment to the garnishee, set off such sums as are due from defendant at the time the garnishee receives the writ of garnishment. A garnishee may not set off any amounts which are not otherwise due to be paid but which have been accelerated after the receipt of a writ of garnishment. Notwithstanding any other provision of this chapter, such a garnishee shall have no obligation to remit any sums upon the garnishment which the garnishee has set off pursuant to this subsection. A garnishee who sets off pursuant to this subsection shall disclose the fact and amount of the setoff in the certificate of garnishee prepared and deliv- ered under ORS , and shall certify therein that the amount set off by the garnishee was due from the defendant to the garnishee at the time the garnishee received the writ of garnishment. 5) Notwithstanding subsection ( 1) of this section, if a writ of garnishment is received by a financial institution garnishee after 4 p. m., as to any deposit account held by the garnishee in the name of the defendant, the writ of garnishment will only be effective to garnish those funds that are on deposit in the account at the beginning of the business day following the day on which the writ of garnishment is delivered to the garnishee. 6) For the purposes of this section, " fi- nancial institution has the meaning given that term in ORS [ 1981 c.883 9; 1989 c.810 6; 1991 c Note: See note under [ Repealed by 1981 c Copy to defendant; method of delivery; duty of pi inti. civil penalty. 1) Following delivery of a writ of garnishment to a garnishee, the person or sheriff who mailed or delivered the writ of garnishment shall promptly mail or deliver a copy of the writ of garnishment, together with the notice of exemptions and claim form described in ORS , to each defendant whose property is being garnished by said writ. The following apply to this subsection: a) The person or sheriff may meet the requirements of this subsection by mailing the documents to the address of the defendant provided by the plaintiff. b) The plaintiff shall provide to the person or sheriff the last address of the defendant known to the plaintiff. c) The person or sheriff may delay garnishment until the plaintiff either provides such address or a statement that the plaintiff has no knowledge of the defendant's address. d) The person or sheriff shall have no duty under this subsection if the plaintiff provides a statement that the plaintiff' has no knowledge of the defendant' s address ) If the plaintiff fails to provide either the defendants address or a statement that the plaintiff has no knowledge of the defendant' s address to the person or sheriff who delivered the writ of garnishment, the court shall order the plaintiff to return any prop - erty which was exempt from garnishment and garnished, and, in any case, shall order the plaintiff to pay a civil penalty of $200 to the defendant, in addition to all costs and reasonable attorney fees incurred by the defendant in recovering such property and penalty. [ 1981 c ; 1987 c

63 ATTACHMENT & GARNISHMENT [ Repealed by 1981 c Form of notice of exemptions. 1) The notice of exemptions referred to in ORS shall be in substantially the form set forth in this subsection. Nothing in the notice form described under this subsection is intended either to expand or restrict the law relating to exempt property. Whether property is exempt from execution, attachment and garnishment shall be determined by reference to other law. The form may be modified either to provide more complete information or to update the notice based on subsequent changes in exemption laws. However, any such modification shall not be required. The following form is for notice of exemption: NOTICE OF EXEMPT PROPERTY Property belonging to you may have been taken or held in order to satisfy a claim or judgment which has been asserted or entered against you. Important legal papers are en- closed. YOU MAY BE ABLE TO GET YOUR PROPERTY BACK, SO READ THIS NO- TICE CAREFULLY. State and federal law say certain property may not be taken. Some of the property which may not be taken is listed below. 1) Wages or a sal as described in ORS and ( whichever of the following amounts is more: ( a) 75 percent of Moretake -home wages; ( b) For wages payable before June 30, 1992, $ 150; ( c) For wages payable before June 30, 1993, $ 160; or (d) For wages payable on or after July 1, 1993, $ 170). 2) Social security (including SSI). 3) Public assistance ( welfare). 4) Unemployment benefits. 5) Disability benefits. 6) Workers' compensation benefits. 7) Exempt wages, social security, welfare, unemployment benefits and disability benefits when placed in a checking or savings account ( up to $ 5,000). 8) Spousal support, child support, or separate maintenance to the extent reason- ably necessary for your support or the support of any of your dependents. 9) A homestead ( home, farm, manufactured dwelling, houseboat) if you live in it, to the value of $13, 000 ($ 15, 000, if land is included) or proceeds from its sale for one ( 1) year. 10) Household goods, furniture, radios, a television set and utensils to $ 1, ) Automobile, truck, trailer or other vehicle to $ 1, ) Tools, implements, apparatus, team, harness or library necessary to carry on your occupation to $ 750. Food for such team for 60 days. 13) Books, pictures and musical instruments to $ ) Wearing apparel, jewelry and other personal items to $ ) Domestic animals and poultry for family use to $ 1, 000 and their food for 60 days. 16) Provisions ( food) and fuel for your family for 60 days. 17) One rifle or shotgun and one pistol. 18) Public or private pensions. 19) Veterans benefits and loans. 20) Medical assistance benefits. 21) Health insurance proceeds and disability proceeds of life insurance policies. 22) Cash surrender value of life insurance policies not payable to your estate. 23) Federal annuities. 24) Other annuities to $ 250 per month, excess over $ 250 per, month subject to same exemption as wage. t 25) Professionally prescribed health aids for you or any of your dependents. 26) A tax refund allowed pursuant to ORS or as set forth in ORS ) Your right to receive, or property traceable to: a) An award under any crime victim reparation law. b) A payment, not exceeding $ 7, 500, on account of personal bodily injury, not in- cluding pain and suffering or compensation for actual pecuniary loss, of you or an individual of whom you are a dependent. c) A payment in compensation of loss of future earnings of you or an individual of whom you are or were a dependent, to the extent reasonably necessary for your support and the support of any of your dependents ) Interest in personal property to the value of $400, but this cannot be used to increase the amount of any other exemption. 29) The difference between what you actually owe the creditor and the total amount due listed in the writ of garnishment, if the amount listed in the writ is larger. Note: If two or more people in your household owe the claim or judgment, each of them may claim the exemptions marked by *.

64 29235 SPECIAL ACTIONS AND PROCEEDINGS You must act promptly if you want to get your money or property back. You may seek to reclaim your exempt property by doing the following: 1) Fill out the form for claim of exemption that you received with this notice. 2) Within 180 days after you received this notice, mail or deliver the form for claim exemption to the clerk of court at the address shown on the writ of garnishment. 3) Although ( 2) above allows you to claim an exemption, the law only requires the creditor to hold the money or property for 10 days before applying it to the creditor's use. You may be able to keep the property from being used by the creditor before being allowed a hearing by promptly following ( 1) and ( 2) above. You should be prepared to explain your exemption in court. If you have any questions, you should see an attorney. IF YOU CLAIM AN EXEMPTION IN BAD FAITH, YOU MhY BE SUBJECT TO PENALTIES IMPOSED BY THE COURT THAT COULD INCLUDE A FINE. Penalties you could be subject to are listed in ORS When you file this claim of exemption, the garnishee and Creditor will be required to pay any debt or obligation they hold into court. They are subject, to penalties if they do not. For a more complete explanation of their responsibilities, see ORS ) The claim of exemption form referred to in subsection ( 1) of this section, ORS and shall be in substantially the following form: Plaintiff ) VS. ) Defendant ) CLAIM OF EXEMPTION Case No. I/We claim the following described property or money as exempt from execution: cause: I/We believe this property is exempt be- Name Signature Address TelepEone Number Required) ( Name _ Signature Address Telephone Number Required) 1981 c a; ; 1987 c ; 1991 c [ Repealed by 1981 c Certificate of garnishee; delivery of certificate. Within five days from the date the writ of garnishment is delivered to the garnishee, the garnishee, subject to ORS , shall comply with all the following that are applicable: 1) The garnishee shall prepare a certificate and deliver the certificate as provided under subsection ( 3) or ( 5) of this section. On the certificate, the garnishee shall state whether the garnishee has any property of the defendant and, if so, shall state the amount and description of any property of the defendant in the possession, control or custody of the garnishee at the time of delivery of the writ of garnishment, or an amount thereof sufficient to satisfy the plaintiffs claim or judgment, whichever is less. In complying with this subsection a garnishee shall do the following: a) In preparing the certificate, the garnishee shall prorate any wages or periodic payments earned over time to determine what amount of debt is in existence on the date the garnishee received the writ of garnishment, or if the garnishee has received a writ of continuing garnishment, any wages shall be prorated to determine what amount of debt is in existence on the date the continuing garnishment expires. b) The garnishee shall deliver copies of the certificate as provided under subsection 3) or ( 5) of this section. The certificate shall 3-26 be in substantially the form set forth in the writ of garnishment described in ORS , , or , as appropriate. c) If the garnishee can tell from the writ that the garnishee may owe money to or hold property of the defendant but is not sure what or how much, the garnishee shall so state on the certificate and shall state that the garnishee will file an amended certificate when the garnishee finds out. When the garnishee determines whether, what or how much the garnishee owes or holds, the garnishee shall file an amended certificate.

65 ATTAC)EMNT & GARNISEMENT ) If the garnishee determines that the writ of garnishment does not comply on its face with ORS , , or , as appropriate, or if the garnishee is unable to determine from the information contained in the writ whether the property the garnishee holds is the property of the defendant, the writ of garnishment shall be ineffective to garnish the property of the defendant. If this subsection applies, the garnishee shall deliver its certificate as provided under subsection ( 5) of this section, noting thereon: a) The noncompliance with ORS , , or ; or b) The garnishee' s inability to determine from the information contained in the writ whether the garnishee holds property of the defendant. 3) If, after exercising any applicable n ht of setoff, the garnishee has no property of the defendant in the garnishee' s possession, control or custody at the time of delivery of the writ of garnishment to the garnishee, the garnishee shall so note on the writ and shall deliver its certificate to the plaintiff, or if the name and address of the attorney is shown on the writ, the plaintiffs attorney. 4) If, after exercising any applicable right of setoff, the garnishee has property of the defendant in the garnishee' s possession, control or custody at the time of delivery of the writ of garnishment to the garnishee, the garnishee shall comply with all of the following that are applicable: a) If the property garnished is a debt or other obligation payable in money, the garnishee shall deliver the certificate of garnishee and the copies as provided under subsection ( 5) of this section. Unless otherwise directed by the court, the garnishee shall also then pay to the plaintiff or plaintiffs attorney the money or so much of the money as will satisfy the claim or judgment, less any garnishment processing fee levied by the garnishee as permitted by ORS , unless the garnishee has received a notice of claim of exemption. In the case of a continuing garnishment issued under ORS , the garnishee shall also pay to the plaintiff or the plaintiffs attorney the money or so much of the mone as will satisfy the claim or judgment at end of each pay period within the 60 -day period and at the end of the 60 -day period. b) If the property garnished is property other than a debt or other obligation payable in money, the garnishee shall mail or deliver its certificate to the sheriff of the county in which the writ was delivered, together with a copy of the writ. The delivery to the sheriff under this paragraph is in addition to delivery under subsection ( 5) of this section. The garnishee shall then hold the garnished property, or an amount thereof sufficient to satisfy the garnishment, until the sheriff notifies the ggarnishee, under ORS , either what to do with such property or that the garnishment is terminated or released. Upon receiving notice from the sheriff, the garnishee shall comply with the applicable provisions of ORS c) If the garnishee receives a notice of claim of exemption while holding garnished property, the garnishee shall comply with any applicable provisions under OltS and ) Except as provided in subsection ( 3) of this section, when this section requires a garnishee to deliver any certificate or other response, the garnishee shall do so by mailing or delivering to all of the following people at the addresses stated in the writ of garnishment: a) The clerk of the court. b) The plaintiff or, if the name and ad- dress of the attorney is shown on the writ, the plaintiffs attorney. c) The defendant! ( 1981 c ; 1983 c.622 3; 1987 c ; 1989 c.810 7; 1989 c Receipt of certificate of garnishee by sheriff; duties. Notwithstanding ORS and without limiting its effect, the sheriff shall accept a garnishee' s certificate that is mailed or delivered to the sheriff under ORS after five days from the date the writ of garnishment was delivered to the garnishee. Upon the sheriffs receipt of the garnishee' s certificate, the following are applicable to the sheriff: 1) Within five days after the receipt by the sheriff of a garnishee' s certificate pursuant to ORS , the sheriff shall send or deliver a copy of the certificate to the plaintiff or plaintiffs attorney, together with a notice setting forth the sheriffs fees for taking possession of and selling the property and advising the plaintiff that the sheriff will direct the garnishee to deliver the property described in the certificate only if, within 20 days after the date on which the writ of garnishment was delivered to the garnishee, the sheriff receives the fees set forth in the notice. The sheriff shall then proceed as provided under ORS ) If the plaintiff pays the sheriffs fees within the time provided in subsection ( 1) of this section, the sheriff shall promptly mail or deliver a written notice to the garnishee directing the garnishee to mail or deliver the garnished property, or an amount thereof sufficient to satisfy the garnishment, to the sheriff.

66 as 292,45 SPECIAL ACTIONS AND PROCEEDINGS 3) If the plaintiff fails to pay the sheriffs fees within the time provided in subsection 1) of this section, upon the expiration of that period the garnishment of the property described in the garnishee' s certificate shall be of no further force or effect, and the sheriff shall promptly give the garnishee notice in writing of the termination of the garnishment. 4) If the property held by the garnishee is a debt which is then in existence but not yet due, and which will not become due within 45 days after the date on which the writ of garnishment is delivered to the garnishee, or if the property is in the pos- session of the garnushee on an unexpired bailment or lease, or pursuant to a security interest granted by the defendant to the garnishee, or stock not evidenced by a negotiable certificate, then the sheriff shall do the following: a) Upon the sheriffs receipt of the garnishee' s certificate, the sheriff shall send or deliver a copy of the certificate to the plaintiff, together with the notice described in subsection ( 1) of this section. Upon the receipt of the sheriffs fees, at any time after the entry of a Judgment against the defendant, unless a claim of exemption has been filed with the clerk and the claim is pending, the sheriff shall sell the defendant' s interest in the property according to the certificate. b) Within five days following the sale of the defendant' s interest in the property, the sheriff shall advise the garnishee in writing of the identity of the purchaser and that the purchaser will be entitled to possession of the provided under ORS property 1987 c ] [ Repealed by 1981 c Procedure when ppropperty 1) In the owned by defendant and others. ( case of property in the garnishee' s possession which is or appears to be owned by the de- fendant and one or more other persons, the garnishee may deliver or hold subject to the garnishment all of said property, or so much thereof as is necessary to satisfy the garnishment, pursuant to ORS ) Nothing contained in subsection ( 1) of this section shall preclude any of the owners of the property from asserting said owners interest in or right to said property or any part thereof. To assert such a claim, the owner or owners, or any of them, shall complete and file with the court which issued the writ of garnishment an application in substantially the form set forth In ORS ( 2). Upon the filing of said application, the claim shall be adjudicated in a summary manner at a hearing before said court. [ 1981 c ] [ Repealed by 1981 c Duty of garnishee when court directs or release is delivered; effect of due date of debt or sale of defendant' s interest; effect on personal representative; payment of exempt wages. In the circumstances described, the following apply to a garnishee and control over any provision of ORS to or that conflicts: 1) The garnishee shall have no duty to deliver the certificate or to deliver or hold subject to the garnishment any property pursuant to ORS if the garnishee is otherwise directed by the court or if a release of the garnishment has been delivered to the garnishee pursuant to ORS ) The garnishee shall have no duty to deliver or hold subject to the garnishment any property of the defendant or debt owed to the defendant which, at the time the writ of garnishment or warrant and notice of garnishment was delivered to the garnishee, was in the possession, custody or control of the garnishee or was owed by the garnishee to the defendant if such property was removed from the possession, custody, or con- trol of the garnishee or such debt was ppaid to the defendant before the garnishee, through the exercise of reasonable care, could act to prevent the removal of the property from the garnishee' s possession, custody or control, or the payment of the debt owed to the defendant. 3) If the property is a debt which is then in existence but not yet due, and which will become due within 45 days after the date on which the writ of garnishment is delivered to the garnishee, the following apply to the garnishee: a) The garnishee shall comply with ORS relating to the preparation and delivery of the certificate. b) The garnishee is not required to deliver the property until the debt becomes due. Then, within five days after the debt becomes due, unless the garnishment has been satisfied or released, the garnishee shall mail or deliver to the appropriate person under ORS or the amount of the debt then due, or an amount thereof sufficient to satisfy the plaintiffs claim or judgment, whichever is less, less any garnishment processing fee levied by the garnishee as permitted by ORS c) If the garnishee receives a notice of claim of exemption at any time before the garnishee mails or delivers the amount due, the garnishee shall comply with ORS ) If the property is a debt which is then in existence but not yet due, and which will not become due within 45 days after the date on which the writ of garnishment is deliv- 3-28

67 ATTACHMENT & GARNISHMENT ered to the garnishee, or if the property is in the possession of the garnishee on an unexpired bailment or lease, or pursuant to a security interest granted by the defendant to the garnishee, or stock not evidenced by a negotiable certificate, the following apply to the garnishee: a) The garnishee shall not be required to deliver the property, but shall instead hold the property pending receipt of the advice provided for In ORS b) The garnishee shall comply with the requirements of ORS to mail or deliver to the sheriff the garnishee' s certificate designating the amount and description of the property and shall note thereon the garnishee' s reason for not delivering the property. c) If the arnishee has not received the notice provide for in ORS by the date on which the debt becomes due or the garnishee' s interest in the property expires, then, unless the garnishee has been notified in writing by the plaintiff or the sheriff that the sale of the defendant' s interest therein has been delayed, the garnishee may proceed to deal with the property as if the garnishment had not been issued. d) Within five days following the garnishee' s receipt of written notice from the sheriff, identifying the purchaser of the defendant' s interest, the garnishee shall pay the debt, less any garnishment processing fee levied by the garnishee as permitted in ORS , or deliver the property, as the case may be, to the purchaser of the defendant' s interest therein. However, if, upon the garnishee' s receipt of said written advice or notice, the debt remains not yet due or the bailment, lease or securit interest has not yet expired or been satisf ed or released, as the case may be, the garnishee shall not be required to deliver the property o the pur- chaser or the defendant until five days after the debt is due, the bailment or lease has expired, or the indebtedness secured by the property is satisfied or the security interest is released. 5) Garnishment shall not impair the powers of a personal representative over es- tate property for the purposes of administration. The personal representative shall prepare a certificate, noting thereon that the property is estate property subject to administration. Such certificate shall be delivered in compliance with ORS The personal representative shall also file a copy of the writ of garnishment and certificate in the office of the clerk of the court in which the estate is being administered and report the garnishment to the court in any petition for distribution. In a decree made upon such pe- tition, distribution shall be ordered to the heir or legatee, but delivery shall be ordered to the sheriff, the plaintiff or the plaintiffs attorney, as the case may be. 6) If the garnishee receives notice from the sheriff under ORS within 30 days after the writ of garnishment was delivered to the garnishee, the garnishee shall mail or deliver the garnished propert, or an amount thereof sufficient to satisfy the garnishment, less any garnishment processing fee levied by the garnishee as permitted in ORS , to the sheriff within five days after receipt of the notice. In the following circumstances, however, the garnishee is not required to mail or deliver property to the sheriff, but shall comply with the following: a) If the property is not conveniently deliverable, the garnishee may note that fact on the certificate, and may continue to hold the property until the sheriff takes possession thereof. b) If the garnishee receives notice from the sheriff that the plaintiff has failed to pay the sheriff' s fees within the time requiredt by ORS , effective on the date of such receipt the garnishee may deal with the garnished property as if the writ of garnishment had not been delivered to the garnishee. c) If the garnishee receives no notice from the sheriff under ORS within 30 days after the date on which the writ of garnishment was delivered to the garnishee, the g wm*shment shall be of no further force or effect, and the garnishee may deal with the garnished property as if the writ of garnishment had not been delivered to the garnishee. 7) Garnishees who are employers shall pay, the exempt portion of earnings to defendants who are employees. The garnishee may determine the exempt portion of such earnings in accordance with the Earnings Exemption Computation Schedule contained in the writ of garnishment delivered to the garnishee. 8) Notwithstanding any provision of ORS to and to , the garnishee may deliver under ORS or to the clerk of the court any property that the garnishee reasonably be may have been garnished. The garnishee shall have no duty to determine whether property held by the garnishee is exempt from garnishment or is a property interest subject to garnishment c ; 1987 c ; 1989 c [ Repealed by 1981 c Disposition of property delivered to court clerk or sheriff; payment of expenses; claim of exemption. ( 1) Property delivered to the clerk of the court in

68 29275 SPECIAL ACTIONS AND PROCEEDINGS accordance with ORS shall be disposed of as follows: a) If the writ of garnishment was issued pursuant to an order for provisional process, the clerk shall hold the money pending final judgment against the defendant unless the court finds, upon a claim of the defendant, that the property, or some part thereof, is exempt from execution. If final judgment is rendered in favor of the defendant, the court shall order the clerk to pay the money to the defendant. If final udgment is rendered in favor of plaintiff, unless a claim of exemption has been filed by the defendant with the clerk and is pending, the court shall order the clerk to pay to the plaintiff so much of the money as will satisfy the judgment, and to pay the remainder to the defendant. b) If the writ of garnishment was issued pursuant to a final judgment, the clerk shall proceed as provided under ORS , and with respect to any money or property delivered to the clerk. 2) Property delivered to the sheriff in accordance with ORS , or shall be disposed of as follows: a) If the writ of garnishment was issued pursuant to an order for provisional process, the sheriff shall hold nonperishable property pending final judgment against the defendant unless the court finds, upon a claim of the defendant, that the property, or some part thereof, is exempt from execution. If final judgment is rendered in favor of the defendant, the court shall order the sheriff to deliver the property to the defendant. If final judgment is rendered in favor of the plaintiff, unless a claim of exemption has been filed by the defendant with the clerk and is pending, the court shall order the sheriff to sell the property in the same manner in which property is sold on execution. b) If the writ of garnishment was issued pursuant to a final judgment, then 15 days after receipt of the property, unless a claim of exemption has been filed under ORS and is pending, the sheriff shall sell the property in the same manner in which property is sold on execution. If the sheriff re- ceives a notice of claim of exemption under ORS , the sheriff shall hold the property pending a court order and shall dispose of the property as ordered by the court. c) If the garnished property is perishable, or livestock and the cost of keeping is great, the sheriff shall sell the property in the same manner in which property is sold on execution. 3) The plaintiff shall be liable for the sheriffs reasonable expenses in taking and keeping ppropert,y tendered pursuant to this section. If final judgment is rendered in favor of the plaintiff, such expenses lowed as disbursements. shall be al- 4) Notwithstanding subsections ( 1) and 2) of this section, if the plaintiff notifies the clerk or the sheriff that the money or property should be released to the defendant, the clerk or the sheriff shall promptly release it c ; 1987 c [ Repealed by 1981 c and 1981 c Liability of garnishee who fails` to file certificate or deliver property; discharge of liability. (1) Unless the garnishee shall file a certificate and deliver the property required to be delivered to the sheriff or clerk of the court within the time provided bry law, the garnishee shall be liable to the plaintiff in an amount equal to the lesser of: a) The amount required to satisfy plaintiffs claim or judgment; or b) The value of the defendant' s property held by the garnishee at the time of the garnishee' s receipt of the writ of garnishment. 2) Delivery of the property by the garnishee to the sheriff or clerk of the - court, as the case may be, shall discharge the Kfrom liability to the plaintiff for the value thereof. The sheriff or clerk of the court shall, when requested, provide the garnishee with a receipt for any property re- ceived. [ 1981 c [ Repealed by 1981 c and 1981 c When garnishee punishable for contempt. If a garnishee fails to provide a certificate within the time stated, or if a certificate, when given, is unsatisfactory to the plaintiff, or if the garnishee fails to de- liver property within the time stated, the garnishee or an officer of the garnishee may be ordered by the court where the action is pending or judgment has been entered to appear and be examined on oath concerning the same, and disobedience of such order may be punished as contempt. [ 1981 c [ Repealed by 1981 c and 1981 c Effect of order under ORS 292M. The order provided for in ORS shall re re such person or officer to appear before the court at a stated time and place. In the proceedings upon the order, the person or the association or corporation represented by an officer shall be known as the garnishee. [ 1981 c [ Repealed by 1981 c and 1981 c Restraining garnishee from disposing or injuring property of defendant. The court may, at the time of the application of the plaintiff for the order provided for in ORS , or at any time thereafter, by order, restrain the garnishee from in any man-

69 ATTACHMENT & GARNISHMENT ner disposing of or injuring any of the property of the defendant alleged by the plaintiff to be in the garnishee' sf possession, and disobedience of such order may be punished as contempt. [ 1981 c [ Repealed by 1981 c and 1981 c Appearance under order. After the allowance of the order provided for in ORS , and not less than 20 days before the garnishee or officer thereof shall be required to appear, or within a time to be specified in the order, the plaintiff shall serve. upon the garnishee or officer thereof written allegations, and may serve written interrogatories concerning matters relating to the garnishment. [ 1981 an [ Repealed by 1981 c and 1981 c Answer of garnishee; effect of failure to answer. ( 1) Unless further time is allowed for good cause, not less than 10 days prior to the day when the garnishee or officer thereof is required to appear, the garnishee shall file an answer to the allegations and interrogatories with the court and deliver a true copy of the answer to the plaintiff. The answer shall be on oath, and shall contain a full and direct response to all the allegations and interrogatories. 2) If the garnishee or officer thereof fails to answer, the court, on motion of the plaintiff, may compel the garnishee or officer thereof to do so, or the plaintiff may, at any time after the entry of judgment against the defendant, have judgment against the garnishee for want of answer. In no case shall judgment be given against the garnishee for a greater amount than the nt against the defendant. [ 1981 c gme [ Repealed by 1981 c and 1981 c Insufficient answer; amendment; plaintiffs response. Plaintiff mayy except to the answer of the garnishee or ficer thereof for insufficiency, within such time as may be prescribed or allowed, and if the answer is adjudged insufficient, the garnishee or officer may be allowed to amend the answer, on such terms as may be proper, or judgment may be given for the plaintiff as for want of answer, or such garnishee or officer may be compelled to make a sufficient answer. The plaintiff may reply to the whole or a ppart of the answer within such time as may be prescribed or allowed. [ 1981 c [ Repealed by 1981 c and 1981 c Witnesses; trial of issues as issues of law. Witnesses, including the defendant and garnishee or officer thereof, may be required to appear and testify, and the issues shall be tried, upon proceedings against a garnishee, as upon the trial of an issue of law between a plaintiff and defendant. [ 1981 c When judgment given against garnishee; amount. If by the answer it shall appear, or if upon trial it shall be found, that the garnishee, at the time of the delivery of the garnishment documents, held property beyond the amount required to be reported in the certificate, or held any property if no certificate was given, or failed to deliver property required to be delivered, Judgment may be given against the garnishee for the value thereof in money. [ 1981 c M [Repealed by 1981 c and 1981 c Execution and writ against garnishee; when execution to issue. Executions and writs of garnishment may issue upon judgment against a garnishee as upon ordinary judgments between a plaintiff and a defendant, and costs and disbursements shall be allowed and recovered in like manner; provided, however, when judgment is rendered against any garnishee, and property of the defendant in the possession of the garnishee is a debt owing by the garnishee to the defendant not yet due, a bailment or lease which has not yet expired, or a security interest in favor of garnishee execution shall not issue until the debt is aue, bailment or lease has expired, or the indebtedness secured by the property is satisfied or security interest released. [ 1981 c Procedure for writs issued by agency to enrorce civu penalty orners; modification of forms; claims of exemption. Whenever a writ of garnishment is issued pursuant to ORS ( 2)(b), the provisions of ORS to and and shall apply, except that: 1) The original certificate of garnishee and schedule must be returned to the attorney issuing the writ of garnishment. 2) Any claim of exemption must be filed with the clerk of the circuit court in the county where the civil penalty order is re- corded. 3) Any attorney issuing a writ of 3-31 garnishment pursuant to ORS ( 2)( b) shall modify the forms provided in ORS , and to reflect that: a) The writ of garnishment is issued pursuant to a civil penalty order recorded in the County Clerk Lien Record pursuant to ORS ; b) The original certificate of garnishee and schedule must be returned to the attorney issuing the writ of garnishment; and c) Any claim of exemption must be filed with the clerk of the circuit court in the county where the civil penalty order is re-

70 SPECIAL ACTIONS AND PROCEEDINGS corded, and the claim must include the name and address of the plaintiff. 4) Upon the filing of a claim of exemption under subsection ( 2) of this section, the clerk of the court shall enter the filing in the court register and shall proceed as provided in ORS ) Immediately upon receipt of notice pursuant to ORS ( 2)( a), the attorney who issued the garnishment shall file with the clerk of the court a response to the claim of exemption attaching the following as exhibits: a) A copy of the civil penalty order certified by the agency; b) A copy of the recording made in the County Clerk Lien Record, certified by the county clerk, containing all of the information required by ORS ; c) Copies of the writ of garnishment and original certificate of garnishee and sched- ule, certified by the attorney; and d) Any other supporting documentation necessary or helpful to the court in making its determination. [ 1991 c.734 2c] [ Repealed by 1981 c and 1981 x Release; effect. The plaintiff or plaintiffs agent or attorney may issue re- leases of garnishments that may cover all or any portion of the property held under garnishment. The following apply when property is released under this section: 1) The plaintiff shall deliver a copy of the release to the defendant. The plaintiff or plaintiffs agent or attorney or the defendant shall immediately deliver a duplicate original of the release to all of the following: a) The clerk of the court where the judgment was originally entered or, if a foreign judgment registered in this state, where first filed in this state. b) The garnishee. c) If the sheriff is holding or selling any of the defendant' s property, the sheriff. 2) A person who does not receive notice of the release under this section shall not be liable for dealing with the property as if it were subject to garnishment. 3) Any pending proceedings in such case for the sale upon execution of any property so garnished shall, as to all property covered by the release, thereupon be terminated and be considered of no effect. 4) Upon receipt by the garnishee of the duplicate original release, the garnishee, and all property subject to such garnishment, shall to the extent stated in the release, be released from all liability arising by reason of the issuance and service of the writ of garnishment, or by reason of the garnishee' s return thereon as though the garnishment documents had not been served. The garnishee may rely upon any such release so received without any obligation to inquire into the authority therefor. ( 1981 c ; 1987 c Recovery of certain costs relat- M to enforcement of judgments and coction lle of taxes. This section establishes the right of a plaintiff to recover certain moneys the plaintiff has expended to recover a debt under ORS 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 paragraph ( a) of subsection ( 1) of this section shall not be considered moneys paid on and to be credited against the o6ginal judgment or debt sought to be enforced. No additional judgment is necessary to recover moneys in the manner provided in paragraph ( a) of subsection ( 1) of this section. 3) The only moneys a plaintiff may re- cover under paragraph ( a) of subsection ( 1) 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 re= ceived. Moneys recoverable under paragraph a) of subsection ( 1) of this section remain 3-32 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 statutorily established moneys that meet the requirements under subsection ( 3) of this section: a) Garnishee' s search fees under ORS ( l). b) Fees for delivery of writs of garnishment under ORS

71 ATTACEDIENT & GARNISEDIENT c) Circuit and district court fees as provided under ORS d) County court fees as provided under ORS e) County clerk recording fees as provided in ORS fl Actual fees or disbursements made under ORS g) Costs of execution as provided in ORS 5) The plaintiff shall be responsible for doing all of the following: a) Maintaining a precise accounting of moneys recovered under paragraph ( a) of subsection ( 1) 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 paragraph ( a) of subsection ( 1) of this section. 6) Moneys recovered under paragraph ( a) of subsection ( 1) 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 mon- eys recoverable under paragraph ( a) of sub- section ( 1) of this section unless the right to collect the moneys is first reduced to a judg- ment or to a debt enforceable under ORS [ 1989 c ; 1989 c.910 4; 1991 c [ Repealed by 1981 c and 1981 c Authority of county to issue continuing writ of garnishment; dura- tion; certificate of garnishee. ( 1) Notwith- standing ORS ( 2) and ( 2), when the plaintiff on whose behalf a writ of garnishment is issued is a county or county agency, if the garnishment is on an employer, the writ of garnishment shall continue in full force and effect on the garnishee until the garnishee pays the full amount of the debt owed to the county or county agency or until the writ of garnishment is released by the county, county agency or by court order. Notwithstanding ORS and , a writ of garnishment described in this subsection shall contain language reasonably designed to notify the garnishee of the provisions of this section. 2) Each time an amount due the defendant is payable, and in any event not less than once every 30 days, until the writ of garnishment is no longer effective, the garnishee shall make the delivery required by subsection ( 3) of this section. 3) Notwithstanding ORS , the garnishee shall deliver the certificate of the garnishee together with the garnished property to the county or county agency on whose behalf the writ of garnishment was issued. 4) Except as provided in this section, all provisions of ORS to shall apply to arnishments under this section. [ 1989 c Note: was added to and made a part of ORS chapter 29 by legislative action but was not added to any smaller series therein. See Preface to Oregon Revised Statutes for further explanation Authority of state agency to garnish propperty by warrant and notice; procedure. ( 1) Notwithstanding ORS , any state agency authorized to issue warrants to collect taxes and debts owed to the State of Oregon, including but not limited to warrants issued pursuant to ORS , , , , , , , and , may garnish property of a defendant in the possession of a person other than the plaintiff or defendant by delivery to such person of all of the following: a) A warrant or true copy thereof to- gether with a notice of garnishment; b) One additional copy of the warrant and of the notice of garnishment in addition to the originals or true copies required under paragraph ( a) of this subsection; and c) Any garnishee' s search fee payable as provided for in ORS ) If any of the items described in subsection ( 1) of this section are not delivered to the garnishee, the garnishment shall not be effective to garnish any property of the defendant, and the garnishee shall not be required to respond to the garnishment and may proceed to deal with any property of the defendant as though the writ of garnishment had not been issued )( a) Where the garnishment is on an employer, the state agency shall use a notice of continuous garnishment as the notice of garnishment under subsection ( 1) of this section. A continuous garnishment shall continue in full force and effect on the garnishee until the garnishee has paid the state agency the full amount of the warrant, or the garnishment is released by the agency or by court order, or other disposition is made by court order. The garnishment shall contain language reasonably designed to notify the garnishee of the provisions of this sub- section.

72 SPECIAL ACTIONS AND PROCEEDINGS b) Each time an amount due the defendant is payable, and in any event not less than once every 30 days, until the continuous garnishment is no longer effective the garnishee shall make the delivery required y subsection ( 5) of this section. c) Notwithstanding paragraph ( a) of this subsection, if the state agency has reason to believe that a taxpayer intends to leave the state or do any other act that would jeopardize the collection of any tax or debt owed to the state, the state agency may issue a garnishment pursuant to subsection ( 1) of this section. 4) Notwithstanding ORS , a warrant or true copy thereof and notice of garnishment delivered under subsection ( 1) or ( 3) of this section may be delivered in person by any employee of the state agency authorized by the agency to deliver such warrant or true copy thereof and notice of garnishment, or by certified mail return receipt requested. Such employee need not be covered by errors and omissions insurance as provided by ORS ) Notwithstanding ORS , and , the garnishee shall deliver the certificate of the garnishee together with the garnished property, less any garnishment processing fee levied by the garnishee as permitted in ORS , to the state agency which issued the warrant. 6) Except as provided in this section and ORS , all provisions of ORS to shall apply to garnishments under a warrant or true copy thereof and notice of arnishment. ( 1981 c ; 1983 c.622 2; 1989 c c C Financial institution as garnishee; search fee. ( 1) When a writ of garnishment is or a warrant or true copy thereof and notice of garnishment are delivered to a garnishee that is a financial institution as defined in ORS , the plaintiff shall pay a garnishee' s search fee of $ 5 to the garnishee. 2) Notwithstanding ORS , and subsection ( 1) of this section, a garnishee that is a financial institution may enter into an agreement with any state agency authorized to garnish pursuant to ORS for periodic billing and payment of the $ 5 garnishee search fees required under this section. 3) The right of the garnishee to receive the search fee provided for in subsection ( 1) or ( 2) of this section shall in no way restrict or impair the right of a garnishee to charge and collect an additional garnishment proc- essing fee from any defendant whose property the garnishee holds or to whom the garnishee owes a debt. However, a garnishee shall not charge or collect a garnishment processing fee in violation of ORS Where the garnishee charges such a garnishment processing fee, the garnishee may collect the fee by deducting the amount thereof from any debt the garnishee owes to the defendant. [ 1989 c.810 2; 1991 c ( Repealed by 1981 c [ Repealed by 1981 c Severability. If any provision of ORS , , , , and to and ORCP 81 and 84 C. and D. or the application thereof to any person or circumstance is held invalid for any reason, such invalidity shall not affect any other provision or application of ORS , , , , and to and ORCP 81 and 84 C. and D. which can remain in effect without the invalid provision or application, and to this end the provisions of ORS , , , , and to and ORCP 81 and 84 C. and D. are severable. [ 1981 c A00 [ Repealed by 1981 c and 1981 c WRIT OF CONTINUING GARNISHMENT Who may obtain writ; duration. In addition to garnishment proceedings otherwise available under ORS to and to , a person for whom a writ of garnishment may be issued under ORS may obtain a writ of continuing garnishment against any garnishee who is an employer of the defendant. To the extent that the earnings are not exempt from garnishment, the garnishment shall be a lien and continuing levy against earnings owed by the garnishee to the defendant at the time of service of the writ of continuing garnishment and on all earnings accruing from the garnishee to the defendant from the date of service until 90 days have expired since the date of issuance of the writ or until the employment relationship is terminated, the underlying judgment is vacated, modified or satisfied in full or the writ is dismissed, 3-34 whichever is sooner. [ 1989 c.876 2; 1991 c Multiple writs; priority. (1) Only one writ of garnishment against earnings due the defendant shall be satisfied at one time. When more than one writ of garnishment has been issued against earnings due the same defendant, they shall be satisfied in the order of service on the garnishee. No plaintiff may issue more than one writ of garnishment against the earnings of any individual defendant during the term of the lien created by any writ of garnishment previously issued and served by that plaintiff.

73 ATTACHMENT & GAR)\IISHMENT )( a) Any writ of garnishment served upon a garnishee while any previous writ is still in effect shall be answered by the garnishee with a statement that the garnishee has been served previously with one or more writs of garnishment against earnings due the defendant and specifying the date on which all such liens are expected to terminate. b) Upon the termination of garnishment, any other writ of garnishment that has been issued or that is issued subsequently against earnings due the defendant shall have prior - it in the order of service on the garnishee. T e person who serves a writ of garnishment on a garnishee shall note the date and time of such service. [ 1989 c [ 1973 c ; repealed by 1981 c Form of writ issued by clerk of court. This section establishes a form for a writ of continuing garnishment described in ORS to and issued by the clerk of the court as described in ORS and A writ of continuing garnishment issued by the clerk of the court shall be in substantially the following form: This form is for garnishments issued under ORS , and to ) THIS IS A WRIT OF CONTINUING GARNISHMENT IN THE COURT OF THE STATE OF OREGON FOR THE COUNTY OF Plaintiff, ) VS. ) Defendant. ) WRIT OF CONTINUING GARNISHMENT ISSUED BY THE COURT CLERK Case No. IN THE NAME OF THE STATE OF OREGON, TO: You are now a Garnishee. AS A GARNISHEE, YOU NEED TO KNOW THE FOLLOWING ( The following information is to be filled in by the Creditor.): On the day of 19, cross out one) p aiintiff/defen- Ta-n t named above and called Creditor," obtained a judgment ( a court order for the payment of money) against the cross one out) plaintiff/defendant named above and called Debtor." The Debtor' s Social Security Number or Employer Identification Number is ( insert if known). The following amount is necessary to satisfy the Creditor's claim or judgment: Claim or Judgment Debt $ Prejudgment Interest $ Attorney Fees $ Cost Bill $ Post - Judgment Interest $ Delivery Fee for this Writ $ Issuance Fee for this Writ $ Sheriff's Fees other than Delivery Fees $ Other ( Explain. Attach additional sheets if necessary. NOTE: INSERTING ITEMS AND AMOUNTS NOT LAWFULLY SUBJECT TO COLLECTION BY GARNISHMENT MAY RESULT IN LIABILITY FOR WRONGFUL EXECUTION.) Total other from additional sheet if used) $ Past Writ Issuance Fees $ Past Delivery Fees $ Transcript and Filing Fees for other counties $ Subtotal $ LESS Payments Made $( ) TOTAL Amount Required to Satisfy in Full this Claim or Judgment $ THE CLERK OF THE COURT HAS NOT CALCULATED ANY AMOUNTS ON THE WRIT AND IS NOT LIABLE FOR ER- RORS MADE IN THE WRIT BY THE CREDITOR. Witness the hand and seal of the court on this day of, State of Oregon ) County of ) CLERK OF THE COURT By ss. I certify that the foregoing is a true and correct copy of the original Writ of Garnishment in the above - entitled case. CLERK OF THE COURT By I certify that I have read the Writ of

74 SPECIAL ACTIONS AND PROCEEDINGS Garnishment; and to the best of my knowledge, information and belief, there is good ground to support it and all sums included above are lawfully subject to collection by this garnishment. Creditor/Creditor's Attorney ( or Agent) Address Telephone Number Oregon State Bar Number ( if applicable) GARNISHEE' S DUTIES YOU MUST ANSWER THIS WRIT BY COMPLETING AND FILING A CERTIF- ICATE OF GARNISHEE WHETHER OR NOT YOU HOLD ANY OF THE DEBTOR' S WAGES OR OWE ANY WAGES TO THE DEBTOR. IF YOU FAIL TO ANSWER THIS WRIT, OR IF YOU ANSWER IT UNTRUTHFULLY, OR IF YOU FAIL TO DELIVER THE WAGES WHEN REQUIRED TO DO SO, YOU MAY BE SUBJECT TO COURT PROCEEDINGS UNDER ORS AND MAY BE HELD LIABLE TO THE CREDITOR FOR THE LESSER OF: A) THE TOTAL AMOUNT CLAIMED IN THIS WRIT, OR B) THE AMOUNT YOU OWE THE DEBTOR. Garnishment is in effect, you should check the appropriate space in the Certificate of Garnishee and file the certificate as provided in Step 2. If you have questions, you should contact an attorney. The clerk of the court cannot give you legal advice. If the writ does not comply with Oregon law or if you cannot tell from the writ whether you owe any wages to the Debtor, the writ does not garnish anything, but you must fill out the certificate anyway and follow Step 2. Keep a copy for your records. If the writ does comply with Oregon law and you can tell that you may owe wages to the Debtor but you are not sure what or how much, you must fill out the certificate anyway and explain why. You must then follow Step 2. When you find out whether or what you do owe the Debtor, you should amend the certificate, even if you find out you do not owe the Debtor anything. Follow Step 2 again and file the amended certificate. After filing the certificate under Step 2, go on to Step 3 if you owe any wages to the Debtor. STEP 2. FILE THE CERTIFICATE AND SCHEDULE. Within five days of receiving the writ, you must send all of the following ( information to be filledin by Creditor): NOTE: YOU MAY NOT LAWFULLY The original certificate and schedule DISCHARGE THE DEBTOR FROM EM- form to the clerk of the ( cross one out) PLOYMENT AS A RESULT OF THIS district/circuit court of County at: GARNISHMENT. As a Garnishee, you must take the following steps: STEP 1. COMPLETE THE CERTIFICATE AND SCHEDULE. Within five days of receiving the writ, you must fill out and file the forms below called " Certificate of Garnishee" and, if you pay, wages ( see schedule form), the " Earnings Exemption Computation Schedule." In filling out the form, you must describe any garnished wages you know you have in your possession. This writ garnishes only wages you owe to the Debtor as of the date you received this writ and wages that accrue nor before 90 days after the date this writ is issued, including wages owed but not yet due when you received this writ. You file these forms by following Step 2 below. If you receive a subsequent Writ of Garnishment while another Writ of Street address City State County Zip Code A copy of the certificate and schedule form to the Debtor at ( last known address): Name Street address City State Zip Code 3-36 Telephone number (if known) A copy of the certificate and schedule form to the Creditor at: Name Street address City Zip Code Telephone number State STEP 3. DELIVER THE FUNDS. If you owe wages to the Debtor or will owe wages to the Debtor within 90 days after this writ is issued, you must do the following after you file the certificate under Step 2. If

75 ATTACHMENT & GAR.2\IISHIMIENT you owe wages payable in money that are due now or will accrue within 90 days after the issuance of this writ, unless you receive a notice of claim of exemption or other direction from the court ( a document or other notice from the clerk of the court telling you what to do with the money or informing you that the Debtor is claiming that all or some of the money cannot be garnished), when you send your certificate, at the end of each pay period within the 90 -day period and at the end of the 90 -day period, make your check or other draft payable to the Creditor and send the payment directly to the Creditor at the address shown in Step 2. In making payments under this writ, you need to prorate any wages or periodic payments, so that you pay only the amount you owe the Debtor on the date you receive this writ, at the end of each pay period within the 90 -day period and at the end of the 90 -day period. If you receive a notice of claim of exemption,from the court or direction from the court to deliver the money to the court and have not yet forwarded the money, send or deliver the payment directly to the clerk of the court. You must send the payment promptly with the Certificate of Garnishee if it is now due; otherwise, send it at the end of each pay period within the 90 -day period and at the end of the 90 -day period and send the Certificate of Garnishee as required under Step 2. If you make payment by check or other, draft, make it payable to the court. Because you may b_ a liable for money that does not reach the court, it is better not to send cash by mail. EARNINGS EXEMPTION COMPUTATION SCHEDULE The Garnishee must complete the following form and fill in the correct amounts only if the Garnishee is an employer of the Debtor under ORS Debtor' s gross weekly earnings"... $ 2. Amounts required to be withheld by law Federal and state withholding, social security, etc.)... $ 3. Debtor' s " disposable earnings" for week - Subtract line 2 from line 1... $ 4. Minimum Exemption a) For wages payable before June 30, $ 150 b) For wages payable before June 30, $ 160 c) For wages payable on or after July 1, $ 170, 5. Maximum Exemption - Enter 75 percent of line $ 6. Earnings exempt from garnishment - Line 4 or 5, whichever is greater... $ 7. Nonexempt earnings - Subtract line 6 from line 3... $ 8. Amounts withheld pursuant to a support order under ORS or for payment of delinquent support under ORS $ 9. Earnings subject to garnishment - Subtract line 8 from line 7... $ Case caption to be completed IN THE by Creditor) COURT OF THE STATE OF OREGON FOR THE COUNTY OF Plaintiff, ) VS. ) Defendant. ) CERTIFICATE OF CONTINUING GARNISHEE Case No. TO: The Clerk of the Court, Debtor and Creditor /Creditor's Attorney Following to be completed by Garnishee) State of County of I hereby certify that at the time of delivery to me of the foregoing Writ of Garnishment on the day of 19, I had in my possession, control or custody only the following wages due or to become due, belonging or owing to the Debtor named in said Writ of Garnishment ( include due date if not yet due): 3-37

76 SPECIAL ACTIONS AND PROCEEDINGS I have placed a check in front of all the following statements that apply ( more than one may apply): I do not owe wages to the Debtor. The Writ of Garnishment does not comply on its face with Oregon garnishment law or I am unable to determine from the information in the writ whether I owe any wages to the Debtor. ( Explain) The writ does comply with Oregon law and I am able to,determine that I may owe wages to the Debtor, but I am not sure what or how much it might- be. I will file an amended 'certificate when I find out. (Explain) I have been served with a previous Writ of Garnishment against the wages I owe or will owe to the Debtor. Under Oregon law, the previ- ous garnishment has priority. It is expected to terminate on I will owe wages to the Debtor, which are not now due but will become due within 90 days from the date of the issuance of the writ of continuing garnishment. I will for- ward the money when the debt or other obligation becomes due. I owe wages to the Debtor which is now due and I am forwarding the money owed or enough of it to satisfy the garnishment to the Creditor. I have received a notice of claim of exemption or other direction from the clerk of court and am forwarding funds to the clerk of court. Other ( Explain) Dated, 19_ ame of Garnishee Signature Address Statutes affecting Garnishee responses include ORS , , , , , , , , and ) 1989 c.876 4; 1991 c.67 6; 1991 x Form of writ issued by attorney. ORS , is amended to read: This section establishes a form for a writ of continuing garnishment described in ORS to and issued by an attorney as described in ORS and A writ of continuing garnishment issued_byy an attorney shall be in substantially the following form: This form is for continuing garnishments is- sued under ORS , and to ) THIS IS A CONTINUING WRIT OF GARNISHMENT IN THE COURT OF THE STATE OF OREGON FOR THE COUNTY OF Plaintiff, ) VS. ) Defendant. ) WRIT OF CONTINUING GARNISHMENT ISSUED BY ATTORNEY Case No. IN THE NAME OF THE STATE OF OREGON, TO:, You are now a Garnishee. AS A GARNISHEE, YOU NEED TO KNOW THE FOLLOWING ( The following information is to be filled in by the Creditor.): On the day of, 19, ( cross out one) plainti efen ant named above and called Creditor," obtained a judgment ( a court or- 3-38

77 ATTACHMENT & GARNISHMENT der for the payment of money) against the cross one out) plaintiff/defendant named above and called Debtor." The Debtor' s Social Security Number or Employer Identification Number is ( insert if known). The fol- lowing amount is necessary to Creditor' s judgment: Judgment Debt $ Prejudgment Interest $ Attorney Fees $ Cost Bill $ Post - Judgment Interest $ Delivery Fee for this Writ $ Sheriffs Fees other than Delivery Fees $ Other ( Explain. Attach additional sheets satisfy the if necessary. NOTE: INSERTING ITEMS AND AMOUNTS NOT LAWFULLY SUBJECT TO COLLECTION BY GARNISHMENT MAY RESULT IN LIABILITY FOR WRONGFUL EXECUTION.) Total other from additional sheet if used) $ Past Writ Issuance Fees $ Past,Delivery Fees $ Transcript and Filing Fees for other counties $ Subtotal $ LESS Payments Made $( ) TOTAL Amount Required to Satisfy in Full this Judgment $ THE CLERK OF THE COURT HAS NOT CALCULATED ANY AMOUNTS ON THE WRIT AND IS NOT LIABLE FOR ER- RORS MADE IN THE WRIT BY THE CREDITOR. I certify that I have read the Writ of Garnishment; and to the best of my knowledge, information and belief, there is good ground to support it and all sums included above are lawfully subject to collection by this garnishment. Creditor' s Attorney Address Oregon State Bar Number Date of Issuance Telephone Number GARNISHEE' S DUTIES YOU MUST ANSWER THIS WRIT BY COMPLETING AND FILING A CERTIF- ICATE OF GARNISHEE WHETHER OR NOT YOU OWE ANY WAGES TO THE DEBTOR. IF YOU FAIL TO ANSWER THIS WRIT, OR IF YOU ANSWER IT UNTRUTHFULLY, OR IF YOU FAIL TO DELIVER THE WAGES WHEN REQUIRED TO DO SO, YOU MAY BE SUBJECT TO COURT PROCEEDINGS UNDER ORS AND MAY BE HELD LIABLE TO THE CREDITOR FOR THE LESSER OF: A) THE TOTAL AMOUNT CLAIMED IN THIS WRIT, OR B) THE AMOUNT YOU OWE THE DEBTOR. NOTE: YOU MAY NOT LAWFULLY DISCHARGE THE DEBTOR FROM EM- PLOYMENT AS A RESULT OF THIS GARNISHMENT. As Garnishee, you must take the following steps: STEP 1. COMPLETE THE CERTIFICATE AND SCHEDULE. Within five days of receiving the writ, you must fill out and file the forms below called " Certificate of Garnishee" and, if you pay wages ( see schedule form), the " Earnings Exemption Computation Schedule." In filling out the form, you must describe any garnished wages you know you have in your possession. This writ garnishes only wages you owe to the Debtor as of the date you received this writ, including debts that existed but were not yet due when you received this writ and wages that accrue on or before 90 days after the date this writ is issued. You file these forms by following Step 2 below. If you receive a subsequent Writ of 3-39 Garnishment while another Writ of Garnishment is in effect, you should check the appropriate space in the Certificate of Garnishee and file the certificate as provided in Step 2. If you have questions, you should contact an attorney. The clerk of the court cannot give you legal advice. If the writ does not comply with Oregon law or if you cannot tell from the writ whether you owe any wages to the Debtor, the writ does not garnish anything, but you

78 SPECIAL ACTIONS AND PROCEEDINGS must fill out the certificate anyway and follow Step 2. Keep a copy for your records. If the writ does comply with Oregon law and you can tell that you may owe wages to the Debtor but you are not sure what or how much, you must fill out the certificate anyway and explain why. You must then follow Step 2. When you find out whether or what you do owe the Debtor, you should amend the certificate, even if you find out you do not owe the Debtor anything. Follow Step 2 again and file the amended certificate. After filing the certificate under Step 2, go on to Step 3 if you owe anything to the Debtor or hold property that belongs to the Debtor. STEP 2. FILE THE CERTIFICATE AND SCHEDULE. Within five days of receiving this writ, you must send all of the following ( information to be filledin by Creditor): A copy of the certificate and schedule form to the Creditor at: Name Street address City Zip Code Telephone number State The original certificate and schedule form to the clerk of the ( cross one out) district/circuit court of County at: Street address City County State Zip Code A cooa of the certificate and schedule form to the Debtor at (last known address): Name Street address City State Zip Code Telephone number (if known) STEP 3. DELIVER THE FUNDS OR OTHER PROPERTY. If you owe wages to the Debtor or will owe wages to the Debtor within 90 days after this writ is issued, you must, if you owe wages payable in money that are due now or will accrue within 90 days after this writ is issued, unless you receive a notice of claim of exemption ( a document or other notice from the clerk of the court informing you that the Debtor is claiming that all or some of the money cannot be garnished), when you send your certificate, at the end of each pay period within the 90 -day period and at the end of the 90 -day period, make your check or other draft payable to the Creditor and send the payment directly to the Creditor at the address shown in Step 2. In making payments under this writ, you need to prorate any wages or periodic payments, so that you pay only the amount you owe the Debtor on the date you receive this writ, at the end of each pay period within the 90-day period and at the end of the 90 -day period. If you receive a notice of claim of exemption from the court and have not yet forwarded the money, send or deliver the payment directly to the clerk of the court. You must send the payment promptly with the Certificate of Garnishee if it is now due; otherwise, send it at the end of each pay period within the 90 -day period and at the end of the 90 -day period and send the Certificate of Garnishee as required under Step 2. If you make payment by check or other draft, make it payable to the court. Because you may be lia le for money that does not reach the court, it is better not to send cash by mail. EARNINGS EXEMPTION COMPUTATION SCHEDULE The Garnishee must complete the following form and fill in the correct amounts only if the Garnishee is an employer of the Debtor under ORS Debtor' s gross weekly earnings"... $ 2. Amounts required to be withheld by law Federal and state withholding, social security, etc.)... $ 3. Debtor' s " disposable earnings" for week - Subtract line 2 from line 1... $ 4. Minimum Exemption a) For wages payable before June 30, $ 150 b) For wages payable before June 30, $ 160 c) For wages payable 3-40 on or after July 1, $ Maximum Exemption - Enter 75 percent ofline $ 6. Earnings exempt from garnishment - Line 4 or 5, whichever is greater... $ 7. Nonexempt earnings - Subtract line 6

79 AZTACI EVIENT & GARNISEMNT from line 3... $ 8. Amounts withheld pursuant to a support order under ORS or for payment of delinquent support under ORS $ 9. Earnings subject to garnishment - Subtract line 8 from line 7... $ Case caption to be completed IN THE by Creditor) COURT OF THE STATE OF OREGON FOR THE COUNTY OF Plaintiff, ) CERTIFICATE OF VS. ) CONTINUING GARNISHEE Case No. Defendant. ) TO: The Clerk of Court, Creditor' s Attorney, Debtor and ( if applicable) Sheriff Following to be completed by Garnishee) State of County of I hereby certify that at the time of deliv- ery to me of the foregoing Writ of Garnishment on the day of 191 I had in my possession, control or custody only the following wages due or to become due, belonging or owing to the Debtor named in the Writ of Garnishment ( include due date if not yet due): I have placed a check in front of all the following statements that apply ( more than one may apply): I do not owe wages to the Debtor. The Writ of Garnishment does not comply on its face with Oregon garnishment law or I am unable to determine from the information in the writ whether I owe wages to the Debtor. ( Explain) The writ does comply with Oregon law and I am able to determine that I may owe wages to the Debtor, but I am not sure what or how much it might be. I will file an amended cer- tificate when I fmd out. (Explain) I have been served with a previous Writ of Garnishment against the wages I owe or will owe to the Debtor. Under Oregon law, the previ- ous garnishment has priority. It is expected to terminate on I will owe wages to t edeor, which are not now due but will become due within 90 days from the date of the issuance of the writ of continuing garnishment. I will for- ward the money when the debt or other obligation becomes due. I owe wages to the Debtor which are now due and I am forwarding the money owed or enough of it to satisfy the garnishment to the Creditor. I have received a notice of claim of exemption and am forwarding funds to the clerk of court. Other (Explain) Dated, 19_ 3-41 Name of Signature Address arms ee Statutes affecting Garnishee responses include ORS , , , , , , , , and ) 1989 c.876 5; 1991 c [ Repealed by 1979 c [ Repealed by 1981 c

80 SPECIAL ACTIONS AND PROCEEDINGS [ Repealed by 1981 c [ Repealed by 1981 c [ Repealed by 1981 c [ Amended by 1977 c.415 5; repealed by 1981 c ] [ Repealed by 1981 c [ Repealed by 1981 c [ Repealed by 1981 c [ Repealed by 1981 c [ Repealed by 1981 c [ Amended by 1977 c.415 6; repealed by 1981 c [ Repealed by 1981 c [ Repealed by 1981 c [ Repealed by 1981 c AM [ Repealed by 1981 c [ Repealed by 1981 c [Repealed by 1981 c [ Repealed by 1981 c [ Repealed by 1981 c [ Repealed by 1981 c [ Repealed by 1981 c [ Repealed by 1981 c [ Repealed by 1981 c [ Amended by 1997 c.415 l; renumbered ] [ Repealed by 1977 c AW [ Amended by 1977 c.415 2; renumbered ] [ Repealed by 1977 c [ Repealed by 1977 c [ Repealed by 1977 c [ Repealed by 1977 c [ Repealed by 1977 c [ Renumbered [ Amended by c.415 3; renumbered ] [ Amended by 1977 c ; renumbered ] 3-42

81 Chapter EDITION Actions and Suits in Particular Cases ACTIONS FOR INJURY OR DEATH Who may maintain action for injury or death of child Action for wrongful death; when commenced; damages Distribution of damages Apportionment among dependents upon settlement Apportionment among dependents after judgment Appeal from order of distribution or ap- portionment Settlement; discharge of claim Procedure upon death of injured person 30ASO Effect of death of wrongdoer Defense to action for injury or death based on ordinary negligence Appointment of administrator of estate of wrongdoer Substitution of personal representative as party defendant ACTIONS BY GUEST PASSENGERS Aircraft and watercraft guest passengers; definitions Public carriers by aircraft and prospective aircraft purchasers ACTIONS ON CERTAIN CONSTRUCTION AGREEMENTS Effect of indemnification provision in con- struction agreement ACTIONS FOR DEFAMATION Liability of radio or television station personnel for defamation Damages recoverable for defamation by radio, television, motion pictures, newspa- per or printed periodical When general damages allowed Publication of correction or retraction upon demand Effect of publication of correction or retraction prior to demand Publisher' s defenses and privileges not affected ACTIONS ARISING OUT OF THE PROVISION OF UTILITY SERVICES Definitions for ORS to Civil action for taking of or tampering with utility services Amount of recovery Remedies not exclusive ACTIONS FOR INTIDMATION Civil action for intimidation; remedies; li- ability of, parents Action by district attorney; effect on oth- ers ACTIONS ON OFFICIAL BONDS To whom official bonds are security Parties Leave to -begin action Subsequent delinquencies on same bond Amount of judgment TORT ACTIONS AGAINST PUBLIC BODIES Generally) 302W Definitions for ORS to Scope of liability of public body, officers, employees and agents; liability in nuclear incident Liability for certain medical treatment at Oregon Health Sciences University facili- ties 3020 Liability for certain medical treatment at facilities other than Oregon Health Sciences University Amount of liability Notice of claim; time of notice; time of action Reporting notice of claim of professional negligence to licensing board Local public body insurance against liability; payment of assessment to state Insurance Fund Public body shall indemnify public officers; procedure for requesting counsel; extent of duty of state; obligation for judgment and attorney fees Counsel for public officer, when public funds not to be paid in settlement; effect on liability limit; defense by insurer Settlement of claims by local public body Payment of judgment or settlement; remedies for nonpayment; tax levy for payment; installment payments Liability for damages caused by foster child under care of Children' s Services Di- vision; conditions; exceptions Liability of Children' s Services Division to foster parents for injury or damage caused by foster child; conditions; limitations ORS to exclusive Certain Retired Physicians) Certain retired physicians to be considered agents of public bodies 3-43

82 SPECIAL ACTIONS AND PROCEEDINGS Actions and suits by governmental units Actions by governmental units against contractors conspiring to destroy competition or acting in violation of federal antitrust laws Proceedings by cities and counties to enforce ordinances and resolutions Contract and other actions and suits Title of proceedings by or against county; control of proceedings by county court State as defendant in actions involving liens on realty 3037 ACTIONS AND SUITS BY AND AGAINST GOVERNMENTAL UNITS AND OFFICIALS against governmental units Contracts of Department of Transportation providing for arbitration 0 Service of summons on Attorney General; content 0 Action by assignee of claim for money illegally charged or exacted Satisfaction of judgment against public corporation Settlement of certain claims against mu- nicipal corporations; manner of payment Actions by and against public officers in 3OA02 30A10 3OA20 3OA30 3OA40 3OA50 3OA60 3OA75 30A80 official capacity SEIM LEMENT OR COMPROMISE BY PUBLIC BODY Prohibition of confidential settlements and compromises; exception RECOVERY OF FINES AND FORFEITURES In whose name action brought Venue of action for forfeiture Amount of recovery Judgment by collusion not a bar Disposition of fines and forfeitures Payment of fines, cost or bail in proceeding to enforce county ordinance or resolution; defendant personally liable VOLUNTEERS TRANSPORTING DISABLED AND OLDER PERSONS Legislative policy Limitation on liability of volunteers; conditions Apportionment of damages awarded; insurance issues excluded from jury consid- eration VOLUNTEERS PROVIDING ASSISTANCE OR ADVICE IN RESPONSE TO DISCHARGE OF HAZARDOUS MATERIAL OR RELATING TO COMPLIANCE WITH DISPOSAL LAWS 3OA90 Definitions for ORS to OA92 3OA95 3OA97 Limitation on liability of person voluntarily providing assistance or advice related to mitigation or cleanup of discharge of hazardous material Exceptions to limitation When limitation on liability not applicable 30ZW Definitions for ORS 30500, and Limitation on liability of person voluntarily providing assistance relating to compliance with hazardous waste disposal laws ACTIONS FOR USURPATION OF OFFICE OR FRANCHISE; TO ANNUL CORPORATE - EXISTENCE; TO ANNUL LETTERS PATENT Action for usurpation of office or franchise Joinder of defendants Determining right of person claiming an office or franchise Rights of person adjudged entitled to office or franchise Action for damages Judgment against usurper; imposition of fine Action to annul corporate existence on direction of Governor Action to annul corporate existence on leave of court Judgment against corporation Action to annul letters patent Prosecutor, verification of pleadings; affidavit for leave, of court; relator as coplaintiff Duty of district' attorney _ Filing copy of judgment with Secretary of State 30" Enforcement of judgment ACTIONS FOR UNLAWFUL DLSCRIIIIDNATION IN PLACES OF PUBLIC- ACCOMMODATION Right of all persons to equal facilities in places of public accommodation Place of public accommodation defined Action for damages by person discrimi- nated against,, r i, ' Aiding or abetting certain discrimination prohibited ACTIONS ARISING OUT OF EQUINE ACTIVITIES Definitions for ORS to Policy Limitations on liability, exceptions Additional exceptions to limitations on li- ability-, effect of written release Effect of written release on liability of veterinarian or farrier Effect on workers' compensation benefits MISCELLANEOUS ACTIONS Procedure to recover damages on dishon- ored check Successive actions or suits Right of gambling loser to recover double losses Liability of abstractors Liability of parents for tort by child; effect on foster parents Liability for damages caused by gambling 3-44

83 ACTIONS AND SUITS IN PARTICULAR CASES Liability of construction design professional for i41uries resulting from failure of employer to comply with safety standards Liability for emergency medical assistance while in custody of law enforcement officer Liability for emergency medical assistance by medically trained persons Liability of certified emergency medical technician acting as volunteer Liability for emergency medical assistance by government personnel Liability for emergency transportation as- sistance Right to include medical expenses paid by parent or conservator in action to recover for damages to child; effect of consent to inclusion Action against seller of drugged horse; attorney fees 30J= Action for unlawful tree spiking Action against judicial officer for failure to make certain payments Action for alienation of affections abolished Action for criminal conversation abolished 3022 Action for trade discrimination; treble damages; attorney fees Definitions for ORS and Civil damages for shoplifting or taking of agricultural produce or cable television services; court jurisdiction; assignment of judgments Child care center liability insurance cov- erage Food gleaners and distributors liability Liability of donors of general merchandise and household items Wrongful use of civil proceeding; pleading; procedure ACTION AGAINST MANUFACTURER OF INTRAUTERINE DEVICES Temporary provisions relating to action against manufacturer of intrauterine devices are compiled as notes after ORS 30895) PRODUCTS LIABILITY ACTIONS " Product liability civil action" defined Time limitation for commencement of action Action for damages from asbestos- related disease; limitations Product disputably presumed not unreasonably dangerous Defenses When seller or lessor of product liable; effect of liability rule Punitive damages; evidence of defendant' s ability to pay When manufacturer of drug not liable for punitive damages; exceptions FARMING PRACTICES Definitions for ORS to Farming practice not private or public nuisance; effect on local ordinances; ex- ceptions Effect on other remedies 30x15 Severability Effect of siting of destination resorts INTOXICATING LIQUOR SERVICE Licensee, permittee and social host liability Liability for serving minors; liability for misrepresentation of age SKIING ACTIVITIES Definitions for ORS to Skiers assume certain risks Notice to ski area operator of injury to Sider, nvuries resulting in death; statute of limitations; informing skiers of notice requirements Duties of skiers; effect of failure to comply Operators required to give Skiers notice of duties CROSS REFERENCES Action for damages to mining claim, Action to restrain or enjoin gambling, drug or prostitution activities, to Assumption of risk doctrine abolished, Comparative negligence as standard in negligence cases, contributory negligence no bar to recovery, Disputes respecting domicile of decedent, to Dog guides for blind, liability for damages, Electronic signaling device, liability for damages, Employment agency, maintaining suit or action involving business, alleging and proving licensure as required, Explosives, liability for nonremoval of unused ex- plosives, Forfeiture of property for controlled substance offenses, 1989 c to 14 Immunity of militia members performing duties relating to military court, Immunity of railroad or employees providing first aid treatment, Insurance Fund, Joint tortfeasors, right of contribution, Last clear chance doctrine abolished, Liability of Oregon Forest Resources Institute, 1991 c Liability of school personnel for administering medication to pupils, Limitation on landowner' s liability for public recreational use of land; no rights or easements created, to Medical experimentation or research with inmates of penal or correctional institutions prohibited; judicial restraint and action for damage,, Procedure for damages where property taken for pedestrian mall,

84 SPECIAL ACTIONS AND PROCEEDINGS Redress against militia members for property damage, School districts not liable for failure to provide alternative programs, Sexually dangerous persons, commitment procedure, to Trust deed, foreclosure, Unclaimed property, disposition, to Unlawful discrimination in higher education, Unlawful trade practices, enforcement, to Worker exposed to infectious disease,, procedure, to Workers' Compensation Law, Ch Benefits for injured inmates of penitentiary or correctional institution, exclusive remedy, Advance payment of damages not admission of liability, Employers Liability Law, to to Cooperative corporation, civil liability for defaming, Media persons as witnesses, Statute of limitations, M to Antitrust Revolving Account for expenses of Attorney General under antitrust law proceedings, County law, prosecuting offenses, Costs and disbursements, payment by state, county and city, Liability for changing grade of street or road or closing street, , , Liability of Water Resources Commission for damage in connection with federal flood control project, Liability where construction bond not furnished, Losses of public funds or property by state agency involving public officer, Mandamus against court or court officer to enforce performance of duty relating to administration of justice, Organized militia, property loss incident to activities of, Special Acts authorizing suits against state prohibited, Const. Art. N, 24 Tax court jurisdiction, Power of counties to sue and be sued, Prosecution and defense on behalf of county by district Liability for cost of medical care of persons transported attorney, by law enforcement officer, A Collection of fines, penalties and forfeitures by Depart - State agency to pay attorney fees and expenses of ment of Revenue, petitioner, Coniferous trees seized because unlawfully transported, Liability insurance for state' s motor vehicles, to Liability insurance provided by district school board, Abatement of nuisance by commander of militia unit, Action for trespass on publicly owned realty, Bond, state, county or city not required to furnish, Costs and disbursements, payment by state, county or city, , Judgment in favor of welfare recipient, action against recipient for failure to report, Lien held by state, acquisition, administration and disposal of subject property, to Lien to collect milk poundage fee, Material unlawfully removed from state lands, recovery of damage for, Power of counties to sue and be sued, Power of special road district to sue and be sued, Revenue Department as party in cases involving state tax liens, State institutions, claims for damages resulting from activities, to State property, action against person losing or damaging, Procedure for imposition of civil penalties, to Hazardous wastes or materials, Chs. 465 and 466 Pollution control, Chs. 468, 468A and 468B to Writs of quo warranto and scire facias abolished, Drainage districts, validity of organization, time commencing suit, Action by Attorney General to dissolve cooperative corporation, Action to dissolve corporation convicted of second offense for unlawful transactions involving securities, Action to liquidate assets and business of cooperative, Attorney and expert witness fees in successful claim of discrimination, Conveyancing instruments, inclusion of certain discriminatory restrictions prohibited, Discrimination against physically or mentally disabled prohibited, to Enforcement of civil rights, to for

85 ACTIONS AND SUITS IN PARTICULAR CASES t, Equality of privileges and immunities, Const. Art. I, Notice that discrimination will be made prohibited, Liability for cost of medical care of persons transported bylaw enforcement officer, Trade practices, Ch Parental liability to school district, Product liability insurance,

86 SPECIAL ACTIONS AND PROCEEDINGS 3-48

87 ACTIONS AND SUITS IN PARTICULAR CASES ACTIONS FOR INJURY OR DEATH Who may maintain action for injury or death of child. (1) A parent having custody of his or her child may maintain an action for the injury of the child. 2) A parent may recover damages for the death of his or her child only under ORS [ Amended by 1961 c ; 1973 c Action for wrongful death; when commenced; damages. 1) When the death of a person is caused by the wrongful act or omission of another, the personal representative of the decedent, for the benefit of the decedent' s surviving spouse, surviving children, surviving parents and other individuals, if any, who under the law of intestate succession of the state of the decedent' s domicile would be entitled to inherit the personal property of the decedent, and for the benefit of any stepchild or stepparent whether that stepchild or stepparent would be entitled to inherit the personal property of the decedent or not, may maintain an action against the 7ongdoer, if the decedent might have maintained an action, had the decedent lived, against the wrongdoer for an injury done b the same act or omission. The action shall be commenced within three years after the injury causing the death of the decedent is discovered or reasonably should have been discovered by the decedent, by the personal representative or by a person for whose benefit the action may be brought under this section if that person is not the wrongdoer. In no case may an action be commenced later than the earliest of a) Three years after the death of the decedent; or b) The longest of any other period for commencing an action under a statute of ultimate repose that applies to the act or omission causing the injury, including but not limited to the statutes of ultimate repose provided for in ORS ( 4), , , and ) In an action under this section damages may be awarded in an amount which: a) Includes reasonable charges necessarily incurred for doctors' services, hospital services, nursing services other medical services, burial services ana memorial services rendered for the decedent; b) Would justly, fairly and reasonably have compensated the decedent for disability, pain, suffering and loss of income during the period between injury to the decedent and the decedent' s death; c) Justly, fairly and reasonably compensates for pecuniary loss to the decedent' s estate; d) Justly, fairly and reasonably compensates the decedent' s spouse, children, stepchildren, stepparents and parents for pecuniary loss and for loss of the society, companionship and services of the decedent; and e) Separately stated in finding or verdict, the punitive damages, if any, which the decedent would have been entitled to recover from the wrongdoer if the decedent had lived. 3) The court shall reduce recovery under this section by the amount of recovery, if any, by the decedent or the decedent' s personal representative under ORS be- cause of the act or omission which caused the decedent' s death. 4) For the purposes of this section: a) Two persons shall be considered to have a stepchild- stepparent relationshipp if one of the biological parents of the stepchild, while the stepchild is a minor and in the custody of this first biological parent, mar- ries the stepparent who is not the second biological parent or the adoptive parent of the stepchild; b) The stepchild- stepparent relationship shall remain in effect even though the stepchild is older than the age of majority or has been emancipated; c) The stepchild - stepparent relationship shall remain in effect even though one or both of the biological parents of the stepchild die; and d) The stepchild- stepparent relationship shall end upon the divorce of the biological parent and the stepparent. [ Amended by 1953 c.600 3; 1961 c.437 1; 1967 c.544 1; 1973 x718 2; 1991 c.471 l; 1991 c provides: Note: Section 2, chapter 471, Oregon Laws 1991, Sec. 2. The amendments to ORS by section 1 of this Act apply only to causes of action arising on or after the effective date of this Act [ September 29, [ 1991 c Distribution of damages. ( 1) Upon settlement of a claim, or recovery of judgment in an action, for damages for wrongful death, by the personal representative of a decedent under ORS , the amount of damages so accepted or recovered shall be distributed in the manner prescribed in this section ) The personal representative shall make payment or reimbursement for costs, expenses and fees incurred in prosecution or enforcement of the claim, action or judg- ment. 3) The personal representative shall make payment or reimbursement for reasonable charges necessarily incurred for doctors' services, hospital services, nursing services

88 SPECIAL ACTIONS AND PROCEEDINGS or other medical services, burial services and memorial services rendered for the decedent. 4) If under ORS or or by agreement of the beneficiaries a portion of the damages so accepted or recovered is apportioned to a beneficiary as recovery for loss described in ORS ( 2)(d), the personal representative shall distribute that portion to the beneficiary. 5) The remainder of damages acceppted or recovered shall be distributed to the beneficiaries in the proportions prescribed under the laws of intestate succession of the state of decedent' s domicile, but no such damages shall be subject to payment of taxes or claims against the decedent' s estate. [ Amended by Apportionment among dependents upon settlement. Except when all beneficiaries otherwise agree, if settlement, with or without action, is effected and there is more than one beneficiary, the amount to be distributed to each beneficiary as recovery for loss described in ORS ( 2)( d) shall be apportioned by the probate court to each beneficiary in accordance with the beneficiary' s loss. [ Amended by Apportionment among dependents after judgment. Except when all beneficiaries otherwise agree, if the action described in ORS is brought, and a judgment for the plaintiff is given, and there is more than one beneficiary, the amount to be distributed to each beneficiary as recovery for loss described in ORS ( 2)(d) shall be apportioned by the trial court to each beneficiary in accordance with the beneficiary' s loss. [ Amended by Appeal from order of distribution or apportionment. In the case of an order of distribution under ORS ( 5) or an order of apportionment made under either ORS or , any individual who in the probate court or trial court claims to be a beneficiary may appeal therefrom, or from any part thereof, to the Court of Appeals, within the time, in the manner and with like effect as though such order was a judgment of the circuit court. [ Amended by Settlement; discharge of claim. The personal representative of the decedent, with the approval of the court of appointment, shall have full power to compromise and settle any claim of the class described in ORS , whether the claim is reduced to judgment or not, and to execute such reeases and other instruments as may be nec- essary to satisfy and discharge the claim. The party paying an such claim or judg- ment, whether in full or in part, or in an amount agreed upon in compromise, shall not be required to see that the amount paid is applied or apportioned as provided in ORS to , but shall be fully discharged from all liability on payment to the personal representative Procedure upon death of injured person. ( 1) Causes of action arising out of injuries to a person, caused by the wrongful act or omission of another, shall not abate upon the death of the injured person, and the personal representatives of the decedent may maintain an action against the wrongdoer, if the decedent might have maintained an action, had the decedent lived, against the wrongdoer for an injury done by the same act or omission. The action shall be commenced within the limitations established in ORS by the injured person and continued by the personal represen- tatives under this section, or within three years by the personal representatives if not commenced prior to death. 2) In any such action if the plaintiff prevails, there shall be taxed and allowed to the plaintiff, at trial and on appeal, a rea- sonable amount to be fixed by the court as attorney fees for the prosecution of the action, if the court finds' that' written demand for the payment of such claim was made on the defendant either in the form of an action filed or a letter 10 days before commence- ment of the action; provided, that no attor- ney fees shall be allowed to the plaintiff if the court finds that the defendant tendered to the plaintiff, at least 20 days before trial in an action that was pending at the death of the injured party, or otherwise prior to the commencement of the action, an amount not less than the damages awarded to the plaintiff. [ 1965 c.620 4; 1971 c.473' 2; 1981 c.810 l; 1981 c Effect of death of wrongdoer. Claims for relief arising out of injury to or death of a person, caused by the wrongful act or negligence of another, shall not abate upon the death of the wrongdoer, and the injured person or the personal representatives of the one meeting death, as above stated, shall have a claim for relief against the personal representatives of the wrongdoer as if the wrongdoer had survived, except for those damages provided for in ORS ( 2)( e). [ Amended by 1953 c.600 3; 1961 c.437 2; 1967 c.544 2; ; 1983 c Defense to action for injury or death based on ordinary negligence. ( 1) It is a complete defense in any civil action for personal injury or wrongful death based on ordinary negligence that: a) The person damaged was engaged in conduct at the time that would constitute aggravated murder, murder or a Class A or a Class B felony; and

89 ACTIONS AND SUITS IN PARTICULAR. CASES b) The felonious conduct was a substantial factor contributing to the injury or death. 2) To establish the defense described in this section, the defendant must prove beyond a reasonable doubt the fact that the person damaged was engaged in conduct that would constitute aggravated murder, murder or a Class A or a Class B felony. 3) Nothing in this section affects any n ht of action under 42 U.S. C [ 1987 c Appointment of administrator of estate of wrongdoer. If no probate of the estate of the wrongdoer has been instituted within 60 days from the death of the wrongdoer, the court, upon motion of the injured person, or of the personal representatives of one meeting death, as stated in ORS , shall appoint an administrator of the estate of the wrongdoer Substitution of personal representative as party defendant. In the event of the death of a wrongdoer, as designated in ORS , while an action is pending, the court, upon motion of the plaintiff, shall cause to be substituted as defendant the personal representative of the wrongdoer, and the action shall continue against such per- sonal representative. ACTIONS BY GUEST PASSENGERS [ Repealed by 1961 c ( enacted in lieu of and )] Aircraft and watercraft guest passengers; definitions. No person transported by the owner or operator of an air- craft or a watercraft as a guest without payment for such transportation, shall have a cause of action for damages against the owner or operator for injury, death or loss, in case of accident, unless the accident was intentional on the part of the owner or operator or caused by the gross negligence or intoxication of the owner used in this section: or operator. As 1) " Payment" means a substantial benefit in a material or business sense conferred upon the owner or operator of the conveyance and which is a substantial moti- vating factor for the transportation, and it does not include a mere gratuity or social amenity. 2) " Gross negligence" refers to negligence which is materially greater than the mere absence of reasonable care under the circumstances, and which is characterized by conscious indifference to or reckless disregard of the rights of others. [ 1961 c enacted in lieu of and ); 1979 c.866 7] [ Repealed by 1961 c ( enacted in lieu of and )] Public carriers by aircraft and prospective aircraft purchasers. ORS shall not relieve a public carrier by aircraft, or any owner or operator of aircraft while the same is being demonstrated to a prospective purchaser, of responsibility for any injuries sustained by a passenger. ACTIONS ON CERTAIN CONSTRUCTION AGREEMENTS Effect of indemnification provision in construction agreement. ( 1) Any provision in a construction agreement which requires a person to indemnify another against liability for damage arising out of death or bodily injury to persons or damage to property caused or contributed to by the negligence of the indemnitee in the design or by the sole negligence of the indemnitee in the inspection of the work that is the subject of the construction agreement is en- forceable only if the indemnitee secures or maintains insurance covering such risks for the protection of the indemnitor. In no event shall the indemnification obligation under such provisions be greater than the limits of the insurance secured by the indemnitee. 2) Notwithstanding subsection ( 1) of this section, any provision in a construction agreement which requires a person or that person' s surety or insurer to indemnify an- other agast liability for damage arising out of death or bodily injury to persons or damage to property caused by the sole negligence the indemtee indemnitee is void 3) As used in this section, " construction agreement" means any written agreement for the construction, alteration, repair, improvement or maintenance of any building, high- way, road excavation or other structure, pro ect, development or improvement at- tazed to real estate including moving, demolition or tunneling in connection therewith. No provision of this section shall be construed to apply to a " railroad" as defined in ORS [ 1973 c.570 1, 2; 1987 c ACTIONS FOR DEFAMATION Liability of radio or television station personnel for defamation. ( 1) The owner, licensee or operator of a radio or television broadcasting station, and the agents or employees of the owner, licensee or operator, shall not be liable for any damages for any defamatory statement published or uttered in a radio or television broadcast, by one other than the owner, licensee or operator, or agent or employee thereof, unless it is alleged and proved by the complaining party that the owner, licensee, operator,

90 SPECIAL ACTIONS AND PROCEEDINGS agent or employee failed to exercise due care ( 2) The publisher of the defamatory to prevent the publication or utterance of statement shall have not more than two such statement in such broadcast. weeks after receipt of the demand for cor- 2) In no event shall any owner, licensee or operator of a radio or television broad- casting station, or any agent or employee thereof, be liable for any damages for any defamatory statement published or uttered by one other than such owner, licensee, opera- tor, agent or employee, in or as part of a ra- dio or television broadcast by any candidate for public office, which broadcast cannot be censored by reason of federal statute or reg- ulations of the Federal Communications Commission. [ Formerly Damages recoverable for defamation by radio, television, motion pictures, newspaper or printed periodical. Except as provided in ORS , in an action for damages on account of a defamatory statement published or broadcast in a newspaper, magazine, other printed pe- riodical, or by radio, television or motion pictures, the plaintiff may recover any general and special damages which, by compe- tent evidence, the plaintiff can prove to have suffered as a direct and proximate result of the publication of the defamatory statement When general damages allowed. 1) In an action for damages on account of a defamatory statement published or broadcast in a newspaper, magazine, other printed periodical, or by radio, television or motion pictures, the plaintiff shall not recover general damages unless: a) A correction or retraction is demanded but not published as provided in ORS ; or b) The plaintiff proves by a preponder- ance of the evidence that the defendant actually intended to defame the plaintiff. 2) Where the plaintiff is entitled to recover general damages, the ppublication of a correction or retraction may be considered in mitigation of damages. [ 1955 c Publication of correction or retraction upon demand. ( 1) The demand for correction or retraction shall be in writing, signed by the defamed person or the attorney of the person and be delivered to the pub- lisher of the defamatory statement, either personally, by registered mail or by certified mail with return receipt at the publisher' s place of business or residence within 20 days after the defamed person receives actual knowledge of the defamatory statement. The demand shall specify which statements are false and defamatory and request that they be corrected or retracted. The demand may also refer to the sources from which the true facts may be ascertained with accuracy. rection or retraction in which to investigate the demand; and, after making such investigation, the publisher shall publish the correction or retraction in: a) The first issue thereafter published in the case of newspapers, magazines or other printed periodicals. b) The first broadcast or telecast thereafter made, in the case of radio or television stations. c) The first public exhibition thereafter made, in the case of motion picture theatres. 3) The correction or retraction shall consist of a statement by the publisher substantially to the effect that the defamatory statements previously made are not factually supported and that the publisher regrets the original publication thereof. 4) The correction or retraction shall be published in substantially as conspicuous a manner as the defamatory statement. [ 1955 c.365 3; 1991 c Effect of publication of correction or retraction prior to demand. A correction or retraction published prior to notice of demand therefor shall have the same effect as a correction or retraction af- ter demand, if the requirements of ORS ( 2), ( 3) and ( 4) are substantially complied with. [ 1955 c Publisher's defenses and privi- leges not affected. Nothing in ORS to shall be deemed to affect any defense or privilege which the publisher may possess by virtue of existing law. [ 1955 c ACTIONS ARISING OUT OF THE PROVISION OF UTILITY SERVICES Definitions for ORS to As used in ORS to : 1) " Customer" means the person in whose name a utility service is provided. 2) " Divert" means to change the intended course or path of the utility service without the authorization or consent of the 3-52 utility. 3) " Person" means any individual, partnership, firm, association, corporation or government agency. 4) " Reconnection" means the commencement of utility service to a customer or other person after service has been lawfully disconnected by the utility. 5) ` Tamper" means to rearrange, injure, alter, interfere with or otherwise prevent from performing the normal or customary function.

91 ACTIONS AND SUITS IN PARTICULAR CASES ) " Utility" means a private corporation, a municipal corporation or an agency thereof, any other public corporation or any district that provides electricity, gas, water, telephone or cable television to customers on a retail or wholesale basis. 7) " Utility service" means the provision of electricity, gas, water, telephone, cable television, electronic communications, steam or any other service or commodity furnished by the utility for compensation. ( 1989 c Civil action for taking of or tampering with utility services. A utility may bring a civil action for damages against any person who knowingly and willfully commits, authorizes, solicits, aids, abets or attempts to: 1) Divert, or cause to be diverted, utility services by any means whatsoever; 2) Make, or cause to be made, any con- nection or reconnection with property owned or used by the utility to provide utility ser- vice without the authorization or consent of the utility; 3) Prevent any utility meter or other device used in determining the charge for utility services from accurately performing its measuring function by tampering or by any other means; 4) Tamper with any property owned or used by the utility to provide utility services; or 5) Use or receive the direct benefit of all or a portion of the utility service with knowledge of, or reason to believe that, the diversion, tampering or unauthorized connection existed at the time of the use or that the use or receipt was without the authorization or consent of the utility. [ 1989 c Amount of recovery. In any civil action brought under this section, the utility shall recover from the defendant the amount of actual damages, if any. Actual damages include the costs incurred on account of the bypassing, tampering or unauthorized reconnection, including but not limited to costs and expenses for investigation, disconnection, reconnection and service calls. The utility may recover punitive damages in addition to actual damages. The utility shall also recover the cost of the suit, reasonable attorney fees and expert witness fees. ( 1989 c.670 2] Remedies not exclusive. The remedies provided in ORS to are in addition to, and not in lieu of, any and all other remedies, both civil and criminal, provided by law. ( 1989 c ACTIONS FOR INTIDIDATION 30.19Q Civil action for intimidation; 1) Irrespecremedies liability of parents. ( tive of any criminal prosecution or the result thereof, any person injured by a violation of ORS or shall have a civil action to secure an injunction, damages or other appropriate relief against an and all persons whose actions are unlawful under ORS and ) Upon prevailing in such action, the plaintiff may recover: a) Both special and general damages, in- cluding damages for emotional distress; b) Punitive damages; and c) Reasonable attorney fees and costs. 3) The parent, parents or legal guardian of an unemancipated minor shall be liable for any judgment recovered against such minor under this section, in an amount not to exceed $ 5,000. ( ; 1983 c Action by district attorney; effect on others. If any district attorney has reasonable cause to believe that any person or group of persons is engaged in violation of ORS or , the district attorney may bring a civil claim for relief in the appropriate court, setting forth facts pertaining to such violation, and request such relief as may be necessary to restrain or prevent such violation. Any claim for relief under this section does not prevent any person from seeking any other remedy otherwise available under law. ( ACTIONS ON OFFICIAL BONDS To whom official bonds are security. The official undertaking or other security of a public officer to the state, or to any county, city or other public corporation of like character therein, is a security to the state, county, city or public corporation, as the case may be, and also, to all persons severally for the official delinquencies against which it is intended to provide Parties. When a public officer by official misconduct or neglect of duty forfeits an official undertaking or other security of the public officer, or renders the sureties of the public officer liable thereon, any person injured by the misconduct or neglect, or who is by law entitled to the benefit of the security, may maintain an action thereon in the name of the person, against the officer and the sureties of the officer, to recover the amount to which the person may by reason thereof be entitled Leave to begin action. Before an action can be commenced by a plaintiff other than the state, or the public corporation named in the undertaking or security, leave shall be obtained of the court or judge 3-53

92 MW SPECIAL ACTIONS AND PROCEEDINGS thereof where the action is triable. Such leave shall be granted upon the production of a certified copy of the undertaking or security, and an affidavit of the plaintiff or some person on behalf of the plaintiff showing the delinquency; but if the matters set forth in the affidavit are such that, if true, the party applying would clearly not be entitled to recover in the action, the leave shall not be granted. If it does not appear from the complaint that leave has been granted, the defendant on motion shall be entitled to judgment of dismissal without prejudice; if it does, the defendant may controvert the allegation, and if the issue be found in favor of the defendant, judgment shall be given accordingly. [ Amended by 1979 c Subsequent delinquencies on same bond. A judgment in favor of a party for one delinquency shall not preclude the same or another party from maintaining another action on the same undertaking or security for another delinquency Amount of judgment. In an action upon an official undertaking or secu- rity, if judgments have already been recovered on the same undertaking or security against the surety therein, other than by confession, and if such recovery is estab- lished on the trial, judgment shall not be given against the surety for an amount exceeding the difference between the amount of the penalty and the amount that already has been recovered against the surety. TORT ACTIONS AGAINST PUBLIC BODIES Generally) Definitions for ORS to As used in ORS to , un- less the context requires otherwise: 1) " Department" means the Department of General Services. 2) " Director" means Director of the Department of General Services. 3) " Governin body" means the group or officer in which the controlling authority of any public body is vested. 4) " Public body" means: a) The state and any department, agency, board or commission of the state; b) Any city, county, school district or other political subdivision or municipal or public corporation and any instrumentality thereof, c) Any intergovernmental agency, de- partment, council or other like entity which is created under ORS to , and which does not act under the direction and control of any single member government; d) Any nonprofit corporation that is organized and existing under ORS chapter 65 and that has only political subdivisions or municipal, quasi - municipal or public corporations in this state as members; or e) A private child -caring agency, as defined in ORS , that meets the criteria specified in ORS ( 2) and that receives more than 50 percent of its funding from the state for the purpose of providing residential treatment to children who have been placed in the care and custody of the state or that provides residential treatment to children more than half of whom have been placed in the care and custody of the state. 5) " State" means the state or any branch, department, agency, board or com- mission of the state. 6) " Local public body" means any public body other than the state. 7) " Nuclear incident" has the meaning given that term in 42 U.S. C. 2014(q). 8) " Tort" means the breach of a legal duty that is imposed by law, other than a duty arising from contract or quasi- contract, the breach of which results in injury to a specific person or persons for which the law provides a civil right of action for damages or for a protective remedy. [ 1967 c.627 l; 1975 c ; 1577 c.823 l; 1981 c.109 l; 1987 c.915 9; subsections ( 7) and ( 8) enacted as 1987 c.705 6; 1989 c.905 l; 1989 c l Scope of liability of public body, officers, employees and agents; liability in nuclear incident. ( 1) Subject to the limitations of ORS to , every public body is subject to action or suit for its torts and those of its officers, employees and agents acting within the scope of their employment or duties, whether arising out of a governmental or proprietary function or while operating a motor vehicle in a ridesharing arrangement authorized under ORS The sole cause of action for any tort of officers, employees or agents of a public body acting within the scope of their employment or duties and eligible for representation and indemnification under ORS or shall be an action against the public body only. The remedy provided by ORS to is exclusive of any other action or suit against any such officer, employee or agent of a public body whose act or omission within the scope of their employment or duties gives rise to the action or suit. No other form of civil action or suit shall be permitted. If an action or suit is filed against an officer, employee or agent of a public body, on appropriate motion the public body shall be substituted as the only defendant. 3-54

93 ACTIONS AND SUITS IN PARTICULAR CASES ) Every public body is immune from liability for any claim for injury to or death of any person or injury to property resulting from an act or omission of an officer, employee or agent of a public body when such officer, employee or agent is immune from liability. 3) Every public body and its officers, employees and agents acting within the scope of their employment or duties, or while operating a motor vehicle in a ridesharing arrangement authorized under ORS , are immune from liability for: a) Any claim for injury to or death of any person covered by any workers' compensation law. b) Any claim in connection with the as- sessment and collection of taxes. c) Any claim based upon the performance of or the failure to exercise or perform a discretionary function or duty, whether or not the discretion is abused. d) Any claim which is limited or barred by the provisions of any other statute, including but not limited to any statute of ultimate repose. e) Any claim arising out of riot, civil commotion or mob action or out of any act or omission in connection with the pre- vention of any of the foregoing. f) Any claim arising out of an act done or omitted under apparent authority of a law, resolution, rule or regulation which is unconstitutional, invalid or inapplicable except to the extent that they would have been liable had the law, resolution, rule or regulation been constitutional, valid and applicable, unless such act was done or omitted in bad faith or with malice. 4) ORS to do not apply to any claim against any public body or its officers, employees or agents acting within the scope of their employment arising before July 1, Any such claim may be pre- sented and enforced to the same extent and subject to the same procedure and restrictions as if ORS to had not been adopted. 5) The amendments to ORS and enacted by chapter 609, Oregon Laws 1975, do not apply to any claim against the state or its officers, employees or agents acting within the scope of their employment or duties, arising before July 2, Any such claim may be presented and enforced to the same extent and is subject to the same restrictions as if dhapter 609, Oregon Laws 1975, had not been adopted, but the procedure set forth in ORS shall be applicable thereto. 6) ORS and the amendments to ORS and enacted by chapter 609, Oregon Laws 1975, do not apply to any claim against any local public body or its officers, employees or agents acting within the scope of their employment or duties, arising before December 31, Any such claim may be presented and enforced to the same extent and subject to the same restrictions as if chapter 609, Oregon Laws 1975, had not been adopted. 7) Subsection ( 1) of this section applies to any action of any officer, employee or agent of the state relating to a nuclear incident, whether or not the officer, employee or agent is acting within the scope of employment, and provided the nuclear incident is covered by an insurance or indemnity agreement under 42 U.S. C ) Paragraph ( c) of subsection ( 3) of this section does not apply to any discretionary act that is found to be the cause or partial cause of a nuclear incident covered by an insurance or indemnity agreement under the provisions of 42 U.S. C. 2210, including but not limited to road design and route selection. [ 1967 c.627 2, 3, 10; 1969 c.429 l; 1975 c ; 1977 c.823 2; 1981 c.490 4; ; ; 1991 c [ ; 1981 c ; ; 1989 c.873 l; repealed by Liability for certain medical treatment at Oregon health Sciences University facilities. ( 1) For the purposes of ORS to , all services constituting patient care, including, but not limited to, inpatient care, outpatient care and all forms of consultation, that are provided on the Oregon Health Sciences University campus or in any Oregon Health Sciences University clinic are within the scope of their state employment or duties when performed by: a) Salaried physicians or dentists employed at any full -time equivalent by the Oregon Health Sciences University; b) Nonsalaried or courtesy physicians or dentists affiliated with the Oregon Health Sciences University; c) Medical, dental or nursing students or trainees affiliated with the Oregon Health Sciences University; d) Volunteer physicians or dentists affiliated with the Oregon Health Sciences Uni- versity; or e) Any nurses, students, orderlies, volunteers, aides or employees of the Oregon Health Sciences University. 2) As used in this section: a) " Nonsalaried or courtesy physician or dentist" means a physician or dentist who 3-55

94 SPECIAL ACTIONS AND PROCEEDINGS receives a fee or other compensation --for those services constituting patient care which are within the scope of state employment or duties under this section. The term does -not include a ' physician or dentist described under paragraph ( a) of subsection ( 1) of this section. b) " Volunteer - physician or dentist" means a physician or dentist who does not receive a salary, fee or other compensation for those services constituting patient care which are within the scope of state employment or duties under this section. [ 1977 c Liability for certain medical treatment at facilities other than Oregon Health Sciences University. ( 1) For the purposes of ORS to , all services constituting patient care, including, but not limited to, inpatient care, outpatient care and all forms of consultation that are provided at a location other than the Oregon Health Sciences University campus or one of the Oregon Health Sciences University clinics are within the scope of state employment or duties when:. a) Provided by members of the Oregon Health Sciences University faculty or staff, Oregon Health Sciences ' University students under prior. written express authorization from the President of the Oregon Health Sciences University or a representative of the president to provide those services at that location;. b) The services provided are within the scope of the express authorization; and sity: c) The Oregon Health Sciences Univer- A) Derives revenue in the same amount as it would for fee - for - services care rendered on the Oregon Health Sciences University campus or at a Oregon Health Sciences Uni- versity clinic; or B) Is performing a salaried, nonfee- generating or volunteer public community or nonfee - generating educational service by providing the services. 2) For the purposes of ORS to , services constituting patient care that are provided at a location other than the Oregon Health Sciences University camppus or one of the Oregon Health Sciences Umversity clinics are not, within the scope of state employment or duties when: a) Such services constitute an exclusively private relationship between the patient and a person described in paragraph ( a) of subsection ( 1) of this section; and b) The requirements of subsections ( b) and ( c) of subsection ( 1) of this section are not' met. [ 1977 x Amount of liability. (1) Liability of any public body,or its officers, employees or agents acting within the scope of their employment or duties on claims within the scope of ORS to shall not ex- ceed: a) $ 50,000 to any claimant for any number of claims for damage to or destruction of property, including consequential damages, arising out of a single accident or occurrence. b) $ 100, 000 to any claimant as general and special damages for all other claims arising out of a single accident or occurrence unless those damages exceed $ 100, 000, in which case the claimant may recover additional special damages, but in no event shall the total award of special damages exceed 100,000. c) $ 500,000 for any number of claims arising out of a single accident or occurrence. 2) No award for damages on any such claim shall include punitive damages. The limitation imposed b' this section on individual claimants includes damages claimed for loss of services or loss of support 'arising out of the same tort. 3) Where the amount awarded to or settled upon multiple claimants exceeds 500,000, any party may apply to any, circuit court to apportion to each claimant the proper share of the total amount limited by subsection ( 1) of this section. The share apportioned each claimant shall be in the pro- portion that the ratio of the award or settlement made to the claimant bears to the aggregate awards and settlements for all claims arising out of the occurrence. 4) Liability of any public body and one or more of its officers, employees or,agents, or two or more officers, employees or agents of a public body, on claims arising out of a single accident or occurrence, shall not ex- ceed in the aggregate the amounts limited by subsection ( 1) of this section. 5) For any claim arising in connection with a nuclear incident, no provision of this section shall limit the amount of damages recoverable for injuries or death or loss of or damage to property, or loss of use of property as a result of a nuclear incident covered by an insurance or indemnity agreement under 42 U.S. C [ 1967 c.627 4, 19M c.429 2; 1975 c ; ; 1987 c Notice of claim; time of notice; time of action. ( 1) No action arising from an act or omission of a public body or an officer, employee or agent of a public body within the scope of ORS to shall be maintained unless notice of claim is given as required. by this section.

95 ACTIONS AND SUITS IN PARTICULAR CASES ) Notice of claim shall be given within the following applicable period of time, not including the period, not exceeding 90 days, during which the person injured is unable to give the notice because of the injury or because of minority, incompetency or other incapacity: a) For wrongful death, within one year after the alleged floss or injury. b) For all other claims, within 180 days after the alleged loss or injury. 3) Notice of claim required by this section is satisfied by: a) Formal notice of claim as provided in subsections ( 4) and ( 5) of this section; b) Actual notice of claim as provided in subsection ( 6) of this section; c) Commencement of an action on the claim by or on behalf of the claimant within the, applicable period of time provided in subsection ( 2) of this section; or d) Payment of all or any part of the claim by or on behalf of the public body at any time. 4) Formal notice of claim is a written communication from a claimant or representative of a claimant containing: a) A statement that a claim for damages is or will be asserted against the public body or an officer, employee or agent of the public body; b) A description of the time, place and circumstances giving rise to the claim, so far as known to the claimant; and c) The name of the claimant and the mailing address to which correspondence concerning the claim may be sent. 5) Formal notice of claim shall be given by mail or personal delivery: a) If the claim is against the state or an officer, employee or agent thereof, to the office of the Director of the Department of General Services. b) If the claim is against a local public body or an officer employee or agent thereof, to the public boy at its prindpai admin' - trative office, to any member of the governing body of the public body, or to an attorney designated by the governing body as its gen- eral counsel. 6) Actual notice of claim is any communication by which any individual to whom notice may be given as provided in subsection ( 5) of this section or any person responsible for administering claims on behalf of the public body acquires actual knowledge of the time, place and circumstances giving rise to the claim, where the communication is such that a reasonable person would con- clude that a particular person intends to assert a claim against the public body or an officer, employee or agent of the public body. A person responsible for administering claims on behalf of a public body is one who, as an officer, employyee or agent of a public body or as an employee or agent of an insurance carrier insuring the public body for risks within the scope of ORS to , engages in investigation, negotiation, adjustment or defense of claims within the scope of ORS to , or in furnishing or accepting forms for claimants to provide claim information, or in supervising any of those activities. 7) In an action arising from any act or omission of a public body or an officer, employee or agent of a public body within the scope of ORS to , the plaintiff has the burden of proving that notice of claim was given as required by this section. 8) Except as provided in ORS and , but notwithstanding any other provision of ORS chapter 12 or other statute providing a limitation on the commencement of an action, an action arising from any act or omission of a public body or an officer, employee or agent of a public body within the scope of ORS to shall be commenced within two years after the alleged loss or inju [ 1967 c.627 6; 1969 c.429 3; 1975 c. 604 la; 1976 c ; 1977 c.823 3; 1979 a284 64; 1981 c Reporting notice of claim of negligence to licensing Eboard. When notice is received under ORS of a claim of professional negligence against a physician, optometrist, dentist, dental hygienist or naturopath who is acting within the scope of employment by a public body or within the scope of duties as defined by ORS , the * receiving the notice shall report to the appropriate licensing board, in the same manner as required by ORS , the information required by ORS to be reported by insurers or self- insured associations. [ 1987 c Note: was enacted into law by the Legislative Assembly but was not added to or made a part of ORS chapter 30 or any series therein by legislative action. See Preface to Oregon Revised Statutes for fur ther explanation [ 1967 c.627 6; repealed by 1976 c Local public body insurance against liability; payment of assessment to state Insurance Fund. (1) The governing body of any local public body may procure insurance against liability of the public body and its officers, employees and agents acting within the scope of their employment or duties, and in addition to, or in lieu thereof, may establish a self insurance - fund against such liability of the public body and its offi-

96 30286 SPECIAL ACTIONS AND PROCEEDINGS cers, employees and agents and if the public body has authority to levy taxes, it may include in its levy an amount sufficient to establish and maintain such a fund on an actuarially sound basis. 2) Notwithstanding any other provision of law, two or more local public bodies may jointly provide by intergovernmental agreement for anything which subsection ( 1) of this section authorizes individually. 3) As an alternative or in addition to establishment of a self insurance - fund or purchase of insurance or both, the governing body of any local public body and the Department of General Services may contract for payment by the public body to the department of assessments determined by the department to be sufficient, on an actuarially sound basis, to cover the potential liability of the public body and its officers, employees or agents acting within the scope of their employment or duties under ORS to , and costs of administration, or to cover any portion of potential liability, and for payment by the department of valid claims against the public body and its officers, employees and agents acting within the scope of their employment or duties. The department may provide the public body evidence of insurance by issuance of a certificate or policy. 4) Assessments paid to the Department of General Services under subsection ( 3) of this section shall be paid into the Insurance Fund created under ORS , and claims paid and administrative costs incurred under subsection ( 3) of this section shall be paid out of the Insurance Fund, and moneys in the Insurance Fund are continuously appropriated for those purposes. When notice of any claim is furnished as pprovided in the agreement, the claim shall be handled and paid, if appropriate, in the same manner as a claim against a state agency, officer, employee or agent, without regard to the amount the local public body has been as- sessed. [ 1975 c ; 1977 c.428 1; 1981 c ; ] Public body shall indemnify public officers; procedure for requesting counsel- extent of duty of state; obligation For judgment and attorney ees. ( 1) The governing body of any public body shall defend, save harmless and indemnify any of its officers, employees and agents, whether elective or appointive, against any tort claim or demand, whether groundless or otherwise, arising out of an alleged act or omission occurring in the performance of duty. 2) The provisions of subsection ( 1) of this section do not appl in case of malfea- sance in office or willful or wanton neglect of duty. 3) If any civil action, suit or proceeding is brought against any state officer, employee or agent which on its face falls within the provisions of subsection ( 1) of this section, or which the state officer, employee or agent asserts to be based in fact upon an alleged act or omission in the performance of duty, the state officer, employee or agent may, after consulting with the Department of General Services file a written request for counsel with the Attorney General. The Attorney General shall thereupon appear and defend the officer, employee or agent unless after investigation the Attorney General finds that the claim or demand does not arise out of an alleged act or omission occurring in the performance of duty, or that the act or omission complained of amounted to mal- feasance in office or willful or wanton neglect of duty, in which case the Attorney General shall reject defense of the claim. ' 4) Any officer, employee or agent of the state against whom a claim within the scope of this section is made shall cooperate fully with the Attorney General and the department in the defense of such claim. If the Attorney General after consulting with the department determines that such officer, employee or agent has not so cooperated or has otherwise acted to prejudice defense of the claim, the Attorney General may at any time reject the defense of the claim. 5) If the Attorney General rejects defense of a claim under subsection ( 3) of this section or this subsection, no public funds shall be paid in settlement of said claim or in payment of any judgment against such officer, employee or agent. Such action by the Attorney eneral shall not prejudice the right of the officer, employee or agent to as- sert and establish an appropriate proceedings that the claim or demand in fact arose out of an alleged act or omission occurring in the performance of duty, or that the act or omission complained of did not amount to malfeasance in office or willful or wanton neglect of duty, in which case the officer employee or agent shall be indemnified against liability and reasonable costs of defending the claim, cost of such indemnification to be a charge against the Insurance Fund established by ORS ) Nothing in subsection ( 3), ( 4) or ( 5) of this section shall be deemed to increase the limits of liability of any public officer, agent or employee under ORS , or obviate the necessity of compliance with ORS by any claimant, nor to affect the liability of the state itself or of any other public officer, agent or employee on any claim arising out of the same accident or occurrence ) As used in this section, " state officer, or agent" includes district attor- employee

97 ACTIONS AND SUITS IN PARTICULAR CASES neys and deputy district attorneys, special prosecutors and law clerks of the office of district attorney who act in a prosecutorial capacity, but does not include any other employee of the office of district attorney or any employee of the justice, district or circult courts whose salary is paid wholly or in part by the county. [ 1967 x627 7; 1975 c ; 3981 Q109 5; 1981 Q913 2; 1985 c ; Counsel for public officer, when public funds not to be paid in settlement; effect on liability limit; defense by insurer. ( 1) If any civil action, suit or proceeding is brought against any officer, employee or agent of a local public body other than the state which on its face falls within the provisions of ORS ( 1), or which the officer, employee or agent asserts to be based in fact upon an alleged act or omission in the performance of duty, the officer, employee or agent may file a written request for counsel with the governing body of the public body. The governing body shall thereupon engage counsel to appear and defend the officer, employee or agent unless after investigation it is determined that the claim or demand does not arise out of an alleged act or omission occurring in the performance of duty, or that the act or omission complained of amounted to malfeasance in office or willful or wanton neglect of duty, in which case the governing body shall reject defense of the claim. 2) Any officer, employee or agent of a local public body against whom a claim within the scope of this section is made shall cooperate fully with the governing body and counsel in the defense of such claim. If the counsel determines and certifies to the governing body that such officer, employee or agent. has not so cooperated or has otherwise acted in prejudice of the defense of the claim, the governing body may at any time reject the defense of the claim. 3) If the governing body rejects defense of a claim under subsection ( 1) of this section, no public funds shall be paid in settle- ment of the claim or in payment of any judgment against such officer, employee or agent. Such action by the governing body shall not prejudice the right of the officer, employee or agent to assert and establish in an appropriate proceedings that the claim or demand in fact arose out of an alleged act or omission occurring in the performance of duty, or that the act or omission complained of did not amount to malfeasance in office or willful or wanton neglect of duty, in which case the officer,' employee or agent shall be indemnified by the public body against liability and reasonable costs of defending the claim. 4) Nothing in subsection ( 1), ( 2) or ( 3) of this section shall be deemed to increase the limits of liability of any public officer, agent or employee under , or relieve an claimant of the necessity of compliance witk ORS , nor to affect the liability of the local public body itself or of any other public officer, agent or employee on any claim arising out of the same accident or occurrence. 5) The provisions of this section may be superseded to the extent that the claim against the public officer, employee or agent may be defended by any insurer, or may be subject under ORS to agreement with the state Department of General Services, in which case the provisions of the policy of insurance or other agreement are applicable c ; 1985 x565 3; 1989 c Settlement of claims by local public body. The governing body of any local public body may, subject to the provisions of any contract of liability insurance existing, compromise, adjust and settle tort claims against the public body or its officers, employees or agents acting within the scope of their employment for damages under ORS to and may, subject to procedural requirements imposed by law or other charter, appropriate money for the payment of amounts ag[ eed upon. [ 1967 c.627 8; 1975 c ; 1989 c.655 I] Payment of judgment or settle- ment; remedies for nonpayment; tax levvyy for payment; installment payments. ( 1) When a judgment is entered against or a settlement is made by a public body for a claim within the scope of ORS to , including claims against officers, employees or agents required to be indemnified under ORS , payment shall be made and the same remedies shall apply in case of nonpayment as in the case of other judgments or settlements against the public body except as otherwise provided in this section. 2) If the public body is authorized to levy taxes which could be used to satisfy a judgment or settlement within the scope of ORS to , and it has, by resolution, declared that the following conditions exist, interest shall accrue on the judgment or settlement, but the same shall not be due and payable until after the canvass and certification of an election upon a special tax levy for purposes of satisfying the judgment or settlement: a), The amount of the judgment or settlement would exceed amounts budgeted for contingencies, tort claims and projected surplus in the current budget; b) The amount of the judgment or settlement would exceed 10 percent of the total of the next fiscal year' s projected re- 3-59

98 30297 SPECIAL ACTIONS AND PROCEEDINGS venues which are not restricted as to use, including the maximum amount of general property tax which could be levied without election but excluding any levy for debt service; c) Payment of the judgment or settlement within less than a certain number of years would seriously impair the ability of the public body to carry out its responsibilities as a unit of government; and d) The public body has passed an appropriate ordinance or resolution calling a special election to submit to its electors a special levy in an amount sufficient to satisfy the judgment or settlement. 3) A certified copy of the resolution provided for in subsection ( 2) of this section shall be filed with the clerk of the court in which an order permitting installment payments could be entered. 4) If the public body is not authorized to levy taxes as provided in subsection ( 2) of this section, and it has, by resolution, declared that the applicable conditions specified in paragraphs ( a) to ( c) of subsection ( 2) of this section exist, it may petition for an order permitting installment payments as provided in subsection ( 6) of this section. 5) The provisions of subsections ( 2) and 4) of this section do not apply to the State of Oregon; provided, however, that if the conditions specified in subsection ( 4) of this section exist, the Secretary of State may, under Seal of the State of Oregon, attest thereto in lieu of a resolution, and the State of Oregon may thereafter petition for an order permitting installment payments as provided in subsection ( 6) of this section. 6) If the procedure specified in subsections ( 2) to ( 5) of this section has been followed, and, with respect to public bodies subject to subsection ( 2) of this section, the tax levy failed, the public body may petition for an order permitting installment pay- ments. The petition shall be filed in the court in which udgment was entered or, if no judgment has been entered, it shall be filed in the circuit court of the judicial district in which the public body has its legal situs. Petitions by the State of Oregon where no udgment has been entered shall be filed in anon County Circuit Court. 7) The court in which a petition is filed shall order that the judgment or settlement be paid in quarterly, semiannual or' annual installments over a period of time not to exceed 10 years. The court shall determine the term of years based upon the ability of the public body to effectively carry out its governmental responsibilities, and shall not allow a longer term than appears reasonably necessary to meet that need. The order per- witting installment payments shall provide for annual interest at the judgment rate c.627 9; 1977 c Liability for damages caused by foster child under care of Children s Services Division; conditions; exceptions. ( 1) Notwithstanding ORS , the Children' s Services Division is liable for damages resulting from the intentional torts of a foster child who is: a) Residing in a foster home that has been certified by the division under the provisions of ORS to , even though the child may be temporarily absent from that home; or b) Residing in an approved home that is receiving payment from the division under the provisions of ORS or under the provisions of ORS and , even though the child may be temporarily absent from that home. 2) Except as otherwise provided in this section, the liability of the division under this section shall be subject to the same requirements and limitations provided in ORS to , and a claim under this section shall be treated as a claim for damages within the scope of ORS to for the purposes of ORS section: 3) Notwithstanding subsection ( 1) of this a) The division shall not be liable for any damages arising out of the operation of a motor vehicle by a foster child; and b) The division shall only be liable. for theft by a foster child upon a showing by clear and convincing evidence that the foster child committed the theft. 4) For the purposes of this section: a) " Division" means the Children's Services Division. b) " Foster child" means: A) A minor child under the custody or guardianship of the division by reason of ap- pointment pursuant to ORS chapter 126 or 419; 3-60 B) A minor child under the physical custody of the division pursuant to a voluntary agreement with the parent under ORS ( 1); C) A minor child placed in a certified foster home, pending hearing, by any person authorized by the division to make that placement; and D) A person under 21 years of age who has been placed in an approved home that is receiving payment from the division under the provisions of ORS or under the provisions of ORS and [ 1991 x766 21

99 ACTIONS AND SUITS IN PARTICULAR Note: and were added to and made a part of to by legislative action but were not added to any smaller series therein. See Preface to Oregon Revised Statutes for further explanation. provides: Note: Section 4, chapter 766, Oregon Laws 1991, Sec. 4. Sections 2 and 3 of this Act [ and apply only to causes of action arising on or after the effective date of this Act [ September 29, Any cause of action arising before the effective date of this Act shall be governed by ORS ( 1989 Edition) c Liability of Children' s Services Division to foster parents for injury or damage caused by foster child; condi- tions; limitations. ( 1) Except as otherwise provided in this section, the Children' s Services Division is liable, without regard to fault, for injury to the person of foster parents or damage to the property of foster parents caused by a foster child if. a) The foster child resides in a foster home that is maintained by the foster parents and that has been certified by the division under the provisions of ORS to ; or b) The foster child is residing in an approved home that is maintained by the foster parents and that is receiving payment from the division under the provisions of ORS or under the provisions of ORS and ) Except as otherwise provided in this section, the liability of the division under this section shall be subject to the same re- quirements and limitations provided in ORS to , and a claim under this section shall be treated as a claim for damages within the scope of ORS to for the purposes of ORS ) Notwithstanding ORS to : a) In no event shall the liability of the division under this section exceed $ 5, 000 for any number of claims arising out of a single occurrence; b) The liability of the division under this section is limited to economic damages, and in no event shall the division be liable for noneconomic damages; c) The division is liable under this section only to the extent the loss is not covered by other insurance; and d) No claim shall be allowed under this section unless written notice of the claim is delivered to the Department of General Services within 90 days after the alleged loss or injury. 4) The division shall not be liable under this section for: a) Damage to or destruction of currency, securities or any other intangible property; b) -Th e unexplained disappearance of any property; or c) Loss or damage that is due to wear and tear, inherent vice or gradual deteri- oration. 5) In no event shall the division' s liability under this section for damage to property exceed the difference between the fair market value of the property immediately before its damage or destruction and its fair market value immediately thereafter. The division shall not be liable for the costs of any betterments to the property that may be required by code, statute or other law as a condition struction. of repair, replacement or recon- 6) The liability imposed under this section is in addition to that imposed for the intentional torts of a foster child under ORS , but any amounts paid under this section shall reduce any recovery that may be made under ORS ) For the purposes of this section: a) " Division" means the Children' s Services Division. b) " Economic damages" and " noneconomic damages" have those meanings given in ORS c) " Foster child" has that meaning given in ORS [ 1991 x Note: See notes under Certain Retired Physicians) Certain retired physicians to be considered agents of public bodies. ( 1) As used in this section, " retired physician" means any person: a) Who holds a degree of Doctor of Medicine or Doctor of Osteopathy or has met the minimum educational requirements for licensure to practice naturopathy; b) Who has been licensed and is currently retired in accordance with the provisions of ORS chapter 677 or 685; c) Who is registered with the Board of Medical Examiners for the State of Oregon 3-61 as a retired emeritus physician or who com- pphes ith the requirements of the Board of Naturwopathic Examiners as a retired naturopath; d) Who registers with the county health officer in the county in which the physician or naturopath practices; and e) Who provides medical care as a volunteer without compensation solely through referrals from the county health officer specified in paragraph ( d) of this subsection. 2) Any retired physician who treats patients pursuant to this section shall be con-

100 SPECIAL ACTIONS AND PROCEEDINGS sidered to be an agent of a public body for the purposes of ORS to [ 1991 c.952 Ill ORS to exclusive. ORS to is exclusive and supersedes all home rule charter provisions and conflicting laws and ordinances on the same subject. [ 1967 Q627 lll ACTIONS AND SUITS BY AND AGAINST GOVERNMENTAL UNITS AND OFFICIALS Actions and suits by governmental units. A suit or action may be maintained by the State of Oregon or any county, incorporated city, school district or other public corporation of like character in this state, in its corporate name, upon a cause of suit or action accruing to it in its corporate character, and not otherwise, in the following cases: 1) Upon a contract made with the public corporation. 2) Upon a liability prescribed by law in favor of the public corporation. 3) To recover a penalty or forfeiture given to the public corporation. 4) To recover damages for injury to the corporate rights or property of the public corporation Actions by governmental units against contractors conspiring- to destroyy, competition or acting in violation of federal antitrust laws. The State of Oregon any- city, county, school district, municipal or public corporation, political subdivision of the State of Oregon or any instrumentality thereof, or any agency created by two or more political subdivisions to provide them- selves governmental services may bring an action m behalf of itself and others similarly situated for damages under section 4 of the Act of October 15, 1914, ch. 323, as- amended prior to January 1, 1965 ( 15 U.S.C. 15). [ 1965 c Proceedings by cities and coun- ties to enforce ordinances and resolu- tions. (1) An incorporated city or any county may maintain civil proceedings in courts of this state against any person or property to enforce requirements or prohibitions of its ordinances or resolutions when it seeks: a) To collect a fee or charge; b) To enforce a forfeiture; c) To require or enjoin the performance of an act affecting real property; d) To enjoin continuance of a violation that has existed for 10 days or more; or e) To enjoin further commission of a violation that otherwise may result in addi- tional violations of the same or related penal provisions affecting the public morals, health or safety. 2) The remedies provided by this section are supplementary and in addition to those described in ORS ) Nothing in this section shall affect the limitations imposed on cities and counties by subsections ( 3) and ( 4) of section 1, chapter 791, Oregon Laws [ 1961 c.313 2; 1963 c.338 l; 1985 c.626 l; 1989 x882 l, Contract and other actions and suits against governmental units. A suit or action may be maintained against any county and against the State of Oregon by and through and in the name of the appropriate state agency upon a contract made by the county in its corporate character, or made by such agency and within the scope of its authority; provided, however, that no suit or action may be maintained against any county or the State of Oregon upon a contract relating to the care and maintenance of an inmate or ppatient of any county or state institution. An action or suit may be maintained against any other public corpo- ration mentioned in ORS for an injury to the rights of the plaintiff arising from some. act or omission of such other public corporation within the scope of its authority. An action may be maintained against any governmental unit mentioned in ORS for liability in tort only as provided in ORS to' [ Amended by 1959 c.614 l; 1969 c Contracts of Department of Transportation providing for arbitration. The provisions of ORS and shall not apply to contracts made by the Depart- ment of Transportation that provide for arbitration under the provisions of ORS to Title of proceedings by or against county; control of proceedings by county court. All actions, suits or pro- ceedings by or against a county shall be in the name of the county, but the county is represented by the county court, which has the power to control the proceeding as if it were plaintiff or defendant, as the case may be [ Repealed by 1979 c State as defendant in actions involving liens on realty. ( 1) In any suit, action or proceeding brought in any circuit court of this state, affecting the title to real property on which the state or a state agency has, or claims to have, alien, other than a suit, action or proceeding to foreclose tax liens or special improvement liens, the state may be made a party defendant, and its rights or interests adjudicated. When prop-

101 ACTIONS AND SUITS IN PARTICULAR CASES erty has been or is acquired in the name of the state upon which there are valid, un aid special improvement liens at the time of the acquisition, the state may be made a party defendant in a suit to foreclose the lien. 2) In any suit, action or proceeding brought in any circuit court of this state involving the title to real property where the state or a state agency has record title to contested real property, the state may be made a party defendant, and its rights or in- terests adjudicated., 3) In no event shall any money judgment be rendered or recovery made against the state in any suit, action or proceeding brought under the provisions of this section. Amended by 1959 c Service of summons on Attorney General; content. In any suit action or proceeding commenced under tie provisions of ORS to which the state is made a party, service of summons upon the state shall be made upon the Attorney General. In addition to other required content, any summons served pursuant to this section shall state the state agency involved in the suit, action or proceeding. [ Amended by 1969 c.586 2; 1979 c Action by assignee of claim for money illegally charged or exacted. No assignee of any claim against any county, city. or municipal corporation of this state or- any county, city or municipal officer in this state, for money claimed to have been illegally charged or exacted by such county, city or municipal corporation or such officer, ex- cept -money collected as taxes or license, or, money' due -on contract, shall have the right to institute or maintain any action or suit for the recovery thereof in any court in this state Satisfaction of judgment against public corporation. If judgment is given for the recovery of money or damages against a public corporation mentioned in ORS , no execution shall issue thereon for the collection of such money or damages, but the judgment shall be satisfied as follows: 1) The party in whose favor the judgment is given may, at any time thereafter, when an execution might issue on a like judgment against a private person, present a certified transcript of the docket thereof, to the officer of the public corporation who is authorized to draw orders on the treasurer thereof. 2) On the presentation of the transcript, the officer shall draw an order on the treasurer for the amount of the )judgment, in favor of the party for whom the judgment was given. Thereafter, the order shall be pre- sented for payment, and paid, with like effect and in like manner as other orders upon the treasurer of the public corporation. 3) The certified transcript provided for in subsection ( 1) of this section shall not be furnished by the clerk, unless at the time an execution might issue on the judgment if the same was against a private person, nor until satisfaction of the judgment in respect to such money or damages is acknowledged as in ordinary cases. The clerk shall include' in the transcript a memorandum of such ac- knowledgment of satisfaction and the entry thereof. Unless the transcript contains such a memorandum, no order upon the treasurer shall issue thereon Settlement of certain claims against municipal corporations; manner of payment. ( 1) The governing body of an municipal corporation, as defined in ORS , may compromise, adjust and settle claims other than tort claims against, the municipal corporation, its officers, employees or, agents acting within the scope of their employment, and may, subject to rocedural requirements impose law or charter, appropriate money for the payment of amounts agreed upon. 2) When a judgment is entered or a settlement is made pursuant to subsection ( 1) of this section, payment therefor may be made in the same manner as payment for tort claims under ORS [ 1979 c.630 2; 1987 c Actions by and aggainst public officers in official capacity. An action may be maintained by or against any public officer in this state in an official character, when, as to such cause of action, the officer does not represent any of the public corporations mentioned in ORS , for any of the causes specified in such section and ORS If judgment is given against the offi- cer in such action, it may be enforced against the officer personally, and the amount thereof shall be allowed to the officer in the official accounts of the officer SETTLEMENT OR COMPROMISE BY PUBLIC BODY Prohibition of confidential settlements and compromises; exception. 1) No public body, or officer, employee or agent of a public body, who is a defendant in an action under ORS to , or who is a defendant in an action under ORS , shall enter into any settlement or compromise of the action if the settlement or compromise requires that the terms of the settlement or compromise be confidential. 2) Notwithstanding subsection ( 1) of this section, the court may, after an expedited

102 SPECIAL ACTIONS AND PROCEEDINGS examination in chambers, order that terms and conditions of a settlement or compromise of an action be confidential if the court determines, by written findings, that specific privacy interests of a private individual out- weigh the public' s interest in the terms of the settlement or compromise. 3) Any public body, or officer, employee or agent of a public body, who is a defendant in an action under ORS to , or who is a defendant in an action under ORS , shall file with the court a full and complete disclosure of the terms and conditions of any settlement or compromise of the claims against the public body, its officers, employees or agents. The disclosure shall be filed prior to the dismissal of the action. 4) For the purposes of this section: a) " Action" means a legal proceeding that has been commenced as provided in ORCP 3; and b) " Public body" has that meaning given in ORS [ 1991 c. s47 l1 provides: Note: Section 2, chapter 847, Oregon Laws 1991, Sec. 2. This Act [ applies to all actions commenced on or after the effective date of this Act September 29, [ 1991 c RECOVERY OF FINES AND FORFEITURES In whose name action brought. Fines and forfeitures may be recovered by an action at law in the name of the officer or person to whom they are by law given, or in the name of the officer or person who by law is authorized to prosecute for them Venue of action for forfeiture. Whenever, by law, any property is forfeited to the state, or to any officer for its use, the action for the recovery of such property may be commenced in any county where the defendant may be found, or where such property may be Amount of recovery. When an action is commenced for a penalty, which by law is not to exceed a certain amount, the action may be commenced for that amount, and if judgment is given for the plaintiff, it may be for such amount or less, in the dis- cretion of the court, in proportion to the offense Judgment by collusion not a bar. A recovery of a judgment for a penalty or forfeiture by collusion between the plaintiff and defendant, with intent to save the defendant, wholly or partially, from the consequences contemplated by law, in case where the penalty or forfeiture is given wholly or partly to the person who prose- cutes, shall not bar the recovery of the same by another person Disposition of fines and forfeitures. Fines and forfeitures not specially granted or otherwise appropriated by OR ( 4), , or other law, when recovered, shall be paid into the treasury of the proper county. [ Amended by 1981 s.s. c Payment of fines, cost or bail in proceedin to enforce county ordi- nance or resolution; defendant personally liable. When proceedings are conducted by county hearings officers to enforce require- ments or prohibitions of county ordinances or resolutions, if fines, cost or bail are not paid by a defendant within 60 days after payment is ordered, the defendant is personally liable to the county for the amount of the unpaid fines, cost or bail. The county may file and record the order for payment in the County Clerk Lien Record. [ 1985 c VOLUNTEERS TRANSPORTING DISABLED AND OLDER PERSONS Legislative policy. In enacting ORS and , the Legislative Assembly of the State of Oregon declares: 1) That many disabled persons and older persons, due to disability or age, cannot ob- tain medical, educational, recreational or other important services or benefits, or pur- sue daily life activities outside the home, such as shopping or socializing, without transportation and other necessary assistance; 2) That public resources are not adequate to provide dependable ' transportation to disabled persons and older persons, and that it is in the best interest of this state to encourage volunteers to provide transportation services to Oregon' s disabled people and older people; 3) That the threat or fear of personal liability arising from the provision of transportation services to disabled persons and older persons seriously discourages individuals from providing services on a volunteer basis; ) That the policy of this state is to en- courage volunteers to provide such transportation services; and 5) That, therefore, persons who qualify under ORS must be protected from the threat of unlimited personal liability arising from the provision of volunteer transportation services, and that ORS to shall be liberally construed in favor of such persons in order to promote fully the foregoing policies. [ 1983 c.468 1; 1989 c Limitation on liability of volunteers; conditions. ( 1) When a provider of

103 ACTIONS AND SUITS IN PARTICULAR CASES volunteer transportation services who is qualified under subsection ( 3) of this section provides the services under the conditions described in subsection ( 4) of this section to a person who is disabled or who is 55 years of age or older, the liability of the provider to the person for injury, death or loss arising out of the volunteer transportation services shall be limited as provided in this section. When volunteer transportation services are provided to five or fewer persons at one time, the liability of the provider of the volunteer transportation services shall not exceed the greater of the amount of coverage under the terms of the provider' s motor vehicle liability insurance policy, as described in ORS , or the amounts specified in ORS for future responsibility payments for: a) Bodily injury to or death of any one person to whom the transportation services are provided, in any one accident. b) Bodily injury to or death of two or more persons to whom the transportation services are provided, in any one accident. c) Injury to or destruction of the property of one or more persons to whom the transportation services are provided, in any one accident. 2) Notwithstanding the amount specified in paragraph ( b) of subsection ( 1) of this sec- tion by reference to ORS , if a quali- fied provider of transportation services provides the services to more than five persons, but not more than 16, at one time who are disabled or who are 55 years of age or older, under the conditions described in sub- section ( 4) of this section, the liability under paragraph (b) of subsection ( 1) of this section shall not exceed the greater of the amount of coverage under the terms of the provider's motor vehicle liability insurance policy or 300, 000. The limitations on liability provided by ORS , and do not apply when volunteer transportation services are provided to 17 or more persons at one time who are disabled or who are 55 years of age or older. 3) The following persons qualify for the limitation on liability under subsections ( 1) and ( 2) of this section: a) The person who provides or sponsors transportation services. b) The owner of the vehicle in which transportation services are provided. c) The person who operates the vehicle in which transportation services are pro- vided. 4) The limitation on liability under subsections ( 1) and ( 2) of this section applies to a person qualified under subsection ( 3) of this section only under the following conditions: a) If the person is an individual, the individual must hold a valid Oregon driver' s license. b) The person must provide the trans- portation services on a nonprofit and volun- tary basis. However, this paragraph does not prohibit a sponsor of transportation services from reimbursing an operator of a private motor vehicle providing the services for actual expenses incurred by the operator. If an operator is paid, that operator is qualified only if operating as an emergency operator. c) The person providing the transportation services must not receive from the persons using the services any substantial benefit in a material or business sense that is a substantial motivating factor for the transportation. A contribution or donation to the provider of the transportation services other than the operator of the motor vehicle or any mere gratuity or social amenity shall not be a substantial benefit under this para- graph. d) Except as provided in paragraph ( c) of this subsection, the transportation services must be provided without charge to the person using the services. 5) The amounts received by a person who is disabled or 55 years of age or older under the personal injury protection provisions of the insurance coverage of a person who qualifies for the limitation on liability under this section shall not reduce the amount that the person may recover under subsection ( 1) or ( 2) of this section. 6) The liability of two or more persons whose liability is limited under this section, on claims arising out of a single accident, shall not exceed in the agggrregate the amounts limited by subsection ( 1) or ( 2) of this section. 7) This section does not apply in the case of an accident or injury if the accident or injury was intentional on the part of any person who provided the transportation ser- vices or if the accident or injury was caused by the person' s gross negligence or intoxication. For purposes of this subsection, gross negligence is negligence which is materially greater than the mere absence of reasonable care under the circumstances, and which is characterized by conscious indifference to or reckless disregard of the rights of others. 8) For purposes of this section, a person is disabled if the person has a physical or mental disability that for the person constitutes or results in a functional limitation to one or more of the following activities: Self - care, ambulation, communication, transpor- 3-65

104 SPECIAL ACTIONS AND PROCEEDINGS tation, education, socialization or employment. [ 1983 c.468 2; 1985 c ; 1987 c.915 7; 1989 c Apportionment of damages awarded; insurance issues excluded from jury consideration. ( 1) If the amount awarded by a court to multiple claimants exceeds the total amount limited under ORS ( 1) or ( 2), the court shall apportion a proper share of that total amount to each claimant to whom ORS ( 1) or ( 2) applies. 2) If the amount settled upon by multiple claimants exceeds the total amount limited under ORS ( 1) or ( 2), any party may apply to any circuit court to apportion a proper share of that total amount to each claimant to whom ORS ( 1) plies. or ( 2) ap- 3) The share apportioned under subsection ( 1) or ( 2) of this section to each claimant to whom ORS ( 1) or ( 2) ap- plies shall be in the proportion that the ratio of the award or settlement made to the claimant bears to the aggregate awards and settlements for all claims arising out of the occurrence that are made by all claimants to whom ORS ( 1) or (2) applies. 4) Nothing in this section or ORS authorizes the issues of insurance coveragge or the amount of insurance coverage to be presented to a jury. [ 1983 c VOLUNTEERS PROVIDING ASSISTANCE OR ADVICE IN RESPONSE TO DISCHARGE OF HAZARDOUS MATERIAL OR RELATING TO COMPLIANCE WITH DISPOSAL LAWS Definitions for ORS 30A90 to 30A97. As used in ORS to : 1) " Discharge" means any leakage, seepage or any other release of hazardous material. 2) " Hazardous material" means: a) Hazardous waste as defined in ORS ; b) Hazardous substances as defined in ORS ; c) Radioactive waste as defined in ORS ; d) Uranium mine overburden or uranium mill tailings, mill wastes or mill by- product materials; e) Radioactive substance as defined in ORS ; f) Any substance designated by the United States Department of Transportation as hazardous pursuant to the Hazardous Ma- terials Transportation Act, 49 U.S.C. 1801, 1 P.L , as amended; and. g) Any substance which the Environmental Protection Agency designates as hazardous pursuant to: A) The federal Toxic Substance Control Act, 15 U.S. C ; or B) The Federal Resource Conservation and Recovery Act, P.L as amended. 3) " Person" means an individual,- corporation, association, firm, partnership, point stock company or state or local government agency. [ 1985 c.376 1; 1991 c A92 Limitation on liability of person voluntarily providing assistance or advice related to mitigation or cleanupp of dis- charge of hazardous material. ( 1) Except as provided in ORS and , no person may maintain an action for damages against a person for voluntarily providing assistance or advice directly related to: a) Mitigating or attempting to mitigate the effects of an actual or threatened dis- charge of hazardous material; or b) Preventing, cleaning up or disposing of or in attempting to prevent, clean up or dispose of any discharge of hazardous mate- rial 2) Except as provided in ORS and , no state or local agency may assess a civil or criminal penalty- against a person for voluntarily providing assistance or advice directly related to: a) Mitigating or attempting to mitigate the effects of an actual or threatened discharge of hazardous material; or b) Preventing, cleaning up or disposing of or in attempting to prevent, clean up or dispose of any discharge of hazardous mate- rial. [ 1985 c Exceptions to limitation. The immunity provided in ORS shall not apply to any person: 1) Whose act or omission caused in whole or in part the actual or threatened discharge and who would otherwise be liable for the damages; or 2) Who receives compensation other than reimbursement for expenses for the person' s service in rendering such assistance or advice. [ 1985 c When limitation on liability not applicable. Nothing in ORS shall be construed to limit or otherwise affect the liability of any person for damages resulting from the person' s gross negligence or from the' person' s reckless, wanton or intentional misconduct. [ 1985 c

105 ACTIONS AND SUITS IN PARTICULAR CASES Definitions for ORS and As used in this section and ORS : 1) " Generator" has the meaning given that term in ORS ) " Person" means an individual, corporation, association, firm, partnership, joint stock company or state or local government agency. [ 1987 c Limitation on liability of person voluntarily providing assistance relating to compliance with hazardous waste disposal laws. ( 1) Except as provided in sub- section ( 2) of this section, no person may maintain an action for damages against a person who voluntarily provides assistance, training or advice to a generator directly related to procedures or actions the generator must take to comply with the requirements of state or federal hazardous waste disposal laws. 2) The immunity provided in subsection 1) of this section shall not apply to: a) Any person whose act or omission caused in whole or in part the occurrence resulting in the damages for which the action is brought and who would otherwise be liable for the damages. b) Any person who receives compen- sation other than reimbursement for ex- penses for the person' s service in providing such assistance, training or advice. c) The liability of any person for dam- ages resulting from the person' s gross negligence or from the person' s reckless, wanton or intentional misconduct. d) Any activity for which a person is otherwise strictly liable without regard to fault. [ ACTIONS FOR USURPATION OF OFFICE OR FRANCHISE; TO ANNUL CORPORATE EXISTENCE; TO ANNUL LETTERS PATENT Action for usurpation of office or franchise. An action at law may be maintained in the name of the state, upon the information of the district attorney, or upon the relation of a private party against the. person offending, in the following cases: 1) When any person usurps, intrudes into, or unlawfully holds or exercises any public office, civil or military, or any franchise within this state, or any office in a corporation either public or private, created or formed by or under the authority of this state; or, 2) When any ppublic officer, civil or military, does or sufi'ers an act which, by the provisions of law, makes a forfeiture of the office of the public officer; or, 3) When any association or number of persons acts within this state, as a corporation, without being duly incorporated Joinder of defendants. Several persons may be joined as defendants in an action for the causes specified in ORS ), and in such action their respective rights to such office or franchise may be determined Determining right of person claiming an office or franchise. Whenever an action is brought against a person for any of the causes specified in ORS ( 1), the district attorney, in addition to the statement of the cause of action, may separately set forth in the complaint the name of the person rightfully entitled to the office or franchise, with a statement of the facts constituting the right of the person thereto. In such case, judgment may be given upon the right of the defendant, and also upon the right of the person so alleged to be entitled, or only upon the right of the defendant, as justice may require. 301M Rights of person adjudged entitled to office or franchise. If judgment is given upon the right of and in favor of the person alleged in the complaint to be entitled to the office or franchise, the person shall be entitled to the possession and enjoyment of the franchise, or to take upon the person the execution of the office, after qualifying the Ntherefor as required by law, and to demand and receive the possession of all the books, papers and property belonging thereto Action for damages. If judgment is given upon the right of and in favor of the person alleged in the complaint to be entitled to the office or franchise, the person may afterwards maintain an action to recover the damages which the person has sustained by reason of the premises. [ Amended by 1973 c ; 1981 x Judgment against usurper, imposition of fine. When a defendant, whether 3-67 a natural person or a corporation, against whom an action has been commenced for any of the causes specified in ORS ( 1), is determined to be guilty of usurping, or intruding into, or unlawfully holding or exercising any office or franchise, judgment shall be given that such defendant be excluded therefrom. The court may also im ose a fine upon the defendant not exceeding $ 2, Action to annul corporate existence on direction of Governor. An action may be maintained in the name of the state, whenever the Governor shall so direct, against a corporation either public or pri- vate, for the purpose of avoiding the Act of

106 30180 SPECIAL ACTIONS AND PROCEEDINGS incorporation, or an Act renewing or modifying its corporate existence, on the ground that such Act was procured upon some fraudulent suggestion or concealment of a material fact by the persons incorporated, or some of them, or with their knowledge and consent; or for annulling the existence of a corporation formed under any general law of this state, on the ground that such incorpo- ration, or any renewal or modification thereof, was procured in like manner Action to annul corporate ex- istence on leave of court. An action may be maintained in the name of the state against a corporation, other than a public one, on leave granted by the court or fudge thereof where the action is triable, for the purpose of avoiding the charter or annulling the existence of such corporation, whenever it, shall: 1) Offend against any of the provisions of an Act creating, renewing, or modifying such corporation, or the provisions of any general law under which it became incorpo- rated; 2) Violate the provisions of any law, by which such corporation forfeits its charter, by abuse of its powers; 3) Whenever it has forfeited its p i i- leges or franchises, by failure to exercise its powers; 4) Whenever it has done or omitted any act, which amounts to a surrender of its corporate rights, privileges and franchises; or, 5) Whenever it exercises a franchise or privilege not conferred upon it by law Judgment against corporation. If it is determined that a corporation, against which an action has been commenced pursuant to ORS or , has forfeited its corporate rights, privileges and franchises, judgment shall be given that the corporation e excluded therefrom, and that the corporation be dissolved Action to annul letters patent. An action may be maintained in the name of the state for the purpose of vacating or annulling letters patent, issued by the state, against the person to whom the letters were issued, or those claiming under the person, as - to the subject matter thereof, in the following cases: 1) When the letters patent were issued by means of some fraudulent suggestion or concealment of a material fact by the person to whom the letters were issued, or with the knowledge and consent of the person; 2) When the letters patent were issued through mistake or in ignorance of a material fact; or, 3) When the patentee, or those claiming under the patentee, have done or omitted an act, in violation of the terms and conditions on which the letters patent were issued, or have by any other means forfeited the interest acquired under the letters Prosecutor; verification of pleadings; affidavit for leave of court; relator as coplaintiff. The actions provided for in ORS to shall be com- menced and prosecuted by the district attorney of the district where the same are triable. When the action is upon the relation of a private party as allowed in ORS , the pleadings on behalf of the state shall be signed by the relator as if the relator were the plaintiff, or otherwise as provided in ORCP 17; in all other cases the pleadings shall be signed by the district attorney in like manner or otherwise as provided in ORCP 17. When an action can only be commenced by leave, as provided in ORS , the leave shall be granted when it appears by affidavit that the acts or omissions specified in that section have been done or suf- fered by the corporation. When an action is commenced on the information of a private person, as allowed in ORS , having an interest in the question, such person, for all the purposes of the action, and as to the of: fect of any judgment that may be given therein, shall be deemed a coplaintiff, _with the state. [ Amended by 1979 c Duty of district attorney. When directed by the Governor, as prescribed in ORS , it shall be the duty of the dis- trict attorney to commence the action therein provided for accordingly. In all other actions provided for in ORS to it shall be the duty of the proper district attorney to commence such action, upon leave given where leave is required, in every case of public interest, whenever the district at- torney has reason to believe that a cause of action exists and can be proven, and also for like reasons in every case of private interest only in which satisfactory security is given to the state to indemnify it against the costs and expenses that may be incurred thereby Filing copy of judgment with Secretary of State. If judgment is given against a corporation, the effect of which is that the corporation ceases to exist, or whereby any letters patent are determined to be vacated or annulled, it shall be the duty of the district attorney to cause a copy of the judgment to be filed with the Secretary of. State. [ Amended by 1991 x Enforcement of judgment. A judgment given in any action provided for in ORS to , in respect to costs and disbursements, may be enforced by execution

107 ACTIONS AND SUITS IN PARTICULAR CASES as a judgment which requires the payment of money. [ Amended by 1981 c sex, marital status or national origin. [ 1973 c ACTIONS FOR UNLAWFUL DISCRIMINATION IN PLACES OF PUBLIC ACCOMMODATION Right of all persons to equal facilities in places of public accommodation. All persons within the urisdiction of this state shall be entitled to the full and equal accommodations, advantages, facilities and privileges of any place of public accommodation, without any distinction, discrimination or restriction on account of race, religion, sex, marital status, color or national origin. [ 1953 c.495 1; Place of public accommodation defined. ( 1) A place of public accommodation, subject to the exclusion in subsection 2) of this section, means any place or service offering to the public accommodations, advantages, facilities or privileges whether in the nature of goods, services, lodgings, amusements or otherwise. 2) However, a place of public accommo- dation does not include any institution, bona fide club or place of accommodation which is in its nature distinctly private. [ 1953 c.495 2; ; 1961 c.247 1; 1973 x Action for damages by person discriminated against. All persons against whom any distinction, discrimination or re- striction on account of race, religion, sex, marital status, color or national origin has been made by any place of public accommodation, as defined in ORS , by any person acting on behalf of such place or by any person aiding or abetting such place or person in violation of ORS shall have a cause of action to recover compensatory and punitive damages from the operator or man- ager of such place or the employee or person acting on behalf of such place or the aider or abettor of such place or person. In the action the operator or manager of such Kthe employee or person acting on be- half of such place or the aider or abettor of such place or person shall be jointly and severally liable. Any person recovering dam- ages under this section shall be entitled to reasonable attorney fees at trial and on appeal as determined by the court in addition to costs and necessary disbursements. Amended by 1953 c.495 3; ; ; 1981 c Aiding or abetting certain discrimination prohibited. It is unlawful for any person to aid or abet any place of public accommodation, as defined in ORS or any person acting on behalf of such place to make any distinction, discrimination or restriction on account of race, religion, color, ACTIONS ARISING OUT OF EQUINE ACTIVITIES Definitions for ORS to For the purposes of ORS to : 1) " Equine" means a horse, pony, mule, donkey or hinny. 2) " Equine activity" means: a) Equine shows, fairs, competitions, performances or parades that involve any or all breeds of equines and any of the equine disciplines including, but not limited to, dressage, hunter and jumper horse shows, grand prix jumping, three -day events, combined training, rodeos, driving, pulling, cut - ting, polo, steeplechasing, endurance trail riding and western games and hunting; b) Equine training, grooming and teaching activities; c) Boarding equines; d) Riding, inspecting or evaluating an equine belonging to another whether or not the owner has received some monetary consideration or other thing of value for the use of the equine or is permitting a prospective purchaser of the equine to ride, inspect or evaluate the equine; and e) Rides, trips, hunts or other equine activities of any type however informal or impromptu that are sponsored by an equine activity sponsor. 3) " Equine activity sponsor" means an individual, group or club, partnership or corporation, whether or not the sponsor is operating for profit or nonprofit, that sponsors, organizes or provides the facilities for an equine activity, including but not limited to pony clubs, 4 -H clubs, hunt clubs, riding clubs, school and college sponsored classes and programs, therapeutic riding programs and operators, instructors, and promoters of equine facilities, including but not limited to stables, clubhouses, pony ride strings, fairs and arenas at which the activity is held. 4) " Equine professional' means a person engaged for compensation: 3-69 a) In instructing a participant or renting to a participant an equine for the purpose of riding, training, driving, grooming or being a passenger upon the equine; or b) In renting equipment or tack to a participant. 5) " Participant" means any person, whether amateur or professional, who directly engages in an equine activity, whether or not a fee is paid to participate in the equine activity. " Participant" does not in-

108 SPECIAL ACTIONS AND PROCEEDINGS clude a spectator at an equine activity or a person who participates in the equine activity but does not ride, train, drive, groom or ride as a passenger upon an equine. [ 1991 c Policy. ( 1) It is the purpose of ORS to to assist courts and juries to define the circumstances under which those persons responsible for equines may and may not be liable for damages to other persons harmed in the course of equine activities. 2) It is the policy of the State of Oregon that no person shall be liable for damages sustained by another solely as a result of risks inherent in equine activity, insofar as those risks are, or should be, reasonably obvious, expected or necessary to the person injured. 3) It is the policy of the State of Oregon that persons responsible for equines, or responsible for the safety of those persons en- gaged in equine activities, who are negligent and cause foreseeable injury to a person engaged in those activities, bear responsibility for that injury in accordance with other applicable law. [ 1991 c Limitations on liability; ex- ceptions. ( 1) Except as provided in subsection ( 2) of this section and in ORS , an equine activity sponsor or an equine pro- fessional shall not be liable for an injury to or the death of a participant arising out of riding, training, driving, grooming or riding as a passenger upon an equine and, except as provided in subsection ( 2) of this section and ORS , no participant or participant' s representative may maintain an action against or recover from an equine ac- tivity sponsor or an equine professional for an injury to or the death of a participant arising out of riding, training, driving, grooming or riding as a passenger upon an equine. 2)( a) The provisions of ORS to do not apply to any injury or death arising out of a race as deed in ORS b) Nothing in subsection ( 1) of this section shall limit the liability of an equine activity sponsor or an equine professional: A) If the equine activity sponsor or the equine professional commits an act or omis- sion that constitutes willful or wanton disregard for the safety of the participant and that act or omission caused the injury; B) If the equine activity sponsor or the equine professional intentionally injures the participant; C) Under the products liability provisions of ORS to ; or D) Under ORS or [ 1991 x Additional exceptions to limitations on liability; effect of written release. ( 1) Except as provided in subsection 2) of this section, nothing in ORS shall limit the liability of an equine activity sponsor or an equine professional if the equine activity sponsor or the equine professional: a) Provided the equipment or tack, failed to make reasonable and prudent inspection of the equipment or tack, and that failure was a cause of the injury to the participant; b) Provided the equine and failed to make reasonable and prudent efforts to determine the ability of the participant to safely ride, train, drive, groom or nde as a passenger upon an equine, to determine the ability of the equine to behave safely with the participant and to determine the ability of the participant to safely manage the par- ticular equine; or c) Owns, leases, rents or otherwise is in lawful possession and control of the land or facilities upon which the participant sustained injuries because of a dangerous latent condition which was known to or should have been known to the equine activity sponsor or the equine professional and for which warning signs have not been conspic- uously posted. 2) The limitations on liability provided in ORS shall apply to an adult partic- ipant in the circumstances listed in paragraph ( b) of subsection ( 1) of this section if the participant, prior to riding, training, driving, grooming or riding as a passenger upon an equine, knowingly executes a release stating that as a condition of partic- ipation, the participant waives the right to bring an action against the equine professional or equine activity sponsor for any injury or death arising out of riding, training, driving, grooming or riding as a passenger upon the equine. A release so executed shall be binding upon the adult participant, and no equine professional or equine activity sponsor shall be liable in the circumstances described in paragraph ( b) of subsection ( 1) of this section except as provided in ORS ( 2). [ 1991 c Effect of written release on liability of veterinarian or farrier. ( 1) No veterinarian or farrier shall be liable to any person who assists the veterinarian or farrier in rendering veterinarian or farrier services to an equine if the person, prior to assisting the veterinarian or farrier, executes a release stating that the person rendering assistance waives the right to bring an action against the veterinarian or farrier for any

109 ACTIONS AND SUITS IN PARTICULAR CASES injury or death arising out of assisting in the provision of veterinarian or farrier services. A release so executed shall be enforceable regardless of lack of consideration. 2) A release executed pursuant to this section shall not limit the liability of a veterinarian or farrier for gross negligence or intentional misconduct. [ ] Effect on workers' compensation benefits. Nothing in ORS to shall affect the right of any person to any workers' compensation benefits that may be payable by reason of death, injury or other loss. [ 1991 c provides: Note: Section 7, chapter 864, Oregon Laws 1991, Sec. 7. This Act [ to applies only to causes of action arising on or after the effective date of this Act [ September 29, [ 1991 c MISCELLANEOUS ACTIONS Procedure to recover damages on dishonored check. ( 1) In any action against a person who makes any check, draft or order for the payment of money which has been dishonored for lack of funds or credit to pay the same, or because the maker has no account with the drawee, the plaintiff may recover from the defendant damages in an amount equal to $ 100 or triple the amount for which the check, draft or order is drawn, whichever is greater. However, damages recovered under this section shall not exceed by more than $500 the amount of the check, draft or order and may be awarded only if the plaintiff made written demand of the defendant for payment of the amount of the check, draft or order not less than 30 days before commencing the action and if the defendant failed to tender to the plaintiff, prior to commencement of the action, an amount of money not less than the amount de- manded. 2) Subsequent to the commencement of the action but prior to the hearing, the defendant may tender to the plaintiff as satis- faction of the claim, an amount of money equal to the sum of the amount of the check and the incurred court and service costs. 3) If the court or jury determines that the failure of the defendant to satisfy the dishonored check was due to economic hard - ship, the court or jury has the discretion to waive all or part of the statutory damages. However, if the court or jury waives all or part of the statutory damages, the court or fury- shall render judgment against defendant in the amount of the dishonored check plus incurred court and service costs. [ 1981 c.670 1, 2) [ Amended by 1961 c ; repealed by 1973 c.640 1] Successive actions or suits. Successive actions or suits may be maintained upon the same contract or transaction, whenever, after the former action or suit, a new cause of action or suit arises therefrom. [ Formerly [Reealed by 1973 c.640 l; amended by 1973 x823 88, 155T [ Repealed by 1974 s. s. c [ Repealed by 1979 c Right of gambling loser to recover double losses. All persons losing money or anything of value at or on any unlawful game described in ORS , and shall have a cause of action to recover from the dealer winning the same, or proprietor for whose benefit such game was played or dealt, or such money or thing of value won, twice the amount of the money or double the value of the thing so lost. [ Amended by 1971 c ; 1977 c ] Liability of abstractors. Any person who, after May 24, 1923, certifies to any abstract of title to any land in Oregon, shall be liable for all damages sustained by any person who, in reliance on the correct- ness thereof, acts thereon with reference to the title of such land, and is damaged in consequence of any errors, omissions or defects therein, regardless of whether the abstract of title was ordered by the person so damaged. Nothing in this section shall be construed to prevent the maker of any abstract of title to land from limiting in the certificate to the abstract the liability of the maker thereunder to any person named in such certificate, but such limitation of liability must be expressly set forth in the certif- icate [ Amended by 1953 c.565 2; renumbered ] Liability of parents for tort by child; effect on foster parents. ( 1) In addi- tion to any other remedy provided by law the parent or parents of an unemancipated minor child shall be liable for actual dam- ages to person or property caused by any tort intentionally or recklessly committed by such child. However, a parent who is not entitled to legal custody of the minor child at the time of the intentional or reckless tort shall not be liable for such damages. 2) The legal obligation of the parent or parents of an unemancipated minor child to pay damages under this section shall be limited to not more than $ 7, 500, payable to the same claimant, for one or more acts. 3) When an action is brought under this section on parental responsibility for acts of their children, the parents shall be named as defendants therein and, in addition, the mi- 3-71

110 SPECIAL ACTIONS AND PROCEEDINGS nor child shall be named as a defendant. The filing of an answer by the parents shall remove any requirement that a guardian ad litem be required. 4) Nothing in subsections ( 1) to ( 3) of this section applies to foster parents. [ 1975 c.712 l, 4; 1977 c.419 l; 1991 c provides: Note: Section 7, chapter 968, Oregon Laws 1991, Sec. 7. Section 4 of this Act [ ] and the amendments to ORS , , and , by sections 1, 2, 5 and 6 of this Act apply only to causes of action arising on or after the effective date of this Act [ September 29, 1991]. [ 1991 c [ 1959 c.310 1; 1965 c.587 1; 1973 c.827 8; repealed by 1975 c Liability for damages caused by gambling. Any person violating ORS to shall be liable in a civil suit for all damages occasioned thereby. [ 1959 c.681 3; 1971 c Liability of construction design professional for injuries resulting from failure of em Toyer to comply with safety standards. ( 1 A construction design professional who is retained to perform profes- sional services on a construction project, or an employee of the construction design professional in the performance of professional services on the construction project, shall not be liable for any injury to a worker on the construction project that is a compensable injury under ORS chapter 656 and that results from the failure of the employer of the worker to comply with safety standards on the construction project unless the construction design professional by contract specifically assumes responsibility for compliance with those safety standards. The immunity provided by this section to a construction design professional shall not apply to the negligent preparation of design plans or specifications. 2) As used in this section, " construction design professional" means an architect, registered landscape architect, professional engineer or professional land surveyor c ] [ 1963 c.524 l, 2; repealed by 1971 c Liability for emergency medical assistance while in custody of law enforcement officer. ( 1) An individual who receives emergency medical services while in the custody of a law enforcement officer is liable: a) To the provider of the emergency medical services for the charges and expenses therefor; and b) To the public agency by which the law enforcement officer is employed for any charges or expenses paid by the public agency for the emergency medical services. 2) ' A person providing emergency -med ical services to an individual describedc in paragraph ( a) of subsection ( 1) of this section shall first make reasonable efforts to collect the charges and expenses thereof from the individual before seeking to collect them from the public agency. 3)( a) If the rovider has not been paid within 45 days of the date of the billing, the provider may bill the public agency who shall pay the account. b) A bill submitted to the public agency under this subsection must be accompanied by evidence documenting that: A) The provider has billed the individual' or the individual' s insurer or health care contractor for the charges or expenses owed to the provider; and B) The provider has made a reasonable effort to collect from the individual or the individual' s insurer or health care contractor the charges and expenses owed to the pro- vider. c) If the provider receives payment from the individual or the insurer or health care contractor after receiving payment from the public agency, the provider shall repay the public agency the amount received from the public agency less any difference between payment received from the individual, insurer or contractor and the amount of the billing. 4) As used in this section: a) " Law enforcement officer" means an officer who is commissioned and employed by a public agency as a peace officer to enforce the criminal laws of this state or laws or ordinances of a public agency. b) " Public agency" means the state, a city, port, school district, mass transit district or county. [ 1981 c.690 2; 1985 c Note: Section 3, chapter 778, Oregon Laws 1991, provides: Sec. 3. Notwithstanding the provisions of ORS , , and , until July 1, 1993, ORS , , and shall not be operative but sections 4 to 7 of this Act shall operate in lieu thereof. [ 1991 c.778 3] 3-72 Note: See temporary previsions relating to the Law Enforcement Medical Liability Account in note preceding , temporary provisions relating to county assessments following and temporary provisions relating to medical expenses following Liability for emergency medical assistance by medically trained persons. 1) As used in this section: means: a) " Emergency medical assistance" A) Medical or dental care not provided in a place where emergency medical or dental care is regularly available, including

111 mi ACTIONS AND SUITS IN PARTICULAR CASES but not limited to a hospital, industrial first - aid station or a physician' s or dentist' s office, given voluntarily and without the expectation of compensation to an injured person who is in need of immediate medical or dental care and under emergency circumstances that suggest that the giving of assistance is the only alternative to death or serious physical after effects; or B) Medical care provided voluntarily in good faith and without expectation of com - pensation by a physician licensed by the Board of Medical Examiners for the State of Oregon in the physician' s professional capacity as a team physician at a public or private school or college athletic event or as a volunteer physician at other athletic events. b) " Medically trained person" means: A) A person licensed under any law of a state or of the United States to practice medicine and surgery, dentistry or dental surgery, professional nursing, osteopathy, naturopathy or chiropractic; B) A person who has completed success- fully, within three years prior to the date on which emergency medical assistance is rendered by the person, a state or federal - sponsored training program for persons engaging in the rendering of emergency medical assistance or who has completed successfully the aforesaid training program and, within three years prior to the date on which emergency medical assistance is rendered by the person, regularly has engaged in the rendering of emergency medical as- sistance, and who possesses proof of the suc- cessful completion of such a training program; C) A person who has completed, within three years prior to the date on which emergency medical assistance is rendered by the person, a course sponsored or approved by the American Red Cross, the federal Mine Safety and Health Administration, the Occupational Safety and Health Administration or the Department of Insurance and Finance, is qualified to render emergency first -aid and possesses proof of the completion of such first -aid training; D) A person who, within three years rior to the date on which emergency medical assistance is rendered by the person, has been trained or who has been trained and, within three years prior to the date on which emergency medical assistance is rendered by the person, has served as a medical assistant or medical corpsman in the Armed Services of the United States; E) A person who possesses an emergency medical technician 1, 2, 3 or 4 certificate issued pursuant to ORS ; or F) A person who has completed, within one year prior to the date the emergency cardiopulmonary resuscitation is rendered by the person, a course sponsored by the American Red Cross or the American Heart Asso- ciation in emergency cardiopulmonary resuscitation, or a course in emergency cardiopulmonary resuscitation provided by an agency or organization that meets the current criteria and standards of emergency cardiopulmonary resuscitation training as established by the American Heart Association and is qualified to render cardiopulmonary resuscitation and who possesses proof of the successful completion of such a training program. 2) No person may maintain an action for damages for injury, death or loss that results from acts or omissions of the medically trained person while rendering emergency medical assistance unless it is alleged and proved by the complaining party that the acts or omissions violate the standards of reasonable care under the circumstances in which the emergency medical assistance was rendered, if the action is against: a) A medically trained person; or b) A governmental agency or other entity which employs, trains, supervises or sponsors the medically trained person. 3) The giving of emergency medical assistance by a medically trained person does not, of itself, establish the relationship of physician and patient, dentist and patient or nurse and patient between the medically trained person giving the assistance and the person receiving the assistance insofar as the relationship carries with it a duty of a physician, dentist or nurse to provide or arrange for further medical care for the injured person after the giving of emergency medical assistance. [ 1967 c.266 W, 2; 1973 c.635 1; 1979 c.576 l; 1979 c. 731 l; l; l; 1985 c.428 l; Liability of certified emergency medical technician acting as volunteer. No person shall maintain a cause of action for injury, death or loss against any certified emergency medical technician who acts as a 3-73 volunteer without expectation of compen- sation, based on a claim of negligence unless the person shows that the ury, death or loss resulted from willful and wanton misconduct or intentional act or omission of the emergency medical technician. [ 1987 c Liability for emergency medical assistance by government personnel. ( 1) No person may maintain an action for damages for injury, death or loss that results from acts or omissions in rendering emergency medical assistance unless it is alleged and proved by the complaining party that the

112 SPECIAL ACTIONS AND PROCEEDINGS acts or omissions violate the standards of reasonable care under the circumstances in which the emergency medical assistance was rendered, if the action is against: a) The staff person of a governmental agency or other entity if the staff person and the agency or entity are authorized within the scope of their official duties or licenses to provide emergency medical care; or b) A governmental agency or other entity that employs, trains, supervises or sponsors the staff person. 2) As used in this section, " emergency medical care" means medical care to an injured or ill person who is in need of immedi- ate medical care: a) Under emergency circumstances that suggest that the giving of assistance is the only alternative to serious physical aftereffects or death; b) In a place where emergency medical care is not regularly available; c) In the absence of a personal refusal of such medical care by the injured or ill person or the responsible relative of such person; and d) Which may include medical care pro- vided through means of radio or telecommu- nication by a medically trained person, who practices in a hospital as defined in ORS and licensed under ORS to , and who is not at the location of the injured or ill person. [ 1979 c.782 8; 1981 c ; 1985 c ' Liability for emergency trans- portation assistance. ( 1) No person shall maintain an action for 'damages for injury, death or loss that results from acts or omissions in rendering emergency transportation assistance unless it is alleged and proved by the complaining party that the acts or omissions violate the standards of reasonable care under the circumstances in which the emergency transportation assistance was rendered if the action is against an uncompensated person who provides emergency transportation assistance under the direction of a medically trained person, as defined in ORS ) As used in this section, " emergency transportation assistance" means transportation provided to an injured or ill person who is in need of immediate medical care: a) Under emergency circumstances that suggest that the giving of assistance is the only alternative to serious physical aftereffect or death; b) From a place where emergency medical care is not regularly available; c) In the absence of a personal, refusal of such assistance by the inured or ill, person or the responsible relative of the person; and d) Which may include directions on the transportation provided through means of radio or telecommunications by a medically trained person who practices in a hospital, as defined in ORS and who is not at the location of the injured or ill person. [ 1987 c Rigght to include medical expenses paid by parent or conservator in action to recover for damages to child; effect of consent to inclusion. ( 1) When the guardian ad litem of a child maintains a cause of action for recovery of damages to the child caused by a wrongful act, the parent, parents, or conservator of the estate of the child may file a consent accompanying the complaint of the guardian ad litem to include in the cause of action the damages as, in all the circumstances of the case, may be just, and will reasonably and fairly compensate for the doctor, hospital and medical expenses caused by the injury. 2) If the consent is filed as provided in subsection ( 1) of this section and the court allows the filing, no court shall entertain a cause of action by the parent, parents or conservator for doctor, hospital or medical expenses caused by the injury. [ 1973 c c.387 1; Action against seller of drugged horse; attorney fees. In addition to and not in lieu of the penalty provided in ORS ( 2), any person who buys a horse sold in violation of ORS ( 1) may bring an action against the seller for any damages the buyer incurs as a result of the sale. If the buyer prevails in any such action, there shall be taxed and allowed to the buyer, at trial and on appeal, a reasonable amount to be fixed by the court as attorney fees. [ 1971 c.175 3; 1981 c Action for unlawful tree spik- ing. Any person who is damaged by an act pinhibited m ORS ( 1) to ( 3) may 3-74 bring a civil action to recover damages sustained, and shall be entitled to reasonable attorney fees. A party seeking civil damages under this section may recover upon proof by a preponderance of the evidence of a vio- lation of the provisions of ORS ( 1) to 3). [ 1989 c Action against judicial officer for failure to make certain payments. If any money described in ORS that is payable to the Department of Revenue is not paid to the department within the time provided therein, the court or officer who collected the money shall be deemed delinquent

113 ACTIONS AND SUITS IN PARTICULAR CASES in the payment of the money. An action may be maintained in the name of the Department of Revenue, State of Oregon, to recover the unpaid amounts with interest at the legal rate. [ 1971 c.186 7; 1981 s.s. c.3 111; 1983 c ; 1987 c.905 Val Note: The amendments to by section 3a, chapter 905, Oregon Laws 1987, take effect July 1, See section 39, chapter 905, Oregon Laws 1987, as amended by section 1, chapter 460, Oregon Laws The text ( 1989 Edition) is set forth for the use' s con- venience If any money described in ORS , , , and that is payable to the Department of Revenue is not paid to the depart- ment within the time provided therein, the court or of- ficer who collected the money shall be deemed delinquent in the payment of the money. An action may be maintained in the name of the Department of Revenue, State of Oregon, to recover the unpaid amounts with interest at the legal rate Action for alienation of affections abolished. There shall be no civil cause of action for alienation of affections c Action for criminal conversation abolished. There shall be no civil cause of action for criminal conversation. [ 1975 c.562 2l Action for trade discrimination; treble damages; attorney fees. ( 1) No person or governmental entity shall discriminate against, boycott, blacklist, refuse to buy from, sell to or trade with any person because of foreign government imposed or sanctioned discrimination based upon the national origin, race or religion of such per- son or of such person' s partners, members, directors, stockholders, agents, employees, business associates, suppliers or customers. 2) Any person directly injured in business or property by a violation of subsection 1) of this section may sue whoever knowingly practices, or conspires to practice, activities prohibited by subsection ( 1) of this section, and shall recover threefold the damages sustained, the costs of suit and reasonable attorney fees at trial and on appeal c.395 l, 2; 1981 c Definitions for ORS and As used in this section and ORS : 1) " Agricultural produce" means any plant including, but not limited to, trees, or animals, kept, grown or raised upon real property, and the products of those and animals. plants 2) " Mercantile establishment" means any place where merchandise is displayed, held or offered for sale, either at retail or wholesale. 3) " Merchandise" means all things movable and capable of manual delivery. 4) " Owner" means any person who owns or operates a mercantile establishment or farm, or the agents or employees of that person. [ 1979 x592 l; 1981 c Civil damages for shoplifting or taking of agricultural produce or cable television services; court jurisdiction; assignment of judgments. ( 1)( a) An adult or an emancipated minor who takes possession of any merchandise displayed or offered for sale by any mercantile establishment, or who takes from any real property any agricultural produce kept, grown or raised on the property for purposes of sale, without the consent of the owner and with the intention of con - verting such merchandise or produce to the individual' s own use without having paid the purchase price thereof, or who alters the price indicia of such merchandise, shall be civilly liable to the owner for actual damages, for a penalty to the owner in the amount of the retail value of the merchandise or produce not to exceed $ 500, and for an additional penalty to the owner of not less than $100 nor more than $250. b) An adult or emancipated minor who engages in conduct described under ORS , or , shall be civillyy h able to the owner of a franchised, or otherwise duly licensed, cable television system injured thereby for actual damages, for a penalty to the owner in the amount of any retail value of the service received as a result of the conduct not to exceed $ 500, and for an additional penalty to the owner of not less than $ 100 nor more than $250. 2) The parents having custody of an unemancipated minor who takes possession of any merchandise,'displayed or offered for sale by any mercantile establishment, or who takes from any real property any agricultural produce kept, grown or raised on the property for purposes of sale, without the consent of the owner, and with the intention of converting such merchandise or produce to the minor' s own use without having? aid the purchase price thereof, or who alters the price indicia of such merchandise or who engages in conduct described in ORS , or , shall be civilly liable to the owner for actual damages, for a penalty to the owner in the amount of the -retail value of the merchandise or produce not to exceed $ 250, plus an additional penalty to the owner of not less than $ 100 nor more than 250. Persons operating a foster home certified under ORS to are not liable under this subsection for the acts of children not related to them by blood or marriage and under their care. 3) A conviction for theft is not a condition precedent to the maintenance of a civil action under this section. A conviction for

114 SPECIAL ACTIONS AND PROCEEDINGS unlawful distribution of cable television equipment under ORS , or for tampering with cable television equipment under ORS , is not a condition precedent to the maintenance of a civil action under this section. 4) A civil liability under this section is not limited by any other law that limits li- ability of parents of minor children. 5) An action for recovery of damages under this section may be brought in any court of competent jurisdiction, including the small claims department of a district court if the total damages do not exceed the juris- dictional ment. limit of the small claims depart- 6) The fact that an owner or seller of merchandise or agricultural produce or the owner of a cable television system, may bring an action against an individual for damages as provided in this section shall not limit the right of the owner or seller to demand, in writing, that a person who is liable for damages under this section remit said damages prior to the commencement of any legal action. 7) Judgments, but not claims, arising under this section may be assigned. [ 1979 c.592 2; ; 1985 c.537 6; 1987 c Child care center liability insurance coverage. ( 1) A child care center, as defined by rule of the Children' s Services Division, and a private child- caring agency as defined in ORS that meets the specifications of subsection ( 2) of this sec- tion, may obtain insurance in the same manner as a local ppublic body may obtain Insurance under OR,S However, the Insurance shall not cover theft or bodily injury and property damage arising out of operation of a motor vehicle by a child resident of the center. 2) A private child -caring agency is eliggble to obtain insurance as specified in subsection ( 1) of this section if it: a) Is run by a private, nonprofit agency; b) Is licensed by the state; and c) Provides residential treatment for children who have been placed in the care and custody of the state. [ 1979 c.842 5a; 1987 c ; 1987 c Food gleaners and distributors liability. ( 1)( a) Notwithstanding any other provision of law, a gleaner or the good -faith donor of any food, apparently fit for human consumption, to a bona fide charitable or nonprofit organization, including but not limited to a food bank, for distribution without charge or on a scale reflecting ability to pay or only requiring a shared maintenancecontribution, shall not be subject to criminal penalty or civil damages arising from the condition of the food, unless an injury is caused by the gross negligence, recklessness or intentional conduct of the donor or gleaner. b) The immunity from civil liability and criminal penalty provided by this section applies regardless of compliance with any laws, rules or ordinances regulating the packaging or labeling of food, and regardless of compliance with any laws, rules or ordinances regulating the storage or handling of the food by the donee after the donation of the food. 2) Notwithstanding any other provision of law, a bona fide charitable or nonprofit organization which in good faith receives food, apparently fit for human consumption, and while apparently fit for human consumption distributes it at no charge or on a fee scale reflecting ability to pay or only requirmg a shared maintenance contribution, shall not be subject to criminal penalty or civil damages resulting from the condition of the food unless an injury results from the gross negligence, recklessness or intentional conduct of the organization. 3) This section applies to the good -faith donation of food not readily marketable due to appearance, freshness, grade, surplus or other considerations but does not restrict the authority of any appropriate agency to regulate or ban the use of such food for human consumption. 4) As used in this section: a) " Donor" includes any person who opperates a restaurant or other food establishment licensed or regulated by law. b) " Food" means any food whether or not it may spoil or otherwise become unfit for human consumption because of its na- ture, type or physical condition, including but not limited to fresh or processed meats, poultry, seafood, dairy products, bakery products, eggs in the shell, fresh fruits or vege- tables, and foods that have been packaged, canned, refrigerated, freeze -dried or frozen c) " Food bank" means a surplus food collection and distribution system operated and established to assist in bringing donated food to nonprofit charitable organizations and individuals for the purpose of reducing hunger and meeting nutritional needs. d) " Gleaner" means a person that harvests for free distribution an agricultural crop that has been donated by the owner c.265 1; 1989 c Liability of donors of general merchandise and household items. ( 1) Notwithstanding any other provision of law, the good -faith donor of any general merchandise or household item, apparently fit

115 ACTIONS AND SUITS IN PARTICULAR CASES for use to a bona fide charitable or nonprofit organization for distribution without charge or on a fee scale reflecting ability to pay, or only requiring a shared maintenance contribution, shall not be subject to criminal penalty or civil damages arising from the condition of the general merchandise or household item, unless an injury is caused by the gross negligence, recklessness or intentional conduct of the donor. 2) The immunity from civil liability and criminal penalty provided by this section applies regardless of compliance with any laws, rules or ordinances regulating the packaging or labeling of general merchandise or house- hold items, and regardless of compliance with any laws, rules or ordinances regulating the storage or handling of the general merchandise or household items by the donee after the donation. 3) Notwithstanding any other provision of law, a bona fide charitable or nonprofit organization which in good faith receives general merchandise or household items, appparently fit for use, and while apparently still fit for use, distributes the merchandise or items at no charge or on a fee scale re- flecting ability to pay or only requiring a shared maintenance contribution, shall not be subject to criminal penalty or civil damages resulting from the condition of the gen- eral merchandise or household items, unless an injury results from the gross negligence, recklessness or intentional conduct of the organization. 4) This section applies to the good -faith donation of general merchandise or house- hold items not readily marketable due to ap- pearance, grade, surplus or considerations other than safety but does not restrict the authority of any appropriate agency to regulate or ban the use of such general merchandise or household items. The immunity from civil liability and criminal penalty provided by this section shall not apply if the general merchandise or household item is resold by either the donee or any other person. This section does not affect the liability of a manufacturer for products that are subject to a current or future safety recall whether such recall is initiated by the man- ufacturer or at the request of the state or Federal Government, nor shall this section affect the liability of a manufacturer under ORS to ) As used in this section: a) " Donor" includes all of the following, without regard to who is the owner of the general merchandise or household item at the time of the donation: A) A general merchandiser; B) A retail establishment; C) A wholesaler; and D) A manufacturer. b) " General merchandise or household item" means any item sold as general merchandise for household use, including but not limited to items sold in the following categories: Toiletries, cosmetics, domestics, electronics, sporting goods, clothing, toys, small appliances, personal care appliances, housewares household chemicals, hardware, paint, sunaries, plumbing, garden supplies, automotive, school supplies, pet food, pet supplies, over - the - counter drugs or vitamins, or other items of merchandise commonly sold in a retail or general merchandising estab- lishment. [ 1989 c Wrongful use of civil proceed- In order to ing; pleading, procedure. ( 1) bring a claim for wrongful use of a civil proceeding against another, a person shall not be required to plead or prove special in- jury beyond the expense and other consequences normally associated with defending against unfounded legal claims. 2) The filing of a civil action within 60 days of the running of the statute of limitations for the purpose of preserving and eval- uating the claim when the action is dismissed within 120 days after the date of filing shall not constitute grounds for a claim for wrongful use of a civil proceeding under subsection ( 1) of this section. 3) A claim for damages for wrongful use of a civil proceeding shall be brought in an original action after the proceeding which is the subject matter of the claim is concluded c ACTION AGAINST MANUFACTURER OF INTRAUTERINE DEVICE Note: Sections 2 and 4 to 7, chapter 642, Oregon Laws 1989, provide: Sec. 2. The statutes of repose in ORS , ) or any other statute of repose contained in Oregon Revised Statutes shall not apply to a product liability civil action against a manufacturer of an intrauterine device, resulting in IUD - related injuries. [ 1989 c.642 2] Sec. 4. This Act applies to any product liability civil action against the manufacturer of an intrauterine device resulting from IUD - related injuries which is tried, arbitrated or settled after the effective date of this Act [ July 6, 19891, even if such an action has already been dismissed, so long as the dismissal is based on a previous version of the applicable statute of limitations or repose. This Act shall also apply to any product liability civil action against a manufacturer of an intrauterine device currently pending in the trial court or on appeal, in which the defendant manufacturer has raised the statute of limitations or repose as a defense. Any such action in which final judgment has been entered in favor of the manufacturer based solely on a previous version of the statute of limitations or repose may be refiled within one year of the effective date of this Act. [ 1989 c Sec. 5. If a product liability civil action that was allowed to be commenced or repiled under authority of 3-77

116 SPECIAL ACTIONS AND PROCEEDINGS section 8 or 9, chapter 4, Oregon Laws 1987, was not refiled or commenced in timely fashion under the provisions of either of those sections because of the pending bankruptcy of the defendant, such action may be refiled or commenced within one year after the effective date of this Act. [ 1989 c Sec. 6. This Act shall not apply to product liability actions against manufacturers that had, at the time the intrauterine device was sold, received approval of an application filed under 21 U.S. C. section 355 with the Food and Drug Administration for the sale of the intrauterine device which caused the injury unless the plaintiff proves, by clear and convincing evidence, that the defendant drug manufacturer, acting in wanton disregard for the health, safety and welfare of others, fraudulently withheld from or misrepresented to the United States Food and Drug Administration, information that was both: 1) Required to be submitted by Food and Drug Administration regulations; and 2) Material and relevant to the harm suffered by the plaintiff. [ 1989 c Sec. 7. This Act is repealed on July 1, [ 1989 c.642 7l PRODUCTS LIABILITY ACTIONS " Product liability civil action" defined. As used in ORS to , product liability civil action" means a civil action brought against a manufacturer, distributor, seller or lessor of a product for damages for personal injury, death or property damage arising out of: 1) Any design, inspection, testing, manufacturing or other defect in a product; 2) Any failure to warn regarding a prod- uct; or 3) Any failure to properly instruct in the use of a product. [ 1977 c Time limitation for commencement of action. ( 1) Notwithstanding ORS or and except as provided in subsection ( 2) of this section and ORS , a product liability civil action shall be commenced not later than eight years after the date on which the product was first purchased for use or consumption. 2) Except as provided in ORS , a product liability civil action shall be commenced not later than two years after the date on which the death, injury or damage complained of occurs. [ 1977 c.843 3; 1983 c. 143 l; 1987 c.4 11 Note: Section 5, chapter 4, Oregon Laws 1987, is repealed on July 1, See section 7, chapter 4, Oregon Laws 1987, as amended by section 1, chapter 642, Oregon Laws The text is set forth for the user' s convenience. Sec. 5. Notwithstanding ORS , a product liability civil action against the manufacturer of an intrauterine contraceptive device must be commenced not later than two years after the date on which the plaintiff first discovered or, in the exercise of reasonable care, should have discovered the specific disease, injury or permanent disability for which the plaintiff is suing and the tortious act or acts of the manufacturer which caused the disease, injury or permanent disability Action for damages from asbestos - related disease; limitations. A product liability civil action for damages resulting from asbestos - related disease shall be commenced not later than two ears after the date on which the plaintiff first discovered, or in the exercise of reasonable care should have discovered, the disease and the cause thereof. [ 1987 ca Product disputably presumed not unreasonably dangerous. It is a disputable presumption in a products liability civil action that a product as manufactured and sold or leased is not unreasonably dan- gerous for its intended use. [ 1977 c Defenses. It shall be a defense to a product liability civil action that an alter- ation or modification of a product occurred under the following circumstances: 1) The alteration or modification was made without the consent of or was made not in accordance with the instructions or specifications of the manufacturer, distributor, seller or lessor; 2) The alteration or modification was a substantial contributing factor to the personal injury, death or property damage; and 3) If the alteration or modification was reasonably foreseeable, the manufacturer, distributor, seller or lessor gave adequate warning. [ 1977 c When seller or lessor of product liable; effect of liability rule. ( 1) One who sells or leases any product in a defective condition unreasonably dangerous to the user or consumer or to the property of the user or consumer is subject to liability for physical harm or damage to property caused y that condition, if: a) The seller or lessor is engaged in the business of selling or leasing such a product; and b) The product is expected to and does reach the user or consumer without substantial change in the condition in which it is sold or leased ) The rule stated in subsection ( 1) of this section shall apply, even though: a) The seller or lessor has exercised all possible care in the preparation and sale or lease of the product; and b) The user, consumer or injured party has not purchased or leased the product from or entered into any contractual relations with the seller or lessor. 3) It is the intent of the Legislative Assembly that the rule stated in 'subsections ( 1) and ( 2) of this section shall be construed in

117 ACTIONS AND SUITS IN PARTICULAR CASES accordance with the Restatement ( Second) of Torts sec. 402A, Comments a to in ( 1965). All references in these comments to sale, sell, selling or seller shall be construed to include lease, leases, leasing and lessor. 4) Nothing in this section shall be construed to limit the rights and liabilities of sellers and lessors under principles of common law negligence or under ORS chapter 72. [ 1979 c Punitive damages; evidence of defendant' s ability to pay. (1) In a product liability civil action, punitive damages shall not be recoverable unless it is proven by clear and convincing evidence that the party against whom punitive damages is sought has shown wanton disregard for the health, safety and welfare of others. 2) During the course of trial, evidence of the defendant' s ability to pay shall not be admitted unless and until the party entitled to recover establishes a prima facie right to recover under subsection ( 1) of this section. 3) Punitive damages, if any, shall be determined and awarded based upon the fol. lowing criteria: a) The likelihood at the time that serious harm would arise from the defendant' s misconduct; b) The degree of the defendant's awareness of that likelihood; c) The profitability of the defendant' s misconduct; d) The duration of the misconduct and any concealment of it; e) The attitude and conduct of the defendant upon discovery of the misconduct; ant; and f) The financial condition of the defend- g) The total deterrent effect of other punishment imposed upon the defendant as a result of the misconduct, including, but not limited to, punitive damage awards to persons in situations similar to the claimant' s and the severity of criminal penalties to which the defendant has been or may be subjected. [ 1979 c When manufacturer of drug not liable for punitive damages; ex- ceptions. ( 1) Where a drug allegedly caused the plaintiff harm, the manufacturer of the drug shall not be liable for punitive damages if the drug product alleged to have caused the harm: a) Was manufactured and labeled in relevant and material respects in accordance with the terms of an approval or license issued by the Federal Food and Drug Administration under the Federal Food, Drug and Cosmetic Act or the Public Health Service Act; or b) Is generally recognized as safe and effective pursuant to conditions established by the Federal Food and Drug Administration and applicable regulations, including packaging and labeling regulations. 2) Subsection ( 1) of this section does not apply if the plaintiff proves, in accordance with the standard of proof set forth in ORS ( 1), that the defendant, either before or after making the drug available for ppublic use, knowingly in violation of applicable Federal Food and Drug Administration regulations withheld from or misrepresented to the agency or prescribing physician information known to be maters and relevant to the harm which the plaintiff allegedly suf- fered. 3) Nothing contained in this section bars an award of punitive damages where a man- ufacturer of a drug intentionally fails to conduct a recall required by a valid order of a federal or state agency authorized by stat- ute to require such a recall. 4) For the purposes of this section, the term " drug" has the meaning given to the term in section 1201 ( g)(1) of the Federal Food, Drug and Cosmetic Act, 21 U.S. C. 321 g)(1). [ 1987 c Note: was enacted into law by the Legislative Assembly but was not added to or made a part of ORS chapter 30 or any series therein by legislative action. See Preface to Oregon Revised Statutes for fur- ther explanation. FARBYE NG PRACTICES Definitions for ORS to As used in ORS to : 1) " Farm" means any facility, including the land, buildings, watercourses and appurtenances thereto, used in the commer- cial production of crops, nursery stock, live- stock, poultry, livestock products, poultry products or the propagation and raising of nursery stock. 2) " Farming practice" means a mode of 3-79 operation on a farm that: a) Is or may be used on a farm of a similar nature; b) Is necessary for the operation of the farm to obtain a profit in money; and c) Is or may become customarily utilized in conjunction with farm use. [ 1981 c.716 1; 1983 c Farming practice not private or public nuisance; effect on local ordinances; exceptions. ( 1) A farming practice shall not be declared or held to be a private or public nuisance.

118 SPECIAL ACTIONS AND PROCEEDINGS 2) Any local government ordinance now in effect or subsequently adopted that makes a farming practice a nuisance or provides for its abatement as a nuisance shall not apply to that farming practice. 3) The provisions of ORS to shad not apply: a) When a nuisance results from the negligent operation of a farming practice; b) To the growing or raising of infested, infected or diseased crops, poultry or livestock that are declared a nuisance by stat- ute, ordinance or administrative rule of a governmental body that has jurisdiction over the farming practice; or c) To sounds produced by devices de- si ned for agricultural purposes in order to frighten predacious birds or animals away from agricultural crops. [ 1981 c.716 2; 1985 c Effect on other remedies. The provisions of ORS to shall not impair the right of any person or governmental body to pursue any remedy authorized by a statute, ordinance or administrative rule that: sance; 1) Concerns matters other than a nui- 2) Does not expressly purport to prohibit or regulate a farming practice as a nuisance; or 3) Prohibits or regulates the use or ph sical condition of facilities that adversely affect public health or safety, regardless of whether it purports to prohibit or regulate a situation as a nuisance. [ 1981 c.716 3; 1985 x Severability. It is the intent of the Legislative Assembly, in enacting ORS , and to , that each part of ORS , and to be considered to be essentially and inseparably connected with and dependent upon every other part. The Legislative Assembly does not intend that any part of ORS , and to be the law if any other part is held unconstitutional x Effect of siting of destination resorts. The fact that a comprehensive plan and implementing ordinances allow the siting of destination resorts as provided in ORS , to , and , does not in any way affect the provisions of ORS to [ 1987 c INTOXICATING LIQUOR SERVICE Licensee, permittee and social host liability. No licensee, permittee or social host is liable for damages incurred or caused by intoxicated patrons or guests off the licensee, permittee or social host's premises unless: 1) The licensee, permittee or social host has served or provided the patron alcoholic beverages to the patron or guest while the patron or guest was visibly intoxicated; and 2) The plaintiff proves by clear and convincing evidence that the patron or guest was served alcoholic beverages while visibly intoxicated. [ 1979 c.801 1; 1987 x [ 1979 e.801 2; repealed by Liability for serving minors; liability for misrepresentation of age. ( 1) Notwithstanding ORS and , no licensee, permittee or social host shall be liable to third persons injured by or through persons not having reached 21 years of age who obtained alcoholic beverages from the licensee, permittee or social host unless it is demonstrated that a reasonable person would have determined that identification should have been requested or that the identification exhibited was altered or did not ' accurately describe the person to whom the alcoholic liquor was sold or served. 2) A person who is under 21 but- at least 18 years of age who through misrepresentation of age causes an Oregon Liquor Control Commission licensee to be fined or have a license suspended or revoked shall be civilly liable for damages sustained by the licensee and for costs, disbursements and attorney fees at trial and on appeal. [ 1979 am 3; 1991 x SKIING ACTIVITIES Definitions for ORS to As used in ORS to : 1) " Inherent risks of skiing" includes, but is not limited to, those dangers or conditions which are an integral part of the sport, such as changing weather conditions, variations or steepness in terrain, snow or ice conditions, surface or subsurface conditions, bare spots, creeks and gullies, forest growth, rocks, stumps, lift towers and other structures and their components, collisions with other skiers and a skier's failure to ski within the skier' s own ability ) " Injury" means any personal injury or property damage or loss. 3) " Skier" means any person who is in a ski area for the purpose of engaging in the sport of skiing or who rides as a passenger on any ski lift device. 4) " Ski area" means any area designated and maintained by a ski area operator for skiing. 5) " Ski area operator" means those persons, and their agents, officers, employees or

119 ACTIONS AND SUITS IN PARTICULAR CASES reppresentatives, who operate a ski area. [ 1979 c Skiers assume certain risks. In accordance with ORS and notwithstanding ORS ( 2), an individual who engages in the sport of skiing, alpine or nordic, accepts and assumes the inherent risks of skiing in so far as they are reasonably obvious, expected or necessary. [ 1979 c Notice to ski area operator of injury to skier, injuries resulting in death; of limitations; informing A ski skiers of notice requirements. ( 1) area operator shall be notified of any injury to a skier by registered or certified mail within 180 days after the injury or within 180 days after the skier discovers, or reasonably should have discovered, such injury. 2) When an injury results in a skier' s death, the required notice of the injury may be presented to the ski area operator by or on behalf of the personal representative of the deceased, or any person who may, under ORS , maintain an action for the wrongful death of the skier, within 180 days after the date of the death which resulted from the injury. However, if the skier whose injury resulted in death presented a notice to the ski area operator that would have been sufficient under this section had the skier lived, notice of the death to the ski area operator is not necessary. 3) An action against a ski area operator to recover damages for injuries to a skier shall be commenced within two years of the date of the injuries. However, ORS and app y to such actions. 4) Failure to give notice as required by this section bars a claim for injuries or wrongful death unless: a) The ski area operator had knowledge of the injury or death within the 180 -day period after its occurrence; b) The skier or skier' s beneficiaries had good cause for failure to give notice as required by this section; or c) The ski area operator failed to comply with subsection ( 5) of this section. 5) Ski area operators shall give to skiers, in a manner reasonably calculated to inform, notice of the requirements for noti- fying a ski area operator of iury and the effect of a failure to provide such notice under this section. [ 1979 x Duties of skiers; effect of failure to comply. ( 1) Skiers shall have duties which include but are not limited to the following: a) Skiers who ski in any area not designated for skiing within the permit area assume the inherent risks thereof. b) Skiers shall be the sole judges of the limits of their skills and their ability to meet and overcome the inherent risks of skiing and shall maintain reasonable control of speed and course. c) Skiers shall abide by the directions and instructions of the ski area operator. d) Skiers shall familiarize themselves with posted information on location and degree of difficulty of trails and slopes to the extent reasonably possible before skiing on any slope or trail. e) Skiers shall not cross the uphill track of any surface lift except at points clearly designated by the ski area operator. f) Skiers shall not overtake any other skier except in such a manner as to avoid contact and shall grant the right of way to the overtaken skier. g) Skiers shall yield to other skiers when entering a trail or starting downhill. h) Skiers must wear retention straps or other devices to prevent runaway skis. i) Skiers shall not board rope tows, wire rope tows, j -bars, t -bars, ski lifts or other similar devices unless they have sufficient ability to use the devices, and skiers shall follow any written or verbal instructions that are given regarding the devices. Q) Skiers, when involved in a skiing ac- cident, shall not depart from the ski area without leaving their names and addresses if reasonably possible. k) A skier who is injured should, if rea- sonably possible, give notice of the injury to the ski area operator before leaving the ski area. L) Skiers shall not embark or disembark from a ski lift except at designated areas or by the authority of the ski area operator. 2) Violation of any of the duties of skiers set forth in subsection ( 1) of this section entitles the ski area operator to withdraw the violator' s privilege of skiing. [ 1979 c Operators required to give skiers notice of duties. Ski area operators shall give notice to skiers of their duties under ORS in a manner reasonably calculated to inform skiers of those duties. [ 1979 c

120 SPECIAL ACTIONS AND PROCEEDINGS 3-82

121 Chapter EDITION Receivership [ Repealed by 1981 c [ Repealed by 1981 c [ Repealed by 1981 c L050 [ Renumbered [ Repealed by 1981 c

122 REMEDIES AND SPECIAL ACTIONS AND PROCEEDINGS 3-84

123 Chapter EDITION Wunctions [ Repealed by 1981 c [ Repealed by 1981 c [ Amended by 1977 c.416 3; repealed by [ Repealed by 1981 c c [ Repealed by 1981 c [ Repealed by 1981 c

124 REMEDIES AND SPECIAL ACTIONS AND PROCEEDINGS 3-86

125 Chapter EDITION Special Proceedings A10 33" A CONTEMPT PROCEEDINGS Definitions for ORS to Nature of contempt power; corporate defendants Court appointed - counsel Types of sanctions Procedure for imposition of remedial sanctions Procedure for imposition of punitive sanctions Compelling attendance of defendant Compelling testimony of witness Summary imposition of sanction Sanctions authorized Referral to another judge Appeal Limitations of actions Rules Applicability CHANGE OF NAME Jurisdiction; grounds Notice of application and decree; certificate; minor children Name of child on birth certificate, how changed; court conference with child Application by minor child; court confer- ence CHANGE OF SEX Jurisdiction; grounds; procedure SURETIES Discharge of surety or letter of credit issuer on application of surety or issuer Discharge of surety or letter of credit issuer on application of principal Liability of sureties or letter of credit issuer after termination of bond or letter of credit EVALUATING SECURITIES OF SECURED CREDITOR Evaluating securities of secured creditor DETERMINATION OF LEGALITY OF DISTRICT ORGANIZATION AND ACTIONS Definitions; judicial examination to determine legality of any municipal corpo- ration' s organization and actions Proceeding in rem; practice and procedure as in action not triable by right to jury; service by publication; appeal; costs CROSS REFERENCES Competency determination, Delinquency in paying moneys to be collected for traffic offense, action for by public body, Mentally ill persons, commitment to treatment facility, Ch. 426 Parties, motions and orders, judgments and appeals in special proceedings, law governing, Trust deed, foreclosure, Justice' s court, contempt, , Military court, contempt, Power of court or judge to punish for contempt, 1.020, 1250 Support of spouse and minor children, order, contempt, , Support or maintenance orders, Ch Deposits in lieu of bail, security or bond, to Legality of commitment for contempt not to be inquired into on habeas corpus, Attorney fees in contempt proceeding to enforce order or decree in suit for support, dissolution of marriage, separate maintenance or annulment, Limit on punishment for contempt in justice's court, Appeals in special proceedings, Change of name of: Adopted person when adoption is decreed, , Spouse when marriage is declared void or dissolved, or when separation decreed, Jurisdiction, generally, to Probate jurisdiction, , Surname, retention of prior surname on marriage, , Testing validity of organization and proceedings of special districts, ; of peoples' utility district, ; of sanitary authority,

126 SPECIAL ACTIONS AND PROCEEDINGS 3-88

127 SPECIAL PROCEEDINGS [ Amended by 1981 c ; repealed by ] CONTEMPT PROCEEDINGS Definitions for ORS to For the purposes of ORS to : 1) " Confinement" means custody or incarceration, whether actual or constructive. 2) " Contempt of court" means the following acts, done willfully: a) Misconduct in the presence of the court that interferes with a court proceeding or with the administration of justice, or that impairs the respect due the court; b) Disobedience of, resistance to or obstruction of the court's authority, process, orders or judgments; c) Refusal as a witness to appear, be sworn or answer a question contrary to an order of the court; d) Refusal to produce a record, document or other object contrary to an order of the court; or e) Violation of a statutory provision that specifically subjects the person to the contempt power of the court. 3) " Punitive sanction" means a sanction imposed to punish a past contempt of court. 4) " Remedial sanction" means a sanction imposed to terminate a continuing contempt of court or to compensate for injury, damage or costs resulting from a past or continuing contempt of court. [ ] [ Repealed by 1991 c Nature of contempt power; corporate defendants. ( 1) The power of a court to impose a remedial or punitive sanction for contempt of court is an inherent Judicial power. ORS to establish procedures to govern the exercise of that power. if. 2) A corporation is liable for contempt a) The conduct constituting contempt is engaged in by an agent of the corporation while acting within the scope of employment and on behalf of the corporation; b) The conduct constituting contempt consists of an omission to discharge a spe- cific duty of affirmative performance imposed on corporations by a court; or c) The conduct constituting contempt is engaged in, authorized, solicited, requested, commanded or knowingly tolerated by the board of directors or by a high managerial agent acting within the scope of employment and on behalf of the corporation. 3) The board of directors and high managerial agents shall be subject to the contempt powers of a court for contempt by a corporation if those persons engage in, authorize, solicit, request, command or knowingly tolerate the conduct constituting contempt. 4) As used in this section, " agent" and high managerial agent" have those meanings given in ORS [ 1991 x [ Repealed by Court appointed - counsel. Whenever ORS to provide for court - appointed counsel, appointment of counsel and payment of counsel and related expenses shall be made as follows: 1) For contempt of a circuit court, a district court, the Oregon Tax Court, the Court of Appeals or the Supreme Court, appointment and payment of counsel shall be made as provided in ORS , and to and applicable contracts entered into by the State Court Administrator under ORS ) For contempt of a ' uatice court, mu- nicipal court or other ppu lic body not de- scribed in subsection ( 1) of this section, payment for and appointment of counsel shall e made as otherwise provided by law for the court or public body. [ [ Amended by 1955 c.648 2; 1961 c ; re- pealed by 1991 c Types of sanctions. ( 1) A court may impose either remedial or punitive sanctions for contempt. 2) Confinement may be remedial or punitive. The sanction is: a) Remedial if it continues or accumulates until the defendant complies with the court' s order or judgment. b) Punitive if it is for a definite period that will not be reduced even if the defendant complies with the court' s order or judg- ment. 3) A fine may be remedial or punitive. A fine is: 3-89 a) Punitive if it is for a past contempt. b) Remedial if it is for continuing contempt and the fine accumulates until the defendant complies with the court' s judgment or order or if the fine may be partially or entirely forgiven when the defendant complies with the court's judgment or order. 4) Any sanction requiring payment of amounts to one of the parties to a proceeding is remedial. 5) Any sanction imposed by a court for contempt is in addition to any civil remedy or criminal sanction that may be available as a result of the conduct constituting con-

128 SPECIAL ACTIONS AND PROCEEDINGS tempt. In any civil or criminal proceedings arising out of the conduct constituting contempt, the court shall take into consideration any contempt sanctions previously imposed for the, same act. [ 1991 c [ Repealed by Procedure for imposition 'of remedial sanctions. ( 1) Except as ' otherwise provided in ORS , proceedings to impose remedial sanctions for contempt shall be -conducted as provided in this section. - 2) The following persons may initiate the proceeding or, with leave of the court, participate in the proceeding, by filing' a motion requesting that defendant be ordered to' ap- pear: a) A party aggrieved by an- alleged con- tempt of court; b) A -district attorney; c) A, city attorney; d) The Attorney General; or e) Any other person specifically authorized b statute to seek imposition of sanctions for contempt. 3) A motion to initiate a, proceeding under this section shall be filed in the proceed- ing to which the contempt, is related, if there is a related proceeding. 4) The person initiating a proceeding under this section shall file supporting documentation or affidavits sufficient to give defendant notice of the specific acts alleged to constitute contempt. 5) The court may issue an order directing the defendant to appear. The defendant shall be personally served with the order to appear in the manner provided in ORCP 7 and 9. The court may order service by a method other than personal service or issue an arrest warrant if, based upon motion and supporting affidavit, the court finds that the defendant cannot be personally served. 6) The court may impose a remedial sanction only after of fording the defendant opportunity for a hearing tried to the court. The defendant may waive the opportunity for a hearing by stipulated order filed with the court. 7) A defendant has no right to a jury trial and, except as provided in this section, has only those rights accoided to 'a defendant in a civil action. 8) A defendant is entitled to be represented by counsel. A court shall not impose on a defendant a remedial sanction of confinement unless, before the hearing is held, the defendant is: a) Informed that such sanction may be imposed; and b), Afforded the same., right to court - appointed counsel required, in proceedings for the imposition, of an equivalent punitive sanction of confinement. 9) If the defendant is riot represented by counsel when coming before the court, the court shall inform the defendant of the right to counsel, and of the right to appointed counsel, if the defendant is entitled to ap- pointed counsel under subsection ( 8) of this section. 10) Inability to comply with an order of the court is an affirmative defense. 11) In any proceeding for imposition of a remedial sanction other than confinement, proof of contempt shall be. by clear and convincing evidence. In any, proceeding for im -. position of a remedial sanction of confinement, proof of eontempt shall be beyond a reasonable doubt.. 12) Proceedings under this section are subject to- rules adopted under ORS Proceedings under this section are not subject to the Oregon Rules.of Civil Procedure except as provided in subsection ( 5) of this section or as may- bei provided in rules adopted under ORS [ , [ Amended by l; 1983' c.561 l; repealed by _, Procedure for. imposition, of punitive sanctions. ( 1) Except as otherwise provided in ORS proceedings to impose punitive sanctions for contempt shall be conducted as provided in, this-section. 2) The following persons may initiate the proceeding by- ' an acbusatoryy instrument charging a person with contempt of ; court' and seeking a punitive sanction:` a) A. city attorney., b) A district attorney. - c) ' The Attorney General. 3) If a city attorney, district attorney or Attorney. General who regularly appears be- fore the court declines. to prosecute a contempt, and the court - determines than remedial sanctions would not provide an ef- fective alternative remedy, ' the court may appoint an attorney who is authorized to practice law -.in this state, and who is not counsel for an, interested party, to prosecute the contempt.;.the court shall allow reason -. able compensation for the appointed attor- ney' s attendance, to be paid by: a) The Executive Department, if the. atto, e is appointed by the Supreme Court, the' Court of Appeals or the Oregon Tax Court; b) The city, where the court is located, if the attorney is, appointed by a municipal court; and 3-90

129 SPECIAL PROCEEDINGS 1- c) The county where the prosecution is initiated, in all other cases. 4) The prosecutor may initiate proceedings on the prosecutor' s own initiative, on the request of a party to an action or proceeding or on the request of the court. After the prosecutor files an accusatory instrument, the court may issue any order or warrant necessary to compel the appearance of the defendant. 5) Except as otherwise provided by this section, the accusatory instrument is subject to the same requirements and laws applicable to an accusatory instrument in a criminal proceeding, and all proceedings on the accusatory instrument shall be in the manner prescribed for criminal proceedings. 6) Except for the right to a jury trial the defendant is entitled to the constitutional and statutory protections, including the right to court - appointed counsel, that a defendant would be entitled to in a criminal proceeding in which the fine or term of imprisonment that could be imposed is equivalent to the punitive sanctions sought in the contempt proceeding. This subsection does not affect any right to a jury that may otherwise be created by statute. 7) Inability to comply with an order of the court is an affirmative defense. If the defendant roposes to rely in an way on evidence of inability to comply wiw an order of the court, the defendant shall, not less than five days before the trial of the cause, file and serve upon the city attorney, district attorney or Attorney General prosecuting the contempt a written notice of intent to offer that evidence. If the defendant fails to file and serve the notice, the defendant shall not be permitted to introduce evidence of inability to comply with an order of the court at the trial of the cause unless the court, in its discretion, permits such evidence to be introduced where just cause for failure to file the notice, or to file the notice within the time allowed, is made to appear. 8) The court may impose a remedial sanction in addition to or in lieu of a puni- tive sanction. 9) In any proceeding for imposition of a punitive sanction, proof of contempt shall be beyond a reasonable doubt. [ A70 [ Amended by 1973 c ; repealed by Compelling attendance of defendant. (1) If a person served with an order to appear under ORS fails to appear at the time and place specified in the order, the court may issue any order or warrant necessary to compel the appearance of the defendant. 2) A person against whom a complaint has been issued under ORS may be cited to appear in lieu of custody as provided in ORS If the person fails to appear at the time and place specified in the citation, the court may issue any order or warrant necessary to compel the appearance of the defendant. 3) When the court issues a warrant for contempt, the court shall specify a security amount. Unless the defendant pays the security amount upon arrest, the sheriff shall keep the defendant in custody until either a release decision is made by the court or until disposition of the contempt proceedings. 4) The defendant shall be discharged from the arrest upon executing and deliver- ing to the sheriff, at any time before the return day f the warrant, a security release or a release agreement as provided in ORS to , to the effect that the defendant will appear on the return day and abide by the order or judgment of the court or officer or pay', as may be directed, the sum specified in the warrant. 5) The sheriff shall return the warrant and the security deposit, if any, given to the sheriff by the defendant by the return day specified in the warrant. 6) When a warrant for contempt issued under subsection ( 2) of this section has been returned after having been served and the defendant does not appear on the return day, the court may do either or both of the following: a) Issue another warrant. b) Proceed against the security deposited upon the arrest. 7) If the court proceeds against the security under subsection ( 6) of this section and the sum specified is recovered, the court may award to any party to the action any or all of the money recovered as remedial dun - ages. 8) Security deposited under this section shall not be subject to the assessments provided for in ORS [ A80 [ Amended by 1973 c ; repealed by 1991 x Compelling testimony of witness. ( 1) Upon the motion of the person initiating the proceeding, the court may compel the testimony of a witness as provided under ORS in a contempt proceeding under ORS or ) In any case where the person initiating the proceeding is not represented by the district attorney, county counsel or Attorney General, the person initiating the proceeding shall serve a notice of intent to compel testimony on the district attorney of the county

130 i SPECIAL ACTIONS AND PROCEEDINGS where the contempt proceeding is pending and on the Attorney General. The notice shall be served not less than 14 calendar days before any hearing on the motion to compel testimony. 3) The notice required by this section shall identify the witness whose testimony the person initiating the proceeding intends to compel and include, if known, the witness' name, date of birth, residence address and social security number, and other pending proceedings or criminal charges involving the witness. The notice shall also include the case name and number of the contempt pro- ceeding and the date, time and place set for any hearing scheduled as provided in ORS ) If the person initiating the proceeding fails to serve the required advance notice or fails to serve the notice within the time re- red, the court shall grant a continuance P. or not less than 14 calendar' days from the date the notice is served to allow the district attorney and Attorney General opportunity to be heard on the matter of compelling testimony. The court may compel testimony under this subsection only after the full notice period and opportunity to be heard, unless before that time the district attorney and Attorney General waive in writing any objection to the motion to compel. 5) In any hearing on a motion to compel testimony under this section, the district attorney of the county in which the contempt proceeding is pending and the Attorney General each may appear to present evidence or arguments to support or oppose the motion. 6) In lieu of compelling testimony under this section, the court may continue the contempt proceeding until disposition of any criminal action that is pending against the witness whose testimony is sought and that charges the witness with a crime. [ 1991 c.724 Val [ Amended by 1973 c ; repealed by 1991 c [ 1975 c.516 2; 1981 c ; 1987 c ; 1989 c ; repealed by 1991 c Summary imposition of sanction. A court may summarily impose a sanc- tion upon a person who commits a contempt of court in the immediate view and presence of the court. The sanction may -be imposed for the purpose of preserving order in the court or protecting the authority and di ty of the court. The provisions of ORS and do not apply to summary imposition of sanctions under this section. [ 1991 x [ Repealed by Sanctions authorized. ( 1) Unless otherwise provided by statute, a court may impose one or more of the following remedial sanctions: a) Payment of a sum of money sufficient to compensate a party for loss, injury or costs suffered by the party as the result of a contempt of court. b) Confinement for so long as the contempt continues, or six months, whichever is the shorter period. c) An amount not to exceed $ 500 or one percent of the defendant' s annual gross in- come, whichever is greater, for each day the contempt of court continues. The sanction imposed under this paragraph may be imposed as a fine or to compensate a party for the effects of the continuing contempt. d) An order designed to insure compli -, ance with a prior order of the court, including probation. e) Payment of all or part of any attorney fees incurred by a party as the result of a" contempt of court. f) A sanction other than the sanctions specified in paragraphs ( a) to ( e) of this subsection if the court, determines that the sanction would be an effective remedy for the contempt. 2) Unless otherwise provided by statute, a court may impose one or more of the following punitive sanctions for each separate contempt of court: a) A fine of not more than $ 500 or. one percent of the defendant' s annual gross income, whichever is greater. b) Forfeiture of any proceeds or profits obtained through the contempt. months. c) Confinement for not more than six d) Probation or community service. 3) In a summary proceeding under ORS , a court may impose one or more of the following sanctions for each separate contempt of court: a) A punitive fine of not more than $500; b) Confinement as a punitive sanction for not more than 30 days; or 3-92 c) Probation or community service. 4) The court may impose a punitive sanction for past conduct constituting contempt of court even though similar present conduct is a continuing contempt of court c [ Repealed by 1991 c Referral to another judge. A judge may be disqualified from a contempt proceeding as provided for in other cases. under ORS to and ORS ( 3) shall not apply to a motion to disqualify a judge in a. contempt proceeding.

131 SPECIAL PROCEEDINGS The judge to whom the contempt is referred shall assume authority over and conduct any further proceedings relating to the contempt x Appeal. ( 1) The imposition of a sanction for contempt shall be by a judgment. The judgment shall be entered in the register as a final judgment. 2) A defendant may appeal from a judgment imposing a remedial sanction in the same manner as from a in an action at law. An appeal from a udgment imposing a punitive sanction shall e in the manner provided for appeals in ORS chapter 138. Appeals from judgments imposing sanctions for contempt in municipal courts and justice' s courts shall be in the manner pro- vided by law for appeals from those courts. 3)( a) If a motion to initiate proceedings to impose remedial sanctions is filed in a re- lated proceeding under ORS ( 3) before entry of judgment in the related proceeding, and the court determines that the defendant is in contempt, the court may suspend imposition of sanctions and entry of judgment on the contempt until entry of judgment in the related proceeding. b) If a motion to initiate proceedings to impose remedial sanctions is filed in a related proceeding under ORS ( 3) before entry of judgment in the related proceeding, and the court denies the motion or declines to impose sanctions, the court shall enter judgment on that denial or determination only as part of the judgment in the related proceeding. 4) An appeal from a contempt judgment shall not stay any action or proceeding to which the contempt is related. ( 1991 c [ Repealed by Limitations of actions. ( 1) Except as provided in subsection ( 5) of this section, proceedings under ORS to impose remedial sanctions for contempt and under ORS to impose punitive sanctions for contempt shall be commenced within two years of the act or omission constituting the contempt. 2) For the purposes of this section, a proceeding to impose remedial sanctions shall be deemed commenced as to each defendant when the motion provided for in ORS is filed. 3) Proceedings to impose punitive sanctions are subject to ORS , and ) The time limitations imposed by subsection ( 1) of this section shall not act to bar proceedings to impose sanctions for an act or omission that constitutes a continuing contempt at the time contempt proceedings are commenced. The willful failure of an obligor, as that term is defined in ORS , to pay a support obligation after that obligation becomes a udgment is a contempt without regard to when the obligation became a judgment. 5) Proceedings to impose remedial or punitive sanctions for failure to pay a sup - port obligation by an obligor, as defined in ORS , shall be commenced within 10 years of the act or omission constituting contempt. ( [ Repealed by 1991 c Rules. The Supreme Court may adopt rules to carry out the purposes of ORS to [ ( Repealed by Applicability. ORS to apply to every court and judicial officer of this state, including municipal, county and justice courts. Rules adopted by the Supreme Court apply to those courts, but the application of such rules to municipal, county and justice courts does not confer any supervisory or administrative authority on the Supreme Court or the State Court Administrator with respect to those courts [ Amended by 1979 c ; 1989 x955 l; renumbered in [ Renumbered in [ Amended by 1979 c ; renumbered in ( Renumbered in M [ Renumbered in M (Renumbered in [ Renumbered in 1989] [ Renumbered in [ Renumbered in [ Amended by 1985 c ; renumbered in [ Amended by 1985 c ; renumbered in [ Amended by 1985 c ; renumbered in [ Renumbered in ( Amended by 1985 c ; renumbered in [ 1983 c.670 l; ; renumbered in [ 1983 c.670 2; 1987 x116 1; 1987 c.125 1; renumbered in [ 1983 c.670 3; 1987 c ; renumbered in [ 1983 x670 4; 1985 c.342 4; 1987 c.116 3; renumbered in ( 1983 x670 5; renumbered in [ ; renumbered in CHANGE OF NAME Jurisdiction; grounds. Application for change of name of a person may be

132 SPECIAL ACTIONS AND PROCEEDINGS heard and determined by the probate court or, if the circuit court is not the probate court, the circuit court if its jurisdiction has been extended to include this section pursuant to ORS of the county in which the person resides. The change of name shall be granted by the court unless the court finds that the change is not consistent with the public interest. [ Amended by 1967 c ; Notice of application and decree; certificate; minor children. ( 1) Before decreeing a change of name, except as provided in ORS , the court shall require public notice of the application to be given, that all persons may show cause why the same should not be granted. The court shall also require public notice to be given of the change decreed, and on return of proof thereof may grant certificate, under the seal of the court, of the name the person is to have, which shall thereafter be the legal name of the person. 2) Before decreeing a change of name in the case of a minor child the court shall require that, in addition to the notice required under subsection ( 1) of this section, written notice be given to the parents of the child, both custodial and noncustodial, and to any leggal guardian of the child. [ Amended by 1983 c.389 6] Name of child on birth certificate, how changed; court conference with child. ( 1) In the case of a change, by court order, of the name of the parents of any minor child, if the child' s birth certificate is on file in this state, the State Registrar of Vital Statistics, upon receipt of a certified copy of the court order changing the name, together with the information required to locate the original birth certificate of the child, shall prepare a new birth certificate for the child in the new name of the parents of the child. The name of the parents as so changed shall be set forth in the new certificate, in place of their original name. 2) The evidence upon which the new certificate was made, and the original certif- icate, shall be sealed and filed by the State Registrar of Vital Statistics, and may be opened only upon demand of the person whose name was changed, if of legal age, or by an order of a court of competent jurisdic- tion. 3) When a change of name by parents will affect the name of their child or children under subsection ( 1) of this section, the court, on its own motion or on request of a child of the parents, may take testimony from or confer with the child or children and may exclude from the conference the parents and other persons if the court finds that such action would be in the best interests of the child or children. However, the court shall permit an attorney for the parents to attend the conference, and the conference shall be reported. If the court finds that a change of name would not be in the best interests of the child, the court may provide in the order changing the name of the parents that such change of name shall not affect the child, and a new birth certificate shall not be prepared for the child. [ Amended by Application by minor child; court conference. When a minor child ap- plies for a change of name under ORS , the court may, upon its own motion, confer with the chid and may exclude from the conference the parents and other persons if the court finds that such action would be in the best interests of the child. However, the court shall permit an attorney for the child to attend the conference, and the conference shall be reported. [ 1983 c CHANGE OF SEX Jurisdiction; grounds; procedure. ( 1) A court that has jurisdiction to determine an application for change of name of person under ORS and may, order a legal change of sex and grant a certificate indicating the change of sex to a person whose sex has been changed by sur- gical procedure. 2) The court may order a legal change of sex and grant the certificate in the same manner as that provided for change of name of a person under ORS and ) If a person applies for a change of name under ORS and at the time the person applies for a legal change of sex under this section, the court may order change of name and legal change of sex at the same time and in the same proceeding c SURETIES Discharge of surety or letter of credit issuer on application of surety or issuer. The surety or the representatives of any surety upon the bond of any trustee, 3-94 committee, guardian, assignee, receiver, ex- ecutor, administrator or other fiduciary, and any irrevocable letter of credit issuer for any trustee, committee, guardian, assignee, re- ceiver, executor, administrator or other fiduciary is entitled as a matter of right to be discharged from liability, as provided in this section, and to that end may, on notice to the principal named in the bond or irrevocable letter of credit, apply -to the court that accepted the bond or irrevocable letter_ of credit or to the court of which the ' udge who accepted the bond or irrevocable letter of credit was a member or to any judge

133 SPECIAL PROCEEDINGS thereof, praying to be relieved from liability for the act or omission of the principal occurring after the date of the order relieving such person, and that the principal be re- quired to account and give new sureties or cause to be issued new letters of credit. Notice of the application shall be served on the principal personally not less than five days prior to the date on which the application is to be made, unless it satisfactorily appears to the court or judge that personal service cannot be had with due diligence within the state, in which case notice may be given by personal service without the state or in such manner as the court or judge directs. Pending the hearing of the application the court or judge may restrain the principal from acting except to preserve the trust estate until further order. If upon the return of the application the principal fails to file a new bond or irrevocable letter of credit to the satisfaction of the court or judge, the court or judge must make an order requiring the principal to file a new bond or irrevocable letter of credit within a period not exceeding five days. If the new bond or irrevocable letter of credit is filed upon the return of the application, or within the time fixed by the order, the court or judge must make a decree or order requiring the principal to account for all acts and proceedings to and including the date of the decree or order, and to file such account within a time fixed, not exceeding 20 days, and discharge the surety or letter of credit issuer making application from liability or any act or default of the principal subsequent to the date of the decree or order. If the principal fails to file a new bond or irrevocable letter of credit within the time specified, a decree or order must be made revoking the appointment of the principal or removing and requiring the principal to file an account within not more than 20 days. If the principal fails to file the account, the surety or letter of credit issuer may make and file an account with like force and effect as though filed by the principal, and upon settlement thereof and upon the trust fund or estate being found or made good and paid over or properly secured, credit shall be given for all commissions, costs, disbursements and allowances to which the principal would be entitled were the principal accounting, and allowance shall be made to the surety or letter of credit issuer for the expense incurred in filing the account and procuring the settlement thereof. After the filing of the account, either by the principal or the surety or the letter of credit issuer, the court or judge must, upon the petition of the principal or surety or the letter of credit issuer, issue an order requiring all persons interested in the estate or trust to attend a settlement of the account at a time and place therein specified, and upon the trust fun, d estate being found or madegood and paid over or properly secured, or the letter of credit issuer shall be discharged from all liability. Upon demand in writing by the principal, the surety or the letter of credit issuer shall return any compensation that has been paid for the unexpired period of the bond or the letter of credit. [ Amended by 1991 c Discharge of surety or letter of credit issuer on application of principal. Any trustee, committee, guardian, assignee, receiver, executor, administrator or other fiduciary shall be entitled to have any surety on the bond of the fiduciary or of any irrev- ocable letter of credit issuer discharged from liability thereon, and the fiduciary may file a new bond or irrevocable letter of credit as provided in this section. The fiduciary may, on written notice to the surety or letter of credit issuer and to all other interested persons, apply to the court that accepted the bond or irrevocable letter of credit, or to a judge thereof, praying that the surety or irrevocable letter of credit be discharged from liability thereon, and that the principal be allowed to file a new bond or irrevocable letter of credit and to account. Notice of the application shall be served on the surety or letter of credit issuer and on each of the persons interested, within the state, not less than 10 days prior to the date on which the application is to be made, unless it satisfactorily appears to the court or judge that the notice cannot with due diligence be served within the state, in which case notice may be given in such manner as the court or judge shall direct. Upon the return of the application, the principal may file a new bond or irrevocable letter of credit satisfactory to the court or judgge, and therewith file an account of all proceedings, whereupon the court or judge shall proceed, upon due notice to all persons interested, to judicially settle the account and duly credit and charge the principal; and upon the trust fund or estate being found or made good and paid over or properly secured, the surety or letter of credit issuer shall be discharged from all liability. [ Amended by 1991 c ] Liability of sureties or letter of credit issuer after termination of bond or letter of credit. ( 1) When a bond or an irrevocable letter of credit of any personal representative, guardian or conservator is terminated upon the issuance of a new bond or irrevocable letter of credit to the personal representative, guardian or conservator by a new surety or letter of credit issuer, the former surety or letter of credit issuer shall not be liable on the old bond or irrevocable letter of credit for any acts or omissions of the

134 SPECIAL ACTIONS AND PROCEEDINGS personal representative, guardian or conservator which occur after the issuance of the new bond or irrevocable letter of credit. 2) A new surety for a personal representative, guardian or conservator who issues a new bond or irrevocable. letter of credit after the termination of a previous bond or irrevocable letter of credit written by another surety or letter of credit issuer for a personal representative, guardian or conservator shall not be liable for any acts or omissions of the personal representative, guardian or conservator which occurred prior to the issuance of the new bond or irrevocable letter of credit. [ 1983 c.613 2, 3; 1991 c _ EVALUATING SECURITIES OF SECURED CREDITOR Evaluating securities of secured creditor. In the administration of a decedent' s estate, or whenever the assets of any person, partnership or corporation are being administered in receivership or any liquidation proceedings, or under an assignment for the benefit of creditors, the value of securities held by secured creditors shall be determined by converting the same into money according to the terms of the agree- ment pursuant to which the securities were delivered to the creditors, or by the creditors and the person or official liquidating the assets by agreement, arbitration, compromise or litigation. Where the proceedings are in court, the determination shall be subject to the control or decision of the court. If, under an assignment for the benefit of creditors, the secured creditor and the assignee cannot, by agreement, arbitration or compromise, de- termine the value, either the assignee or the creditor may apply to a court of competent jurisdiction in the place of residence of the assignee for determination of the value b declaratory judgment, or otherwise. In all cases, the amount of the determined value shall be credited upon the secured claim and a general or unsecured creditors dividend shall be paid only on the uncredited balance, if any, of the claim. Nothing contained in this section shall be construed to compel any creditor holding security to file a claim for participation in any such estate or proceeding, or to compel the creditor, if the creditor does not file a claim, to foreclose or realize upon the security of the creditor. DETERMINATION OF LEGALITY OF DISTRICT ORGANIZATION AND ACTIONS Definitions; judicial examination to determine legality of any municipal corporation' s organization and actions. ( 1) As used. in - ORS and , unless the context requires otherwise:, a) " Governing body" means the city, council, board of commissioners, board of di- rectors, county court or other managing board of a municipal corporation including a board managing a municipally owned public utility or a dock commission. b) " Municipal corporation" means ' any county, city, port, school district, union high school district, community college district and all other public or quasi -public corporations including a municipal' utility or dock commission operated by a separate board or commission. 2) The governing body may commence a proceeding in the circuit court of the county in which the municipal corporation or the greater part thereof is located, for the purpose of having a judicial examination and judgment of the court as to the regularity and legality of: a) The proceedings in connection with the establishment or creation of the munici- pal corporation, including any action or proceedings. proclaiming the creation of the municipal corporation or declaring the result of any election therein. b) The proceedings of the governing body and of the municipal corporation providing for and authorizing the issue and sale of bonds of the municipal corporation, whether the bonds or any of them have or have not been sold or disposed of. c) Any order of the governing body levying a tax. d) The authorization of any contract and as to the validity of the contract, whether or not it has been executed. 3) All proceedings of the municipal cor- poration may be judicially examined and determined in one special proceeding, or any part thereof may be separately examined and determined by the court. [ Amended by 1975 c Proceeding in rem; practice and procedure as in action not triable by right to jury; service by publication; appeal; costs. ( 1) The determination authorized by ORS shall be in the nature of a proceeding in rem; and the practice and procedure therein shall follow the practice and procedure of an action not triable by right to a jury, as far as the same is consistent with the determination sought to be obtained, except as provided in this section ) Jurisdiction of the municipal corporation shall be obtained by the publication of notice directed to the municipal corporation; and jurisdiction of the electors of the municipal corporation shall be obtained by

135 SPECIAL PROCEEDINGS publication of' notice directed to all electors, freeholders, taxpayers and other interested persons, without naming such electors, freeholders, taxpayers and other interested persons individually. The notice shall be served on all parties in interest by publication thereof for at least once a week for three successive weeks in a newspaper of general circulation published in the county where the ] proceeding is pending, or if no such newspaper is published therein, then in a contiguous county. Jurisdiction shall be complete within 10 days after the date of completing publication of the notice as provided in this section. 3) Any person interested may at any time before the expiration of the 10 days appear and contest the validity' of such proceeding, or of any of the acts or things therein 'enumerated. Such proceeding shall be tried forthwith and judgment rendered as expeditious)y as possible declaring the matter so contested to be either valid or invalid. Any order or judgment in the course of such proceeding may be made and rendered by the fudge in vacation -ori otherwise; and for that purpose, the court ' shall be deemed at all times to bd' in session and the act of the judge in making the order or judgment shall e the act of the court. 4) Any party may appeal to the Court of Appeals from the final judgment rendered in such proceeding The court, in inquiring into the regularity, legality or correctness of any roceedin& of the municipal corporation or As governing body shall disregard any error, irregularity or omission which does not affect the substantial rights of the parties to the special proceeding, and may approve the proceedings in part and may disapprove and declare illegal or invalid in part other or subsequent proceedings, or may approve or disapprove the proceedings, or may approve the proceedings in part and disapprove the remainder thereof. 5) Costs of the proceeding may be allowed and apportioned between the parties in the discretion of the court. [ Amended by 1975 M3 2; 1979 c , c.522 l; repealed by 1967 c ffi0 [ 1955 c.522 2; repealed by 1967 x [ 1955 c.522 3; repealed by 1967 c

136 SPECIAL ACTIONS AND PROCEEDINGS 3-98

137 Chapter EDITION Writs WRIT OF REVIEW Former writ of certiorari as writ of review 34A20 Who may obtain review; intermediate orders reviewable Jurisdiction to grant writ; petition for writ; time limit When allowed Plaintiffs undertaking 34M 34A70 To whom directed; return Stay of proceedings Issuance and service of writ 34A90 Order for further return Power of court on review; appeal WRIT OF MANDAMUS Definitions for ORS to When and to whom writ issued Courts having jurisdiction Petition for writ; service; order of allowance; intervention Direction and service of writ; proof of service; enforcing obedience to writ Peremptory and alternative writs; form Allowance of peremptory writ in first in- stance Answer or motion to dismiss by defendant Failure to answer or move for dismissal; additional pleadings Other pleadings; construction and amend- ment trial of pleadings; motions; manner of Trial during term time or vacation; allowance and trial in Supreme Court Recovery of damages; attorney fees, costs and disbursements Recovery as a bar Imposition of fine; payment as bar Appeal WRIT OF HABEAS CORPUS Purpose of writ; who may prosecute Courts having jurisdiction Who not entitled to prosecute writ Petition; who may apply 343M Application by district attorney 343M Appointment of counsel; compensation and costs 343M Contents of petition when person challenges authority for confinement Contents of yetition when person challenfes conditions of confinement or depri- vation of rights while confined Filing petition of prisoner without payment of filing fees Order to show cause; time for ruling on show cause order; entry of judgment or issuance of writ; effect 343M Warrant in lieu of writ; when issued Order for arrest of person having custody Execution of warrant; return and proceedings thereon 34A10 34A21 34A30 Criminal offense by person having custody Contents of writ Defect of form; designation of persons Who may serve writ; tender of fees and undertaking when service is on sheriff or other officer 34A50 Payment of charges when service is on person other than sheriff or officer 34A60 Manner of service 34A70 Service when party hides or refuses 34A80 34A90 34ZW admittance Proof of service Duty to obey writ When return must be made Sickness of person Requiring return and production of party by order Contents of return 34ZW Warrant in case of refusal or neglect to obey writ Failure of sheriff to return writ Precept commanding bringing of prisoner Inquiry into cause of imprisonment Discharge when no legal cause for restraint is shown 34AN When party to be remanded Grounds for discharge of prisoner in custody under order or civil process Inquiry into legality of certain judgments and process not permitted Proceedings where commitment for criminal offense is legal, or party probably is qty Custody of party pending proceedings Notice to third persons Notice to district attorney Replication following return; hearing Motion to deny petition; motion to strike; controverting replication; time to plead; construction and effect of pleadings Requiring production of person after writ issued Conduct of hearing Judgment; liability for obedience to judg- ment Appeal; conclusiveness of judgment Imprisonment after discharge Forfeiture for refusing copy of order or process 3-99

138 SPECIAL ACTIONS AND PROCEEDINGS CERTAIN WRITS ABOLISHED Scire facias and quo warranto Railroad companies, fencing of tracks, CROSS REFERENCES Parties, motions, orders, judgments, appeals and special proceedings, law governing, Public contract matters, writs not, applicable, to Review of divisions by municipal corporation, Reviewing denials of applications for multiple -unit housing tax relief, M Supreme Court, original jurisdiction in mandamus proceedings, Const. Art. VII (A), to Habeas corpus hearings in Marion County, Post - conviction relief, when proper, Suspension of privilege of writ of habeas corpus, Const. Art. I, 23 Justice court, review of interlocutory order or judgment, County court, habeas corpus proceedings, Const. Art , VII (0), Supreme Court, original jurisdiction in habeas corpus DeP osit. in lieu of undertakeng to Proceedings, Const. Art. VII (A), 2 Review deemed an appeal for purposes of costs and disbursements, State, counties and cities not required to furnish undertaking, ' Deposit in lieu of undertaking, to Compelling state agenc es to act, Writ of mandamus in connection with: County governing body, duties, Election directive or instruction, compelling compliance, Performance by court or court officer of duty relating to the administration of justice, Disobedience of a judgment punishable by contempt, Filing and appearance fees, exemption, Supreme Court, original,jurisdiction in quo warranto proceedings, Const. Art. VII (A),

139 WRITS WRIT OF REVIEW Former writ of certiorari as writ of review. The writ heretofore known as the writ of certiorari is known in these statutes as the writ of review Who may obtain review; intermediate orders reviewable. Except for a proceeding resulting in a land use decision or limited land use decision as defined in ORS , for which review is provided in ORS to , any party to any process or proceeding before or by any infenor court, officer, or tribunal may have the decision or determination thereof reviewed for errors, as provided in ORS to , and not otherwise. Upon a review, the court may review any intermediate order involving the merits and necessarily affecting the decision or determination sought to be reviewed. [ Amended by ; 1981 c ; 1983 c ; 1991 c Jurisdiction to grant writ; petition for writ; time limit. The writ shall be allowed by the circuit court, or, in counties where the county court has judicial functions, by, the county court wherein the decision or determination sought to be reviewed was made, upon the petition of the plaintiff, describing the decision or determination with convenient certainty, and setting forth the errors alleged to have been committed therein. The petition shall be signed by the plaintiff or the attorney of the plaintiff, and verified by the certificate of an attorney to the effect that the attorney has examined the process or proceeding, and the decision or determination therein, and that it is erroneous as alleged in the petition. A writ shall not be allowed unless the petition therefor is made within 60 days from the date of the decision or determination sought to be reviewed. [ Amended by 1979 x772 9a] When allowed.. The writ shall be allowed in all cases where the inferior court including a district court, officer, or tribunal other than an agency as defined in ORS ( 1) in the exercise of judicial or quasi-judicial functions appears to have: 1) Exceeded its jurisdiction; 2) Failed to follow the procedure applicable to the matter before it; 3) Made a finding or order not supported by substantial evidence in the whole record; 4) Improperly construed the applicable law, or 5) Rendered a decision that is unconstitutional, to the injury of some substantial interest of the plaintiff, and not otherwise. The fact that the right of appeal exists is no bar to the issuance' of the writ. [ Amended by 1965 c.292 1; 1973 c.561 l; Plaintiffs undertaking. Before allowing the writ, the court shall require the plaintiff to give an undertaking to its ap- proval, with one or more sureties, in the sum of $ 100, to the effect that the plaintiff will pay all costs and disbursements that may be adjudged to the defendant on the review. Amended by 1977 c.515 3; [ 1977 c.515 2; repealed by ) To whom directed; return. The writ shall be directed to the court, officer, or tribunal whose decision or determination is sought to be reviewed, or to the clerk or other person having the custody of its records or proceedings, requiring return of the writ to the circuit court, with a certified copy of the record or proceedings in question annexed thereto, so that the same may be reviewed by the circuit court. The court allowing the writ shall fix the date on which it is to be returned, and such date shall be specified in the writ. ( Amended by 1959 c Stay of ]proceedings. In the discretion of the court issuing the writ, the writ may contain a requirement that the defend- ant desist from further proceedings in the matter to be reviewed, whereupon the pro- ceedings shall be stayed accordingly. Amend by 1977 c.515 4; 1979 c Issuance and service of writ. Upon the filing of the order allowing the writ, and the petition and undertaking of the plaintiff, the clerk shall issue the writ, as ordered. The writ shall be served by delivering the original, according to the direction thereof, and may be served by any person authorized to serve a summons. A certified copy of the writ shall be served by delivery to the opposite party in the suit or proceeding sought to be reviewed, at least 10 days before the return of the original writ Order for further return. If the return to the writ is incomplete, the court may order a further return to be made Power of court on review; appeal. Upon the review, the court shall have power to affirm, modify, reverse or annul the decision or determination reviewed, and if necessary, to award restitution to the plaintiff, or to direct the inferior court, officer, or tribunal to proceed in the matter reviewed according to its decision. From the judgment of the circuit court on review, an appeal may be taken in like manner and with like effect as from a judgment of a circuit court in an action. [ Amended by 1973 x197 2; 1981 c ] 3-101

140 SPECIAL ACTIONS AND PROCEEDINGS WRIT OF MANDAMUS- 1 ; Definitions for ORS to As used in ORS to : 1) " Adverse party" means a beneficially interested party to a judicial or administrative proceeding from which a mandamus whose interests are ad- proceeding arises, verse to the relator. 2) " Counsel for defendant" means the attorney who appears on behalf of the defendant in a mandamus proceeding as pro- vided in ORS ( 4). 3) " Defendant" means the court, corporation, board, officer or person against whom relief is sought in a mandamus proceeding. 4) " Relator" means the beneficially interested party on whose relation a mandamus proceeding is brought. [ When and to whom writ issued. A writ of mandamus may be issued to any inferior court, corporation, board, officer or person, to compel the performance of an act which the- law specially enjoins, as a duty resulting from an office, trust or station; but though the writ may require such court, corporation, board, officer or person 'to exercise judgment, or proceed to the discharge of any functions, it shall not control judicial discretion. The writ shall not be issued in any case where there is a plain, speedy and adequate remedy in the ordinary course of the law Courts having jurisdiction. The circuit court or judge thereof of the county wherein the defendant, if a public officer or body, exercises functions, or if a private per- son or corporation, wherein such person re- sides or may be found, or such private corporation might be sued in an action, shall have exclusive jurisdiction of mandamus proceedings, except that the Orekon Tax Court or fudge thereof shall have jurisdiction in mandamus proceedings in all cases involving tax laws as defined in ORS , and except that the Supreme Court may take original jurisdiction in mandamus proceedings as provided in section 2 of amended Article VII of the Oregon Constitution. Amended by 1965 c Petition for writ; service; order of allowance; intervention. ( 1) The relator shall file a petition for a writ of mandamus with the clerk of the court or court administrator. 2) The relator shall serve a copy of the petition on the defendant and, if, the mandamus proceeding arises from a judicial or administrative proceeding, on all parties to such proceeding. Service of the petition on the defendant and adverse parties _ is sufficient if it complies with ORCP 9 B. The j court in its discretion may act on a petition regardless of defects in the service of the petition on any adverse party, and the petition may be allowed with or without notice to the adverse party, as in a writ of review proceeding. 3) Except as to a petition filed in the Supreme Court, the writ shall be allowed by the court or judge thereof on the petition. On the filing of the order of allowance, the clerk or court administrator forthwith shall issue the writ in accordance with the petition. The clerk or court administrator may require the relator to provide a form of writ in accordance with the petition. 4) At any time in the, course of a mandamus action until the return date of the alternative writ, any adverse party may intervene in the mandamus proceeding as matter of right. At any time subsequent to the return date of the alternative writ, the court in its discretion may allow an adverse party to intervene. With the consent of the defendant and, if the defendant is a judge of the Supreme Court, Court of Ap peals,, Oregon Tax Court, circuit court oras court, subject to ORS and , the attorney for an adverse party may appear on behalf of the defendant. 5) The filing or allowance of a petition for a writ of mandamus does not stay any judicial or administrative proceeding from which the mandamus proceeding may arise, but the court in its discretion may stay such roceeding. [ Amended by 1971 c ; 1989 c Direction and service of writ; proof of service; enforcing obedience to writ. (1) The writ shall be directed to the court, corporation, board, officer or person designated in the order of allowance, and may be served thereon, by any person authorized to serve a summons, by delivery of the original to such officer or person, or to any member of such court, or to any officer of such corporation upon whom a summons lawfully may be served. A certified copy of, the writ shall be served on all intervenors, adverse parties and counsel for the defendant. Such service is sufficient if it complies with ORCP 9. The relator shall file with the court proof of service of the writ on the defendant, and intervenors, adverse parties and counsel for the defendant, if any. 2) Obedience to the writ may be enforced in such manner as the court or judge thereof shall direct. [ Amended by 1989 c Peremptory and alternative writs; form. The writ shall be either alternative or peremptory; when in the alternative, it shall state concisely the facts, according to the petition, showing the obli-

141 WRITS gation of the defendant to perform the act, and the omission of the defendant to perform it, and command the defendant, that immediately after the receipt of the writ, or at some other specified time, the defendant do the act required to be performed, or show cause before the court or judge thereof, by whom the writ was allowed, at a time and place therein specified, why the defendant has not done so; and that the defendant then and there return the writ, with the certif- icate of the defendant annexed, of having done as the defendant is commanded, or the cause of omission thereof. When peremptory, the writ shall be in a similar form, except that the words requiring the defendant to show cause why the defendant has not done as commanded, and to return the cause therefor, shall be omitted Allowance of peremptory writ in first instance. When the right to require the performance of the act is clear, and it is apparent that no valid excuse can be given for not performing it, a peremptory mandamus shall be allowed in the first instance; in all other cases, the alternative writ shall be first issued Answer or motion to dismiss by defendant. On the return day of the alternative writ, or such further day as the court or judge thereof may allow, the defendant on whom the writ was served may show cause by motion to dismiss or answer to the writ, in the same manner as to a complaint in an action. [ Amended by 1979 c ] Failure to answer or move for dismissal; additional pleadings. If the de- fendant does not show cause by motion to dismiss or answer, a peremptory mandamus shall be allowed against the defendant. If the answer contains new matter, the same may be moved against or replied to by the plaintiff, within such time as the court or fudge may prescribe. If the replication contains new matter, the same may be moved against by the defendant within such time as the court or judge may prescribe, or the defendant may countervail such matter on the trial or other proceedings by proof, either in direct denial or byy way of avoidance. Amended by 1979 c Other pleadings construction and amendment of pleadings; motions; manner of trial. The pleadings in the proceeding by mandamus are those mentioned in ORS and , and none other are allowed. They are to have the same effect and construction, and may be amended in the same manner, as I pleadings in an action. Either party may move to strike out, or be allowed to plead over after motion; and the issues joined shall be tried, and the further proceedings thereon had in like manner and with like effect as in an action. [ Amended by 1979 c Trial during term time or vacation; allowance and trial in Supreme Court. In the circuit court or Oregon Tax Court the writ may be made returnable either in term time or vacation, and if the latter, may be tried and determined before the judge in like manner and with like effect as in term time. In the Supreme Court the writ may be allowed by the court or any udge thereof, but shall only be tried and determined by the court; and all issues therein shall be tried by the court. [ Amended by 1% 5, c.6 11] Recovery of damages; attorney fees, costs and disbursements. ( 1) If the court orders issuance of a peremptory writ of mandamus, the relator shall recover from the defendant damages which the relator has sustained from a false return, to be ascertained in the same manner as in an action. 2) The court in its discretion may desig- nate a revailing p and award attorney fees, costs and disbe ments to the prevail- ing party, but no attorney fees, costs and disbursements shall be awarded against a judge as a defendant in a mandamus action for any action taken in the judge' s official capacity. Attorney fees, costs and disbursements may only be awarded against adverse parties who have been served with the peti- tion and writ. [ Amended by Recovery as a bar. A recovery of damages by virtue of ORS against a party who has made a return to a writ of mandamus is a bar to any other action or suit against the same party for the same cause Imposition of fine; payment as bar. Whenever a peremptory mandamus is directed to a public officer or body commanding the performance of any public duty specially ennjomed by law, if it appears to the court or judge thereof that the officer or any member of the body has without just excuse refused or neglected to perform the duty so enjoined, the court or judge may impose a fine, not exceeding $ 500, upon every such officer or member of such body; and the payment thereof is a bar to any action for any penalty incurred by the officer or member by reason of the refusal or neglect of the officer or member to perform the duty so enjoined. 342,40 Appeal. From the judgment of the circuit court or Oregon Tax Court or judge thereof, refusing to allow a mandamus, or directing a peremptory mandamus, an appeal may be taken in like manner and with like effect as in an action. [ Amended by 1965 c.6 12; 1973 c

142 SPECIAL ACTIONS AND PROCEEDINGS WRIT OF HABEAS CORPUS Purpose of writ; who ' may prosecute. The writ of habeas corpus ad subjiciendum is the writ designated in ORS to , and every other writ of habeas corpus is abolished. Every person imprisoned or otherwise restrained of liberty, within this state, except in the cases specified in ORS , may prosecute a writ of habeas corpus to inquire into the cause of such imprisonment or restraint, and if illegal, to be delivered therefrom Courts having Jurisdiction. The circuit court of the judicii district wherein the party is imprisoned or restrained, and, if vested with power to exercise judicial functions, the county court and county judge of the county wherein the party is imprisoned or restrained, shall have concurrent jurisdiction of proceedings by habeas corpus, and said courts and udgea may issue, hear, and decide all questions arising upon habeas cor- pus Who not entitled to prosecute writ. The following persons shall not be allowed to prosecute the writ: 1) Persons imprisoned or restrained by virtue of process issued by a court of the United States, or a judge, commissioner or other officer thereof, in cases where such courts, or judges or officers thereof, have exclusive jurisdiction under the laws of the United States, or have acquired exclusive jurisdiction by the commencement of actions, suits or other proceedings in such court, or before such commissioner or other officer. 2) Persons imprisoned or restrained by virtue of the judgment or decree of a competent tribunal of civil or criminal jurisdiction, or by virtue of an execution issued upon such judgment or decree. 3) Except as provided in ORS , persons eligible to obtain post - conviction relief pursuant to ORS to Amended by 1959 c Petition; who may apply. 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 petitioner, to the effect that the petitioner believes it to be true Application by district attorney. Whenever a writ of habeas corpus is required in any action, suit or proceeding, civil or criminal, to which the state is a party, the application therefor may be made by the district attorney having charge thereof, and whenever so issued the court or judge shall state in the order of allowance that it was issued on such application Appointment of counsel; compensation and costs. If counsel is appointed y a court to represent, in an initial proceeding by habeas corpus or on appeal as provided in ORS , a person who is imprisoned or otherwise restrained of liberty by virtue of a charge or conviction of crime and who is unable to afford counsel, the court shall determine and allow compensation for counsel and costs and expenses of the person in the proceeding or on appeal. Compensation for counsel and expenses of the person in an initial proceeding or in a circuit court on appeal shall be determined and allowed as provided in ORS Compensation for counsel and costs and expenses of the person on appeal to the Court of Appeals or on review by the Supreme Court shall be determined and allowed as provided in ORS The compensation and expenses so allowed in an initial proceeding in a county court shall be paid by the county in which the person was charged or convicted of crime. The compensation and expenses so allowed in an initial proceeding in a circuit court or on appeal shall be paid by the state from funds available for the f2nrpose. [ 1979 c ; 1981 s.s. c.3 128; 1985 c Contents of petition when person challenges authority for confinement. If the challenge is to the authority for con- finement, the petition shall state, in sub- stance: 1) That the party in whose behalf the writ is petitioned is imprisoned or restrained of liberty, the place where, and officer or person by whom the party is imprisoned or restrained, naming both parties if their names are known, or describing them if not known. 2) That such person is not imprisoned or restrained by virtue of any order, judgment, decree or process specified in ORS ) The cause or pretense of the impris- onment or restraint, according to the best knowledge or belief of the petitioner. 4) If the original imprisonment or re- straint is by virtue of any order, warrant or process, a copy thereof shall be annexed to the petition, or it must be alleged that, by reason of the removal or concealment of the party before the application, a demand of such copy could not be made, or that the demand was made, and the legal fees therefor tendered to the person having the party in custody, and that a copy was refused. 5) That the claim has not already been adjudged upon a prior writ of habeas corpus, 3-104

143 WRITS to the knowledge or belief of the petitioner. Amended by 1991 c Contents of petition when per- son challenges conditions of confinement or deprivation of rights while confined. If the person is imprisoned or restrained by virtue of any order, udgment, decree or process specified in Od and the person challenges the conditions of confinement or complains of a deprivation of rights while confined, the petition shall: 1) Comply with requirements of ORS ( 1), ( 3), ( 4) and ( 5); and 2) State facts in support of a claim that the person is deprived of a constitutional right that requires immediate judicial atten- tion and for which no other timely remedy is practicably available to the plaintiff. [ 1991 c Filing petition of prisoner without payment of filing fees. Any court of the State of Oregon may authorize the filing of a petition for a writ of habeas corpus by or on behalf of any person imprisoned or otherwise restrained of liberty by virtue of a charge or conviction of crime without pay- ment of the filing fees therefor, if such person presents to the court or judge thereof satisfactory proof, by affidavit and as otherwise required by such Judge, that the person is unable to pay such fees. [ 1955 x Order to show cause; time for ruling on show cause order; entry of Ejudgment or issuance of writ; effect. ( 1) xcept as provided in subsection ( 6) of this section, the udge to whom the petition for a writ of habeas corpus is presented shall, without delay issue an order directing the defendant to slow cause why the writ should not be allowed. 2) Upon the issuance of a show cause order under subsection ( 1) of this section, the following shall apply: a) The judge shall order that the defendant appear in writing in opposition to the issuance of the writ as soon as is practicable and not more than 14 days from the date that the show cause order issues. b) The judge shall rule on the show cause order within seven days after either the defendant files a written appearance in opposition or the appearance period expires, whichever comes first. Upon making a ruling, the judge shall do one of the following, as appropriate: A) If the petition is a meritless petition brought under ORS , issue a judgment denying the petition. B) Issue a judgment granting appropriate habeas corpus relief. C) Issue a writ of habeas corpus requiring that a return be made. 3) Entry of a judgment under subparagraph ( A) of paragraph ( b) of subsection ( 2) or subsection ( 6) or this section shall be without prejudice. The judgment shall explain to the parties the reason for the denial. 4) If the court has issued a writ of habeas corpus requiring a return under sub - paragraph ( C) of paragraph ( b) of subsection 2) of this section, the parties may stipulate to a hearing as described in ORS without the necessity of a return or a replication. If the court accepts the stipulation, it shall set the matter for hearing in an ex- pedited manner. 5) Issuance of the writ under subsection 2) of this section shall not bind the court with respect to any subsequent rulings related to the pleadings of the parties or the ultimate disposition of the proceeding. 6) The court may, on its own motion, enter a judgment denying a meritless petition brought under ORS ) As used in this section, " meritless petition" means one which, when liberally construed, fails to state a claim upon which habeas corpus relief may be granted. Amended by 1983 c.322 l; 1991 c.w Warrant in lieu of writ; when issued. Whenever it appears by satisfactory evidence that any person is illegally imprisoned or restrained and there is good reason to believe that the person will be carried out of the state or suffer irreparable injury before the person can be relieved by the issuing of a habeas corpus, any court or judge authorized to issue such writ may issue a warrant reciting the facts, directed to any sheriff or other person therein designated, commanding the sheriff or other person to take such illegally imprisoned or restrained person and forthwith bring the person before such court or judge, to be dealt with according to law Order for arrest of person hav- in custody. When the proof mentioned in ORS is also sufficient to justify an arrest of the person having the party in custody, as for a criminal offense committed in the taking or detaining of such party, the warrant may also contain an order for the arrest of such person for such offense Execution of warrant; return and proceedings thereon. Any officer or person to whom a warrant issued under ORS is directed shall execute the same by bringing the party therein named and the person who detains the party, if so commanded by the warrant, before the court or judge issuing the warrant; and thereupon the person detaining such party shall make a re-

144 SPECIAL ACTIONS AND PROCEEDINGS turn in like manner, and the like proceedings shall be had thereon, as if a writ of, habeas corpus had been issued in the first instance Criminal offense by person having custody. If the person having such party in custody is brought before the court or judge as for a criminal offense, the person shall be examined, committed, released or discharged by the court or judge in like manner as in other criminal cases of like nature. [ Amended by 1973 c [ Repealed by 1991 c ( enacted in lieu of )] Contents of writ. The writ shall require the defendant to file a return, at a specified time and place, that states the time and cause of plaintiffs imprisonment or restraint. The writ shall not command the defendant to produce the plaintiff before the court or judge issuing the writ, unless the court, in its discretion, so orders. The court shall consider an allegation of lack of authority, brought only under ORS , as a factor weighing in favor of requiring the defendant to produce the plaintiff at the time of the return. [ 1991 c ( enacted in lieu of )] Defect of form; designation of persons. The writ shall not be disobeyed for any defect of form. It is sufficient: 1) If the officer or person having the custody of the person imprisoned or restrained is designated either by name of office, if the officer or person has, any, or by the own name of the officer or person, or if both such names are unknown or uncertain, the officer or pperson may be described by an assumed appellation; and anyone who may, be served with the writ is to be deemed the of- ficer or person to whom it was directed, although it may be directed to the officer or person by a wrong name or description, or to another person. 2) If the person who is directed to be produced is designated by name, or if the name of the person is uncertain or unknown, the person may be described in any other way, so as to designate the person intended Who may serve writ; tender of fees and undertaking when service is on sheriff or other officer. ( 1) A writ of habeas corpus may be served by any sheriff within the county of the sheriff, or by any other person designated in the writ in any county within the state. The service of the writ shall be deemed complete, so as to require the prisoner to be brought up before the court or judge issuing the writ under the provisions of ORS , only if: a) The party serving the writ tenders to the person in whose custody the prisoner may be, if such person is a sheriff or other officer, the fees allowed by law for bringing up such prisoner; and b) The party also enters into an undertaking to such sheriff or other officer, in a penalty double the sum for which the prisoner is detained, if the prisoner is detained for any specific sum of money, and if not, then in such a sum as the judge granting the writ directs, not exceeding $ 1, 000, to the effect that such person shall pay the charges for carrying back the prisoner if the prisoner is remanded, and that the prisoner will not escape, either in going to or returning from the place to which the prisoner is to be taken. 2) If such fees are not paid, or such security is not tendered, the officer to whom the writ is directed shall make a return, in the manner required by ORS , and shall state in the return the reason why the prisoner is not produced, and thereupon the court or judge granting the writ may proceed as if the prisoner was produced. This section, except for the first sentence, does not apply to a case wherein the writ is issued on the application of the district attorney. [ Amended by 1991 c Payment of charges when service is on person other than sheriff or officer. Every court or judge allowing a writ of habeas corpus, directed to a person other than a sheriff or other officer, may require, in order to render the service effectual, that the charges of producing the party be paid by the applicant; and in such case the court or judge shall, in the order allowing the writ, specify the amount of such charges, which shall not exceed the fees allowed by law to sheriffs for similar services Manner of service. The writ of habeas corpus may be served by delivery of the original to the officer or person to whom it is directed, or if the officer or person can- not be found, by leaving it at the jail or other place in which the party is imprisoned or restrained, with any under officer or other person having charge for the time of such party Service when party hides or refuses admittance. If the officer or person on whom the writ ought to be served hides from the person attempting to make service, or refuses admittance to the person attempt- to make service, it may be served by af- Mfg it in some conspicuous place on the outside, either of the dwelling house of the officer or person or the jail or other place where the party is confined. [ Amended by 1987 c.158 5] Proof of service. The proof of service of the writ shall be the same as in the service of a summons, except that the

145 WRITS same shall be indorsed upon a copy of the writ made by the officer or person serving it, and returned to the clerk who issued the writ Duty to obey writ. It is the duty of every sheriff or other officer upon whom a writ of habeas corpus is served, whether such writ is directed to the sheriff or officer or not, upon payment or tender of the fees allowed by law, and the delivery or tender of the undertaking described in ORS , to obey and return the writ according to the exigency thereof; and it is the duty of every other person upon whom the writ is served, having the custody of the person for whose benefit it is issued, to obey and return it in like manner, without requiring the payment of any fees, unless the payment of such fees has been required by the court or judge allowing such writ When return must be made. If the writ is returnable at a certain time, the return shall be made at the time and pplace specified therein; if it is returnable forthwith, and the place of return is within 20 miles of the place of service, the return must be made within 24 hours, and the same time is allowed for every additional 20 miles [ Repealed by 1991 c Siclrness of person. Whenever, from the sickness or infirmity of the party, the party cannot, without danger, be produced, the officer or person in whose custody the party is may state that fact in the return to the writ, and if satisfied of the truth of the allegation, and the return is otherwise sufficient, the court or judge shall proceed to decide on the return, and to dispose of the matter, the same as if the party had been produced Requiring return and production of party by order. At any time af- ter the allowance of a writ of habeas corpus, the plaintiff therein, or the person applying therefor on behalf of the plaintiff, may give notice to the judge issuing the writ, and thereupon, if necessary to avoid delay, the udge shall by order require that the return e made and the party produced before the judge at such time and place, within the county or district, as may be convenient Contents of return. (1) The officer or person upon whom the writ was duly served shall state in the return, plainly and unequivocally: a) Whether the officer or person has the party in custody or power or under restraint, and if the officer or person has not, whether the officer or person has had the party in custody or under power or restraint at any and what time prior or subsequent to the date of the writ. b) If the officer or person has the party in custody or power or under restraint, the authority and true cause of such imprisonment or restraint, setting forth the same at large. 2) If the party is detained by virtue of any writ, warrant or other written authority, a copy thereof shall be annexed to the return, and the original shall be produced, and exhibited on the return of the writ, to the court or judge before whom the writ is returnable. 3) If the person upon whom the writ was served has had the party in power or custody or under restraint at any time prior or subsequent to the date of the writ, but has transferred such custody or restraint to another, the return shall state particularly to whom, at what time, for what cause, and by what authority the transfer took place. 4) The return shall be signed by the person making the same, and except where the person is a sworn public officer, and makes the return in official capacity, it shall be verified by oath Warrant in case of refusal or neglect to obey writ. If the person upon whom the writ was duly served refuses or neglects to obey the same by producing 'the party named in the writ and making a full and explicit return thereto within the time required, and no sufficient excuse is shown therefor, the court or judge before whom the writ was made returnable shall, upon due proof of the service thereof, forthwith issue a warrant against such person, directed to any sheriff in this state, commanding the sheriff forthwith to apprehend such person and bring the person imediately m before such court or judge; and on the person being so brought, the person shall be committed to close custody in the jail of the county in which such judge shall be until the person makes return to the writ and complies with any order made in relation to the party for whose relief the writ was issued. 34ZW Failure of sheriff to return writ. If a sheriff neglects to return the writ, the warrant may be directed to any other pern so to be designated therein, who shall have full power to execute the same, and such sheriff, upon being brought up, may be committed to the jail of any county other than the county over which the sheriff has isdiction. [ Amended by 1965 c ; 1987 c.158 iw Precept commanding bringing of prisoner. The court or judge issuing the warrant may also, at the same time or afterwards, issue a precept to the person to whom the warrant is directed, commanding the person to bring forthwith before such court

146 SPECIAL ACTIONS AND PROCEEDINGS or judge the party for whose benefit the writ was allowed, who shall thereafter remain in the custody of such person until discharged or remanded Inquiry into cause of imprisonment. The court or judge before whom the party is brought on the writ shall, immediately after the return thereof, proceed to examine into the facts contained in the return, and into the cause of the imprisonment or restraint of such party Discharge when no legal cause for restraint is shown. If no legal cause is shown for the imprisonment or restraint, or for the continuation thereof, the court or judge shall discharge such party from the custod or restraint under which the person is hel When party to be remanded. It shall be the duty of the court or judge forthwith to remand such party if it appears that the party is legally detained in custody, ei- ther: 1) By virtue of process issued by any court, or,fudge or commissioner or any other officer thereof, of the United States, in a case where such court, or judge or officer thereof, has exclusive jurisdiction; or, 2) By virtue of the judgment or decree of any competent court of civil or criminal jurisdiction, or of any execution issued upon such judgment or decree; or, 3) For any contempt, specially and plainly charged in the commitment, by some court, officer or body having authority to commit, for the contempt so charged; and, 4) That the time during which such party may legally be detained has not ex- pired Grounds for discharge of prisoner in custody under order or civil process. If it appears on the return that the prisoner is in custody by virtue of an order or civil process of any court legally constituted, or issued by an officer in the course of judicial proceedings before the officer, au- thorized by law, such prisoner shall be discharged only if one of the following cases exists: 1) The jurisdiction of the court or officer has been exceeded, either as to matter, place, sum or person. 2) The original imprisonment was lawful, yet by some act, omission or event which has taken place afterwards, the party has become entitled to be discharged. 3) The order or process is defective in some matter of substance required by law, rendering the same void. 4) The order or process, though in proper form, has been issued in a case not allowed by law. 5) The person having the custody of the prisoner under such order or process is not the person empowered by law to detain the prisoner. 6) The order or process is not authorized by any judgment or decree of any court, nor by any provision of law Inquiry into legality of certain judgments and process not permitted. No court or judge, on the return of a writ of habeas corpus, has power to inquire into the legality or justice ot' any order, judgment or process specified in ORS , nor into the justice, propriety or legality of any commitment for a contempt made by a court, officer or body, according to law, and charged in such commitment, as provided by law Proceedings where commitment for criminal offense is legal, or party probably is guilty. If it appears that the party has legally been committed for a criminal offense, or if the party appears by the testimony offered with the return, or upon the hearing thereof, probably to be guilty of such offense, although the commitment is ir- regular, the party shall forthwith be remanded to the custody or placed under the restraint from which the part was taken, if the officer or person under whose custody or restraint the party was, is legally entitled thereto; if not so entitled, the party shall be committed to the custody of the officer or person so entitled Custody of -party pending proceedings. Until judgment is given upon the return, the party may either be committed to the custody of the sheriff of the county, or placed in such care or custody as age and other circumstances may require Notice to third persons. When it appears from the return that the party named therein is in custody on an order or process under which another person has an interest in continuing imprisonment or re straint of the party, no order shall be made for discharge of the party until it shall appear that the party so interested, or the attorney of the party so interested has had notice of the time and place at which the writ has been made returnable Notice to district attorney. When it appears from the return that the party is imprisoned or restrained on a criminal accusation, the court or judge shall make no order for the discharge of the party until notice of the return is given to the district attorney of the county where the party is imprisoned or restrained.,

147 WRITS Replication following return; hearing. The plaintiff in the pproceeding, on the return of the writ, may, by replication, signed as in an action, controvert any of the material facts set forth in the return, or the plaintiff may allege therein any fact to show, either that imprisonment or restraint of the plaintiff is unlawful, or that the plaintiff is entitled to discharge; and thereupon the court or judge shall proceed in a summary way to hear such evidence as may be produced in support of or against the impris- onment or restraint and to dispose of the party as the law ana justice of the case may require. ( Amended by 1979 c Motion to deny petition; motion to strike; controverting replication; time to lead; construction and effect of pleadings. ( 1) The defendant may, before the writ issues, move to den)r the petition on the grounds that the petition fails to state a claim for habeas corpus relief. The defendant may, at any time after the writ issues, move to dismiss the writ on the grounds that the pleadings, including the petition, the return, the replication, if any, and any suppporting evidence, demonstrate that plaintiff has failed to state or establish a claim for habeas corpus relief. 2) The plaintiff may move to strike the return or any allegation or defense in the return. The defendant may move to strike the replication or any new matter in the replication, or by proof controvert the same, as upon a direct denial or avoidance. 3) The return and replication shall be made within such time as the court or judge shall direct, and the petition, return and replication shall be construed and have the same effect as in an action. [ Amended by 1979 c ; 1991 c Requiring production of person after writ issued. The court or judge before whom the writ is returnable may, before final decision, issue a precept to the officer or other person to whom the writ is directed, requiring the production of the person. Amended by 1991 c Conduct of hearing. If the matter proceeds to an evidentiary hearing, as described in ORS , the court shall decide the issues raised in the pleadings and may receive proof by affidavits, depositions, oral testimony or other competent evidence c Judgment; liability for obedience to judgment. If it appears that the party, detained is imprisoned or restrained illegally, judgment shall be given that the party be discharged forthwith; otherwise, judgment shall be given that the proceeding be dismissed and the party remanded. No of- ficer or other person is liable to any action or proceeding for obeying such judgment of discharge Appeal; conclusiveness of judgment. Any party to a proceeding by habeas corpus, including the state when the district attorney appears therein, may appeal from the ' u ent of the court refusing to allow such writ or any final judgment therein, ei- ther in term time or vacation, in like manner and with like effect as in an action. No question once finally determined upon a proceeding by habeas corpus shall be reexamined upon another proceeding of the same kind Imprisonment after discharge. No person who has been finally discharged upon a proceeding by habeas corpus shall again be lm risoned, restrained or kept in custody for the same cause; but it is not to be deemed the same cause if. 1) The person has been discharged from a commitment on a criminal charge, and aft- erwards is committed for the same offense by the legal order or process of the court wherein the person is bound by a release agreement or has deposited security, or in which the person is indicted or convicted for the same offense; or 2) After a judgment of discharge for a defect of evidence or for a material defect in the commitment, in a criminal case, the party again is arrested on sufficient evidence, and committed by legal process for the same offense; or 3) In a civil action or suit, the party has been discharged for illegality in the judgment, decree or process, and afterwards is imprisoned for the same cause of action or suit; or 4) In a civil action or suit, the person has been discharged from commitment on a writ of arrest, and afterwards is committed on execution, in the same action or suit, or on a writ of arrest in another action or suit, after the dismissal of the first one. [ Amended by 1973 c Forfeiture for refusing copy of order or process. Any officer or other person refusing to deliver a copy of any order, warrant, process or other authority by which the officer or person detains any person, to anyone who demands a copy, and tenders the fees therefor, shall forfeit $200 to the person so detained. CERTAIN WRITS ABOLISHED Scire facias and quo warranto. The writ of scire facias, the writ of quo warranto, and proceedings by information in the nature of quo warranto are abolished,

148 SPECIAL ACTIONS AND PROCEEDINGS and the remedies heretofore obtainable under 34" [ Repealed 1981 x those forms may be obtained by action in the mode prescribed in ORS to

149 Chapter EDITION ' ' Eminent Domain Procedure Short title Definitions Agreement for compensation; status of resolution or ordinance of public condemner, status of action of private condemner; agreement effort not prerequisite Commencement of action; jurisdiction; parties Content of complaint Advance deposit by public condemner requiring immediate possession; effect on interest otherwise allowable Advance occupancy by private condemner, hearing, deposit or bond; effect of size of bond or deposit on amount of just com- pensation Distribution of deposits; effect of withdrawal on appeal Defendant' s answer Conduct of trial; defendant' s option; jury argument; neither side has burden of proof of just compensation View of property by order of court Effect of judgment; effect of payment under judgment Effect of condemner' s abandonment of action Offer to purchase required prior to action for condemnation; when costs and disbursements allowed Appeal Effect of withdrawal of award; disposition of award Chapter as exclusive condemnation pro- ceeding, exception Public purpose use required of condemner, right o repurchase; specification of duration of public purpose use; effect Effect of failure of condemner to use property as required; price of repurchase; form of offer of repurchase Change in period of use; notice; effect of failure to agree on change; review by court Designation of person to exercise right of repurchase; effect of failure to designate; offer to repurchase; acceptance; notice; determination of price Designation of person to exercise right of repurchase by multiple owners 3SA10 Right to contest charge in public purpose use; notice of proposed change Application of ORS to CROSS REFERENCES Assessment and tender of compensation required prior to taking, except in case of the state, Const. Art. I, 18, Const. Art. XI, 4 Conservation easements, acquisition, Costs and attorney fees, County road legalization procedure, to Geothermal heating districts, Ch. 523 Procedure when pedestrian mall established, Relocation assistance, use of federal programs by public agencies authorized, Relocation of persons displaced by highway acquisitions, Willamette River Greenway, to b Determination of right of railroad to cross constructed line of another railroad, Assessment and tender of compensation required prior to taking, except in case of the state, Const. Art. I, 18, Const. Art. XI, 4 Deposit in lieu of bond, to Judgment authorizing one railroad to use another' s right of way, Taxes on land acquired by eminent domain, payment, ,

150 SPECIAL ACTIONS AND PROCEEDINGS 3-112

151 EMINENT DOMAIN PROCEDURE [ Repealed by [ Repealed by 1971 c [ Repealed by [ Amended by 1967 c.479 l; repealed by 1971 c ] [ Repealed by [ Repealed by [ Amended by 1967 c ; repealed by [ Repealed by [ 1967 c , 5; repealed by 1971 c [ Repealed by [ Repealed by [ 1967 c.479 6; repealed by [ Repealed by [ Repealed by [ Repealed by [ Repealed by Short title. This chapter may be cited as the General Condemnation Proce- dure Act. [ Definitions. As used in this chapter, unless the context otherwise re- quires: 1) " Condemner" means the state, any city, county, school district, municipal or public corporation, political subdivision any instrumentality or any agency thereof or a private corporation that has the power to exercise the right of eminent domain. 2) " Owner" or " owner of the property" means the owner of property as that term is defined in subsection ( 5) of this section. 3) " Person" means person as defined by ORS and also includes the state, any city, county, school district, municipal or lic pub corporation, political subdivision or any instrumentality or any agency thereof. 4) " Private condemner" means a private corporation that has the power to exercise the right of eminent domain. 5) " Property" means real or personal property or any interest therein of any kind or nature, that is subject to condemnation. 6) " Public condemner" means condemner other than private condemner. [ ; 1983 e [ ; repealed by 1979 c Agreement for compensation; status of resolution or ordinance of pub- lic condemner; status of action of private condemner; agreement effort not prerequisite. ( 1) Subject to ORS and , whenever in the judgment of the condemner it is necessary to acquire property for a purpose for which the condemner is authorized by law to acquire property, the condemner shall, after first declaring by resolution or ordinance such necessity and the purpose for which it is required, attempt to or agree with the owner with respect to the compensation to be paid therefor, and the damages, if any, for the taking thereof. 2) The resolution or ordinance of a public condemner is presumptive evidence of the public necessity of the proposed use, that the property is necessary therefor and that the proposed use, imyrovement or project is planned or located in a manner which will be most compatible with the greatest public good and the least private injury. 3) The commencement of an action to condemn property by a private condemner creates a disputable presumption of the necessity of the proposed use, that the property is necessary therefor and that the proposed use, improvement or project is planned or located in a manner which will be most compatible with the greatest public good and the least private injury. 4) The question of the validity of the disputable presumptions created in subsection ( 3) of this section, if raised, shall be determined by the court in a summary proceeding prior to trial. 5) It is not a prerequisite to the exercise of the right of eminent domain by the condemner to attempt first to agree with an owner or to allege or prove any effort to agree with such owner as to reasonable value, when such owner is at the time concealed within the state or, after reasonable effort by condemner, cannot be found within the state. [ ; 1973 c Commencement of action; jurisdiction; parties. ( 1) If the condemner is unable to agree with or locate the owner of the property under ORS , then an action to condemn property may be commenced in the circuit court of the county in which the property proposed to be con- demned, or the greater portion thereof, is lo- cated. 2) An action may be commenced against the person in whose name the record title appears. There may be included as defendants any lessee or other person in possession and all other persons having or claiming an interest in the property. [ ] Content of complaint. The complaint shall describe the property sought to be condemned and shall allege the true value of the property sought and the damage, if any, resulting from the appropriation thereof ; Advance deposit by public condemner requiring immediate possession; effect on interest otherwise allowable. ( 1) When a public condemner commences an action for the condemnation of property and immediate possession of the property is considered necessary by the pub-

152 SPECIAL ACTIONS AND PROCEEDINGS lic condemner, a fund shall be created in the amount estimated to be the just compen- sation for the property and placed in the hands of the treasurer of the public condemner for deposit with the clerk of the court wherein the action was commenced, for the use of the defendants in the action. 2) When the public condemner is a state agency and immediate possession of property is considered necessary by the agency, the agency shall certify to such facts and authorize an advancement out of funds available to the agency of the amount estimated by the agency to be just compensation for the property. Upon such certification and authorization, a warrant shall be drawn in favor of the clerk of the court in the amount authorized. 3) Upon the deposit in court by the public condemner of the estimated amount of just compensation as provided by subsections 1) and ( 2) of this section, no interest shall be allowed thereon in any final judgment Advance occupancy by private condemner; hearing, deposit or bond; ef- fect of size of bond or deposit on amount of just compensation. ( 1) At any time after an action is commenced to acquire any property, a private condemner may apply to the court for an order to occupy the property to be condemned and to make use of the property for the purposes for which it is being appropriated. 2) At the hearing on the motion, the court shall determine the reasons for requiring a speedy occupation. The court shall grant the motion if, giving consideration to the public interest involved, it finds that the interests of the owners will be adequately protected. The court may make such provisions or orders as necessary, so that the advance taking or an advance payment, as provided by subsection ( 3) of this section, will not be prejudicial to either party. 3)( a) If an order to occupy the property is granted, it may also require the private condemner to deposit with the court either such sum as the court finds reasonable on account of just compensation to be awarded or to deposit a surety bond in an amount and with such surety as the court may approve. The surety bond shall be conditioned to the effect that the private condemner shall pay to the owners of the property just compensation for the property taken or restitution, if any, and costs, disbursements and reasonable attorney fees as finally determined. b) After an order to occupy is entered, if it appears necessary in order to protect the interests of the owners of the property, the court at any time may require the private condemner to deposit with the court an additional bond or sum on account of just compensation to be awarded. c) Evidence as to the finding of the court regarding the amount of such bond or deposit shall not be admissible at the trial of just compensation. [ 1971 c Distribution of deposits; effect of withdrawal on appeal. ( 1) The court may distribute all or any part of the funds deposited by a condemner to the persons entitled thereto for or on account of the just compensation to be awarded in the action, upon such terms and conditions as may appear just and reasonable. 2) Any persons entitled to withdraw any or all of the deposit, as provided by subsection ( 1) of this section, may do so at any time without waiving rights of appeal provided by ORS [ 1971 c Defendant' s answer. The defendant in answer may set forth any legal defense the defendant may have to the condemnation. The defendant shall also allege the true value of the property and the damage, if any, resulting from the appropri- ation thereof. [ Conduct of trial; defendant' s option; jury argument; neither side has burden of proof of just compensation.'( 1) Evidence shall be received and the trial conducted in the order and manner prescribed for a civil action in the circuit court, except that the defendant shall have the option of proceeding first or last in the presentation of evidence, if notice of such election is filed with the court and served on the condemner at least seven days prior to the date set for trial. If no notice of election is filed, the condemner shall proceed first in the presentation of evidence. Unless the case is submitted by both sides to the jury without argument, the party who presents evidence first shall also open and close the argument to the jury. 2) Condemner and defendant may offer evidence of just compensation, but neither party shall have the burden of proof of just compensation. [ 1971 c ; 1979 c View of property by order of court. If motion is made by either party before the formation of the jury, the court shall order a view of the property in question; and, upon the return of the jury, the evidence of the parties may be heard and the verdict of the fury given. [ 1971 c.74i Effect of judgment; effect of payment under judgment. Uppon the assessment of the compensation by the jury, the court shall give judgment appropriating the property in question to the condemner,

153 EMINENT DOMAIN PROCEDURE conditioned upon the condemner' s ppaying into court the compensation assessed by the jury; and, after the making of such payment, the judgment shall become effective to convey the property, and the right of possession thereof to the condemner if not previously acquired. [ 1971 c Effect of condemner' s abandonment of action. (1) If an action is abandoned by the condemner, the court shall enter judgment in favor of the defendant for costs and disbursements in the action and for reasonable attorney fees and reasonable expenses as determined by the court. 2) Expenses mean costs of appraisals and fees for experts incurred in preparing and conducting the defense to the action. 3) An action is considered abandoned if, at any time after filing a complaint, the case is dismissed or terminated or the condemner files an election not to take the property. If an election is not filed within 60 days after the verdict, the condemner is considered to have elected to take the property. [ 1971 x741 17] [ 1971 c ; repealed by 1973 c enacted in lieu of )] Offer to purchase required prior to filing action for condemnation; when costs and disbursements allowed. 1) At least 20 days prior to the filing of any action for condemnation of property or any interest therein, the condemner shall make a written offer to the owner or party having an interest to purchase the property or interest, and to pay a stated amount as com - pensation therefor and for any compensable damages to remaining property. 2) If a trial is held for the fixing of the amount of compensation to be awarded to the defendant owner or party having an interest in the property being condemned, the court shall award said defendant costs and disbursements including reasonable attorney fees and reasonable expenses as defined in ORS ( 2) in the following cases, and no other: a) If the amount of just compensation assessed by the verdict in the trial exceeds the highest written offer in settlement sub- mitted by condemner to those defendants appearing in the action at least 30 days prior to commencement of said trial; or b) If the court finds that the first written offer made by condemner to defendant in settlement prior to filing of the action did not constitute a good faith offer of an amount reasonably believed by condemner to be just compensation. 3) Costs and disbursements other than reasonable attorney fees and expenses as defined in ORS ( 2) shall be awarded to condemner in all cases other than those in which defendant is entitled to costs and disbursements under subsection ( 2) of this section. [ 1973 c ( enacted in lieu of )] Appeal. Either party to the action may appeal from the judgment in like manner and with like effect as in ordinary cases, but the appeal shall not stay the proceedings so as to prevent the condemner from taking possession of the property and using it for the purposes for which it is being appropriated. In the event the defendant prevails on an appeal, the costs and disbursements of the defendant, including a reasonable attorney fee to be fixed by the court, shall be taxed by the clerk and recovered from the condemner. [ 1971 x741 19] Effect of withdrawal of award; disposition of award. If the defendant withdraws the compensation awarded by the court or ury, the defendant waives the right of appea; and, if the defendant does not, such sum shall remain in the control of the court, to abide the event of the appeal. If an unknown owner of the property or other de- fendant does not appear and claim the sum, it shall be invested for the benefit of whom it may concern, as in case of unclaimed moneys in the sale and partition of lands c Chapter as exclusive condemnation proceedin,, exception. Except for procedures provided in OR chapter 368, any action for the condemnation of property under the power of eminent domain shall be conducted according o this chapter. [ 1971 c.741 3; 1979 c ; 1981 c Public purpose use required of condemner; right of repurchase; specifi- cation of duration of public purpose use; effect. ( 1) If real property is acquired by a condemner by agreement with the owner of such property after commencement of an action under ORS for the apppropri- ation of such property but prior to udgment in such action, the condemner and the owner shall: a) Specify in such agreement for the real property a reasonable period within which the real property must be used by the condemner for a public purpose or specify a 10 -year period for such use and provide that the right of repurchase of the real property or any portion thereof may be exercised as provided in ORS to ; or b) Specify that the right of repurchase of the real property has been waived by the owner and, in such case, not specify a period within which the real property must be used by the condemner for a public purpose. 2) If real property is acquired by a condemner under this chapter by judgment

154 SPECIAL ACTIONS AND PROCEEDINGS given in a condemnation action under ORS , the court shall: a) Specify in the ' udgment a reasonable period within which tte real propert must be used by the condemner for a public purpose or specify a 10 -year period, and provide that the right of repurchase may be exercised with respect to the real property as provided in ORS to ; or b) Specify that the right of repurchase of the real property has been waived by the owner and, in such case, not specify a period within which the real property must be used by the condemner for a public purpose. 3) For the purposes of paragraph ( a) of subsection ( 2) of this section, the resolution or ordinance of the condemner is presumptive evidence that the period of time that is proposed by the condemner is a reasonable period in which the real property must be used by the condemner for a public purpose; provided, however, that if the resolution or ordinance specifies a 10 -year period or less, neither the owner nor a designated beneficiary of the owner can contest the reasonableness of the period specified. [ ] Effect of failure of condemner to use property as required; price of repurchase; form of offer of repurchase. ( 1) If a condemner fails to use the real property or any portion thereof acquired under this chapter within the time specified in an agreement entered into under ORS ( 1) or with the terms of a judgment given under ORS and ( 2), whichever applies, and the prior owner of the real property has not waived the right to repurchase the real property, the condemner shall offer such property or any portion thereof, that has not been used for a public purpose within the specified period, to the prior owner or the beneficiary of the prior owner designated as provided in ORS The condemner shall, at its expense, insure the title to any property or portion thereof conveyed or vested in the owner or beneficiary under any provision of ORS to , free and clear of any and all encumbrances except those subject to which the condemner originally took such property. 2) The prior owner or beneficiary described in subsection ( 1) of this section may repurchase from the condemner the real property that is subject to the right of repurchase for a price equal to the sum of the compensation and damages paid by the condemner for the real property plus interest at the rate of seven percent per year from the date of the conveyance of the real property by the prior owner to the condemner. 3) If only a portion of the real property acquired by a condemner is subject to the right of repurchase under ORS to , the prior owner or beneficiary may acquire such portion for a price equal to the sum of: a) The fair cash market value of the portion subject to the right of repurchase, as of the date of the commencement of any action subject to ORS ; and b) The damages for diminution in value of the remainder, if any, of the former own- ers property not so acquired, as of the date of the commencement of any action subject to ORS ; and c) Interest at the rate of seven percent per year from the date of the conveyance of the real property by the prior owner to the condemner. 4) The offer to repurchase only a portion of real property as provided in subsection ( 1) of this section and ORS ( 3), shall be in writing and shall include the price for repurchase as determined by the condemner, including an itemization of the components thereof, pursuant to subsection ( 3) of this section. ( Change in period of use; notice; effect of failure to agree on charge; review by court. (1) The period specified in an agreement or judgment as provided in ORS may be changed as provided in this section, if the prior owner of the real prop - erty has not waived the right of repurchase and the condemner finds that it will be una- ble to use all or a portion of the real property for such purpose within the specified period and requires a reasonable extension of such period for the completion of its project on the real property. 2) Upon a finding under subsection ( 1) of this section, a condemner shall notify the prior owner or designated beneficiary of the requested change in period. The condemner shall negotiate with the prior owner or beneficiary on the requested change. a) Notification under this subsection shall consist of mailing a letter by certified mail to the last address of the rior owner or the designated beneficiary of the owner as shown in the agreement or judgment whereby the real property was acquired or the address subsequently supplied by such owner or beneficiary. If no response has been received by the condemner within 60 days after receipt of notice by the owner or designated beneficiary, all the rights of the owner or designated beneficiary under ORS to shall be considered waived. b) If the condemner cannot locate the prior owner or the designated beneficiary of the owner at the last -known address of the

155 EMINENT DOMAIN PROCEDURE owner or the designated beneficiary, notice may be effected by publication. The publication shall be made in a newspaper published in the county where the property is located, or if no newspaper is published in the county, then in a newspaper designated as being most likely to give notice to the prior owner or the beneficiary of the prior owner. The newspaper utilized shall meet the requirements of ORS The notice shall contain the name of the public project, a general description of the location of the property, the change in purpose or extension of time desired by the condemner and a time within which the owner or the beneficiary of the owner must respond to the notice. The notice shall be published not less than once each week for four weeks. The publication of notice may be directed to one or more owners or beneficiaries affected by the same project. If no response is received by the condemner within 10 days after the date of the last publication of notice, all rights of the prior owner or designated beneficiary shall be considered waived. 3) If, after negotiation, the prior owner or beneficiary and the condemner agree on the proposed charge in period, the period as changed shall, for the purposes of ORS to , be considered the period as specified in the agreement or judgment under ORS In the case of real property acquired by a condemner by judgment under ORS , the condemner shall notify the court by which the judgment was given of the agreed upon change in period and the court shall modify such judgment accordingly. 4) If the prior owner or beneficiary and the condemner cannot, after negotiation, agree on the proposed change in period, the condemner may. a) In the case of real property acquired by an agreement under ORS ( 1), petition the circuit court for the county within which such real property is situated for a hearing to determine whether the proposed change in period is reasonable and necessary in the public interest; or b) In the case of real property acquired by a judgment given under ORS , petition the court by which such judgment was given for a hearing to determine whether it is reasonable and necessary in the public interest to modify such judgment to permit the proposed change in period. The condemner in its petition may include as parties and serve all or any owners and designated beneficiaries whose property is affected by the same project. 5) If, after a hearing under subsection ( 4) of this section, the court finds that the proposed change in period is reasonable and necessary in the public interest, the court shall grant such change. For the purposes of ORS to , a period as changed by the court shall be considered the period specified in the agreement or judgment described in ORS For the purposes of this subsection, the resolution or ordinance of the condemner is presumptive evidence that the change in period proposed by the condemner is reasonable and necessary in the public interest. 6) If, after a hearing under subsection ( 4) of this section, the court finds that the proposed change in period is unreasonable or not necessary in the public interest, the court shall deny the requested change. In such case, the terms of the original agreement or judgment shall control for the pur- pose of the exercise of the right of repurchase under ORS to ( 1973 c Designation of person to exercise right of repurchase; effect of failure to designate; offer to repurchase; acceptance; notice; determination of price. ( 1) At the time of entering into an agreement pursuant to ORS ( 1) for the acquisition of real property by a condemner or prior to the time of giving judgment for the acquisition of real property by a condemner under ORS , the owner of the real property to be acquired may, if such owner has not waived the right of repurchase under ORS to , designate a person to exercise such right of repurchase. Such desig- nation shall constitute an assignment of the right of the owner of such property to exercise the right of repurchase otherwise available under ORS to The name and address of the person so designated shall be included in such agreement or judgment. Such owners and designated beneficiaries shall also notify the condemner in writing of any change of address so that their respective current addresses shall be of record with the condemner. The person so designated may not assign or transfer the right of re- purchase. 2) If an owner of real propert to be ac- quired by a condemner does not designate a person to exercise the right of repurchase under ORS to and such owner has not waived such right of repurchase, only the owner may exercise the right of repurchase under ORS to If such owner dies while real property is still subject to a right of repurchase by the owner, the personal representative of such owner's estate may act as the owner to exercise the right of repurchase with respect to such property on behalf of the estate of the owner at any time prior to the discharge of the personal representative under ORS

156 SPECIAL ACTIONS AND PROCEEDINGS 3) Upon receipt from a condemner of an offer to repurchase any real property or portion thereof in accordance with ORS to : a) In the case of an offer to repurchase the entire parcel of real property to which ORS a plies, if the owner or benefciary of such right of repurchase does not accept such offer within 30 days, the right of repurchase is terminated and the condemner may use and dispose of such property or portion as otherwise provided by M. b) In the case of an offer to repurchase only a portion of a parcel of real property to which ORS applies, the owner or ben- eficiary of such right of repurchase may: A) Accept such offer within 30 days; or B) Notify the condemner within 30 days of the desire of the owner or beneficiary to exercise such right, but refuse to accept the price established by the condemner in the offer to repurchase made pursuant to ORS ( 4). c) If the owner or beneficiary of the right of repurchase fails to timely notify the condemner pursuant to either subparagraph A) or ( B) of paragraph ( b) of this subsection, the right of repurchase is terminated and the condemner may use or dispose of such portion of property as otherwise provided by law. d) If timely notice of intent to exercise the right of repurchase is given by the owner or beneficiary as provided by subparagraph B) of paragraph ( b) of this subsection, the owner or beneficiary must within 60 days thereafter commence an action, in the court in which the original action by the condemner to acquire such real property was commenced, to determine the sole issue of the price to be paid upon such repurchase, pursuant to the provisions of ORS ( 3). Failure to commence such an action within such 60 -day period shall void such notice of intention to exercise repurchase for the purposes of paragraph ( c) of this subsection. A) Upon the determination of the price for repurchase by the court or jury, the court shall give judgment vesting title to the property in the owner or the beneficiary, condi- tioned upon payment into court of the assessed price by the owner or beneficiary within 90 days after the date of the judgment; and upon the making of such payment, the judgment shall become effective to convey the property and the right of possession thereof to the owner or beneficiary. Failure to make such payment into court within 90 days of the date of the judgment shall void the notice of intent to exercise the right of repurchase for the purposes of paragraph ( c) of this subsection, and the judgment shall be withdrawn by the court. B) If the price determined pursuant to the provisions of this paragraph is less `than the price established by the condemner in its written offer to repurchase, the costs and disbursements of the owner or beneficiary, as specified in ORS and , shall be taxed by the clerk; and the judgment rendered shall reflect such costs and disbursements only as an offset against the price to be paid into court by the owner or beneficiary. [ Designation of person to exer- cise right of repurchase by multiple owners. Notwithstanding any other provision of ORS to , in any instance in which ORS applies, where the agreement by which the condemner acquired the property is executed by more than one per- son exclusive of the condemner, or where the judgment given in a condemnation action by which the condemner acquired the property includes more than one named defendant, all such persons executing such agreement, or all such named defendants must designate one person to act as beneficiary in the exer- cise of the right of repurchase, unless all such persons executing such agreement, or all such named defendants, waive such right of repurchase as provided in ORS to Such designated beneficiary thereafter shall exclusive,y have and exclusively may exercise all rights, remedies and obhgations provided in ORS to Right to contest change in public purpose use; notice of proposed charge. A prior owner of real property ac- quired pursuant to an agreement entered into under ORS ( 1) or a judgment given under ORS and ( 2), whichever applies, or the designated benefi- ciary of such owner, may contest any pro- posed change by the condemner in the public purpose for which such real property was acquired in the manner provided for contesting a change in the period specified for the use of such real property by the condemner under ORS ( 4). The resolution or ordinance of the condemner is presumptive evidence that a proposed change of use proposed by the condemner is reasonable and necessary in the public interest. Each condemner proposing any such change in public purpose shall notify each such owner or designated beneficiary of such proposed change and the reasons therefor in the manner provided in ORS ( 2) for notification of a proposed change in the period specified for use of such real property by the condemner. Each such notice shall be mailed to the most recent address of the owner or 3-118

157 EMINENT DOMAIN PROCEDURE designated beneficiary of record with the condemner. [ ] Application of ORS to ( 1) ORS to appplies only to property acquired after the filing of a complaint pursuant to a resolution or ordinance adopted as provided in ORS ( 1) on or after October 5, 1973, and for which a condemnation action is commenced on or after October 5, ) Notwithstanding ORS , ORS to applies to real property ac- quired by a county pursuant to ORS chapter ) ORS to shall not apply to any real property acquired under ORS ( 1) and ( 2) after the date the real property is used for the purpose for which it was acquired nor shall ORS to apply to any tract of real property where the compensation and damages paid to the owner is less than $ 1, 000. [ ; 1981 c ] 3-119

158 SPECIAL ACTIONS AND PROCEEDINGS 3-120

159 Chapter EDITION Mediation and Arbitration Members Members of of commission; commission; reimbursement reimbursement to to 362W 362W Chairperson Chairperson and and vice vice - - chairperson; chairperson; quorum quorum Director, Director, duties duties Review Review of of dispute dispute resolution resolution program; program; for for compliance compliance with with ORS ORS ; 175; mediation; mediation; hearing; hearing; suspension suspension of of funding funding Advisory Advisory and and technical technical committees; committees; re- reimbursement imbursement Dispute Dispute Resolution Resolution Account Account Funding Funding Allocation Allocation of of funding funding Participation Participation by by counties; counties; notice notice to to com- commission; mission; contents; contents; effect effect of of failure failure to to give give notice notice Termination Termination of of county county participation participation Surcharge Surcharge on on appearance appearance fees fees Commission Commission to to establish establish standards standards for for dis- dis- pute pute resolution resolution programs programs Proposed Proposed rules rules Referral Referral of of civil civil dispute dispute to to mediation; mediation; ob- objection; jection; information information to to parties parties Stipulation Stipulation to to mediation; mediation; selection selection of of mediator, mediator, stay stay of of proceedings proceedings Presence Presence of of attorney, attorney, authority authority and and duties duties of of mediator, mediator, notice notice to to court court at at completion completion of of mediation mediation Mediation Mediation panels; panels; qualification; qualification; procedure procedure for for selecting selecting mediator mediator Confidentiality; Confidentiality; disclosure disclosure of of materials materials and and communications communications Liability Liability of of mediators mediators and and programs programs MEDIATION MEDIATION OF OF FORECLOSURE FORECLOSURE OF OF AGRICULTURAL AGRICULTURAL PROPERTY PROPERTY Temporary Temporary provisions provisions relating relating to to medi- mediation ation of of foreclosures foreclosures of of agricultural agricultural prop- property erty are are compiled compiled as as notes notes following following ORS ORS 36210) 36210) ARBITRATION ARBITRATION AND AND AWARD AWARD 3UW 3UW Controversies Controversies arbitrable arbitrable Written Written arbitration arbitration agreements agreements valid valid Court Court order order compelling compelling parties parties to to arbitrate arbitrate as as agreed agreed Abatement Abatement of of action action or or suit suit involving involving arbitrable arbitrable issue issue Appointment Appointment of of arbitrator; arbitrator; number number of of arbitrators arbitrators MEDIATION Policy for ORS to Declaration of purpose of ORS Definitions for ORS to Dispute Resolution Commission confirmation Oath Oath of of arbitrators arbitrators Compensation Compensation of of arbitrators arbitrators M 3M terms; terms; ` 36` Power Power of of arbitrators arbitrators Coercion Coercion of of witness witness or or party party Cost Cost of of fees fees Filing Filing and and service service of of award; award; fee; fee; judgment judgment if if no no exceptions; exceptions; execution execution Exceptions Exceptions to to award; award; filing filing fees fees Vacation Vacation or or modification modification of of award award on on ex- ex- ceptions ceptions Appeal Appeal from from judgment judgment on on award award COURT COURT ARBITRATION ARBITRATION PROGRAM PROGRAM 36A0o 36A0o Method Method of of establishing; establishing; suspension suspension or or ter- ter- mination mination 36A05 36A05 Mandatory Mandatory arbitration; arbitration; exemptions exemptions Stipulation Stipulation for for arbitration; arbitration; conditions; conditions; re- relief lief Arbitration Arbitration after after waiver waiver of of amount amount of of claim claim exceeding exceeding $ $ 25, 25, A20 36A20 Notice Notice of of arbitration arbitration hearing; hearing; open open pro- proceeding; ceeding; compensation compensation and and expenses expenses 36A25 36A25 Filing Filing of of decision decision and and award; award; notice notice of of ap- appeal; peal; trial trial de de novo; novo; fees; fees; effect effect of of arbi- arbitration tration decision decision and and award award OREGON OREGON INTERNATIONAL INTERNATIONAL COMMERCIAL COMMERCIAL ARBITRATION ARBITRATION AND AND CONCILIATION CONCILIATION ACT ACT 36A50 36A50 Definitions Definitions for for ORS ORS to to Policy Policy of of Legislative Legislative Assembly Assembly 36A54 36A54 Application Application of of ORS ORS to to & 55& when when arbitration arbitration or or conciliation conciliation asreement asreement is is international; international; validity validity of of written written agree- agree- ments ments 36A56 36A56 Construction Construction of of ORS ORS to to A58 36A58 When When written written communication communication considered considered to to have have been been received received 36A60 36A60 Waiver Waiver of of objection objection to to arbitration arbitration 36A62 36A62 Prohibition Prohibition on on intervention intervention by by court court X464 X464 Venue Venue 36A66 36A66 Arbitration Arbitration agreements agreements to to be be in in writing writing 36A68 36A68 Application Application to to stay stay judicial judicial proceedings proceedings and and compel compel arbitration arbitration 36A70 36A70 Interim Interim judicial judicial relief; relief; factors factors considered considered by by court; court; determination determination of of arbitral arbitral tribunal' tribunal' ss jurisdiction jurisdiction 3& 3& Number Number of of arbitrators arbitrators 36A74 36A74 Procedure Procedure for for appointment appointment of of arbitrators; arbitrators; appointment appointment by by circuit circuit court court Disclosure Disclosure by by proposed proposed arbitrators arbitrators and and conciliators; conciliators; waiver waiver of of disclosure; disclosure; grounds grounds for for challenge challenge Procedure Procedure for for challenging challenging arbitrator arbitrator MM MM Withdrawal Withdrawal of of arbitrator, arbitrator, termination termination of of mandate mandate 36A82 36A82 Substitute Substitute arbitrator; arbitrator; effect effect of of substitution substitution 36A84 36A84 Arbitral Arbitral tribunal tribunal may may rule rule on on own own juris- jurisdiction; diction; time time for for raising raising issue issue of of jurisdic- jurisdiction; tion; review review by by circuit circuit court court

160 SPECIAL ACTIONS AND PROCEEDINGS Interim measures of protection ordered by arbitral tribunal; security Fairness in proceedings Procedures subject to agreement by parties; procedure in absence of agreement Place of arbitration Commencement of arbitral proceedings 3BA96 Language used in proceedings Contents of statements by claimant and respondent; amendment or supplement Oral hearing; notice; discovery Effect of failure to make required statement or to appear at oral hearing Appointment of experts Circuit court assistance in taking evidence; circuit court authorized to enter certain orders upon application Choice of laws Decision of arbitral tribunal Settlement Arbitral award; contents; interim award; award for costs of arbitration Termination of arbitral proceedings Correction of errors in award; interpretation of award; additional award Setting aside award; grounds; time for application; circuit court fees Enforcement of award; procedure; entry of judgment, Grounds for refusal to enforce award Provisions to be interpreted in good faith Policy to encourage conciliation Guiding principles of conciliators Manner of conducting conciliation pro- ceedings Draft conciliation settlement 36ZM Prohibition on use of statements, admissions or documents arising out of conciliation proceedings Conciliation to act as stay of other proceedings; tolling of limitation periods during conciliation Termination of conciliation proceedings Conciliator not to be arbitrator or take part in arbitral or judicial proceedings Submission to conciliation not waiver Conciliation agreement to be treated as arbitral award Costs of conciliation proceedings 36ZW Payment of costs Effect of conciliation on jurisdiction of courts Immunities 36ZW Severability Short title CROSS REFERENCES 3633 Arbitration of disputes as to ownership of property removed by high water, to Indigent defense, arbitration of compensation disagreements, Mediation of labor disputes, to to 363W Writ of review, availability in M proceedings, certain, Appeal from judgment in special proceeding,

161 MEDIATION AND ARBITRATION MEDIATION Policy for ORS to It is the policy and purpose of ORS to that, when two or more persons cannot settle a dispute directly between themselves, it is preferable that the disputants be encouraged and assisted to resolve their dispute with the assistance of a trusted and competent third party mediator, whenever possible, rather than the dispute remaining unresolved or resulting in litigation. [ 1989 c ] Declaration of purpose of ORS to The Legislative Assembly declares that it is the purpose of ORS to to: 1) Foster the development of community -based programs that will assist citizens in resolving disputes and developing skills in conflict resolution; 2) Allow flexible and diverse programs to be developed in this state, to meet specific needs in local areas and to benefit this state as a whole through experiments using a va- riety of models of peaceful dispute resolution; 3) Find alternative methods for addressing the needs of crime victims in criminal cases when those cases are either not prosecuted for lack of funds or can be more effi- ciently handled outside the courts; 4) Provide a method to evaluate the effect of dispute resolution programs on communities and on the justice system; and 5) Encourage the development and use of mediation panels for resolution of civil litigation disputes. [ 1989 c.718 2] Definitions for ORS to As used in ORS to : 1) " Arbitration" means any arbitration whether or not administered by a permanent arbitral institution. 2) " Commission" means the Dispute Resolution Commission created under ORS ) " Director" means the director appointed by the Dispute Resolution Commis- sion under ORS ) " Dispute resolution services" include but are not limited to mediation, conciliation and arbitration. 5) " Dispute resolution program" means an entity that receives state funds to provide dispute resolution services. 6) " Mediation" means a process in which a mediator assists and facilitates two or more parties to a controversy in reaching a mutually acceptable resolution of the controversy and includes all contacts between the mediator and any party or parties, until such time as a resolution is agreed to by the parties or the mediation process is terminated. 7) " Mediation program" means a program through which mediation is made available and includes the director, agents and employees of the program. 8) " Mediator" means a third party who performs mediation. [ 1989 c Dispute Resolution Commission; terms; confirmation. ( 1) There is established a Dispute Resolution Commission consisting of seven members appointed by the Governor. 2) The term of office of each member is four years but a member serves at the pleasure o? the Governor. Before the expiration of the term of a member, the Governor shall appoint a successor whose term begins on July 1, next following A member is eligible for reappointment. If there is a vacancy for any cause, the Governor shall make an appointment to become immediately effective for the unexpired term. 3) The appointment of the members of the Dispute Resolution Commission is sub- ject to confirmation by the Senate in the manner prescribed in ORS and [ 1989 c.718 4; 1991 c Note: The amendments to by section 1, chapter 538, Oregon Laws 1991, become operative July 1, See section 6, chapter 538, Oregon Laws ( 1989 Edition) is set forth for the user's convenience ( 1) There is established a Dispute Resolution Commission consisting of seven members appointed by the Governor. 2) The term of office of each member is four years, but a member serves at the pleasure of the Governor. Before the expiration of the term of a member, the Governor shall appoint a successor whose term begins on July 1, next following. A member is eligible for reappointment. If there is a vacancy for any cause, the Governor shall make an appointment to become immediately effective for the unexpired term. 3) The appointment of the members of the Dispute Resolution Commission is subject to confirmation by the Senate in the manner prescribed in ORS and ) Notwithstanding the term of office specified by subsection ( 2) of this section, of the members first appointed to the Dispute Resolution Commission: a) Two shall serve for a term ending June 30, b) Two shall serve for a term ending June 30, c) Three shall serve for a term ending June 30, Members of commission; reimbursement. ( 1) The members of the Dispute Resolution Commission shall be citizens of this state who are well informed on the principles of dispute resolution. Specific formal education in any field shall not be a prerequisite to serving on the commission. 2) A member of the Dispute Resolution Commission is not entitled to compensation

162 SPECIAL ACTIONS AND PROCEEDINGS but may be reimbursed for actual and necessary travel and other expenses as provided in ORS [ 1989 c Chairperson and vice' chairperson; quorum. ( 1) The Dispute Resolution Commission shall select one of its members as chairperson and another as vice- chairperson for such terms and with duties and powers necessary for the performance of the function of such offices as the commission determines. 2) A majority of the members of the commission constitutes a quorum for the transaction of business. [ Director; duties. (1) The Dispute Resolution Commission shall: a) Appoint a director who shall serve at the pleasure of the commission; and b) Prescribe the duties of the director; c) Fix the salary of the director. 2) The designation of the director shall be by written order and filed with the Secretary of State. 3) Subject to any applicable provisions of the State Personnel Relations Law, the director shall appoint all subordinate officers and employees of the commission, prescribe their duties and fix their compensation. [ Review of dispute resolution programs for compliance with ORS ; mediation; hearing; suspension of funding. ( 1) The Director of the Dispute Resolution Commission shall periodically review dispute resolution programs in this state. If the director determines that there are reasonable grounds to believe that a program is not in substantial compliance with the standards and guidelines adopted under ORS , the director shall negotiate with the manager of the program to bring the program into compliance with the stand- ards and guidelines. 2) If the negotiations under subsection 1) of this section fail, the director shall give written notice to the program and the county requiring the program to be revised to comply with the standards and guidelines within 30 days after the notice. If, after 30 days, the director concludes that the program is not in compliance, the director shall serve the manager of the program with a request for mediation. The director and the program manager shall mutually select a mediator. If a mediator is not selected within 15 days, the director shall request the presiding judge of the county in which the program is located to appoint a mediator. 3) If mediation under subsection ( 2) of this section fails, the director shall, after giving the program and county not less than 30 days notice, conduct a hearing to ascertain whether there is substantial compliance or satisfactory progress being made toward compliance. After the hearing, the commission may suspend funding of the program until the required compliance occurs. [ 1989 c Advisory and technical committees; reimbursement. ( 1) To aid and advise the Dispute Resolution Commission in the performance of its functions, the com- mission may establish such advisory and technical committees as it considers neces- sary. These committees may be continuing or temporary. The commission shall determine the representation, membership, terms and organization of the committee and shall appoint their members. 2) Members of these committees are not entitled to compensation but, in the discretion of the commission, may be reimbursed from funds available to the commission for actual and necessary travel and other expenses incurred in the performance of official duties, subject to ORS ( Dispute Resolution Account. The Dispute Resolution Account is estab- lished in the State Treasury, separate and distinct from the General Fund. All moneys received by the Dispute Resolution Commission under ORS , and shall be deposited to the credit of the account. Moneys in the account are continuously appropriated to the commission to carry out the provisions of ORS to ( Funding. The Dispute Resolution Commission may accept and expend moneys from any public or private source, including the Federal Government, made available for the purpose of encouraging, promoting or establishing dispute resolution programs in Oregon or to facilitate and assist the commission in carrying out the commission' s function as provided by law. All moneys received by the commission under this section shall be deposited in the Dispute Resolution Account. Notwithstanding the provisions of ORS , all such moneys are continuously appropriated to the commission for the purposes for which they were made available and shall be expended in accordance with the terms and conditions upon which they were made available. [ Allocation of funding. The Dispute Resolution Commission shall allocate moneys in the Dispute Resolution Account as follows: 3-124

163 MEDIATION AND ARBITRATION ) Funds received pursuant to ORS and ( 3) shall be allocated as follows: a) Funds originating from the first $2 of each filing fee surcharge shall be allocated to the Dispute Resolution Commission for the purpose of carrying out the provisions of ORS to b) Except as specified in paragraph ( a) of this subsection, funds originating from filing fee surcharges shall be awarded by the commission for dispute resolution services in the county from which the funds originated. On or before July 1 of each odd - numbered year, the commission shall advise each county of the county' s share of the amount appropriated for the purposes of this subsection. The determination shall be based upon each county' s respective share of moneys contributed under ORS and Before allocating these funds in a county, the county must apply for authority r the commission must roceed under ORS If a dispute resoplution program is not selected for funding under ORS within three fiscal years after the fiscal year in which the filing fee surcharge was collected, then the funds from that fiscal year may be spent by the commission for dispute resolu- tion services as if the funds were moneys governed by subsection ( 2) of this section. 2) Moneys received by the commission from any other sources shall be used as follows: a) For overhead and administrative expenses of the commission. b) For statewide dispute resolution programs or dispute resolution services in any county in this state including but not limited to providing special grants for pilot projects, start -up costs for dispute resolution programs and training programs and to supplement funds otherwise received by dispute resolu- tion programs. [ 1989 x718 12; 1991 c Participation by counties; no- tice to commission; contents; effect of failure to give notice. ( 1) To participate in the expenditure of funds for dispute resolu- tion programs within the county under ORS ( 1), a county shall notify the Dispute Resolution Commission on or before December 31 of each odd - numbered year. Such notification shall be by resolution of the appropriate board of county commissioners or, if the programs are to serve more than one county, by joint resolution. A county providing notice may select the dispute resolution programs to receive funds under ORS ( 1) for providing dispute resolution services within the county from among qualified dispute resolution programs. 2) The county's notification to the commission shall include a statement of agreement by the county to engage in a selection process and to select as the recipient of funding an entity capable of and willing to provide dispute resolution services accordingg to the rules of the commission. Actual f%aing by the commission shall be contingent upon the selection by the county of a qualified entity. The commission shall provide consultation and technical assistance to a county to identify, develop and implement dispute resolution programs that meet the standards and guidelines adopted by the commission under ORS ) If a county does not issue a notification on or before December 31 of each odd - numbered year, the Dispute Resolution Commission may notify a county board of commissioners that the commission intends to fund a dispute resolution program in the county with funds earmarked for the county under ORS ( 1). The Dispute Resolution Commission may, after such notification, assume the county' s role under subsection ( 1) of this section unless the county gives the notice required by subsection ( 1) of this section. If the commission assumes the county's role, the commission may contract with a qualified program for only one ear at a time. The county may, 90 days before the expiration of an agreement between a qualified program and the commission, notify the Dispute Resolution Commission under subsection ( 1) of this section that the county intends to assume its role under subsection 1) of this section. 4) All dispute resolution programs identified for funding shall comply with the rules adopted under ORS ) All funded dispute resolution programs shall submit informational reports and statistics as required by the commission ; 1991 c Termination of county participation. ( 1) Any county that receives financial aid under ORS may terminate its participation at the end of any month by delivering a resolution of its board of commissioners to the director of the Dispute Resolution Commission not less than 180 days before the termination date ) If a county terminates its participation under ORS , the remaining portion of the financial aid made available to the county under ORS shall revert to the Dispute Resolution Account to be used as specified in ORS [ Surcharge on appearance fees. 1) In addition to the fees charged under ORS , the clerk of the circuit court shall collect a surcharge of $5 at the time of filing

164 SPECIAL ACTIONS AND PROCEEDINGS an appearance by the plaintiff or the defendant in the circuit court of any civil action, suit or proceeding, including appeals cases, but not including any domestic relations, probate, conservatorship, guardianship, adoption, change of name or proceedings under ORS to The surcharge shall be used by the Dispute Resolution Commission to establish community dispute resolution programs under ORS to and to carry out the commission' s duties under ORS to The surchargges shall be deposited by the State Court Administrator into the State Treasury to the credit of the Dispute Resolution Account. 2) The surcharge provided for in subsection ( 1) of this section shall be collected in any circuit court action brought under ORS or when the circuit court has jurisdiction over the matter pursuant to ORS ( 2). [ ; 1991 c.538 4; Commission to establish standards for dispute resolution programs. In accordance with the applicable provisions in ORS to , the Dispute Resolution Commission shall adopt by rule: 1) Standards and guidelines for dispute resolution programs; 2) Minimum reporting requirements for dispute resolution programs; 3) Methods for evaluating dispute reso- lution programs; 4) Minimum qualifications and training for persons conducting dispute resolution services in dispute resolution programs; 5) Minimum qualifications and training qualifications for personnel performing mediation services for the circuit courts under ORS 107:755 to ; 6) Participating funds requirements, if any, for entities receiving funds under ORS ; 7) Requirements, if any, for the payment by participants for services provided by a program receiving funds under ORS ; and 8) Any other provisions or procedures necessary for the administration of the laws that the commission is charged with administering. [ Proposed rules. The Dispute Resolution Commission shall develop proposed rules consistent with ORS to to implement and govern the operation and procedures of court mediation and shall submit the proposed rules to the Oregon Supreme Court for its consideration and approval. ( Referral of civil dispute to. mediation; objection; information to, parties. After 30 days have passed following the appearance by all parties in any civil action, except proceedings under ORS to , a judge of any district or circuit court may refer a civil dispute to mediation under the terms and conditions set forth in ORS to When a party to a case files a written objection to mediation with the court, the action shall be removed from mediation' and proceed in a normal fashion. All civil disputants shall be provided ' with written information describing the mediation process, as provided by the Dispute Resolution Commission, along with information on established court mediation opportunities. Filing parties shall be provided with this information at the time of filing a civil action. Responding parties shall be provided with this information by the filing party along with the initial service of filing documents upon the responding party. [ ] Stipulation to mediation; se= lection of mediator; stay of proceedings. 1) On written stipulation of all parties at any time prior to trial, the parties ihay'-elect to mediate their civil dispute under the terms and conditions of ORS to ) Upon referral or election to mediate, the parties shall select a mediator by written stipulation or shall follow procedures for assignment of a mediator from the court' s panel of mediators. 3) During the period of any referred or elected mediation under ORS to , all trial and discovery time.lines and requirements shall be tolled and stayed as' to the participants. Such tolling shall com= mence on the date of the referral or election to mediate and shall end on the date, the court is notified in writing of the termination of the mediation by the mediator or - one party requests the case be put back on the docket. All time limits and schedules shall be tolled, except that a judge shall have discretion to adhere to preexisting pretrial order dates, trial dates or dates relating to temporary relief. [ Presence of attorney; authority and duties of mediator; notice to court at completion of mediation. ( 1) Unless otherwise agreed to in writing by the parties, the parties' legal counsel shall not be present at any scheduled mediation sessions conducted under the provisions of ORS to ) Attorneys and other persons who are not parties to a mediation may be included in mediation discussions at the mediator' s discretion, with the consent of the parties, 3-126

165 MEDIATION AND ARBITRATION for mediation held under the provisions of ORS to ) The mediator, with the consent of the parties, may adopt appropriate rules to facilitate the resolution of the dispute and shall have discretion, with the consent of the parties to suspend or continue mediation. The mediator may propose settlement terms either orally or in writing. 4) All court mediators shall encourage disputing parties to obtain individual legal advice and individual legal review of any mediated agreement prior to signing the agreement. 5) Within 10 judicial days of the completion of the mediation, the mediator shall notify the court whether an agreement has been reached by the parties. If the parties do not reach agreement, the mediator shall re- port that fact only to the court, but shall not make a recommendation as to resolution of the dispute without written consent of all parties or their legal counsel. The action shall then proceed in the normal fashion on either an expedited or regular pretrial list. 6) The court shall retain jurisdiction over a case selected for mediation and shall issue orders as it deems appropriate. [ Mediation panels; qualification; A procedure ' for selecting mediator. ( 1) district or circuit court providing mediation referral under ORS to shall establish mediation panels. The mediators on such panels shall have such qualifications as set by the Dispute Resolution Commission. Formal education in any particular field shall not be a prerequisite to serving as a mediator. 2) Unless instructed otherwise by the court, upon referral by the court to medi- ation, the clerk of the court shall select at least three individuals from the court' s panel of mediators and shall send their names to legal counsel for the parties, or to a party directly if not represented, with a request that each party state preferences within five judicial days. If timely objection is made to all of the individuals named, the court shall select some other individual from the mediator panel. Otherwise, the clerk, under the direction of the court, shall select as mediator one of the three individuals about whom no timely objection was made. 3) Upon the court' s or the parties' own selection of a mediator, the clerk shall: a) Notify the designated person of the assignment as mediator. b) Provide the mediator with the names and addresses of the parties and their representatives and, with copies of the order of assignment, the pleadings and any scheduling or pretrial order that has been entered. 4) The parties to a dispute that is referred by the court to mediation may choose, at their option and expense, mediation services other than those suggested by the court, and entering into such private mediation services shall be subject to the same provisions of ORS to ) Disputing parties in mediation shall be free, at their own expense, to retain jointly or individually, experts, attorneys, factfinders, arbitrators and other persons to assist the mediation, and all such dispute resolution efforts shall be subject to the protection of ORS to ( Confidentiality-, disclosure of materials and communications. ( 1) If there is a written agreement between any parties to a dispute that mediation communications will be confidential, then all mem- oranda, work products and other materials contained in the case files of a mediator or mediation program are confidential. Any communication made in or in connection with such mediation which relates to the controversy being mediated, whether made to the mediator or a party, or to any other person if made at a mediation session, is confidential. However, a mediated agreement shall not be confidential unless the parties otherwise agree in writing. 2) Confidential materials and communi- cations are not subject to disclosure in any judicial or administrative proceeding except: a) When all parties to the mediation agree, in writing, to waive the confidentiality; b) In a subsequent action between the mediator and a party to the mediation for damages arising out of the mediation; or c) Statements, memoranda, materials and other tangible evidence, otherwise subthat were not prepared ject to discovery, specifically for use in and actually used in the mediation ) When there is a written agreement as described in this section, the mediator may not be compelled to testify in any proceeding, unless all parties to the mediation and the mediator agree in writing. ( 1989 c Liability of mediators and programs. Mediators, mediation programs and dispute resolution programs providing services under ORS to shall be immune from civil liability for or resulting from any act or omission done or made while engaged in efforts to assist or facilitate a mediation, unless the act or omission was made or done in bad faith, with malicious intent or in a manner exhibiting a willful,

166 SPECIAL ACTIONS AND PROCEEDINGS wanton disregard of the rights, safety or property of another. [ 1989 c MEDIATION OF FORECLOSURE OF AGRICULTURAL PROPERTY Note: Sections 2 to 10 and 18, chapter 967, Oregon Laws 1989, relating to mediation of foreclosures of agricultural property, provide: Sec. 2. As used in sections 2 to 10 of this Act: 1) " Agricultural producer" means a person who owns or is purchasing agricultural property for use in agriculture whose gross sales in agriculture averaged 20,000 or more for the preceding three years. 2) " Agricultural property" means real property that is principally used for agriculture. 3) " Agriculture" means the production of livestock, poultry, field crops, fruit, dairy, fur bearing - animals, Christmas trees, food fish or other animal and vegetable matter. 4) " Coordinator" means the Director of Agriculture or a designee of the Director of Agriculture. 5) " Creditor" means the holder of a mortgage or trust deed on agricultural property, a vendor of a real estate contract for agricultural property, a person with a perfected security interest in agricultural property or a udgment creditor with a judgment against an agricu tural producer. 6) " Financial analyst" means a person knowledgeable in agriculture and financial matters that can provide financial analysis to aid the agricultural producer in preparing the financial information required under section 5 of this Act. Financial analyst may include county extension agents or other persons approved by the coordinator. 7) " Mediation" means the process by which a mediator assists and facilitates an agricultural producer and a creditor in a controversy relating to the mortgage, trust deed, real estate contract, security interest or judgment that the creditor has in the agricultural property of the agricultural producer in reaching a mutually acceptable resolution of the controversy and includes all contacts between the mediator and the ag- ricultural producer or the creditor, until such time as a resolution is agreed to by the agricultural producer and the creditor or until the agricultural producer or the creditor discharges the mediator. 8) " Mediation service" means a person selected by the coordinator to provide mediation under this Act. 9) " Mediator" means an impartial third party who performs mediations. 10) " Person" means the state or a public or private corporation, local government unit, public agency, individual, partnership, association, firm, trust, estate or any other legal entity. [ 1989 c Sec. 3. The Director of Agriculture or a designee of the Director of Agriculture shall serve as the agricultural mediation service coordinator. The coordinator shall establish rules necessary to implement sections 2 to 10 of this Act. The rules shall include, but need not be limited to: 1) Reasonable mediator training guidelines for persons providing mediation service under sections 2 to 10 of this Act. 2) Fees to be charged for mediation services. The fee schedule should be sufficient to cover the costs of providing the mediation service but shall not exceed $ 30 per hour per participant. 3) Methods for advertising the availability of mediation services. [ 1989 c Sec. 4. The coordinator shall contract with a person to provide agricultural producer - creditor mediation services. The coordinator may contract with;, or use the services of, a private mediation organization, community-based program, state agency or a combination of organizations and agencies. The contract may be terminated by the coordinator upon 30 days' written notice and for good cause. The organization awarded the contract is designated as the agricultural mediation service for the duration of the contract. The agricultural mediation service shall be an independent contractor. and shall not be considered a state agency for any purpose. [ 1989 c Sec. 5. ( 1) An agricultural producer who is in danger of foreclosure on agricultural property under ORS to , to or to or a creditor, before or after beginning foreclosure proceedings, may request mediation of the agricultural producer' s indebtedness by filing a request with the mediation service on a form provided by the service. However, an agricultural producer or creditor may not request mediation under this section unless, at the time the request is made, the agricultural producer owe. more than $ 100,000 to one or more creditors, and the debt is either: a) Secured by' one or more mortgages or trust deeds on the agricultural producer' s agricultural prop- erty; b) Evidenced by a real estate contract covering the agricultural producer' s agricultural property; or' c) The subject of one or more statutory liens that have attached to the agricultural producer' s agricultural property. 2)' In filing a mediation request, -the agricultural producer shall provide: a) The name and address of each creditor; b) The amount claimed by each creditor; c) The amount of the periodic, installment pay- ments made to each creditor; d) Any financial statements and projected cash flow statements, including those related to any nonag- ricultural activities; e) The name of the person authorized to enter' into a binding mediation agreement; and ' f) Any additional information the mediation _ service may require. ='' provide: 3) In filing a mediation request, a creditor shall a) Statements regarding the status of the agricul- tural producer' s loan performance;, b) The name and title of the representative of the creditor authorized to enter into a binding mediation agreement; and c) Any additional information the mediation service may require. ' 4) Nothing in sections 2 to 10 of this Act shall be construed to require an agricultural producer or creditor to engage or continue in the mediation of any dispute or controversy. Mediation under sections 2 to 10 of this Act shall be entirely voluntary for all persons who are parties to the dispute or controversy, and if such persons agree to engage in mediation, any one of the persons may at any time withdraw from, mediation. 5) If an agricultural producer or a creditor files a mediation request with the mediation service, the service shall within 10 days after receipt of the request give written notice of the request to any other personwho is identified in the request for mediation as parties to the dispute or controversy. The notice shall: a) Be accompanied by a copy of the request for mediation; b) Generally describe the mediation program created by sections 2 to 10 of this Act; 3-128

167 MEDIATION AND ARBITRATION c) Explain that participation in mediation is volunt y and that the recipient of the notice is not required to en &age in mediation or to continue to mediate if mediation is initiated; d) Request that the recipient of the notice advise the mediation service in writing and by certified mail within 10 days as to whether the recipient wishes to engage in mediation; and e) Explain that if the written advice required under paragraph ( d) of this subsection is not received by the mediation service within the 10- day period, the mediation request will be considered denied. 6) If the person who receives the notice of request for mediation under subsection ( 5) of this section wishes to engage in mediation, the person shall advise the mediation service in writing within the 10- day period specified in subsection ( 5) of this section. The response shall include the appropriate information that the responding person would have been required to include in a request for mediation under subsection ( 2) or ( 3) of this section. 7) If the person who receives notice of request for mediation under subsection ( 5) of this section does not wish to engage in mediation, the person may but shall not be required to so advise the mediation service. 8) If the person who receives the notice of request for mediation under subsection ( 5) of this section does not advise the mediation service in writing within the 10- day period specified in the notice described in sub- section ( 5) of this section that the person desires to mediate, the request for mediation shall be considered denied. e) The submission of a request for mediation by an agricultural producer or a creditor shall not operate to stay, impede or delay in any manner whatsoever the commencement, prosecution or defense of any action or proceeding by any person. 10) If requested by the agricultural producer, the coordinator shall provide the services of a financial analyst to assist the agricultural producer in preparation of financial data for the first mediation session c Sec. 6. ( 1) A mediator must be an impartial person knowledgeable in agriculture and financial matters. 2) In carrying out mediation under sections 2 to 10 of this Act, a mediator shall: a) Listen to the agricultural producer and any creditor desiring to be heard. b) Attempt to facilitate a negotiated agreement that provides for mutual satisfaction. Such an agreement may include mutually agreed upon forbearance from litigation, rescheduled or renegotiated debt, voluntary sale or other liquidation of agricultural property, authorization for th: agricultural producer to continue agriculture while pding reasonable security to the creditor or any threorvimutually agreed upon outcome. c) Seek assistance from any public or private agency to effect the goals of this Act. d) Permit any person who is a party to the mediation to be represented in all mediation proceedings by any person selected by the party. 3) In carrying out a mediation under sections 2 to 10 of this Act, a mediator may invite additional creditors of the agricultural producer to participate in the mediation. A creditor may be invited to participate in a mediation regardless of whether the agricultural producer is in arrears with the creditor. [ 1989 c.967 6J Sec. 7. ( 1) If an agreement is reached between the agricultural producer and a creditor, the mediator shall draft a written mediation agreement to be signed by the agricultural producer and the creditor. 2) An agricultural producer and any creditor who are parties to a mediation agreement: a) Are bound by the terms of the agreement; b) May enforce the mediation agreement as a legal contract; and c) May use the mediation agreement as a defense against an action contrary to the mediation agreement. 3) The mediator shall encourage the parties to have the agreement reviewed by independent legal counsel before signing the agreement. [ 1989 c.967 7] Sec. 8. ( 1) All memoranda, work products and other materials contained in the case files of a mediator or mediation service are confidential. Any commumcation made in, or in connection with, the mediation which relates to the controversy being mediated, whether made to the mediator or a party, or to any other person if made at a mediation session, is confidential. However, a mediated agreement shall not be confidential unless the parties otherwise agree in writing. 2) Confidential materials and communications are not subject to disclosure in any judicial or administrative proceeding except: a) When all parties to the mediation agree, in writing, to waive the confidentiality; b) In a subsequent action between the mediator and a party to the mediation for damages arising out of the mediation; or c) Statements, memoranda, materials and other tangible evidence, otherwise subject to discovery, that were not prepared specifically for use in and actually used in the mediation. 3) Notwithstanding subsection ( 2) of this section, a mediator may not be compelled to testify in any proceeding, unless all parties to the mediation and the mediator agree, in writing, to waive the confidentiality c Sec. 9. Mediators and mediation services shall be immune from civil liability for, or resulting from, any act or omission done or made while engaged in efforts to assist or facilitate a mediation, unless the act or omission was made or done in bad faith, with malicious intent or in a manner exhibiting a willful, wanton disregard of the rights, safety or property of another c Sec. 10. ( 1) During the pendency of any action be- tween a creditor and an agricultural producer, the court may, upon stipulation by all parties requesting mediation under section 5 of this Act, enter an order suspending the action. 2) A suspension order under subsection ( 1) of this section suspends all orders and proceedings in the action for the time period specified in the suspension order. In specifying the time period, the court shall exercise its discretion for the purpose of permitting the parties to engage in mediation without prejudice to the rights of any person. The suspension order may include other terms and conditions as the court may consider appropriate. The suspension order may be revoked upon motion of any party or upon motion of the court. 3) If all parties to the action agree, by written stipulation, that all issues before the court are resolved by mediation under sections 2 to 10 of this Act, the court shall dismiss the action. If the parties do not agree that the issues are resolved or if the court revokes the suspension order under subsection ( 2) of this section, the action shall proceed as if mediation had not been attempted. [ 1989 c ] Sea 18. Sections 2 to 10 of this Act are repealed June 30, [ 1989 c

168 SPECIAL ACTIONS AND PROCEEDINGS ARBITRATION AND AWARD Controversies arbitrable. All persons desiring to settle by arbitration any controversy or quarrel, except such as respect the terms or conditions of employment under collective contracts between employers and employees or between employers and associations of employees, may submit their differences to the award or umpirage of any person or persons mutually selected. [ Formerly Written arbitration agreements valid. A provision in any written contract to settle by arbitration a controversy thereafter arising out of such contract, or out of the refusal to perform the whole or any part thereof, or an agreement in writing between persons to submit to arbitration any controversy then existing between them, shall, pro- vided the arbitration is held within the State of Oregon, be valid, irrevocable and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract. [ Formerly Court order compelling parties to arbitrate as agreed. A party aggrieved by the failure, neglect or refusal of another to perform under a contract or submission providing for arbitration, described in ORS , shall petition the circuit court, or a judge thereof, for an order directing that the arbitration proceed in the manner provided for in the contract or submission. Ten days' notice in writing of the application shall be served upon the party in default, in the manner provided for personal service of a summons. The court or judge shall hear the parties, and if satisfied that the making of the contract or submission or the failure to comply therewith is not an issue, shall make an order directing the parties to proceed to arbitration in accordance with the terms of the contract or submission. If the making of the contract or submission or the default is an issue, the court or the judge shall proceed' summarily to the trial thereof. If no jury trial is demanded by either party, the court or judge shall hear and determine such issue. Where such an issue is raised, any party may, on or before the return day of the notice of application, demand a jury trial of the issue, and if such demand is made, the court or judge shall make an order referring the issue to a jury in the manner provided by ORCP 51 D. If the jury finds that no written contract providing for arbitration was made or submission entered into, as the case may be, or that there is no default, the proceeding shall be dismissed. If the jury finds that a written contract providing for arbitration was made or submission was entered into and there is a default in the performance thereof, the court or judge shall make an or- der summarily directing the parties to proceed with the arbitration in accordance with the terms thereof. [ Formerly Abatement of action or suit involving arbitrable issue. If any action, suit or proceeding is brought upon any issue arising out of an agreement which contains a provision for arbitration of the matter in controversy in such action, suit or pproceeding, then, upon application, any judge of a circuit court, u on being satisfied that the issue is referable to arbitration, shall abate the action, suit or proceeding so that arbitration may be had in accordance with the terms of the agreement. The application shall be heard similarly to hearings on motions. Formerly Appointment of arbitrator; number of arbitrators. If, in the arbitration agreement, no provision is made for the manner of selecting the arbitrators, or if, for any reason, there is a failure to act or a vacancy, and no provision in the agreement for the filling thereof, then, upon application of any party to the agreement, any court of record shall appoint an arbitrator or arbitrators to fill the vacancy, who shall act _ with the same force and effect as if specif- ically named in the arbitration agreement. Unless otherwise provided, the arbitration shall be by a single arbitrator. [ Formerly Oath of arbitrators. The arbitrators shall be sworn to try and deter- mine the cause referred to them and to make an award under the hands and seals of a majority of them, agreeable to the terms of the submission. [ Formerly Compensation of arbitrators. The compensation of arbitrators shall be determined by agreement between the parties to the arbitration, or, in case of their inabil- ity to agree, then by any judge of the circuit court. [ Formerly Power of arbitrators. Arbitrators or a majority of them, shall have power to: 1) Compel the attendance of witnesses duly notified by either party, and to enforce from either party the production of all books, papers and documents the arbitrators deem material to the cause. 2) Administer oaths or affirmations to witnesses. 3) Adjourn their meetings from day to day, or for a longer time, and also from place to place. 4) Decide both the law and the facts involved in the cause submitted to them. Formerly Coercion of witness or party. Whenever, on motion of any arbitrator or

169 MEDIATION AND ARBITRATION party in interest, it appears to the circuit court of the county in which the arbitration proceedings are pending that any witness or party has refused to answer a subpoena or obey any lawful order of the arbitrator, the court may require the witness or party to show cause why the witness or party should not be punished for contempt of court, to the same extent and purpose as if the pro - ceedings were pending before the court. Formerly Cost of fees. Unless otherwise agreed upon, the costs of witness fees and other fees in the case shall be taxed against the losing party, and such fees shall be indorsed upon the award. When the award is confirmed as the judgment of a circuit court, execution shall issue therefor as for costs and disbursements in civil actions. [ Formerly Filing and service of award; fee; judgment if no exceptions; execution. The award of the arbitrators, together with the written agreement to submit, shall be delivered to the clerk of the circuit court selected to render judgment on the award. After charging and collecting a fee of $25 therefor, the clerk shall enter the same of record in the office of the clerk. A copy of the award, signed by the arbitrators, or a ma ority of them, shall also be served upon or elivered to each of the parties interested in the award, and proof of such service or delivery shall be filed with the clerk. If no exceptions are filed. against the same within 20 days after such service, 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. [ Formerly Exceptions to award; filing fees. 1) Within the period specified in ORS , the party against whom an award was made may file with the circuit court exceptions in writing to the award for any of the following causes: a) The award was procured by cor- ruption, fraud or undue means. b) There was evident partiality or corruption on the part of the arbitrators, or any of them. c) The arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party were prejudiced. mutual, final and definite award upon the subject matter submitted was not made. e) There was an evident material miscalculation of figures or an evident material mistake in the description of any person, thing or property referred to in the award. f) The arbitrators awarded upon a matter not submitted to them, unless it was a matter not affecting the merits of the decision upon the matters submitted. g) The award was imperfect in matter of form not affecting the merits of the contro- versy. 2) The clerk of the court shall collect from the party filing exceptions under sub- section ( 1) of this section a filing fee of $25, and from a party filing an appearance in opposition to the exceptions a filing fee of $15. However, if the exceptions relate to an arbi- tration award made following abatement un- der ORS of an action, suit or Ein respect to which the parties have paid filing fees under ORS , no filing fees shall be collected under this subsection. No exceptions or appearance in op- position thereto shall be deemed filed unless the fee required by this subsection is paid by the filing party. [ Formerly Vacation or modification of award on exceptions. If, upon exceptions filed, it appears to the court that the award should be vacated or modified, the court may refer the cause back to the arbitrators with roper instructions for correction or rehear - ing and, upon failure of the arbitrators to follow said instructions, the court shall have jurisdiction over the case and proceed to its determination. [ Formerly Appeal from judgment on award. Whenever no objection is made to the entering of judgment after award, judg- ment shall be entered according to the award and shall have the force and effect of a judgment obtained in the circuit court after default. Whenever any judgment is entered after objection on the part of any party by the order of such court, such judgment shall be subject to appeal to the higher courts in the manner provided by law for taking ap- peals to such courts. The right to except to or review an award or to appeal from a judgment thereon shall not be circumscribed or abridged by any contractual provisions; nor shall any burden or penalty, other than such as are provided by law, be imposed by anyone against any party who excepts or appeals. [ Formerly COURT ARBITRATION PROGRAM d) The arbitrators exceeded their pow Method of establishing; suspeners, or so imperfectly executed them that a sion or termination. ( 1) An arbitration 3-131

170 SPECIAL ACTIONS AND PROCEEDINGS program under ORS to for civil actions may be established for: a) The circuit court in a judicial district by an affirmative vote of a majority of the judges of the court, subject to the approval of the Chief Justice of the Supreme Court, or by an order of the Chief Justice. b) The district court for a county or counties by an affirmative vote of a majority of the judges of the court, subject to the approval of the Chief Justice of the Supreme Court, or by an order of the Chief Justice. 2) Rules consistent with ORS to to govern the operation and procedure of an arbitration program established under subsection ( 1) of this section for a court may be made in the same manner as other rules applicable to the court pursuant to ORS ( 1), ( 3), , or ( 3). Rules to govern the operation and procedure of a program made pursuant to ORS ( 3), , or ( 3) are subject to the approval of the Chief Justice of the Supreme Court. 3) An arbitration program established under subsection ( 1) of this section may be suspended or terminated by an order of the Chief Justice of the Supreme Court. A civil action may not be referred to arbitration under a program while the program is sus - pended or after the program is terminated, but an action referred to arbitration under a program before the program is suspended or terminated and pending on the effective date of the suspension or termination shall con- tinue to be governed by the applicable pro- visions of ORS to and rules made undei subsection ( 2) of this section. 4) ORS to do not apply to appeals from a county, justice' s or municipal court or actions in the small claims depart- ment of a district court. [ Formerly Mandatory arbitration; exemptions. ( 1) In a civil action in a circuit or district court having an arbitration program established under ORS , where all parties have appeared, the court shall refer the action to arbitration under ORS to if: a) The only relief claimed is recovery of money or damages, and no party asserts a claim for money or general and special damages in an amount exceeding $ 25, 000 in the circuit court, or in an amount exceeding 10,000 in the district court, exclusive of attorney fees, costs and disbursements and interest on judgment. b) The action is a domestic relations suit, as defined in ORS , in which the only contested issue is the division or other disposition of property between the parties. 2) The presiding judge of the court may exempt from arbitration under ORS to a civil action that otherwise would be referred to arbitration under subsection ( 1) of this section, or may remove from further arbitration proceedings a civil action that has been referred to arbitration under subsection ( 1) of this section, when, in the opinion of the judge, good cause exists for that exemption or removal. [ Formerly Stipulation for arbitration; conditions; relief. (1) In a civil action in a circuit or district court having an arbitration program established under ORS , where all parties have appeared and agreed to arbitration by stipulation, the court shall refer the action to arbitration under ORS to if: a) The relief claimed is more than or other than recovery of money or damages. b) The action is in the circuit court, the only relief claimed is recovery of money or damages and a party asserts a claim for money or general and special damages in an amount exceeding $ 25,000, exclusive of attorney fees, costs and disbursements and inter- est on judgment. 2) If a civil action is referred to arbitration under subsection ( 1) of this section, the arbitrator may grant any relief that could have been granted if the action were determined by a judge of the court. [ Formerly Arbitration after waiver of amount of claim exceeding $ 25,000. In a civil action in a circuit court having an arbitration program established under. ORS , where all parties have appeared, where the only relief claimed is recovery of money or damages, where a party asserts a claim for money or general and special damages in an amount exceeding $ 25,000, exclusive of attorney fees, costs and disbursements and interest on judgment, and where all parties asserting those claims waive the amounts of those claims that exceed $ 25,000, the court shall refer the action to arbitration under ORS to A waiver of an amount of a claim under this section shall be for the purpose of arbitration under ORS to only and shall not restrict assertion of a larger claim in a trial de novo under ORS [ Formerly Notice of arbitration hearing, open proceeding, compensation and expenses. ( 1) At least five days before the date set for an arbitration hearing, the arbitrator shall notify the clerk of the court of the time and place of the hearing. The clerk shall post a notice of the time and place of the hearing in a conspicuous place for trial notices at the principal location for the sitting of the court

171 MEDIATION AND ARBITRATION 7. in the county in which the action was com- menced. 2) The arbitration proceeding and the records thereof shall be open to the public to the same extent as would a trial of the action in the court and the records thereof. 3) The compensation of the arbitrator and other expenses of the arbitration proceeding shall be the obligation of the parties or any of them as provided by rules made under ORS ( 2). However, if those rules require the parties or an of them to pay any of those expenses in advance, in the form of fees or otherwise, as a condition of arbitration, the rules shall also provide for the waiver in whole or in part, deferral in whole or in part, or both, of that payment by a party whom the court finds is then unable to pay all or any part of those advance expenses. Expenses so waived shall be paid by the state from funds available for the purpose. Expenses so deferred shall be paid, if necessary, by the state from funds available for the purpose, and the state shall be reimbursed according to the terms of the deferral. Formerly F91ing of decision and award; notice of appeal; trial de novo; fees; effect of arbitration decision and award. ( 1) At the conclusion of arbitration under ORS to of a civil action, the arbitrator shall file the decision and award with the clerk of the court that referred the action to arbitration, together with proof of service of a copy of the decision and award upon each party. 2)(a) Within 20 days after the filing of a decision and award with the clerk of the court under subsection ( 1) of this section, a party against whom relief is granted by the decision and award or a party whose claim for relief was greater than the relief granted to the party by the decision and award, but no other party, may file with the clerk a written notice of appeal and request for a trial de novo of the action in the court on all issues of law and fact. After the filing of the written notice a trial de novo of the action shall be held. If the action is triable by right to a jury and a jury is demanded by a party having the right of trial by jury, the trial de novo shall include a jury. b) If a arty files a written notice under paragraph ) of this subsection, a trial fee or jury trial fee, as applicable, shall be collected as provided in ORS or c) A party filing a written notice under paragraph ( a) of this subsection shall deposit with the clerk of the court the sum of $150. If the position under the arbitration decision and award of the party filing the written notice is not improved as a result of a judgment in the action on the trial de novo, the clerk shall dispose of the sum deposited in the same manner as a fee collected by the clerk. If the position of the party is improved as a result of a judgment, the clerk shall return the sum deposited to the party. If the court finds that the party filing the written notice is then unable to pay all or any part of the sum to be deposited, the court may waive in whole or in part, defer in whole or in part, or both, the sum. If the sum or any part thereof is so deferred and the position of the party is not improved as a result of a judgment, the deferred amount shall be paid by the party according to the terms of the deferral. d) Notwithstanding any other provision of law or the Oregon Rules of Civil Procedure, a party filing a written notice under paragraph ( a) of this subsection whose position under the arbitration decision and award is not improved as a result of a judgment in the action on the trial de novo shall not be entitled to attorney fees or costs and disbursements, and shall be taxed the costs and disbursements of the other parties to the action on the trial de novo. 3) If a written notice is not filed under paragraph ( a) of subsection ( 2) of this section within the 20 days prescribed, the clerk of the court shall enter the arbitration decision and award as a final judgment of the court, which shall have the same force and effect as a final Judgment of the court in the civil action and may not be appealed. ( Formerly OREGON INTERNATIONAL COMIERCIAL ARBITRATION AND CONCILIATION ACT Definitions for ORS to For the purposes of ORS to : 1) " Arbitral award" means an decision of the arbitral tribunal on the sulstance of the dispute submitted to it and includes any interim, interlocutory or partial arbitral award. 2) " Arbitral tribunal" means a sole arbitrator or a panel of arbitrators. 3) " Arbitration" means any arbitration whether or not administered by a permanent arbitral institution. 4) " Arbitration agreement" means an agreement by the parties to submit to arbitration all or certain disputes which may arise between them in respect to a defined legal relationship, whether contractual or not. An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement

172 SPECIAL ACTIONS AND PROCEEDINGS 5) " Commercial" means matters arising from all relationships of a commercial nature including, but not limited to, any of the following transactions: a) A transaction for the supply or exchange of goods or services. b) A distribution agreement. c) A commercial representation or agency. d) An exploitation agreement or conces- sion. e) A joint venture or other forms of industrial or business cooperation. f) The carriage of goods or passengers by air, sea, rail or road. g) Construction. h) Insurance. i) Licensing. 0) Factoring. k) Leasing. L) Consulting. m) Engineering. n) Financing. o) Banking. p) The transfer of data or technology. q) Intellectual or industrial property, including trademarks, patents, copyrights and software programs. r) Professional services. 6) " Conciliation" means any conciliation whether or not administered by a permanent conciliation institution. 7) " Chief Justice" means the Chief Justice of the Supreme Court of Oregon or designee. 8) " Circuit court" means the circuit court in the county in this state selected as pursuant to ORS ) " Court" means a body or an organ of the judicial system of a state or country. 10) " Party" means a party to an arbitration or conciliation agreement. 11) " Supreme Court" means the Supreme Court of Oregon. [ 1991 c Policy of Legislative Assembly. 1) It is the policy of the Legislative Assembly to encourage the use of arbitration and conciliation to resolve disputes arising out of international relationships and to assure access to the courts of this state for legal proceedings ancillary to or otherwise in aid of such arbitration and conciliation and to encourage the participation and use of Oregon facilities and resources to carry out the purposes of ORS to ) Any person may enter into a written agreement to arbitrate or conciliate anyy existing dispute or any dispute arising thereafter between that person and another. If the dispute is within the scope of ORS to , the agreement shall be enforced by the courts of this state in accordance with the Act without regard to the justifiable character of the dispute. In addition, if the agreement is governed by the law of this state, it shall be valid and enforceable in ac- cordance with ordinary principles of contract law. ( 1991 c Application of ORS to 361M; when arbitration or conciliation agreement is international; validity. of written agreements. ( 1) ORS to applies to international commercial arbitration and conciliation, subject to any agreement in force between the United States of America and any other country or countries. 2) The provisions of ORS to , except ORS , , and , apply only if the place of arbitration or conciliation is within the territory of the State of Oregon. 3) An arbitration or conciliation agireement is international if any of the following applies: a) The parties to an arbitration or conciliation agreement have, at the time of the conclusion of that agreement, their places of business in different countries. b) One of the following places is situated outside the country in which the parties have their places of business: A) The place of arbitration or conciliation if determined in, or pursuant to, the arbitration or conciliation agreement. B) Any place where a substantial part of the obligations of the commercial re- lationship is to be performed. C) The place with which the subject matter of the dispute is most closely con- nected. c) The parties have expressly agreed that the subject matter of the arbitration or conciliation agreement relates to commercial interests in more than one country. d) The subject matter of the arbitration or conciliation agreement is otherwise related to commercial interests in more than one country. 4) For the purposes of subsection ( 3) of this section: a) If a party has more than one place of business, the place of business is that which has the closest relationship to the arbitration or conciliation agreement; or 3-134

173 MEDIATION AND ARBITRATION b) If a party does not have a place of business, reference is to be made to the habitual residence of the party. 5) If a written agreement to submit an existing controversy to arbitration or a provision in a written contract to submit to arbitration a controversy thereafter arising between the parties qualifies for arbitration pursuant to this section, that written agreement or provision shall be valid, enforceable and irrevocable, save on such grounds as exist at law or in equity for the revocation of any contract. 6) Except as provided in this subsection, ORS to shall not affect any other law of the State of Oregon by virtue of which certain disputes may not be submitted to arbitration or conciliation or may be submitted to arbitration or conciliation only according to provisions other than those of ORS to ORS to supersedes ORS to with respect to international commercial arbitration and conciliation. [ 1991 c Construction of ORS to ( 1) Except as specified in ORS , where a provision of ORS to leaves the parties free to determine a certain issue, such freedom includes the right of the parties to authorize a third party, including an institution, to make that determination. 2) Where a provision of ORS to refers to the fact that the parties have agreed or that they may agree or in any other way refers to an agreement of the parties, such agreement includes any arbitration or conciliation rules referred to in that agreement. 3) Except as provided in ORS ( 1) and ( 2)( a), where a provision of ORS to refers to a claim, it also applies to a counterclaim, and where it refers to a defense, it also applies to a defense of a counterclaim. [ 1991 t When written communication considered to have been received. ( 1) Un- less otherwise agreed by the parties: a) Any written communication is con- sidered to have been received if it is delivered to the addressee personally or if it is delivered at the place of business, habitual residence or mailing address of the addressee. If none of these can be found after making a reasonable inquiry, a written com- munication is considered to have been re- ceived if it is sent to the addressee' s last -known place of business, habitual residence or mailing address by registered letter or by any other means which provides a record of the attempt to deliver it; and b) The communication is considered to have been received on the day it is so delivered. 2) The provisions of this section do not apply to communications in court proceedings. [ 1991 c Waiver of objection to arbitration. ( 1) A party who knows that any provision of ORS to or of any requirement under the arbitration agreement that has not been complied with and yet proceeds with the arbitration without stating an objection to such noncompliance without undue delay or, if a time limit is provided for stating that objection, within that period of time, shall be deemed to have waived the right to object. 2) For purposes of subsection ( 1) of this section, " any provision of ORS to " means any provision of ORS to in respect of which the parties may otherwise agree. [ 1991 c.4m Prohibition on intervention by court. In matters governed by ORS to , no court shall intervene except where so provided in ORS to or in applicable federal law. [ 1991 c Venue ( 1) The functions referred to in ORS and shall be per- formed by the circuit court in: a) The county where the arbitration agreement is to be performed or was made. b) If the arbitration agreement does not specify a county where the agreement is to be performed and the agreement was not made in any county in the State of Oregon, the county where any party to the court proceeding resides or has a place of business. c) In any case not covered by paragraph a) or ( b) of this subsection, in any county in the State of Oregon. 2) All other functions assigned by ORS to to the circuit court shall be performed by the circuit court of the county in which the place of arbitration is located c Arbitration agreements to be in writing. The arbitration agreement shall be in writing. An agreement is in writing if it is contained in a document signed by the parties or in an exchange of letters, telex, telegrams or other means of telecommunication which provides a record of the agreement, or in an exchange of statements of claim and defense in which the existence of an agreement is alleged by one party and not denied by another. The reference in a contract to a document containing an arbitration clause constitutes an arbitration agreement provided that the contract is in writing and the reference is such as to make

174 SPECIAL ACTIONS AND PROCEEDINGS that clause a part of the contract. [ 1991 c ] Application to stay judicial proceedings and compel arbitration. ( 1) When a party to an international commercial arbitration agreement commences judicial proceedings seeking relief with respect to a matter covered by the agreement to arbitrate, any other party to the agreement may apply to the court in which the judicial proceedings are commenced for an order to stay the proceedings and to compel arbitration. 2) A timely request for a stay of judicial proceedings made under subsection ( 1) of this section shall be granted unless the court finds that the agreement is null and void, inoperative or incapable of being performed c Interim judicial relief, factors considered by court; determination of arbitral tribunal' s jurisdiction. (1) It is not incompatible with an arbitration agreement for a party to request from the circuit court, before or during arbitral proceedings, an in- terim measure of protection or for the circuit court to grant such a measure. 2) Any party to an arbitration governed by ORS to may request the circuit court to take any interim measure of protection of an arbitral tribunal pursuant to ORS Enforcement shall be granted pursuant to the law applicable to the grant- ing of the type of interim relief requested. 3) Measures which the circuit court may grant in connection with a pending arbitration include, but are not limited to: a) An order of attachment issued to assure that the award to which the applicant may be entitled is not rendered ineffectual by the dissipation of party assets. b) A preliminary injunction granted in order to protect trade secrets or to conserve goods which are the subject matter of the arbitral dispute. 4) In considering a request for interim relief, the court shall give preclusive effect to any and all findings of fact of the arbitral tribunal, including the probable validity of the claim which is the subject of the award for interim relief and which the arbitral tribunal has previously granted in the proceeding in question, provided that such interim award is consistent with public policy. 5) Where the arbitral tribunal has not ruled on an objection to its jurisdiction, the court shall not grant preclusive effect to the tribunal' s findings until the court has made an independent finding as to the jurisdiction of the arbitral tribunal. If the court rules that the arbitral tribunal did not have juris- diction, the application for interim measures of relief shall be denied. Such a ruling by the court that the arbitral tribunal lacks jurisdiction is not binding on the arbitral tribunal or subsequent judicial proceedings c ] Number of arbitrators. The parties may agree on the number of arbitrators. If the parties do not agree, the number of arbitrators shall be one. [ 1991 c Procedure for appointment of arbitrators; appointment b circuit court. 1) No person shall be precluded by reason of nationality from acting as an arbitrator unless otherwise agreed by the parties. 2) The parties may. on a procedure for appointing the arbitrator or arbitrators, subject to the provisions of subsections ( 4) ant (5) of this section. 3) If the parties do not agree on a pro- cedure for appointing arbitrators: the arbitrator or a) In an arbitration with two parties and involving three or more arbitrators, each party shall appoint one arbitrator and the appointed arbitrators shall appoint the re- maining arbitrators. If a party fails to ap- point an arbitrator within 30 days of receipt of a request to do so from the other party or parties, or if the two appointed arbitrators fail to agree on the remaining arbitrators within 30 days of their appointment, upon the request of any party, the circuit court shall make the appointment. b) In an arbitration with more than two parties or in an arbitration with two parties involving fewer than three arbitrators, then, upon the request of any party, the arbitrator or arbitrators shall be appointed by the cir- cuit court. 4) Unless the parties' agreement on the appointment procedure provides other means for securing the appointment, any party may request the circuit court to make the ap- pointment if there is an appointment proce- dure agreed upon by the parties and if: a) A party fails to act as required under such procedure; b) The parties, or the appointed arbitrators, are unable to reach an agreement as expected of them under such procedure; or c) A third party, including an institution, fails to perform any function entrusted to it under such procedure. 5) A decision by the circuit court on a matter entrusted to it by subsection ( 3) or (4) of this section shall be final and not subject to appeal

175 MEDIATION AND ARBITRATION ) The circuit court, in appointing an arbitrator, shall have due regard to all of the following: a) Any qualifications required of the arbitrator by the agreement of the parties; b) Other considerations as are likely to secure the appointment of an independent and impartial arbitrator; and c) The advisability of appointing an arbitrator of a nationality other than those of the parties. [ 1991 c Disclosure by proposed arbitrators and conciliators; waiver of disclosure; grounds for challenge. ( 1) Except as otherwise provided in ORS to , all persons whose names have been submitted for consideration for appointment or designation as arbitrators or conciliators, or who have been appointed or designated as such, shall, within 15 days, make a disclosure to the parties of any information which might cause their impartiality to be questioned including, but not limited to, any of the following instances: a) The person has a personal bias or prejudice concerning a party or personal knowledge of the disputed evidentiary facts concerning the proceeding. b) The person served as a lawyer in the matter in controversy, or the person is or has been associated with another who has participated in the matter during such association, or the person has been a material witness concerning it. c) The person served as an arbitrator or conciliator in another proceeding involving one or more of the parties to the proceeding. d) The person, individually or as a fiduciary, or the persons spouse or minor child, or anyone residing in the person' s household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding. e) The person, the person' s spouse or minor child, anyone residing in the person' s household, any individual within the third degree of relationship to any of them, or the spouse of any of them, meets any of the following conditions: A) The person is or has been a party to the proceeding, or an officer, director or trustee of a party. B) The person is acting or has acted as a lawyer in the proceeding. C) The person is known to have an interest that could be substantially affected by the outcome of the proceeding. D) The person is likely to be a material witness in the proceeding. f) The person has a close personal or professional relationship with a person who meets any of the following conditions: A) The person is or has been a party to the proceeding, or an officer, director or trustee of a party. B) The person is acting or has acted as a lawyer or representative in the proceeding. C) The person is or expects to be nominated as an arbitrator or conciliator in the proceedings. D) The person is known to have an in- terest that could be substantially affected by the outcome of the proceeding. E) The person is likely to be a material witness in the proceeding. 2) The obligation to disclose information set forth in subsection ( 1) of this section is mandatory and cannot be waived by the parties with respect to persons serving either as the sole arbitrator or sole conciliator or as one of two arbitrators or conciliators or as the chief or prevailing arbitrator or conciliator. The parties may otherwise agree to waive such disclosure. 3) From the time of appointment and throughout the arbitral proceedings, an arbitrator shall, without delay, disclose to the parties any circumstances referred to in subsection ( 1) of this section which were not previously disclosed. 4) Unless otherwise agreed by the parties or allowed by the rules governing the arbitration, an arbitrator may be challenged only if circumstances exist that give rise to justifiable doubts as to the independence or impartiality of the arbitrator, or as to pos- session of the qualifications upon which the parties have agreed. 5) A party may challenge an arbitrator appointed by it, or in whose appointment it has participated, only for reasons of which it becomes aware after the appointment has been made. [ 1991 c Procedure for challenging arbitrator. (1) The parties may agree on a procedure for challenging an arbitrator and the decision reached pursuant to that procedure shall be final. 2) Failing any agreement referred to in subsection ( 1) of this section, a party which intends to challenge an arbitrator shall, within 15 days after becoming aware of the constitution of the arbitral tribunal or after becoming aware of any circumstances referred to in ORS ( 4) and ( 5), whichever shall be later, send a written statement of

176 SPECIAL ACTIONS AND PROCEEDINGS the reasons for the challenge to the arbitral tribunal. 3) Unless the arbitrator challenged under subsection ( 2) of this section withdraws from office or the other party agrees to the challenge, the arbitral tribunal shall decide the challenge. 4)( a) If a challenge under any procedure agreed upon by the parties or under the procedure under subsection ( 3) of this section is not successful, the challenging party may request the circuit court, within 30 days after having received notice of the decision rejecting the challenge, to decide on the challenge. b) When the request is made, the circuit court may refuse to decide on the challenge if it is satisfied that, under the procedure agreed upon by the parties, the party making the request had an opportunity to have the challenge decided upon by other than the arbitral tribunal. c) Notwithstanding paragraph ( b) of this subsection, whether the challenge is under any procedure agreed upon by the parties or under the procedure under subsection ( 3) of this section, if a challenge is based upon the grounds set forth in ORS ( 1), the circuit court shall hear the challenge and, if it determines that the facts support a finding that such ground or grounds fairly exist, then the challenge shall be sustained. 5) The decision of the circuit court under subsection ( 4) of this section is final and not subject to appeal. 6) While a request under subsection ( 4) of this section is pending, the arbitral tribunal, including the challenged arbitrator, may continue with the arbitral proceedings and make an arbitral award. [ 1991 c Withdrawal of arbitrator; termination of mandate. ( 1) If an arbitrator withdraws from the case or if the parties agree on termination because the arbitrator becomes unable, de facto or de jure, to perform the functions of the arbitrator or for other reasons fails to act without undue delay, then the arbitrators mandate termi- nates. 2) If a controversy remains concerning any of the grounds referred to in subsection 1) of this section, a party may request the circuit court to decide on the termination of the mandate. 3) The decision of the circuit court under subsection ( 2) of this section is not subject to appeal. 4) If, under this section or ORS ), an arbitrator withdraws from office or a party agrees to the termination of the mandate of an arbitrator, this does not imply ac- ceptance of the validity of any ground referred to under this section or under ORS ( 4) and ( 5). [ 1991 c Substitute arbitrator; effect of substitution. ( 1) In addition to the circumstances referred to under ORS and , the mandate of an arbitrator terminates upon withdrawal from office for any reason, or by or pursuant to the agreement of the parties. 2) Where the mandate of an arbitrator terminates, a substitute arbitrator shall be appointed according to the rules that were appli cable to the appointment of the arbitrator being replaced. 3) Unless otherwise agreed by the par= ties: a) Where the number of arbitrators is less than three and an arbitrator is replaced, any hearings previously held shall be re- peated. b) Where the presiding arbitrator is replaced, any hearings previously held shall be. repeated. c) Where the number, of arbitrators is three or more and an arbitrator other than the presiding arbitrator is replaced, any hearings previously held may be repeated at the discretion of the arbitral tribunal. 4) Unless otherwise agreed by the parties, an order or ruling of the arbitral tribunal made prior to the replacement of an arbitrator under this section is not invalid because there has been a change in the composition of the tribunal. [ 1991 c Arbitral tribunal may rule on own jurisdiction; time for raising issue of jurisdiction; review by circuit court. (1) The arbitral tribunal may rule on its own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement and, for that purpose, an arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract. A decision by the arbitral -tribunal that the contract is null and void shall not entail ipso. ure the invalidity of the arbitration clause. 2) A plea that the arbitral tribunal does not have,jurisdiction shall be raised no later than the submission of the statement of defense. However, a party is not precluded from raising such,a plea by the fact that the party has appointed, or participated in the appointment of, an arbitrator. A plea that the arbitral tribunal is exceeding the scope of its authority shall be raised as soon as the matter alleged to be beryond the scope of its authority is raised during the arbitral proceedings. In either case, the arbitral tribunal

177 MEDIATION AND ARBITRATION may admit a later plea if it considers the delay justified. 3) If the arbitral tribunal rules as a preliminary question that it has jurisdiction, any party shall request the circuit court, within 30 days after having received notice of that ruling, to decide the matter or shall be deemed to have waived objection to such finding. 4) The decision of the circuit court under subsection ( 3) of this section is not subject to appeal. 5) While a request under subsection ( 3) of this section is pending, the arbitral tribunal may continue with the arbitral pro - ceedinggs and make an arbitral award. [ 1991 c ] Interim measures of protection ordered by arbitral tribunal; security. Unless otherwise agreed by the parties, at the request of a party, the arbitral tribunal may order any party to take such interim measure of protection as the arbitral tribunal may consider necessary in respect to the subject matter of the dispute. The arbitral tribunal may require any party to provide appropriate security in connection with such measure. [ 1991 c Fairness in proceedings The shall be treated with equality and parties each party shall be given a full opportunity to present the case of the party. [ 1991 c Procedures subject to agreement by parties; procedure in absence of agreement. ( 1) Subject to the provisions of ORS to , the parties are free to agree on the procedure to be followed by the arbitral tribunal in conducting the pro- ceedings. 2) If the parties fail to agree, subject to the provisions of ORS to , the arbitral tribunal may conduct the arbitration in such a manner as it considers appropriate. 3) The power of the arbitral tribunal under subsection ( 2) of this section includes the power to determine the admissibility, relevance, materiality and weight of any evidence. [ 1991 x Place of arbitration. ( 1) The parties are free to agree on the place of arbitration. If the parties do not agree, the place of arbitration shall be determined by the arbitral tribunal or, if any members of the arbitral tribunal are not yet appointed and are to be appointed by the circuit court as pursuant to ORS ( 4), by the Chief Justice, taking into account the circumstances of the case, including the convenience of the parties. 2) Notwithstanding the provisions of subsection ( 1) of this section, unless other- wise agreed by the parties, the arbitral tribunal may meet at any place it considers appropriate for consultation among its members, for hearing witnesses, experts or the parties, or for the inspection of documents, goods or other property. [ 1991 c Commencement of arbitral pro- ceedings. Unless otherwise agreed by the parties, the arbitral proceedings in respect to a particular dispute commence on the date which a request for referral of that dispute to arbitration is received by the respondent c Language used in proceedings. 1) The parties are free to agree on the language or languages to be used in the arbitral proceedings. If the parties do not agree, the arbitral tribunal shall determine the language or languages to be used in the proceedings. Unless otherwise specified therein, this agreement or determination shall apply to any written statement by a party, any hearing and any award, decision or other communication by the arbitral tribunal. 2) The arbitral tribunal may order that any documentary evidence shall be accompanied by a translation into the language or languages agreed upon by the parties or determined by the arbitral tribunal. [ 1991 c Contents of statements by claimant and respondent; amendment or supplement. ( 1) Within the period of time agreed upon by the parties or determined by the arbitral tribunal, the claimant shall state the facts supporting the claim of the claim- ant, the points at issue, and the relief or remedy sought, and the respondent shall state the defense of the respondent in respect of these particulars, unless the parties have otherwise agreed as to the required elements of those statements. 2) The parties may submit with their statements all documents they consider to be relevant or may add a reference to the documents or other evidence they will submit. 3) Unless otherwise agreed by the parties, either party may amend or supplement the claim or defense of the y during the course of the arbitral proceedings, unless the arbitral tribunal considers it inappropriate to allow the amendment or supplement having regard to the delay in making it. [ 1991 c.4o Oral hearing; notice; discovery. 1) Unless otherwise agreed by the parties, the arbitral tribunal shall decide whether to hold oral hearings for the presentation of evidence or for oral argument or whether the proceedings shall be conducted on the basis of documents and other materials

178 SPECIAL ACTIONS AND PROCEEDINGS 2) Unless the parties have agreed that no oral hearings shall be held, the arbitral tribunal shall hold oral hearings at an appropriate state of the proceedings, if so requested by a party. 3) The parties shall be given sufficient advance notice of any hearing and of any meeting of the arbitral tribunal for the purpose of the inspection of documents, goods or' other property. 4) All statements, documents or other information supplied to, or applications made to, the arbitral tribunal by one party shall be communicated to the other party, and any expert report or evidentiary document on which the arbitral tribunal may rely in making its decision shall be communicated to the parties. 5) Unless otherwise agreed by the par- ties, all oral hearings and meetings in arbitral proceedings shall be held in camera c Effect of failure to make required statement or to appear at oral hearing. 1) Unless otherwise agreed by the parties, where, without showing sufficient cause, the claimant fails to communicate the statement of claim of the claimant in accordance with ORS ( 1) and ( 2), the arbitral tribunal shall terminate the pro- ceedings. 2) Unless otherwise agreed by the parties, where, without showing sufficient cause, the respondent fails to communicate the statement of defense of the respondent in accordance with ORS ( 1) and ( 2), the arbitral tribunal shall continue the pro- ceedings without treating that failure in it- self as an admission of the claimant' s allegations. 3) Unless otherwise agreed by the parties, where, without showing sufficient cause, a party fails to appear at an oral hearing or to produce documentary evidence, the arbitral tribunal may continue with the pro- ceedings and make the arbitral award on the evidence before it. [ 1991 c Appointment of experts. (1) Unless otherwise agreed by the parties, the arbitral tribunal may appoint one or more experts to report to it on specific issues to be determined by the arbitral tribunal and require a party to give the expert any relevant information or to produce, or to provide access to, any relevant documents, goods or other property for inspection by the arbitral tribunal. 2) Unless otherwise agreed b the ' Darties, if a party so requests or if the arbitral tribunal considers it necessary, the expert shall, after delivery of the expert' s written or oral report, participate in an oral hearing where the parties have the opportunity to question the expert and to present expert witnesses on the points at issue. [ 1991 c ZW Circuit court assistance in taking evidence; circuit court authorized to enter certain orders upon application. (1) The arbitral tribunal, or a party with the approval of the arbitral tribunal, may re Rest from the circuit court assistance in taking evidence and the court may execute the request within its competence and according to its rules on taking evidence. In addition, a subpoena may be issued' as provided in ORCP 55, in which case the witness compensation provisions of ORS chapter 44 shall apply. 2) When the parties to two or more arbitration agreements have agreed, the circuit court may, on application by one party with the consent of all other parties to those arbitration agreements, do one or more of the following: a) Order the arbitration proceedings arising out of those arbitration agreements to be consolidated on terms the court considers just and necessary. b) Where all the parties cannot agree on an arbitral tribunal for the consolidated arbitration, appoint an arbitral tribunal in accordance with ORS ( 6). c) Where the parties cannot agree on any other matter necessary to conduct the consolidated arbitration, make any other or- der it considers necessary. d) Order the arbitration proceedings arising out of those arbitration agreements to be held at the same time or one imme- diately after another. e) Order any of the arbitration proceedings arising out of those arbitration agreements to be stayed until the determination of any other of them. 3) Nothing in this section shall be con- strued to prevent the parties to two or more arbitrations from agreeing to consolidate those arbitrations and taking any steps that are necessary to effect that consolidation x Choice of laws. ( 1) The arbitral tribunal shall decide the dispute in accor- dance with the rules of law designated by the Tas applicable to the substance of the dispute. 2) Any designation by the parties of the law or legal system of a given country or political subdivision thereof shall be construed, unless otherwise expressed, as directly referring to the substantive law of that state and not to its conflict of laws rules. 3) Failing any designation of the law under subsection ( 1) of this section by the

179 MEDIATION AND ARBITRATION parties, the arbitral tribunal shall apply the rules of law it considers to be appropriate given all the circumstances surrounding the dispute. 4) The arbitral tribunal shall decide ex aequo et bono or as amiable compositeur if the parties have expressly authorized it to do SO. 5) In all cases, the arbitral tribunal shall decide in accordance with the terms of the contract and shall take into account the usages of the trade applicable to the transaction. [ 1991 c Decision of arbitral tribunal. Unless otherwise agreed by the parties, any decision of the arbitral tribunal in arbitral proceedings with more than two arbitrators shall be made by a majority of all its members. However, the parties or all members of the arbitral tribunal may authorize a presiding arbitrator to decide questions of proce- dure. [ 1991 c Settlement. ( 1) It is not incompatible with an arbitration agreement for an arbitral tribunal to encourage settlement of the dispute and, with the agreement of the parties, the arbitral tribunal may use mediation, conciliation or other procedures at any time during the arbitral proceedings to en- courage settlement. 2) If, during arbitral proceedings, the parties settle the dispute, the arbitral tribunal shall terminate the proceedings and, if requested by the parties and not objected to by the arbitral tribunal, record the settle- ment in the form of an arbitral award on agreed terms. 3) An arbitral award on agreed terms shall be made in accordance with ORS and shall state that-it is an arbitral award. 4) An arbitral award on agreed terms has the same status and effect as any other arbitral award on the substance of the dis- pute. [ 1991 c Arbitral award; contents; interim award; award for costs of arbitration. (1) The arbitral award shall be made in writing and shall be signed by the In arbitral pro- arbitrator or arbitrators. ceedings with more than one arbitrator, the signatures of the majority of all the members of the arbitral tribunal shall suffice so long as the reason for any omitted signature is stated. 2) The arbitral award shall state the reasons upon which it is based, unless the Ehave agreed that no reasons are to be given or the award is an arbitral award on agreed terms under ORS ) The arbitral award shall state its date and the place of arbitration as determined in accordance with ORS ( 1) and the award shall be considered to have been made at that place. 4) After the arbitral award is made, a copy signed by the arbitrators in accordance with subsection ( 1) of this section shall be delivered to each party. 5) The arbitral tribunal may, at any time during the arbitral proceedings, make an interim arbitral award on any matter with respect to which it may make a final arbitral award. The interim award may be enforced in the same manner as a final arbitral award. 6) Unless otherwise agreed by the parties, the arbitral tribunal may award inter- est. 7)( a) Unless otherwise agreed by the parties, the costs of an arbitration shall be at the discretion of the arbitral tribunal. b) In making an order for costs, the arbitral tribunal may include as costs any of the following: A) The fees and expenses of the arbitrators and expert witnesses. B) Legal fees and expenses. C) Any administration fees of the institution supervising the arbitration, if any. D) Any other expenses incurred in con- nection with the arbitral proceedings. c) In making an order for costs, the arbitral tribunal may specify any of the following: A) The party entitled to costs. B) The party who shall pay the costs. C) The amount of costs or the method of determining that amount. D) The manner in which the costs shall be paid. [ 1991 c Termination of arbitral proceedings. ( 1) The arbitral proceedings are terminated by the final arbitral award or by an order of the arbitral tribunal in accordance with subsection ( 2) of this section. 2) The arbitral tribunal shall issue an order for the termination of the arbitral pro- ceedings when: a) The claimant withdraws the claim, unless the respondent objects thereto and the arbitral tribunal recognizes a legitimate interest on the part of the respondent in obtaining a final settlement of the dispute; b) The parties agree on the termination of the proceedings; or c) The arbitral tribunal finds that the continuation of the proceedings has for any other reason become unnecessary or impossible. [ 1991 c

180 SPECIAL ACTIONS AND PROCEEDINGS Correction of errors in award; interpretation of award; additional award. ( 1) Within 30 days of receipt of the award, unless another period of time has been agreed upon by the parties: a) A party, with notice to the other party, may request the arbitral tribunal to correct in the award any errors in computation, clerical or typographical errors, or er- rors of similar nature; and b) If so agreed by the parties, a party, with notice to the other party, may request the arbitral tribunal to give an interpretation of a specific point or part of the award. If the arbitral tribunal considers the request to be justified, it shall make the correction or give the interpretation within 30 days of receipt of the request. The interpretation shall form part of the award. 2) The arbitral tribunal may correct any error of the type referred to in paragraph ( a) of subsection ( 1) of this section on its own initiative within 30 days of the date of the award. 3) Unless otherwise agreed by the parties, a party, with notice to the other party, may request, within 30 days of receipt of the award, the arbitral tribunal to make an additional award as to claims presented in the arbitral proceedings but omitted from the award. If the arbitral tribunal considers the request to be justified, it shall make the additional award within 60 days. 4) If necessary, the arbitral tribunal may extend the period of time within which it shall make a correction, interpretation or an additional award under subsection ( 1) or ( 3) of this section. 5) The provisions of ORS shall apply to a correction or interpretation of the award or to an additional award. [ 1991 c ] Setting aside award; grounds; time for application; circuit court fees. ( 1) Recourse to a court against an arbitral award may only be by an application for set - ting 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 fur- nishes proof that: A) A party to the arbitration agreement referred to in ORS was under some incapacity or that the agreement is not valid under the law to which the parties have sub *ected or, failing any indication thereon, un er 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 to from which the parties cannot derogate, or, failing such agreement, was not in accordance with ORS to ; 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 , 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 appro- priate and so requested by.a party, suspend the setting aside pproceedings 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 ) The clerk of the circuit court shall collect from the party making application for setting aside under subsection ( 1) of this section a filing fee of $ 25 and from a party filing an appearance in opposition to the application a filing fee of $15. However, if the application relates to an arbitral award made following an application or request to a circuit court under any section of ORS to in respect to which the parties have paid filing fees under ORS , 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,

181 MEDIATION AND ARBITRATION subsection is paid by the filing party. [ 1991 c Enforcement of award; procedure; entry of judgment. ( 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 ) 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 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 ( 4). The relying party shall pay to the clerk a filing fee of $ 25, 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 within the time specified in ORS ( 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. [ 1991 c.4m Grounds for refusal to enforce award. (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 filing fee of $25 and furnishes to the court where recognition or enforcement is sought proof that: A) A party to the arbitration agreement referred to in ORS 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 pub- lic 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 subparagraph ( E) of par - agraph ( a) of subsection ( 1) 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 c Provisions to be interpreted in good faith. In construing ORS to , a court or arbitral tribunal shall interpret those sections in good faith, in ac- cordance with the ordinary meaning to be given to their terms in their context, and in light of their objects and purposes. Recourse may be had for these purposes, in addition to aids in interpretation ordinarily available under the laws of this state, to the documents of the United Nations Commission on International Trade Law and its working group respecting the preparation of the LTNCITRAL Model Law on International Commercial Arbitration and shall give those documents the weight that is appropriate in the circumstances. [ 1991 x Policy to encourage concil- iation. It is the policy of the State of Oregon to encourage parties to an international

182 SPECIAL ACTIONS AND PROCEEDINGS commercial agreement or transaction which qualifies for arbitration or conciliation pursuant to ORS ( 3) to resolve disputes arising from such agreements or transactions through conciliation. The parties may select or permit an arbitral tribunal or other third party to select one or more persons to service as the conciliator or conciliators who shall assist the parties in an independent and impartial manner in their attempt to reach an amicable settlement of their dispute. [ 1991 c Guiding principles of conciliators. The conciliator or conciliators shall be guided by principles of objectivity, fairness and justice, giving consideration to, among other things, the rights and obli- gations of the parties, the usages of the trade concerned and the circumstances surround- ing the dispute, including any previous prac- tices between the parties. [ 1991 c Manner of conducting conciliation proceedings. The conciliator or conciliators may conduct the conciliation proceedings in such a manner as they consider appropriate, taking into account the circumstances of the case, the wishes of the parties and the desirabili of a speedy settlement of the dispute. xcept as otherwise provided in ORS to , no provision of the Oregon Rules of Civil Pro- cedure nor any other provision of the Oregon Revised Statutes governing procedural matters shall apply to any conciliation proceeding- brought under ORS to [ 1991 c Draft conciliation settlement. 1) At any time during the proceedings, the conciliator or conciliators may prepare a draft conciliation settlement which may in- clude the assessment and apportionment of costs between the parties and send copies to the parties, specifying the time within which the parties must signify their approval. 2) No party may be required to accept any settlement proposed by the conciliator or Conciliators. [ 1991 c Prohibition on use of statements, admissions or documents arising out of conciliation proceedings. When persons agree to participate in conciliation under ORS to : 1) Evidence of anything said or of an admission made in the course of the concilis not admissible in evidence and disclosure of any such evidence shall not be compelled in any civil action in which, pursuant to law, testimony may be compelled to be given. However, this subsection does not limit the admissibility of evidence if all parties participating in conciliation consent, in writing, to its disclosure, provided that such consent is ggiven after the statement or admission to be disclosed is made in the con- ciliation proceeding. 2) In the event that any such evidence is offered in contravention of this section the arbitration tribunal or the court shall make any order which it considers to be appropriate to deal with the matter, including, without limitation, orders restricting the introduction of evidence, or dismissing the case without prejudice. 3) Unless the document otherwise provides, no document prepared for the purpose of, or in the course of, or pursuant to, the conciliation, or any copy thereof, is admissible in evidence and disclosure of any such document shall not be completed in any arbitration or civil action in which, pursuant to law, testimony may be compelled to be given. [ 1991 x Conciliation to act. as stay of other proceedings; tolling of limitation periods during conciliation. ( 1) The agree- ment of the parties to submit a dispute to conciliation shall be deemed an agreement between or among those parties to stay all judicial or arbitral proceedings from the commencement of conciliation until the ter- mination of conciliation proceedings. 2) All applicable limitation periods, including periods of prescription, shall be tolled or extended upon the commencement of conciliation proceedings to conciliate a dispute under ORS to and all limitation periods shall remain tolled and periods of prescription extended as to all parties to the conciliation proceedings until the 10th day following. the ; termination of conciliation proceedings. 3) For purposes of this section, conciliation proceedings are deemed to have com- menced as soon as: a) A party has requested conciliation of a particular dispute or disputes; and b) The other party or parties agree to particippate in the conciliation proceeding Q Termination of conciliation proceedings. ( 1) The conciliation pro- ceedings may be terminated as to all parties by any of the following: a) A written declaration of the conciliator or conciliators, after consultation ia with the parties, to the effect that further efforts at conciliation are no longer justified, on the date of the declaration. b) A written declaration of the parties addressed to the conciliator or conciliators to the effect that the conciliation proceedings are terminated on the date of the declaration.

183 MEDIATION AND ARBITRATION c) The signing ofa settlement agreement by all of the parties on the date of the agreement. 2) The conciliation proceedings may be terminated as to particular parties by either of the following: a) A written declaration of a party to the other party and the conciliator or conciliators, if appointed, to the effect that the conciliation proceedings shall be terminated as to that particular party, on the date of the declaration. b) The signing of a settlement agreement by some of the parties, on the date of the agreement. [ 1991 c Conciliator not to be arbitrator or take part in arbitral or judicial proceedings. No person who has served as conciliator may be appointed as an arbitrator for, or take part in, any arbitral or,].udicial proceedings in the same dispute unless all parties manifest their consent to such participation or the rules adopted for conciliation or arbitration otherwise provide. [ 1991 c ] Submission to conciliation not waiver. By submitting to conciliation, no party shall be deemed to have waived any rights or remedies which that party would have had if conciliation had not been initiated, other than those set forth in any settlement. agreement which results from the conciliation. [ 1991 c Conciliation agreement to be treated a& arbitral award. If the conciliation succeeds in settling the dispute and the result of,the conciliation is reduced to writing and signed by the conciliator or conciliators and the parties or their -representatives, the written agreement shall be treated as an arbitral award rendered by an arbitral tribunal duly constituted in and pursuant to the laws of this state and shall have the same force and effect as a final award in arbitration. [ 1991 c Costs of conciliation proceedings. Upon termination of the conciliation proceedings, the conciliator or conciliators shall fix the costs of the conciliation and give written notice thereof to the parties. As used in this section and in ORS , " costs" includes only the following: 1) A reasonable fee to be paid to the conciliator or conciliators. 2) The travel and other reasonable expenses of the conciliator or conciliators. 3) The travel and other reasonable expenses of witnesses requested by the conciliator or conciliators with the consent of the parties. 4) The cost of any expert advice requested by the conciliator or conciliators with the consent of the parties. 5) The cost of any court. [ 1991 c ] Payment of costs. The costs fixed by the conciliator or conciliators as pursuant to ORS shall be borne equally by the parties unless the settlement agreement provides for a different apportionment. All other expenses incurred by a party shall be borne by that party. [ 1991 c Effect of conciliation on jurisdiction of courts. Neither the request for conciliation, the consent to participate in the conciliation proceeding, the participation in such proceedings, nor the entering into a conciliation agreement or settlement, shall be deemed as consent to the jurisdiction of any court in this state in the event conciliation fails. [ 1991 c Immunities. ( 1) Neither the conciliator or conciliators, the parties, nor their representatives, shall be subject to ser- vice of process on any civil matter while they are present in this state for the purpose of arranging for or participating in conciliation pursuant to ORS to ) No person who serves as a conciliator shall be held liable in an action for damages resulting from any act or omission in the performance of the role as a conciliator in any roceeding subject to ORS to [ am Severability. If anyy provision of ORS to or its application to any person or circumstance is held to be invalid, the invalidity does not affect the other provisions or applications of ORS to which can be given effect without the invalid provision or application and to this end the provisions of ORS to are severable. [ 1991 c Short title. ORS to shall be known and may be cited as the Oregon International Commercial Arbitration and Conciliation Act." [1991 c CHAPTERS 37 TO 39 Reserved for expansibn] 3-145

184 SPECIAL ACTIONS AND PROCEEDINGS 3-146

185 CHAPTER RESERVED FOR EXPANSION

186 CHAPTER RESERVED FOR EXPANSION

187 CHAPTER RESERVED Ims EXPANSION

188 TITLE 4 EVIDENCE AND WITNESSES Chapter 40. Evidence Code 41. Evidence Generally 42. Execution, Formalities and Interpretation of Writings 43. Public Writings 44. Witnesses 45. Testimony Generally GENERAL Rule 100. Short title Rule 101. Applicability of Oregon Evidence Code Rule 102. Purpose and construction Rule 103. Rulings on evidence Rule 104. Preliminary questions Rule 105. Limited admissibility Rule 106. When part of transaction proved, whole admissible JUDICIAL NOTICE Rule 201( x). Scope Rule 201( b). Kinds of facts Rules 201( c) and 201( d). When mandatory or discretionary Rule 201( e). Opportunity to be heard Rule 201( f). Time of taking notice Rule 201( 8). Instructing the jury Rule 202. Kinds of law BURDEN OF PERSUASION; BURDEN OF PRODUCING EVIDENCE; PRESUMPTIONS Rule 305. Allocation of the burden of per- suasion Rule 306. Instructions on the burden of persuasion Rule 307. Allocation of the burden of producing evidence Rule 308. Presumptions in civil proceedings Rule 309. Presumptions in criminal pro- ceedings Rule 310. Conflicting presumptions Rule 311, Presumptions Chapter EDITION Evidence Code RELEVANCY Rule 401. Definition of "relevant evidence" Rule 402. Relevant evidence generally ad- missible Rule 403. Exclusion of relevant evidence on grounds of prejudice, confusion or un- due delay Rule 404. Character evidence: admissibility Rule 405. Methods of proving character Rule 406.,Habit; routine practice Rule 407. Subsequent remedial measures Rule 408. Compromise and offers to com- promise Rule 409. Payment of medical and similar expenses Rule 410. Withdrawn plea or statement not admissible Rule 411. Liability insurance Rule 412. Rape cases; relevance of victim' s past behavior PRIVILEGES Rule 503. Lawyer - client privilege Rule 504. Psychotherapist - patient privilege Rule Physician- patient privilege Rule Nurse - patient privilege Rule School employee- student privilege Rule Clinical social worker client - privilege Rule 505. Husband -wife privilege 402W Rule 506. Member of clergy- penitent privilege Rule 507. Counselor -client privilege Rule 508a. Stenographer employer - privilege Rule 509. Public officer privilege Rule 510. Identity of informer 4-1

189 EVIDENCE AND WITNESSES Rule 511. Waiver of privilege by voluntary disclosure Rule 512. Privileged matter disclosed under compulsion or without opportunity to claim privilege Rule 513. Comment upon or inference from claim of privilege Rule 514. Effect on existing privileges WITNESSES Rule 601. General rule of competency Rule 602. Lack of personal knowledge Rule 603. Oath or affirmation Rule 604. Interpreters Rule 605. Competency of judge as witness Rule 606. Competency of juror as witness Rule 607. Who may impeach Rule 608. Evidence of character and conduct of witness Rule 609. Impeachment by evidence of conviction of crime Rule Impeachment for bias or inter- est Rule 610. Religious beliefs or opinions Rule 611. Mode and order of interrogation and presentation Rule 612. Writing used to refresh memory Rule 613. Prior statements of witnesses Rule 615. Exclusion of witnesses OPINIONS AND EXPERT TESTIMONY Rule 701. Opinion testimony by lay wit- 40A10 nesses Rule 702. Testimony by experts Rule 703. Bases of opinion testimony by 4OA20 4OA25 experts Rule 704. Opinion on ultimate issue Rule 705. Disclosure of fact or data underlying expert opinion HEARSAY 4OA50 Rule 801. Definitions for ORS to 4OA Rule 802. Hearsay rule 4OA60 Rule 803. Hearsay exception; availability of declarant immaterial 4OA65 Rule 804. Hearsay exceptions where the declarant is unavailable Rule 805. Hearsay within hearsay 4OA75 Rule 806. Attacking and supporting credibility of declarant AUTHENTICATION AND IDENTIFICATION Rule 901. Requirement of authentication or identification Rule 902. Self authentication Rule 903. Subscribing witness' testimony unnecessary CONTENTS OF WRITINGS, RECORDINGS AND PHOTOGRAPHS Rule Definitions for ORS to ZM Rule Requirement of original 40ZW Rule Admissibility of duplicates Rule Admissibility of other evidence of contents Rule Public records Rule Summaries Rule Testimony or written admission of party Rule Functions of court and jury CROSS REFERENCES Acreage stated in trust deed, conclusiveness, Admissibility of data on training, supervision or discipline of dentists, Admissibility of evidence from lawyers assistance committee disciplinary investigation, Admission of partner as evidence against partnership, Admission to state hospital not evidence of incompetency, Alibi evidence defined, Authority of Congress to prescribe by general laws the manner of roving and effect of,1'udicial records and proceedmga of a sister state, U.S. Const. Art. IV, 1 Banking institution certificate as evidence of filing, Blood tests, admissibility and evidentiary effect, , , 1092M Business trusts, certificates of authority as conclusive evidence of compliance with laws, Child born of void marriage, presumption, Child of wife cohabiting with husband, presumption, Cigarette sales and taxes, presumptions, City charters, judicial notice, Commercial paper, presumptions as to: Date, Genuineness of signature, Criminal judgment of justice court, conclusiveness, Criminal penalty for unlawfully obtaining evidence, Declaration by court of matters judicially known, Disciplinary proceedings of Department of Corrections, rules of evidence; general rules of evidence regard- ing admissibility not applicable, Dissolution, annulment of marriage, separation, when evidence of fault not admissible, Evidence law applicable to both civil and criminal cases, Exclusion of part of deposition as excluding adverse examination relating thereto, Injuries of workers, presumptions for purposes of Workers' Compensation Law, Intercepted telecommunication, use, Introduction of investigative report as evidence in commitment hearing, Itemized statement of actual cost of fire abatement, certified by State Forester, evidence in action to recover costs, Judicial notice of foreign workers' compensation laws,

190 EVIDENCE CODE Judicial orders as disputable presumptions, Judicial orders, conclusiveness, Judicial record of sister state, effect, , U. S. Const. Art. IV, 1 Jurors as judges of evidence, Juvenile proceeding, proof of court's jurisdiction, evidence, , Motor vehicle accident reports, admissibility, New trial as post - conviction relief, evidence of testimony at first trial, Occupational disease, presumption as to cause in certain cases, Permissive recreational use of land, no presumption of dedication or other rights, Post - conviction relief proceeding, evidence of events occurring at trial of petitioner, Preliminary ' hearing, applicability of Evidence Code, Product not unreasonably dangerous for intended use, Railroad crossing safety determinations inadmissible, Reports of vocational consultants, use in workers' compensation hearings, Residential Landlord and Tenant Act; disputable presumption of retaliation by landlord, Restitution to victim, admissibility, Rules of evidence in contested cases before a state agency, Rules of evidence in justice court same as in courts of record, Seals, manner of expressing when sent by telegram, Sign language interpreter, , Sobriety tests, admissibility and evidentiary effect, to Stray logs, boom sticks or boom chains, presumption of possession with intent to deprive owner thereof, Tax court, purden of proof, Tax court, small claims division, evidence in, Traffic infraction, rules of evidence applicable, Weights and measures, evidentiary presumptions regarding, Witnesses, compelling testimony in certain criminal proceedings, immunity, , Witness, testimony under hypnosis, to International commercial conciliation proceedings, admissibility of testimony, to Access to records by Local Citizen Review Board, Mediation of child custody issue, privileged communications, Medical practice, complaints, confidentiality, to 402,40 Public health measure proceedings, to Privileges inapplicable to case of abuse of patient in long term care facility, Victim" defined, , Secretary of State, certified certificates and documents, Seal, state officer or agency, use for self authentication,

191 EVIDENCE AND WITNESSES I 4-4

192 EVIDENCE CODE GENERAL Rule 100. Short title. ORS to and shall be known and may be cited as the Oregon Evidence Code. [ 1981 c Rule 101. Applicability of Oregon Evidence Code. ( 1) The Oregon Evidence Code applies to all courts in this state except for: a) The small claims division of the Oregon Tax Court as provided by ORS ; b) The small claims division of a district court as provided by ORS ; and c) The small claims department of a justice' s court as provided by ORS ) The Oregon Evidence Code applies generally to civil actions, suits and pro- ceedings, criminal actions and proceedings and to contempt proceedings except those in which the court may act summarily. 3) ORS to relating to privileges apply at all stages of all actions, suits and proceedings. 4) ORS to and to do not apply in the following situ- ations: a) The determination of questions of fact preliminary to admissibility of evidence when the issue is to be determined by the court under ORS b) Proceedings before grand juries, except as required by ORS c) Proceedings for extradition, except as required by ORS to d) Sentencing, except as required by ORS e) Proceedings to revoke probation, ex- cept as required by ORS f) Issuance of warrants of arrest, bench warrants or search warrants. p) Proceedings under ORS chapter 135 relating to conditional release, security release, release on personal recognizance, or preliminary hearings, subject to ORS h) Proceedings to determine proper disposition of a child in accordance with ORS ( 2). W Proceedings under ORS to , and to determine whether a driving while under the influence of intoxicants diversion agreement should be allowed or terminated. [ 1981 c.892 2; ; 1985 c ; 1987 c Rule 102. Purpose and construction. The Oregon Evidence Code shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and de- velopment of the law of evidence to the end that the truth may be ascertained and proceedings justly determined. [ 1981 c Rule 103. Rulings on evidence. 1) Evidential error is not presumed to be prejudicial. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and: a) In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; or b) In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was ap- parent from the context within which questions were asked. 2) The court may add an or fur- ther statement which shows the character of the evidence, the form in which it was of- fered, the objection made and the ruling thereon. It may direct the making of an offer in question and answer form. 3) In jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or ask- ing questions in the hearing of the jury. 4) Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court. ( 1981 Q Rule 104. Preliminary questions. 1) Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege or the admissibility of evidence shall be determined by the court, subject to the provisions of subsection ( 2) of this section. In making its determination the court is not bound by the rules of evidence except those with respect to privileges. 2) When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to 4-5 support a finding of the fulfillment of the condition. 3) Hearings on the admissibility of con- fessions shall in all cases be conducted out of the hearing of the jury. Hearings on other preliminary matters shall be so conducted when the interests of justice require or when an accused is a witness, if the accused so requests. 4) The accused does not, by testifying upon a preliminary matter, become subject to cross - examination as to other issues in the case.

193 EVIDENCE AND WITNESSES 5)' This section does not limit the. right of a party to introduce before the jury evidence relevant to weight or credibility. [ 1981 c _ Rule 105. Limited admissibility. When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly. [ 1981 c Rule 106. When part of trans- action proved, whole admissible. When part of an act, declaration, conversation or writing is given in evidence by one party, the whole on the same subject, where otherwise admissible,,may at that time be inquired into by the other; when a letter is read, the answer may at that time be given; and when a detached act, declaration, conversation or writing is given in evidence, any other act, declaration, conversation or writing which is necessary to make it understood may at that time also be given in evidence. [ 1681 c.892 sa] JUDICIAL NOTICE Rule 201(a). Scope. ORS to govern judicial notice of adjudicative facts. ORS governs judicial notice of law. [ 1981 c Rule 201( b). Kinds of facts. A judicially noticed fact must be one not subject to reasonable dispute in that it is either: 1) Generally known within the territo- rial jurisdiction of the trial court; or 2) Capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. [ 1981 c Rules 201(c) and 201( d). When mandatory or discretionary. ( 1) A court may take judicial notice, whether requested or not. 2) A court shall take judicial notice if requested by a party and supplied with the necessary information. [ 1981 c Rule 201( e). Opportunity to be heard. A party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the request may be made after judicial notice has been taken c Rule 201(f). Time of taldng notice. Judicial notice may be taken at any stage of the proceeding. [ 1981 c Rule 201( g). Instructing the jury. (1) In a civil action or proceeding, the court shall instruct the jury to accept as conclusive any fact or law judicially noticed. 2) In a criminal case, the court shall instruct the jury that it may, but is not required to, accept as conclusive any fact udicially noticed in favor of the prosecution c Rule 202. Kinds of law. Law judicially noticed is defined as: 1) The decisional, ' constitutional and public statutory law of Oregon, the United States and any state,, territory or other ju- risdiction of the United States. " 2) Public and private official acts of the legislative, executive and judicial departments of this state, the United States, and any other state, territory or other jurisdiction of the United States. 3) Rules of professional conduct for members of the Oregon State Bar. 4) Regulations, ordinances and similar legislative enactments issued by or' under the authority of the United States or any state, territory or possession of the United States. 5) Rules of court of any court of this state or any court of record of the United States or of any state, territory or other jurisdiction of the United States. 6) The law of an organization of nations and of foreign nations and public entities in foreign nations. 7) An ordinance, comprehensive plan or enactment of any county or incorporated city in this state, or a right derived, therefrom. As used in this subsection, " comprehensive plan" has the meaning given that term by ORS [ 1981 c BURDEN OF PERSUASION; BURDEN OF PRODUCING EVIDENCE; PRESUMPTIONS Rule 305. Allocation of the bur- den of persuasion. A party has the burden of persuasion as to each fact the existence or nonexistence of which the. law declares essential to the claim for relief or defense the party is asserting c Rule 306. Instructions on the burden of persuasion. The court shall instruct the Jury as to which party bears the applicable urden of persuasion on each issue only after all of the 'evidence in the case has been received. [ 1981 c Rule 307. Allocation of the burden of producing evidence. ( 1) The burden of producing evidence as to,a particular issue is on the party against whom a finding on the issue would be required in the absence of further evidence.

194 EVIDENCE CODE ) The burden of producing evidence as to a particular issue is initially on the party with the burden of persuasion as to that is- sue. [ 1981 x Rule 308. Presumptions in civil proceedings. In civil actions and proceedings, a presumption imposes on the party against whom it is directed the burden of proving that the nonexistence of the presumed fact is more probable than its exist- ence. [ 1981 c Rule 309. Presumptions in The judge is not criminal proceedings. ( 1) authorize direct the jury to find a presumed fact against the accused. 2) When the presumed fact establishes guilt or is an element of the offense or negates a defense, the judge may submit the question of guilt or the existence of the presumed fact to the jury only if: a) A reasonable Juror on the evidence as a whole could find tat the facts giving rise to the presumed fact have been established beyond a reasonable doubt; and b) The presumed fact follows more likely than not from the facts giving rise to the presumed fact. [ 1981 c Rule 310. Conflicting presumptions. If presumptions are conflicting, the presumption applies that is founded upon weightier considerations of policy and logic. If considerations of policy and logic are of equal weight, neither presumption applies x Rule 311. Presumptions. ( 1) The following are presumptions: a) A person intends the ordinary conse- quences of a voluntary act. b) A person takes ordinary care of the person' s own concerns. c) Evidence willfully suppressed would be adverse to the party suppressing it. d) Money paid by one to another was due to the latter. e) A thing delivered by one to another belonged to the latter. f) An obligation delivered to the debtor has been paid. g) A person is the owner of property from exercising acts of ownership over it or from common reputation of the ownership of the person. h) A person in possession of an order on that person, for the payment of money or the delivery of a thing, has paid the money or delivered the thing accordingly. W A person acting in a public office was regularly appointed to it. 0) Official duty has been regularly performed. k) A court, or judge acting as such, whether in this state or any other state or country, was acting in the lawful exercise of the jurisdiction of the court. L) Private transactions have been fair and regular. m) The ordinary course of business has been followed. n) A promissory note or bill of exchange was given or indorsed for a sufficient con- sideration. o) An indorsement of a negotiable promissory note, or bill of exchange, was made at the time and place of making the note or bill. p) A writing is truly dated. q) A letter duly directed and mailed was received in the regular course of the mail. r) A person is the same person if the name is identical. s) A person not heard from in seven years is dead. t) Persons acting as copartners have entered into a contract of copartnership. u) A man and woman deporting themselves as husband and wife have entered into a lawful contract of marriage. gitimate. v) A child born in lawful wedlock is le- w) A thing once proved to exist continues as long as is usual with things of that nature. x) The law has been obeyed. y) An uninterrupted adverse possession of real property for 20 years or more has been held pursuant to a written conveyance. z) A trustee or other person whose duty it was to convey real property to a particular person has actually conveyed it to the person, when such presumption is necessary to perfect the title of the person or the person' s successor in interest. 2) A statute providing that a fact or a group of facts is prima facie evidence of another fact establishes a presumption within the meaning of this section. [ 1981 cm vol RELEVANCY Rule 401. Definition of "relevant evidence." " Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. [ 1981 c

195 EVIDENCE AND WITNESSES Rule 402. Relevant evidence generally admissible. All relevant evidence is admissible, except as otherwise provided by the Oregon Evidence Code, by the Constitutions of the United States and Oregon, or by Oregon statutory and decisional law. Evidence which is not relevant is not admis- sible. [ 1981 c Rule 403. Exclusion of relevant evidence on grounds of prejudice, con- fusion or undue delay. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay or needless presentation of cumulative evidence. [ 1981 c Rule 404. Character evidence: admissibility. ( 1) Evidence of a person' s character or trait of character is admissible when it is an essential element of a charge, claim or defense. 2) Evidence of a person' s character is not admissible for the purpose of proving that the person acted in conformity there- with on a particular occasion, except: a) Evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same; b) Evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same or evidence of a character trait of peacefulness of the victim offered by the prosecution to rebut evidence that the victim was the first aggressor; c) Evidence of the character of a witness, as provided in ORS to ; or d) Evidence of the character of a party for violent behavior offered in a civil assault and battery case when self defense - is pleaded and there is evidence to support such defense. 3) Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. It may, how- ever, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. [ 1981 c ] Rule 405. Methods of proving character. (1) In all cases in which evidence of character or a trait of character of a per- son is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross - examination, inquiry is allowable into relevant specific instances of conduct. 2)( a) In cases in which character or a trait of character of a person is admissible under ORS ( 1), proof may also be made of specific instances of the conduct of the person. b) When evidence is admissible under ORS ( 3), proof may be made of specific instances of the conduct of the person. [ 1981 c ] Rule 406. Habit; routine practice. ( 1) Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine prac- tice. 2) As used in this section, " habit" means a person' s regular practice of meeting a particular kind of situation with a specific, distinctive type of conduct. [ 1981 c Rule 407. Subsequent remedial measures. When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not ad- missible to prove negligence or culpable conduct in connection with the event. This section does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures 1981 c.892 J271 if controverted, or impeachment Rule 408. Compromise and offers to compromise. ( 1)( a) Evidence of furnishing or offering or promising to furnish, or accepting or offering or promising to accept, a valuable consideration in compromis- ing or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. b) Evidence of conduct or statements made in compromise negotiations is likewise not admissible. 2)( a) Subsection ( 1) of this section does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations. 4-8 b) Subsection ( 1) of this section also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution. ( 1981 c Rule 409. Payment of medical and similar expenses. Evidence of furnishing or offering or promising to pay medical, hospital or similar expenses occasioned by an

196 EVIDENCE CODE injury is not admissible to prove liability for the injury. Evidence of payment for damages arising from injury or destruction of property is not admissible to prove liability for the injury or destruction. [ 1981 c Rule 410. Withdrawn plea or statement not admissible. ( 1) A plea of guilty or no contest which is not accepted or has been withdrawn shall not be received against the defendant in any criminal proceeding. 2) No statement or admission made by a defendant or a defendant' s attorney during any proceeding relating to a plea of guilty or no contest which is not accepted or has been withdrawn shall be received against the defendant in any criminal proceeding. [ 1981 c a] Rule 411. Liability insurance. ( 1) Except where lack of liability insurance is an element of an offense, evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or oth- erwise wrongfully. 2) Subsection ( 1) of this section does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proving agency, ownership or control, or bias, prejudice or motive of a witness. [ 1981 c Rule 412. Rape cases; relevance of victims past behavior. ( 1) Notwith- standing any other provision of law, in a prosecution for a crime described in ORS to , or in a prosecution for an attempt to commit such a crime, reputation or opinion evidence of the past sexual behavior of an alleged victim of such crime is not admissible. 2) Notwithstanding any other provision of law, in a prosecution for a crime described in ORS to , or in a prosecution for an attempt to commit such a crime, evidence of a victim' s past sexual behavior other than reputation or opinion evidence is also not admissible, unless such evidence other than reputation or opinion evidence is: a) Admitted in accordance with aragraphs ( a) and ( b) of subsection ( 3) o? this section; and b) Is evidence that: A) Relates to the motive or bias of the alleged victim; or B) Is necessary to rebut or explain scientific or medical evidence offered by the state; or C) Is otherwise constitutionally required to be admitted. 3)( a) If the person accused of committing rape, sodomy or sexual abuse or attempted rape, sodomy or sexual abuse intends to offer under subsection ( 2) of this section evidence of specific instances of the alleged victim' s past sexual behavior, the accused shall make a written motion to offer such evidence not later than 15 days before the date on which the trial in which such evidence is to be offered is scheduled to begin, except that the court may allow the motion to be made at a later date, including during trial, if the court determines either that the evidence is newly discovered and could not have been obtained earlier through the exercise of due diligence or that the issue to which such evidence relates has newly arisen in the case. Any motion made under this paragraph shall be served on all other parties, and on the alleged victim through the office of the prosecutor. b) The motion described in paragraph ( a) of this subsection shall be accompanied by a written offer of proof. If the court determines that the offer of proof contains evidence described in subsection ( 2) of this section, the court shall order a hearing in chambers to determine if such evidence is admissible. At such hearing the parties may call witnesses, including the alleged victim, and offer relevant evidence. Notwithstanding ORS ), if the relevancy of the evidence which the accused seeks to offer in the trial depends upon the fulfillment of a condition of fact, the court, at the hearing in chambers or at a subsequent hearing in chambers scheduled for such purpose, shall accept evidence on the issue of whether such condition of fact is fulfilled and shall determine such issue. c) If the court determines on the basis of the hearing described in aragraph ( b) of this subsection that the evidence which the accused seeks to offer is relevant and that the probative value of such evidence out - weighs the danger of unfair prejudice, such evidence shall be admissible in the trial to the extent an order made by the court specifies evidence which may be offered and areas with respect to which the alleged victim mayy be examined or cross - examined. An order admitting evidence under this subsection may be appealed by the government before trial. 4) For purposes of this section, the term past sexual behavior" means sexual behavior other than the sexual behavior with respect to which rape, sodomy or sexual abuse or attempted rape, sodomy or sexual abuse is alleged. [ 1981 x892 31] 4-9

197 40225 EVIDENCE AND WITNESSES PRIVILEGES Rule 503. Lawyer -client privilege. ( 1) As used in this section, unless the context requires otherwise: a) " Client" means a person, public offi- cer, corporation, association or other organization or entity, either public or private, who is rendered professional legal services by a lawyer, or who consults a lawyer with a view to obtaining professional legal services from the lawyer. b) " Confidential communication" means a communication not intended to be disclosed to third persons other than those to whom disclosure is in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the trans- mission of the communication. c) " Lawyer" means a person authorized, or reasonably believed by the client to be authorized, to practice law in any state or nation. d) " Representative of the client" means a principal, an employee, an officer or a director of the client: A) Who provides the client' s lawyer with information that was acquired during the course of, or as a result of, such person' s re- lationship with the client as principal, employee, officer or director, and is provided to the lawyer for the purpose of obtaining for the client the legal advice or other legal services of the lawyer; or B) Who, as part of such person' s re- lationship with the client as principal, employee, officer or director, seeks, receives or applies legal advice from the client' s lawyer. e) " Representative of the lawyer" means one employed to assist the lawyer in the rendition of professional legal services, but does not include a physician making a physical or mental examination under ORCP 44. 2) A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client: a) Between the client or the client' s representative and the client's lawyer or a representative of the lawyer; b) Between the client' s lawyer and the lawyers representative; c) By the client or the client' s lawyer to a lawyer representing another in a matter of common interest; d) Between representatives of the client or between the client and a representative of the client; or ent. e) Between lawyers representing the cli- 3) The privilege created by this section may be claimed by the client, a guardian or conservator of the client, the personal representative of a deceased client, or the successor, trustee, or similar representative of a corporation, association, or other organiza- tion, whether or not in existence. The person who was the lawyer or the lawyer's representative at the time of the communication is presumed to have authority to claim the privilege but only on behalf of the client. 4) There is no privilege under this section: a) If the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud; b) As to a communication relevant to an issue between parties who claim through the same deceased client, regardless of whether the claims are by testate or intestate succession or by inter vivos transaction; c) As to a communication relevant to an issue of breach of duty by the lawyer to the client or by the client to the lawyer; d) As to a communication relevant to an issue concerning an attested document to which the lawyer is an attesting witness; or e) As to a communication relevant to a matter of common interest between two or more clients if the communication was made by an,y of them to a lawyer retained or con- sulted in common, when offered in an action between any of the clients. [ c c ; Rule 504. Psychotherapist - patient privilege. ( 1) As used in this section, unless the context requires otherwise: a) " Confidential communication" means a communication not intended to be disclosed to third persons except: A) Persons present to further the interest of the patient in the consultation, examination or interview; B) Persons reasonably necessary for the transmission of the communication; or C) Persons who are participating in the diagnosis and treatment under the direction of the psychotherapist, including members of the patient' s family. b) " Patient ", means a person who consults or is examined or interviewed by a psychotherapist. c) " Psychotherapist" means a person who is: A) Licensed, registered, certified or otherwise authorized under the laws of any 4-10

198 EVIDENCE CODE state to engage in the diagnosis or treatment of a mental or emotional condition; or B) Reasonably believed by the patient so to be, while so engaged. 2) A patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purposes of diagnosis or treatment of the patient' s mental or emotional condition among the patient, the patient' s psychothera ist or persons who are partic- lpating in the diagnosis or treatment under the direction of the psychotherapist, including members of the patient' s family. 3) The privilege created by this section may be claimed by: a) The patient. b) A guardian or conservator of the patient. c) The personal representative of a de- ceased patient. d) The person who was the psychotherapist, but only on behalf of the gatient. The psychotherapist' s authority so to o is presumed in the absence of evidence to the contrary. 4) The following is a nonexclusive list of limits on the privilege granted by this section: a) If the judge orders an examination of the mental, physical or emotional condition of the patient, communications made in the course thereof are not privileged under this section with respect to the particular purpose for which the examination is ordered unless the judge orders otherwise. b) There is no privilege under this rule as to communications relevant to an issue of the mental or emotional condition of the patient: A) In any proceeding in which the pa- tient relies upon the condition as an element of the patient' s claim or defense; or B) After the patient' s death, in any proceeding in which any party relies u on the condition as an element of the party s claim or defense. c) Except as provided in ORCP 44, there is no privilege under this section for communications made in the course of mental examination performed under ORCP 44. d) There is no privilege under this section with regard to any confidential communication or record of such confidential communication that would otherwise be privileged under this section when the use Of the communication or record is allowed specifically under ORS , , , , or This par- agraph only applies to the use of the communication or record to the extent and for the purposes set forth in the described statute sections. ( 1981 x892 33; 1987 Q903 l) Rule Physician- patient privilege. (1) As used in this section, unless the context requires otherwise: a) " Confidential communication" means a communication not intended to be disclosed to third persons except: A) Persons present to further the interest of the patient in the consultation, examination or interview; B) Persons reasonably necessary for the transmission of the communication; or C) Persons who are participating in the diagnosis and treatment under the direction of the physician, including members of the patient's family. b) " Patient" means a person who consults or is examined or interviewed by a physician. c) " Physician" means a person author- ized and licensed or certified to practice medicine in any state or nation, or reason- ably believed by the patient so to be, while engaged in the diagnosis or treatment of a physical condition. " Physician" includes censed or certified naturopathic and chiropractic physicians. 2) A patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications in a civil action, suit or proceeding, made for the purposes of diagnosis or treatment of the patient's physical condition, among the patient, the patient' s physician or persons who are participating in the diagnosis or treat- ment under the direction of the physician, including members of the patient' s family. 3) The privilege created by this section may be claimed by: a) The patient; b) A guardian or conservator of the patient; c) The personal representative of a de- ceased patient; or d) The person who was the physician, but only on behalf of the patient. Such person' s authority so to do is presumed in the absence of evidence to the contrary. 4) The following is a nonexclusive list of limits on the privilege granted by this section: a) If the judge orders an examination of the physical condition of the patient, communications made in the course thereof are not privileged under this section with respect to the particular purpose for which the ex- li- 4-11

199 40240 EVIDENCE AND WITNESSES amination is ordered unless the judge orders otherwise. b) Except as provided in ORCP 44, there is no privilege under this section for communications made in the course of a physical examination performed under ORCP 44. c) There is no privilege under this section with regard to any confidential commu- nication or record of such confidential communication that would otherwise be privileged under this section when the use of the communication or record is specif- ically allowed under ORS , 426,074, , , or This paragraph only applies to the use of the com- munication or record to the extent and for the purposes set forth in the described stat- ute sections. [ 1981 c a; 1987 c Rule Nurse- patient privilege. A licensed professional nurse shall not, without the consent of a patient who was cared for by such nurse, be examined in a civil action or proceeding, as to any information acquired in caring for the patient, which was necessary to enable the nurse to care for the patient. [ 1981 c b] Rule School employee - student privilege. ( 1) A certificated staff member of an elementary or secondary school shall not be examined in any civil action or proceeding, as to any conversation between the certificated staff member and a student which relates to the personal affairs of the student or family of the student, and which if disclosed would tend to damage or incriminate the student or family. Any violation of the privilege provided by this subsection may result in the suspension of certification of the professional staff member as provided in ORS , and ) A certificated school counselor regularly employed and designated in such capacity by a public school shall not, without the consent of the student, be examined as to any communication made by the student to the counselor in the official capacity of the counselor in any civil action or proceeding. or a criminal action or proceeding in which such student is a party concerning the past use, abuse or sale of drugs, controlled substances or alcoholic liquor. Any violation of the privilege provided by this subsection may result in the suspension of certification of the professional school counselor as provided in ORS , and However, in the event that the student' s condition presents a clear and imminent danger to the student or to others, the counselor shall report this fact to an appropriate responsible authority or take such other emergency measures as the situation demands. [ 1981 c c] Rule Clinical social worker client - privilege. A clinical social worker licensed by the State Board of Clinical Social Workers shall not be examined in a civil or criminal court proceeding as to any communication * the clinical social worker by a client in the course of noninvestigatory professional activity when such communication was given to enable the licensed clinical social worker to aid the cli- ent, except: 1) When the client or those persons legally responsible for the client' s affairs give consent to the disclosure; 2) When the client initiates legal action or makes a complaint against the licensed clinical social worker to the board; 3) When the communication reveals a clear intent to commit a crime which reasonably is expected to result in physical injury to a person; 4) When the information reveals that a minor was the victim of a crime, abuse or neglect; or 5) When the licensed clinical social worker is a public employee and the public employer has determined that examination in a civil or criminal court proceeding is necessary in the performance of the duty of the social worker as a public employee. [ 1981 c d; 1989 c Rule 505. Husband -wife privilege. ( 1) As used in this section, unless the context requires otherwise: a) " Confidential communication" means a communication by a spouse to the other spouse and not intended to be disclosed to any other person. b) " Marriage" means a marital relation- ship between husband and wife, legally recognized under the laws of this state. 2) In any civil or criminal action, a spouse has a privilege to refuse to disclose and to prevent the other spouse from dis closing any confidential communication made by one spouse to the other during the marriage. The privilege created by this subsection may be claimed by either 'spouse. The authority of the spouse to claim the privilege and the claiming of the privilege is presumed in the absence of evidence to the contrary. 3) In any criminal proceeding, neither spouse, during the marriage, shall be examined adversely against the other as to any other matter occurring during the marriage unless the spouse called as a witness consents to testify.

200 EVIDENCE CODE ) There is no privilege under this section: a) In all criminal actions in which one spouse is charged with bigamy or with an offense or attempted offense against the person or property of the other spouse or of a child of either, or with an offense against the person or property of a third person committed in the course of committing or attempting to commit an offense against the other spouse; b) As to matters occurring prior to the marriage; or c) In any civil action where the spouses are adverse parties. [ 1981 c ; 1983 c Rule 506. Member of clergy - penitent privilege. ( 1) As used in this sec- tion, unless the context requires otherwise: a) " Confidential communication" means a communication made privately and not intended for further disclosure except to other persons present in furtherance of the purpose of the communication. b) " Member of the clergy" means a minister of any church, religious denomi- nation or organization or accredited Christian Science practitioner who in the course of the discipline or practice of that church, denomination or organization is authorized or accustomed to hearing confidential communications and, under the discipline or tenets of that church, denomi- nation or organization, has a such communications secret. duty to keep 2) A member of the clergy shall not, without the consent of the person making the communication, be examined as to any confidential communication made to the member of the clergy in the member' s professional character. [ 1981 c Rule 507. Counselor -client privilege. A professional counselor or a marriage and family therapist licensed by the Oregon Board of Licensed Professional Counselors and Therapists under ORS shall not be examined in a civil or criminal court pro - ceeding as to any communication given the counselor or therapist by a client in the course of a noninvestigatory professional activity when such communication was given to enable the counselor or the therapist to aid the client, except: 1) When the client or those persons legally responsible for the affairs of the client give consent to the disclosure. If both parties to a marriage have obtained marital and family therapy by a licensed marital and family therapist or a licensed counselor, the therapist or counselor shall not be competent to testify in a domestic relations action other than child custody action concerning infor- mation acquired in the course of the therapeutic relationship unless both parties consent; 2) When the client initiates legal action or makes a complaint against the licensed professional counselor or licensed marriage and family therapist to the board; 3) When the communication reveals the intent to commit a crime or harmful act; or 4) When the communication reveals that a minor is or is suspected to be the victim of crime, abuse or neglect. [ 1939 c.721 2o) Note: was added to and made a part of ORS to by legislative action but was not added to any smaller series therein. See Preface to Oregon Revised Statutes for further explanation Rule 508a. Stenographer - employer privilege. A stenographer shall not, without the consent of the stenogra- pher' s employer, be examined as to any com- munication or dictation made by the employer to the stenographer in the course of professional employment. [ 1981 c Rule 509. Public officer privilege. A public officer shall not be examined as to public records determined to be exempt from disclosure under ORS to [ 1981 c Rule 510. Identity of informer. 1) As used in this section, " unit of government" means the Federal Government or any state or political subdivision thereof. 2) A unit of government has a privilege to refuse to disclose the identity of a person who has furnished information relating to or assisting in an investigation of a possible vi- olation of law to a law enforcement officer or member of a legislative committee or its staff conducting an investigation. 3) The privilege created by this section may be claimed by an appropriate represen- tative of the unit of government if the information was furnished to an officer thereof. 4) No privilege exists under this section: a) If the identity of the informer or the informer' s interest in the subject matter of the communication has been disclosed to 4-13 those who would have cause to resent the communication by a holder of the privilege or by the informer' s own action, or if the informer appears as a witness for the unit of government. b) If it appears from the evidence in the case or from other showing by a party that an informer may be able to give testimony necessary to a fair determination of the issue of guilt or innocence in a criminal case or of a material issue on the merits in a civil case to which the unit of government is a party, and the unit of government invokes the privilege, and the judge gives the unit of

201 its EVIDENCE AND WITNESSES government an opportunity to show in camera facts relevant to determining whether the informer can, in fact, supply that testimony. The showing will ordinarily be in the form of affidavits, but the ' udge may direct that testimony be taken the judge finds that the matter cannot be resolved satisfactorily upon affidavit. If the judge fmds that there is a reasonable probability that the informer can give the testimony, and the unit of government elects not to disclose identity of the informer, the judge on motion of the defendant in a criminal case shall dismiss the charges to which the testimony would relate, and the judge may do so on the judge' s own motion. In civil cases, the judge may make any order that justice requires. Evidence submitted to the judge shall be sealed and preserved to be made available to the appellate court in the event of an appeal, and the contents shall not otherwise be revealed without consent of the unit of government. All counsel and parties shall be permitted to be present at every stage of proceedings under this paragraph except a showing in camera, at which no counsel or party shall be permitted to be present. c) If information from an informer is re- lied upon to establish the legality of the means by which evidence was obtained and the judge is not satisfied that the information was received from an informer reason- ably believed to be reliable or credible. The judge may require the identity of the infor- mer to be disclosed. The judge shall, on request of the unit of government, direct that the disclosure be made in camera. All counsel and parties concerned with the issue of legality shall be permitted to be present at every stage of proceedings under this para- graph except a disclosure in camera, at which no counsel or party shall be permitted to be present. If disclosure of the identity of the informer is made in camera, the record thereof shall be sealed and preserved to be made available to the appellate court in the event of an appeal, and the contents shall not otherwise be revealed without consent of the unit of government. [ 1981 c Rule 511. Waiver of privilege by voluntary disclosure. A person upon whom ORS to confer a privilege against disclosure of the confidential matter or communication waives the privilege if the person or the person' s predecessor while holder of the privilege voluntarily discloses or consents to disclosure of any significant part of the matter or communication. This section does not apply if the disclosure is itself a privileged communication. Voluntary disclosure does not occur with the mere commencement of litigation or, in the case of a deposition taken for the purpose of per- petuating testimony, until the offering of the deposition as evidence. Voluntary disclosure does occur, as to psychotherapists in the case of a mental or emotional condition and physicians in the case of a physical condition upon the holder' s offering of any person as a witness who testifies as to the condition c Rule 512. Privileged matter dis- closed under compulsion or without op- portunity to claim privilege. Evidence of a statement or other disclosure of privileged matter is not admissible against the holder of the privilege if the disclosure was: 1) Compelled erroneously; or 2) Made without opportunity to claim the privilege. [ 1981 c ] Rule 513. Comment upon or inference from claim of privilege. ( 1) The claim of a privilege, whether in the present proceeding or upon a prior occasion, is not a proper subject of comment by judge or counsel. No inference may be drawn from a claim of privilege. 2) In jury cases, proceedings shall be conducted, to the extent practicable, so as to facilitate the making of claims of privilege without the knowledge of the jury. 3) Upon Fuest, any party against hom the jury ght draw an adverse inference from a cla of privilege is entitled to an instruction that no inference may be drawn therefrom. [ 1981 c Rule 514. Effect on existing privileges. Unless expressly repealed by section 98, chapter 892, Oregon Laws 1981, all existing privileges either created under the Constitution or statutes of the State of Oregon or developed by the courts of Oregon are recognized and shall continue to exist until changed or repealed according to law c WITNESSES Rule 601. General rule of competency. Except as provided in ORS to , any person who, having organs of sense can perceive, and perceiving can make known the perception to others, may be a 4-14 witness. ( 1981 c Rule 602. Lack of personal knowledge. Subject to the provisions of ORS , a witness may not testify to a matter unless evidence is, introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the testimony of the witness. [ 1981 c Rule 603. Oath or affirmation. 1) Before testifying, every witness shall be

202 EVIDENCE CODE required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the conscience of the witness and impress the mind of the witness with the duty to do so. 2) An oath may be administered as follows: The person who swears holds up one hand while the person administering the oath asks: " Under penalty of perjury, do you solemnly swear that the evidence you shall give in the issue ( or matter) now pending between and shall be the truth, thew-f ote truth nothing but the truth, so help you God?" If the oath is administered to any other than a witness, the same form and manner may be used. The person swearing must answer in an affirma- tive manner. 3) An affirmation may be administered as follows: The person who affirms holds up one hand while the person administering the affirmation asks: " Under penalty of perjury, do you promise that the evidence you shall give in the issue ( or matter) now pending between and shall be the truth, the--w1t truth nothing but the truth?" If the affirmation is administered to any other than a witness, the same form and manner may be used. The person affirming must answer in an affirmative manner. [ 1981 c ] Rule 604. Interpreters. An inter - preter is subject to the provisions of the Oregon Evidence Code relating to qualification as an expert and the administration of an oath or affirmation that the interpreter will make a true translation. ( 1981 c ; 1981 s.s. c.3 138; 1989 c.224 7; 1991 x Rule 605. Competency of judge as witness. The judge presiding at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point. [ 1981 c ] Rule 606. Competency of juror as witness. A member of the jury may not testify as a witness before that jury in the trial of the case in which the member has been sworn to sit as a juror. If the juror is called so to testify, the opposing party shall be afforded an opportunity to object out of the presence of the jury. [ 1981 c [ 1981 c ; repealed by Rule 607. Who may impeach. The credibility of a witness may be attacked by any party, including the party calling the witness. 081 c Rule 608. Evidence of character and conduct of witness. ( 1) The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but: a) The evidence may refer only to character for truthfulness or untruthfulness; and b) Evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise. 2) Specific instances of the conduct of a witness, for the purpose of attacking or supporting the credibility of the witness, other than conviction of crime as provided in ORS , may not be proved by extrinsic evidence. Further, such specific instances of conduct may not, even if probative of truthfulness or untruthfulness, be inquired into on cross - examination of the witness c Rule 609. Impeachment by evidence of conviction of crime. ( 1) For the purpose of attacking the credibility of a wit- ness, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record, but only if the crime ( a) was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, or ( b) involved false statement or dishonesty. 2) Evidence of a conviction under this section is not admissible if- a) A period of more than 15 years has elapsed since the date of the conviction or of the release of the witness from the cqnfinement imposed for that conviction, whichever is the later date; or b) The conviction has been expunged by pardon, reversed, set aside or otherwise ren- dered nugatory. 3) When the credibility of a witness is attacked by evidence that the witness has been convicted of a crime, the witness shall be allowed to explain briefly the circumstances of the crime or former conviction; once the witness explains the circumstances, the opposing side shall have the opportunity to rebut the explanation. 4) The pendency of an appeal therefrom does not render evidence of a conviction inadmissible. Evidence of the pendency of an appeal is admissible. 5) An adjudication by a juvenile court that a child is within its jurisdiction is not a conviction of a crime. [ 1981 c ; 1987 c.2 9] Rule Impeachment for bias or interest. ( 1) The credibility of a witness may be attacked by evidence that the witness engaged in conduct or made statements showing bias or interest. However, before this can be done, the statements must be related to the witness and the conduct described, with the circumstances of times, 4-15

203 EVIDENCE AND WITNESSES places and persons present, and the witness shall be asked whether the witness made the statements or engaged in such conduct, and, if so, allowed to explain. If the statements are in writing, they shall be shown to the witness. 2) If a witness fully admits the facts claimed to show the bias or interest of the witness, additional evidence of that bias or interest shall not be admitted. If the witness denies or does not fully admit the facts claimed to show bias or interest, the party attacking the credibility of the witness may then offer evidence to prove those facts. 3) Evidence to support or rghabilitate a witness whose credibility has been attacked by evidence of bias or interest shall be limited to evidence showing a lack of bias or interest. [ 1981 c Rule 610. Religious beliefs or opinions. Evidence of the beliefs or opinions of a witness on matters of religion is not ad- missible for the purpose of showing. that by reason of their nature the credibility of the witness is impaired or enhanced. [ 1981 c a] Rule 611. Mode and order of interrogation and presentation. ( 1) The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to make the interrogation and presentation effective for the ascertainment of the truth, avoid needless consumption of time and protect witnesses from harassment or undue embar- rassment. 2) Cross - examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination. 3) Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness' testimony. Ordinarily leading questions should be permitted on cross - examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions. [ 1981 c b] Rule 612. Writing used to refresh memory. If a witness uses a writing to refresh memory for the purpose of testifying, either while testifying or before testifying if the court in its discretion determines it is necessary in the interests of justice, an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross - examine the witness thereon, and to introduce into evidence those portions which relate to the testimony of the witness. If it is claimed that the writing contains matters not related to the subject matter of the testimony, the court shall examine the writing in camera, excise any portions not so related, and order delivery of the remainder to the party entitled thereto. Any portion withheld over objections shall be preserved and, made available to the appellate court in the event of an appeal. If a writing is not produced or delivered pursuant to order under this section, the court shall make any order justice requires, except that in criminal cases when the prosecution elects not to comply the order shall be one striking the testimony or, if the court in its discretion determines that the interests of justice so require, declaring a mistrial. [ 1981 c Rule 613. Prior statements of In examining a witness con- witnesses. ( 1) cerning a prior statement made by the wit- ness, whether written or not, the statement need not be shown nor its contents disclosed to the witness at that time, but on request the same shall be shown or disclosed to op- posing counsel. 2) Extrinsic evidence of a prior incon- sistent statement by a witness is not admis- sible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a op onent as defined in ORS p1981c a; 1983 c.433 2; ] Rule 615. Exclusion of wit- nesses. At the request of a party the court may order witnesses excluded until the time of final argument, and it may make. the order of its own motion. This rule does not au- thorize exclusion of ( 1) a party who is a natural person, or ( 2) an officer or employee of a party which is not a natural person designated as its representative by its attorney, or ( 3) a person whose presence is shown by a party to be essential to the presentation of the party' s cause, or ( 4) the victim in a criminal case. [ 1981 c ; 1987 c OPMONS AND EXPERT TESTIMONY Rule 701. Opinion testimony. by lay witnesses. If the witness is not testifying as an expert, testimony of the witness in the form of opinions or inferences is limited to those opinions or inferences which are: 1) Rationally based on the perception of the witness; and 2) Helpful to a clear understanding of testimony of the witness or the determination of a fact in issue. [ 1981 c Rule 702. Testimony by experts. If scientific, technical or other specialized

204 EVIDENCE CODE knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise. [ 1981 c Rule 703. Bases of opinion testimony by experts. The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence. [ 1981 c Rule 704. Opinion on ultimate issue. Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact c Rule 705. Disclosure of fact or data underlying expert opinion. An expert ma testify in terms of opinion or inference and give reasons therefor without prior disclosure of the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross - examination. [ 1981 c HEARSAY Rule 801. Definitions for ORS to 40A75. As used in ORS to , unless the context requires otherwise: 1) A " statement" is: a) An oral or written assertion; or b) Nonverbal conduct of a person, if intended as an assertion. 2) A " declarant" is a person who makes a statement. 3) " Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. 4) A statement is not hearsay if: a) The declarant testifies at the trial or hearing and is subject to cross - examination concerning the statement, and the statement is: A) Inconsistent with the testimony of the witness and was given under oath subject to the penalty of perjury at a trial, hearing or other proceeding, or in a deposition; B) Consistent with the testimony of the witness and is offered to rebut an inconsist- ent statement or an express or implied charge against the witness of recent fabrication or improper influence or motive; or C) One of identification of a person made after perceiving the person. b) The statement is offered against a party and is: A) That party' s own statement, in either an individual or a representative capacity; B) A statement of which the party has manifested the party' s adoption or belief in its truth; C) A statement by a person authorized by the party to make a statement concerning the subject; D) A statement by the party' s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship; or E) A statement by a coconspirator of a party during the course and in furtherance of the conspiracy. c) The statement is made in a deposition taken in the same proceeding pursuant to ORCP 39 I. [ 1981 c ; 1987 c Rule 802. Hearsay rule. Hearsay is not admissible except as provided in ORS to or as otherwise provided by law. [ 1981 c Rule 803. Hearsay exception; availability of declarant immaterial. The following are not excluded by ORS , even though the declarant is available as a witness: 1) [ Reserved.] 2) A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition. 3) A statement of the declarant' s then existing state of mind, emotion, sensation or physical condition, such as intent, plan, mo- tive, design, mental feeling, pain or bodily health, but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the ex- ecution, revocation, identification, or terms of the declarant' s will ) Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain or sensations, or the inception or general character of the cause of external source thereof insofar as reasonably pertinent to diagnosis or treatment. 5) A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the memory of the witness and to

205 EVIDENCE AND WITNESSES reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party. 6) A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method of circumstances of preparation indicate lack of trustworthiness. The term business" as used in this subsection includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit. 7) Evidence that a matter is not included in the memoranda, reports, records, or data compilations, and in any form, kept in ac- cordance with the provisions of subsection 6) of this section, to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, unless the sources of information or other circumstances indicate lack of trustworthiness. 8) Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth: a) The activities of the office or agency; b) Matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding however, in criminal cases matters observed by police officers and other law enforcement personnel; or c) In civil actions and proceedings and against the government in criminal cases, factual findings, resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness. 9) Records or data compilations, in any form, of births, fetal deaths, deaths or marriages; if the report thereof was made to a public office pursuant to requirements of law. 10) To prove the absence of a record, report, statement, or data compilation, in any form, or the nonoccurrence or nonexistence of a matter of which a record, report, statement, or data compilation, in any form, was regularly made and preserved by a public office or agency, evidence in the form of a certification in accordance with ORS , or testimony, that diligent search failed to disclose the record, report, statement, or data compilation, or entry. 11) Statements of births, marriages, divorces, deaths, legitimacy, ancestry, relationship by blood or marriage, or other similar facts of personal or family history, contained in a.regularly kept record of a religious organization. 12) A statement of fact contained in a certificate that the maker performed a mar- riage or other ceremony or administered a sacrament, made by a clergyman, public official, or other person authorized by the rules or practices of a religious organization or by law to perform the act certified, and purporting to have been issued at the time of the act or within a reasonable time there- after. 13) Statements of facts concerning personal or family history contained in family bibles, genealogies, charts, engravings rings, inscriptions on family portraits, en- gravings on urns, crypts, or tombstones, or the like. 14) The record of a document purporting to establish or affect' an interest in property, as proof of content of the original recorded document and its execution and delivery by each person by whom it purports to have been executed, if the record is a record of a public office and an applicable applicable statute auof that thorizes the recording kind in that office. 15) A statement contained in a document purporting to establish or affect an interest in property if the matter stated was relevant to the purpose of the document, unless dealings with the property since the document was made have been inconsistent with the truth of the statement or the purport of the document. 16) Statements in a document in existence 20 years or more the authenticity of which is established. 17) Market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations. 18) [ Reserved.) 4-18 on 18a)(a) A complaint of sexual misconduct made by the witness after the commission of the alleged misconduct at issue. Except as provided in paragraph ( b) of this subsection, such evidence must be confined to the fact that the complaint was made. b) A statement made by a child victim, which statement concerns an act of sexual conduct performed with or on the child by another, is not excluded by ORS if the

206 EVIDENCE CODE child either testifies at the proceeding and is subject to cross- examination or is under 12 years of age and is unavailable as a witness. However, when a child under 12 years of age is unavailable as a witness, the statement may be admitted in evidence only if the proponent establishes that the time, content and circumstances of the statement provide indicia of reliability, and in a criminal trial that there is corroborative evidence of the act of sexual conduct and of the alleged perpetrator' s opportunity to participate in the conduct and that the statement possesses indicia of reliability as is constitutionally required to be admitted. No statement may he admitted under this paragraph unless the proponent of the statement makes known to the adverse party the proponent' s intention to offer the statement and the particulars of the statement no later than 15 days before trial, except for good cause shown. For purposes of this paragraph, in addition to those situations described in ORS ( 1), the child shall be considered " unavailable" if the child has a substantial lack of memory of the subject matter of the statement, is presently incompetent to testify, is unable to communicate about the sexual conduct because of fear or other similar reason or is substantially likely, as established by expert testimony, to suffer lasting severe emotional trauma from testifying. Unless otherwise agreed by the parties, the court shall examine the child in chambers and on the record or outside the presence of the u and on the record. The examination shall be conducted immediately prior to the commencement of the trial in the presence of the attorney and the legal guardian or other suitable adult as designated by the court. If the child is found to be unavailable, the court shall then determine the admissibility of the evidence. The determinations shall be appealable under ORS ( 3). The purpose of the examination shall be to aid the court in making its findings regarding the child' s availability as a witness and the reliability of the child' s statement. In determining whether a statement possesses indicia of reliability under this paragraph, the court may consider, but is not limited to, the following factors: event; A) The child' s personal knowledge of the B) The age and maturity of the child; C) Certainty that the statement was made, including the credibility of the person testifying about the statement and any motive the person may have to falsify orany the statement; D) Any apparent motive the child may have to falsify or distort the event, including bias, corruption or coercion; E) The timing of the child' s statement; F) Whether more than one person heard the statement; G) Whether the child was suffering pain or distress when making the statement; H) Whether the child' s young age makes it unlikely that the child fabricated a statement that represents a graphic, detailed account beyond the child' s knowledge and experience; I) Whether the statement has internal consistency or coherence and uses terminology appropriate to the child' s age; J) Whether the statement is spontaneous or directly responsive to questions; and K) Whether the statement was elicited by leading questions. c) This subsection applies to all civil, criminal and juvenile proceedings. 19) Reputation among members of a person' s family by blood, adoption or marriage, or among a person' s associates, or in the community, concerning a person' s birth, adoption, marriage, divorce, death, legiti- macy, relationship by blood or adoption or marriage, ancestry, or other similar fact of a person' s personal or family history. 20) Reputation in a community, arising before the controversy, as to boundaries of or customs affecting lands in the community, and reputation as to events of general history important to the community or state or nation in which located. 21) Reputation of a person' s character among associates of the person or in the community. 22) Evidence of a final judgment, entered after a trial or upon a plea of guilty, but not upon a plea of no contest, adjudging a person guilty of a crime other than a traffic offense, to prove any fact essential to sustain the Judgment, but not including, when offered by the government in a criminal prosecution for purposes other than impeachment, judgments against persons other than the accused. The pendency of an appeal may be shown but does not affect admissibility. 23) Judgments as proof of matters of Efamily or general history, or boundaries, essential to the judgment, if the same would be provable by evidence of repu- tation. 24) Notwithstanding the limits contained in subsection ( 18a) of this section, in any proceeding in which a child under 12 years of age at the time of trial may be called as a witness to testify concerning an act of sexual conduct performed with or on the child by another, the testimony of the child taken yy contemporaneous examination and 4-19

207 EVIDENCE AND WITNESSES cross - examination in another place under the supervision of the trial judge and communicated to the courtroom by closed circuit television or other audiovisual means. Testimony will be allowed as provided in this subsection only if the court finds that there is a substantial likelihood, established by expert testimony, that the child will suffer severe emotional or psychological harm if required to testify in open court. If the court makes such a finding, the court, on motion of a party, the child or the court in a civil proceeding, or on motion of the district attorney or the child in a criminal or juvenile proceeding, may order that the testimony of the child be taken as described in this subsection. Only the judge, the attorneys for the parties, the parties, individuals necessary to operate the equipment and any individual the court finds would contribute to the welfare and well -being of the child may be present during the child' s testimony. 25)( a) A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that: A) The statement is relevant; B) The statement is more probative on the point for which it is offered than any other evidence which the proponent can pro- cure through reasonable efforts; and C) The general purposes of the Oregon Evidence Code and the interests of justice will best be served by admission of the statement into evidence. b) A statement may not be admitted under this subsection unless the proponent of it makes known to the adverse party the intention to offer the statement and the particulars of it, including the name and address of the declarant, sufficiently in advance of the trial or hearing, or as soon as practicable after it becomes apparent that such statement is probative of the issues at hand, to provide the adverse party with a fair opportunity to prepare to meet it. [ 1981 c ; 1989 c 300 l; 1989 c.881 l; 1991 c provides: Note: Section 2, chapter 391, Oregon Laws 1991, Sec. 2. The amendments to ORS by section 1 of this Act apply only to proceedings commenced on or after the effective date of this Act [ September 29, [ 1991 c Rule 804. Hearsay exceptions where the declarant is unavailable. ( 1) Unavailability as a witness" includes situations in which the declarant: a) Is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of a statement; li) Persists in refusing to testify concerning the subject matter of a statement despite an order of the court to do so; c) Testifies to a lack of memory of the subject matter of a statement; d) Is unable to 'be present' or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or e) Is absent from the hearing and the proponent of the declarant' s statement has been unable to procure the declarant' s attendance ( or in the case of an exception under paragraph ( b), ( c) or ( d) of subsection ( 3) of this section, the declarant' s attendance or testimony) by process or other reasonable means. 2) A declarant is not unavailable as a witness if the declarant's exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of the declarant' s statement for the purpose of pre- venting the witness from attending or testifying. 3) The following are not excluded by ORS if the declarant is unavailable as a witness: a) Testimony given as a witness at another hearing of the same or a different pro- ceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now oflred, or, in a civil action or proceeding a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. b) A statement made by a declarant while believing that death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death. c) A statement which was at the time of its making so far contrary to the declarant' s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant' s position would not have made the statement unless the person believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement d)( A) A statement concerning the declarant' s own birth, adoption, marriage, divorce, legitimacy, relationship by blood or adoption or marriage, ancestry, or other

208 EVIDENCE CODE similar fact of personal or family history, even though the declarant had no means of acquiring personal knowledge of the matter stated; or B) A statement concerning the foregoing matters, and death also, of another person, if the declarant was related to the other by blood, adoption, or marriage or was so intimately associated with the other' s family as to be likely to have accurate information concerning the matter declared. e) A statement made at or near the time of the transaction by a person in a position to know the facts stated therein, acting in the person' s professional capacity and in the ordinary course of professional conduct. f) A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that A) the statement is offered as evidence of a material fact; ( B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and C) the general purposes of the Oregon Evidence Code and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this paragraph unless the proponent of it makes known to the adverse party the intention to offer the statement and the particulars of it, including the name and address of the declarant, sufficiently in advance of the trial or hearing, or as soon as practicable after it becomes apparent that the statement is probative of the issues at hand, to provide the adverse party with a fair opportunity to prepare to meet it. [ 1981 c A70 Rule 805. Hearsay within hearsay. Hearsay included within hearsay is not excluded under ORS if each part of the combined statements conforms with an exception set forth in ORS or c Rule 806. Attacking and supporting credibility of declarant. When a hearsay statement, or a statement defined in ORS ( 4)(b)(C), ( D) or (E), has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if the declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with the hearsay statement of the declarant, is not subject to any requirement under ORS relating to impeachment by evidence of inconsistent statements. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine the declarant on the statement as if under cross - examination. [ 1981 c.892 6'7] AUTHENTICATION AND IDENTIFICATION Rule 901. Requirement of authentication or identification. ( 1) The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. 2) By way of illustration only, and not by way of limitation,the following are exam- ples of authentication or identification con - forming with the requirements of subsection 1) of this section: a) Testimony by a witness with knowledge that a matter is what it is claimed to be. b) Nonexpert opinion as to the genuineness of handwriting, based upon familiarity not acquired for purposes of the litigation. c) Comparison by the trier of fact or by expert witnesses with specimens which have been authenticated. d) Appearance, contents, substance, internal patterns or other distinctive characteristics, taken in conjunction with circum- stances. e) Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker. f) Telephone conversations, by evidence that a call was made to the number assigned at the time by the telephone company to a particular person or business, if: A) In the case of a person, circumstances, including self identification, - show the person answering to be the one called; 4-21 or B) In the case of a business, the call was made to a place of business and the conversation related to business reasonably transacted over the telephone. g) Evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a public office, or a pur- ported public record, report, statement, or data compilation, in any form, is from the public office where items of this nature are kept. h) Evidence that a document or data compilation, in any form:

209 EVIDENCE AND WITNESSES A) Is in such condition as to create no suspicion concerning its authenticity; B) Was in a place where it, if authentic, would likely be; and C) Has been in existence 20 years or more at the time it is offered. i) Evidence describing a process or system used to produce a result and showing that the process or system produces an ac- curate result. j) Any method of authentication or identification otherwise provided by law or by other rules prescribed by the Supreme Court. [ 1981 c Rule 902. Self authentication. - Extrinsic evidence of authenticity as a con- dition precedent to admissibility is not required with respect to the following: 1) A document bearing a seal purporting to be that of the United States, or of any state, district, commonwealth, territory, or insular possession thereof, or the Panama Canal Zone, or the Trust Territory of the Pacific Islands, or of a political subdivision, department, officer, or agency thereof, and a signature purporting to be an attestation or execution. 2) A document purporting to bear the signature, in an official capacity, of an officer or employee of any entity included in subsection ( 1) of this section, having no seal, if a public officer having a seal and having official duties in the district or political sub- division of the officer or employee certifies under seal that the signer has the official capacity and that the signature is genuine. 3) A document purporting to be executed or attested in an official capacity by a person authorized by the laws of a foreign country to make the execution or attestation, and accompanied by a final certification as to the genuineness of the signature and official po- sition of (A) the executing or attesting person, or ( B) any foreign official whose certificate of genuineness of signature and official position relates to the execution or attestation or is in a chain of certificates of genuineness of signature and official position relating to the execution or attestation. A final certification may be made by a secretary of embassy or legation, consul general, consul, vice consul, or consular agent of the United States, or a diplomatic or consular official of the foreign country assigned or accredited to the United States. If reasonable opportunity has been given to all parties to investigate the authenticity and accuracy of official documents, the court may, for good cause shown, order that they be treated as presumptively authentic without final certification or permit them to be evidenced by an attested summary with or without final certification. 4) A copy of an official record or report or entry therein, or of a document authorized by law to be recorded or filed and actually recorded or filed in a public office, including data compilations in any form, certified as correct by the custodian or other person authorized to make the certification, by certificate complying with subsection ( 1), ( 2) or ( 3) of this section or otherwise complying with any law or rule prescribed by the Supreme Court. 5) Books, pamphlets or other publica- tions purporting to be issued by public authority. 6) Printed materials purporting to be newspapers or periodicals. 7) Inscriptions, signs, tags or labels purporting to have been affixed in the course of business and indicating ownership, control or origin. 8) Documents accompanied by a certif- icate of acknowledgment executed in the manner provided by law by a notary public or other officer authorized by law to take acknowledgments. 9) Commercial paper, signatures thereon and documents relating thereto to the extent provided by ORS chapters 71 to ) Any signature, documents or other matter declared by law to be presumptively or prima facie genuine or authentic. 11)( a) A document bearing a seal purporting to be that of a federally recognized Indian tribal government or of a political subdivision, department, officer, or agency thereof, and a signature purporting to be an attestation or execution. b) A document purporting to bear the signature, in an official capacity, of an officer or employee of any entity included in paragraph ( a) of this subsection, having no seal, if a public officer having a seal and having official duties in the district or poli tical subdivision or the officer or employee certifies under seal that the signer has the official capacity and that the signature is genuine. [ 1981 c Rule 903. Subscribing witness' testimony unnecessary. The testimony of a subscribing witness is not necessary to authenticate a writing unless required by the laws of the jurisdiction whose laws govern the validity of the writing. [ 1981 x

210 EVIDENCE CODE CONTENTS OF WRITINGS, RECORDINGS AND PHOTOGRAPHS 40ZW Rule Definitions for ORS 40ZW to As used in ORS to , unless the context requires otherwise: 1) " Duplicate" means a counterpart produced by the same impression as the original, or from the same matrix, or by means of photography, including enlargements and miniatures, by mechanical or electronic rerecording, by chemical reproduction or by other equivalent techniques which accuratel reproduce the original, including repro uction by facsimile machines if the reprodiiction is identified. as a facsimile and printed on nonthermal paper. 2) " Original" of a writing or recording is the writing or recording itself or any counterpart intended to have the same effect by a person executing or issuing it. An " original of a photograph includes the negative or any print therefrom. If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an " original." 3) " Photographs" includes still photo- graphs, X -ray films, video tapes and motion pictures. 4) " Writings" and " recordings" mean letters, words or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or electronic recordingg or other form of data compilation c.8j c Rule Requirement of ori- ginal. To prove the content of a writing, re- cording or photograph, the original writing, recording or photograph is required, except as otherwise provided in ORS to or other law. [ 1981 c Rule Admissibility of duplicates. A duplicate is admissible to the same extent as an original unless: 1) A genuine question is raised as to the authenticity of the original; or 2) In the circumstances it would be unfair to admit the duplicate in lieu of the original.: [ 1981 c Rule Admissibility of other evidence of contents. The original is not required, and other evidence of the contents of a writing, recording or photograph is admissible when: 1) All originals are lost or have been destrdyed, unless the proponent lost or destroyed them in bad faith; 2) An original cannot be obtained by any available judicial process or procedure; 3) At a time when an original was under the control of the party against whom offered, that party was put on notice, by the pleadings or otherwise, that the contents would be a subject of proof at the hearing, and the party does not produce the original at the hearing; or 4) The writing, recording or photograph is not closely related to a controlling issue x Rule Public records. The contents of an official record or of a document authorized to be recorded or filed and actually recorded or filed, including data compilations in any form, if otherwise admissible, may be proved by copy, certified as correct in accordance with ORS or testified to be correct by a witness who has compared it with the onginal. If such a copy cannot be obtained by the exercise of rea- sonable diligence, then other evidence of the contents may be given. [ 1981 c ; 1983 c Rule Summaries. The contents of voluminous writings, recordings or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary or calculation. The originals, or duplicates, shall be made avail- able for examination or copying, or both, by other parties at a reasonable time and place. The court may order that they be produced in court. [ 1981 c Rule 1007: Testimony or written admission of party. Contents of writings, recordings or photographs may be proved by the testimony or deposition of the party against whom offered' or by the party' s written admission, without accounting for the nonproduction of the original. [ 1981 c Rule Functions of court and jury. When the admissibility of other evidence of contents of writings, recordings or photographs under ORS to depends upon the fulfillment of a condition of fact, the question whether the condition has been fulfilled is ordinarily for the court to determine in accordance with ORS However, the issue is for the trier of fact to determine as in the case of other issues of fact when the issue raised is: existed; 1) Whether the asserted writing ever 2) Whether another writing, recording or photograph produced at the trial is the original; or 3) Whether the other evidence of contents correctly reflects the contents. [ 1981 c

211 EVIDENCE AND WITNESSES 4-24

212 Chapter EDITION Evidence Generally Judicial evidence; proof Satisfactory evidence Proof of usage Punitive damages; standard of proof; evidence of financial condition of party Photograph of victim in prosecution for criminal homicide " Secondary evidence" defined for ORS 4L500 to Indispensable evidence Evidence to prove a will Evidence of representations as to third persons Grant or assignment of trust Contracts and communications made by telegraph Statute of frauds 41AW Admissibility of objects cognizable by the senses Inadmissibility of certain health care facility and training data 4L685 Inadmissibility of certain data submitted by emergency medical service provider, data of certain committees and governing bodies privileged Parol evidence rule Evidence of compliance with or attempt to comply with ORCP 32 I; when admissible Admissibility of certain traffic offense procedures in subsequent civil action Certain intercepted communications inadmissible; exception; motion to suppress 4L930 Admissibility of copies of original records Application of ORS and ORCP 55 H. CROSS REFERENCES Trusts concerning interest in real property, creation, transfer or declaration, Creation, transfer or declaration of estate in real property, Grubstaking contracts, need for writing, Motor vehicle retail installment contracts, need for writing, Sales of lands acquired by county by foreclosure of delinquent tax lien, , Data on dentists, L675 Hospital records, access, , L910 Interception of communications, definitions,

213 EVIDENCE AND WITNESSES 4-26

214 EVIDENCE GENERALLY Judicial evidence; proof. Judicial evidence is the means, sanctioned by law, of ascertaining in a judicial proceeding the truth respecting a question of fact. Proof is the effect of evidence, the establishment of the fact by evidence [ Repealed by 1981 c [ Repealed by 1981 c [ Repealed by 1981 c [ Repealed by 1981 c [ Repealed by 1981 c [ Repealed by 1981 c [ Repealed by 1981 c [ Repealed by 1981 c [ Repealed by 1981 c Satisfactory evidence. Satisfac- tory evidence is that which ordinarily produces moral certainty or conviction in an unprejudiced mind. It alone will justify a verdict. Evidence less than this is insuffi- cient evidence [ Repealed by 1981 c [ Repealed by 1981 c [ Repealed by 1981 c [ Repealed by 1981 c [ Repealed by 1981 c ] [ Repealed by 1981 c [ Repealed by 1981 c [ Repealed by 1981 c [ Repealed by 1981 c [ Repealed by 1981 c Proof of usage. ( 1) Usage shall be proved by the testimony of at least two witnesses. 2) Evidence may be given of usage to explain the true character of an act, contract or instrument when such true character is not otherwise plain, but usage is never admissible except as a means of interpretation. Amended by 1951 c M [Repealed by 1981 c [ Repealed by 1981 c Punitive damages; standard of proof; evidence of financial condition of party. ( 1) Except as otherwise specifically provided by law, a claim for punitive damages shall be established by clear and convincing evidence. 2) In a civil action in which a party seeks punitive damages from another party, evidence of the financial condition of a party shall not be admissible until the party seeking such damages has presented evidence sufficient to justify to the court a prima facie claim of punitive damages. [ 1987 c.774 1, [ Repealed by 1981 c [ Repealed by 1981 c [ Repealed by 1981 c [ Amended by 1971 c.127 l; repealed by 1981 c [ Amended by 1957 c.679 l; ; repealed by 1981 c A10 [ Repealed by 1981 c Photograph of victim in prosecution for criminal homicide. In a prose- cution for any criminal homicide, a photograph of the victim while alive shall be admissible evidence when offered by the district attorney to show the general appearance and condition of the victim while alive c A20 ( Repealed by 1981 c A30 [ Repealed by 1981 c A40 [ Repealed by 1981 c A50 [ Repealed by 1981 c AGO [ Repealed by 1981 c A70 [ Repealed by 1981 c AW [Repealed by 1981 c " Secondary evidence" defined for ORS to As used in ORS to , " secondary evidence" means a copy, or oral evidence, of an original writ- ing or object. [ 1981 c Indispensable evidence. Certain evidence is necessary to the validity of particular acts or the proof of particular facts Evidence to prove a will. Evidence of a will shall be the written instrument itself, or secondary evidence of the contents of the will, in the cases prescribed by law. [ Amended by 1969 c Evidence of representations as to third persons. No evidence is admissible to charge a person upon a representation as to the credit, skill or character of a third person, unless the representation, or some memorandum thereof, be in writing, and either subscribed by or in the handwriting of the party to be charged [ Repealed by 1977 c [ Repealed by Grant or assignment of trust. Every grant or assignment of any existing trust in lands, tenements, hereditaments, goods or things in action is void, unless it is in- writing and subscribed by the party making it or by the lawfully authorized agent of the party Contracts and communications made by telegraph. Contracts made by telegraph shall be held to be in writing; and all communications sent by telegraph, and signed by the sender, or by the authority of the sender, shall be held to be in writing Statute of frauds. ( 1) In the following cases the agreement is void unless it, or some note or memorandum thereof, expressing the consideration, is in writing and subscribed by the party to be charged, or by the lawfully authorized agent of the party;

215 EVIDENCE AND WITNESSES evidence, ' therefore, of the agreement shall. not be received other than the writing, or secondary evidence of its contents in the cases prescribed by law: a) An agreement that by its terms is not to.be performed within a year from the making. b) An agreement to answer for the debt, default or miscarriage of another. c) An agreement by an executor or administrator' to pay the debts of the testator or intestate out of the estate of the executor or administrator. d) An agreement made upon consideration of marriage, other than a mutual promise to marry. e) An agreement for the leasing for a longer period than one year, or for the sale of real property, or of any interest therein. f) An agreement - concerning real property made by an agent of the party sought to be charged unless the authority of the agent is in writing. g) An agreement authorizing or employing an agent or broker to sell or purchase real estate for a compensation or commission; but if the note or memorandum of the agreement is in writing and subscribed by the party to be charged, or by the lawfully authorized agent of the party, and contains a description of the property sufficient for identification, and authorizes or employs.the agent or broker to sell the property, and. expresses with reasonable certainty the amount of the commission or compensation to be paid, the agreement shall not be void for failure to state a consideration. h) An agreement, promise or commitment to lend money, to otherwise extend credit, to forbear with respect to the. repay- ment of any debt payable in money, to modify or amend the terms under which the person has lent money or otherwise extended credit, to release any guarantor or cosigner or to make any other financial accommodation pertaining to an existing debt or other extension of credit. This paragraph does not apply: A) If no party to the agreement, promise or commitment is a financial institution as defined in ORS , a consumer finance company licensed under ORS chapter 725 or a mortgage banker as defined in ORS ; B) To a loan of money or extension of credit to a natural person which is primarily for personal, family or household purposes and not for business or agricultural purposes or which is secured solely by residential property consisting of one to four dwelling units, one of which is the primary residence of the debtor; or C) To any transaction involving the,u' e, of a credit. card, charge card or similar de- vice. 2)( a) Except as provided in this section, all defenses and exceptions to paragraphs' (a) to ( g) of subsection ( 1) of this section created by any provision of the Oregon Revised Statutes or recognized by the courts of this state shall also apply to paragraph ( h) of sub- section ( 1) of this section. ; b) An agreement, promise or - commitment which does not satisfy the requirements of paragraph' (h) of subsection ( 1) of this section, but which is valid in other respects, is enforceable if the party against whom enforcement is sought admits in the party's pleading, testimony or otherwise in court that the agreement, promise or commitment was made. The agreement is not enforceable under this paragraph beyond the dollar amount admitted. c) Nothing in paragraph ( h) of sub - se tion.( 1) of this section precludes a party from seeking to prove the waiver of any term relating to the time 'of repayment. 3)( a) -If a financial institution ask, defined; in ORS , a consumer finance company licensed under ORS chapter 725 or a mortgage banker as defined in ORS lends money or extends credit, and paragraph ( h) of subsection ( 1) of this section applies to the loan or extension of credit, the financial in- stitution, consumer - finance company or mortgage banker shall, not later than the time the loan or extension of credit is initially made, include within the loan or credit document, or within a separate document which' identifies' the loan or extension of credit, a statement which is underlined or in at least 10 -point bold type and which is sub- stantially to the following effect: Under Oregon law, most agreements, promises and commitments made by us after October 3, 1989, concerning loans and' other credit extensions which are not for personal, family or household purposes or secured solely by the borrower' s residence must be in writing,_ express consideration and be signed by us to be enforceable." 4-28 b) The financial institution, consumer finance company or mortgage banker shall obtain the borrower' s signature on the orig nal document described in paragraph ( a) of this.subsection and shall give the borrower, a copy. c) Not later than October 3, 1989, each financial institution, consumer finance company or mortgage banker shall develop and implement a program reasonably designed to

216 EVIDENCE GENERALLY inform existing and potential commercial borrowers of the provisions of paragraph ( h) of subsection ( 1) of this section. Each program shall at a minimum include making available to existing and potential commercial borrowers, on a continuing basis for a Wending not sooner than three years after October 3, 1989, a brochure or other written material containing the statement required by paragraph ( a) of this subsection. The statement shall be underlined or be in at least,10 -point bold type. d) Each financial institution, consumer finance company and mortgage banker shall make available the brochure or material de- scribed in paragraph ( c) of this subsection at each branch, office or other location from which it makes loans or other extensions of credit to which paragraph ( h) of subsection 1) of this section applies. If a financial in- stitution, consumer finance company or mortgage banker coinplies with this paragraph and paragraph ( c) of this subsection, the financial institution, consumer finance company or mortgage banker shall not be precluded from enforcing paragraph ( h) of subsection ( 1) of this section because any particular existing or potential commercial borrower did not receive the brochure or material. [ Amended by 1989 c [ 1989 c [ Repealed by 1961 c [ Repealed by 1981 c [ 1959 c.353 M, 3 ( subsection ( 2) enacted in lieu of ); 1973 c. 231 l; repealed by 1977 c enacted in lieu of )] [ 1977 c ( enacted in lieu of ); repealed by 1979 c [ 1977 c.358 3; repealed by 1979 c [ 1977 c.358 4; repealed by 1979 c [ Repealed by 1979 c [ 1977 c.744 2; repealed by 1979 c [ 1959 c.349 l; repealed by 1977 c.24o l; enacted in lieu of )] [ 1977 c ( enacted in lieu of ); repealed by 1979 c [ Repealed by 1959 c ( subsection ( 2) of enacted in lieu of )] [ 1977 c240 4; repealed by 1979 c [ 1977 c and 1977 c.358 5; repealed by 1979 c [ Repealed by 1981 c [ Repealed by 1981 c Admissibility of objects cognizable by the senses. Whenever an object, cognizable by the senses, has such a relation to the fact in dispute as to afford reasonable grounds of belief respecting it, or to make an item in the sum of the evidence, the object may be exhibited to the jury, or its existence, situation and character may be proved by witnesses. The exhibition of the object to the jury shall be regulated by the sound discretion of the court [ Repealed by 1981 c Inadmissibility of certain health care facility and training data. ( 1) As used in subsection ( 2) of this section " data" means written reports, notes or records of tissue committees, governing. bodies or committees of a health care facility licensed under ORS chapter 441, medical staff committees and similar committees of professional societies in connection with training, supervision or discipline of physicians, or in connection with the grant, denial, restriction or termination of clinical privileges at a health care facility. The term also includes the written reports, notes or records of utilization review and peer review organizations. 2) All data shall be privileged and shall not be admissible in evidence in any judicial proceeding, but this section shall not affect the admissibility in evidence of a party' s medical records dealing with a party' s hospital care and treatment. 3) A person serving on or communicating information to any governing body or committee described in subsection ( 1) of this section shall not be examined as to any communication to that committee or the findings thereof. 4) A person serving on or communicating information to any governing body or committee described in subsection ( 1) of this section shall not be subject to an action for civil damages for affirmative actions taken or statements made in good faith. 5) Subsection ( 2) of this section shall not apply to judicial proceedings in which a health care practitioner contests the denial, restriction or termination of clinical privi- leges by a health care facility. However, an data so disclosed in such proceedings shall not be admissible in any other judicial pro - ceedingg- [ 1963 c.181 1; 1971 c.412 3; 1975 c ; 1977 c% 9; 1981 x806 1; 1991 c [ Repealed by 1981 c Inadmissibility of certain data submitted by emergency medical service provider; data of certain committees and governing bodies privileged. ( 1) All data shall be privileged and is not a public record as defined in ORS and shall not be admissible in evidence in any judicial proceeding. However, nothing in this section affects the admissibility in evidence of a party's medical records dealing with a party' s medical care ) On request, an emergency medical service provider shall submit data to any committee or governing body of the county, counties or state as provided for by state or county administrative rule.

217 EVIDENCE AND WITNESSES 3) A person serving on or communicating information to any governing body or committee shall not be examined as to any communication to that body or committee or the findings thereof. 4) A person serving on or communicating information to any governing body or committee shall not be subject to an action for civil damages for affirmative actions taken or statements made in good faith. 5) As used in this section: a) " Committee or governing body' means any committee or governing body which has authority to undertake an evalu- ation of an emergency medical services system as part of a quality assurance program and includes any committee of an emergencyy medical service provider undertaking a quality assurance program. b) " Data" means written reports, notes or records of a committee or governing body and includes any information submitted by any health care provider relating to training, supervision, performance evaluation or pro- fessional competency. c) " Emergency medical service provider" means any public, private or vol- unteer entity providing prehospital functions and services which are required to prepare for and respond to medical emergencies in- cluding rescue, ambulance, treatment, com- munication and evaluation. d) " Emergency medical services system" means those prehospital functions and services which are required to prepare for and respond to medical emergencies, including rescue, ambulance, treatment, communi- cation and evaluation. [ 1989 c [ Repealed by 1981 c [ Repealed by 1981 c [ Repealed by 1981 c [ Repealed by 1981 c [ Repealed by 1981 c Parol evidence rule. When the terms of an agreement have been reduced to writing by the parties, it is to be considered as containing,all those terms, and therefore there can be, between the parties and their representatives or successors in interest, no evidence of the terms of the agreement, other than the contents of the writing, except where a mistake or imperfection of the writing is put in issue by the pleadings or where the validity of the agreement is the fact in dispute. However this section does not exclude other evidence of the circumstances under which the agreement was made, or to which it relates, as defined in ORS , or to explain an ambiguity, intrinsic or extrinsic, or to establish illegality or fraud. The term " agreement" includes deeds, * and' " wills as well as contracts between parties.' [ Repealed by 1981 c Evidence of comppin iace with or attempt to comply with ORCP 32 I;.,when admissible. Attemptq to comply with the provisions of ORCP 32 I..by a person receiving a demand shall be construed to be an offer to compromise and shall be inadmissible as evidence. Such attempts- to comply with a demand shall not be considered an admission of engaging in the act or practice alleged to be unlawful nor of the' unlawfulness of that act. Evidence of compliance or attempts to compl,v with the provisions of ORCP 32 I. may be introduced by a defendant ' for ' the purpose of establishing good faith or to show compliance with the provisions of ORCP 32 I. [ Formerly ; 1981 c [ Repealed by 1981 c [ Repealed by 1981 c [ Repealed by 1981 c [ Repealed by 1981 c [ Repealed by 1981 c [ Repealed by 1981 c [ Repealed by 1981 c [ Repealed by 1981 c [ Repealed by 1981 c Admissibility of certain traffic offense procedures In subsequent civil action. ( 1) A judgment of conviction or acquittal of a person charged with a traffic offense is not admissible in the trial of a subsequent civil action arising out of the same accident or occurrence to prove or negate the facts upon which such judgment was rendered. 2) A plea of guilty by a person to a traffic offense may be admitted as evidence in the trial of a subsequent civil action arising out of the same accident or occurrence as an admission of the person entering the plea, and for no other purpose. 3) Evidence of forfeiture of bail posted by a person as a result of a charge of a traffic offense shall not be admitted as evidence in the trial of a subsequent civil action arisin out of the same accident or occurrence. 195 c.542 1; 1981 c Certain intercepted communications inadmissible; exception; motion to suppress. ( 1) Evidence of the contents of any wire or oral communication intercepted: a) In violation of ORS shall not be admissible in any court of this state, except as evidence of unlawful interception. b) Under ORS ( 2)( a) shall not be admissible in any court of this state. 2) Evidence made inadmissible under this section due to noncompliance by a law

218 EVIDENCE GENERALLY enforcement officer with the conditions of ORS ( 5)( a) shall only be inadmissible under this section pursuant to a motion to suppress under ORS [ 1955 c.675 6; 1959 c.681 5; 1979 c ; 1983 c ( 1973 c.263 l; repealed by 1979 c ( 1973 c.263 2; repealed by 1979 c L925 [ 1973 c.263 3; repealed by 1979 c Admissibility of copies of original records. The copy of the records described - in ORCP 55 H. is admissible in evidence to the same extent as though the original thereof were offered and a custodian of hospital records had been present and testified to the matters stated in the affidavit. The affidavit is admissible as evidence of the matters stated therein. The matters stated therein are presumed to be true. The presumption established by this section is a presumption affecting the burden of producing evidence. [ 1973 c.263 4; 1979 x284 77] 4L935 [ 1973 c.263 5; repealed by 1979 c L940 [ 1973 c.263 6, 7; repealed by 1979 c Application of ORS and ORCP 55 H. ORS and ORCP 55 H. apply in any proceedings in which testimony may be compelled. [ 1973 c.263 8; 1979 x L950 [ 1971 c.331 l; renumbered L960 [ 1971 c.331 2; renumbered LO70 [ 1971 c.331 3; renumbered [ ; repealed by 1981 c

219 EVIDENCE AND WITNESSES 4-32

220 Chapter EDITION Execution, Formalities and Interpretation of Writings DEFINITION " Signature" defined Private writings PRIVATE WRITINGS Execution of a writing 42,030 Subscribing witness Proof of attested writing other than a will Seal defined SEALS Effect of presence or absence of seal Seal of state officer or state agency authorized INTERPRETATION OF WRITINGS Effect of the place of execution Consideration of circumstances 422,30 Office of judge in construing instruments Intention of the parties; general and particular provisions and intents Terms construed as generally accepted; 422M evidence of other signification Ambiguous terms Written words control printed form Deciphering characters and translating languages Construction of notices Parties to written instrument not to deny facts recited therein CROSS REFERENCES Validation of instruments previously executed, Notarial stamp has same effect as seal,

221 EVIDENCE AND WITNESSES 4-34

222 WRITINGS VOO MM " Signature" defined. As used in this section and ORS , , , to , , , , , , , , , , , , , , to , , , , , , and ORCP 59 C., signature" includes any symbol executed or adopted by a party with present intention to authenticate a writing. [ 1981 c a] PRIVATE WRITINGS Private writings. All writings, other than public writings, are private and may be sealed or unsealed Execution of a writing. The execution of a writing is the subscribing and delivering it, with or without affixing a seal Subscribing witness. A subscribing witness is one who sees a writing exe- cuted, or hears it acknowledged, and at the request of the party thereupon signs one' s name as a witness Proof of attested writing other than a will. Any attested writing other than a will may be proved in the same manner as though it had not been attested [ Repealed by 1981 c [ Repealed by 1981 c [ Repealed by 1981 c [ Repealed by 1981 c SEALS Seal defined. A seal is a particular sign made to attest in the most formal manner the execution of an instrument Effect of presence or absence of seal. The presence or absence of a seal, corporate or otherwise, shall have no effect upon the validity, enforceability or character of any written instrument except where spe- cifically otherwise provided by statute. A writing under seal may be modified or discharged by writing not under seal or by a valid oral agreement. [ 1965 c [ Repealed by 1965 c Seal of state officer or state agency authorized. ( 1) For the purposes of ORS ( 1) and ( 4), each state officer and state agency may have a seal which, unless specifically provided otherwise by law, shall consist of an impression, imprint or likeness of the state seal accompanied by the name of the state officer or state agency. 2) As used in this section: a) " Seal" has the meaning given that term in ORS b) " State agency" means every state officer, board, commission, department, institution, branch or agency of the state government, except the Legislative Assembly and the courts and their officers and com- mittees. c) " State officer" includes any appointed state official who is authorized by the Executive Department to have a seal and any elected state official, except members of the Legislative Assembly. [ 1982 s. s. 1 c [ Repealed by 1965 c [ Repealed by 1965 c [ Repealed by 1965 c [ Repealed by 1965 c INTERPRETATION OF WRITINGS Effect of the place of execution. The language of a writing is to be interpreted according to the meaning it bears in the place of execution, unless the parties have reference to a different place Consideration of circumstances. the circum- In construing an instrument, stances under which it was made, including the situation of the subject and of the par- ties, may be shown so that the judge is placed in the position of those whose language the judge is interpreting Office of judge in construing instruments. In the construction of an instrument, the office of the judge is simply to ascertain and declare what is, in terms or in substance, contained therein, not to insert what has been omitted, or to omit what has been inserted; and where there are several provisions or particulars, such construction is, if possible, to be adopted as will give effect to all Intention of the parties; general and particular provisions and intents. In the construction of an instrument the intention of the parties is to be pursued if possi- ble; and when a general and particular provision are inconsistent, the latter is paramount to the former. So a particular intent shall control a general one that is inconsistent with it Terms construed as generally accepted; evidence of other signification. The terms of a writing are presumed to have been used in their primary and general acceptation, but evidence is admissible that they have a technical, local, or otherwise peculiar signification and were used and understood in the particular instance, in which case the agreement shall be construed ac- cordingly Ambiguous terms. When the terms of an agreement have been intended in a different sense by the parties, that sense is

223 EVIDENCE AND WITNESSES to prevail, against either party, in which the party supposed the other understood it. When different constructions of a provision are otherwise equally proper, that construction is to be taken which is most favorable to the party in whose favor the provision was made Written words control printed form. When an instrument consists partly of written words and partly of a printed form, and the two are inconsistent, the for- mer controls Deciphering characters and translating languages. When the characters in which an instrument is written are difficult to be deciphered, or the language is not understood by the court, evidence of persons skilled in deciphering the characters, or who understand the language, is admissible to declare the characters or the meaning of the language Construction of notices. A written notice is to be construed according to the ordinary acceptation of its terms. Thus, a notice_ to the drawers or indorsers of a bill of exchange or promissory note, that it has been protested for want of acceptance or payment, shall be held to import that it has been duly presented for -acceptance or payment and refused, and- that the holder looks for payment to the person to whom the notice is given Parties to written instrument not to deny facts recited therein. Except for the recital of a consideration, the truth of the facts recited - from the recital in a written instrument shall not be denied by the parties thereto, their. representatives or suc- cessors in interest by a subsequent title. [ 1981 c

224 Chapter EDITION Public Writings Judicial orders that are conclusive Judicial orders that create a disputable presumption. _, When parties the same What determined by former judgment Effect on- principal of, judgment against surety,, Judicial record of other jurisdictions, effect Judicial record of foreign admiralty' court, effect Impeachment of judicial record Official records and files of United States Army, Navy and Air Force CROSS REFERENCES Business registry functions, Secretary of State, certification, Evidentiary effect of Secretsry of State' s certificate under ORS chapter 58, Juvenile court records, use as evidence, State administrative rules and orders, judicial notice upon publication, Statute laws of Oregon: - Certified editions, Published session laws, Statute revision of 1953, duplicate original, Use of photocopy when original public record lost, Conclusiveness of justice judgment in criminal actions, Enforcement of foreign judgments and decrees, Ch

225 EVIDENCE AND WITNESSES 4-38

226 PUBLIC WRITINGS [ Repealed by 1981 c [ Repealed by 1981 c [ Repealed by 1981 c [ Repealed by 1981 c [ Repealed by 1981 c [ Repealed by 1981 c [ Repealed by 1981 c [ Repealed by 1981 c [Repealed by 1981 c [ Repealed by 1981 c Judicial orders that are conclusive. The effect of a judgment, decree or final order in an action, suit or proceeding before a court or judge of this state or of the United States, having jurisdiction is as fol- lows: 1) In case of a ' udgment, decree or order against a specific ting or in respect to the probate of a will or the administration of the estate of a deceased person or in respect to the personal, political, or legal condition or relation of a particular person, the judgment, decree or order is conclusive upon the title to the thing, the will or administration, or the condition or relation of the person. 2) In other cases, the judgment, decree or order is, in respect to the matter directly determined, conclusive between the parties, their representatives and their successors in interest by title subsequent to the commencement of the action, suit or proceeding, litigating for the same thing, under the same title and in the same capacity Judicial orders that create a disputable presumption. A judicial order, other than a judgment, decree or final order, in an action, suit or proceeding before a court or judge of this state or of the United States creates a disputable presumption con- cerning the matter directly determined be- tween the same parties, their representatives and their successors in interest by title sub- sequent to the commencement of the action, suit or proceeding, litigating for the same thing, under the same title and in the same capacity When parties the same. The parties are the same when those between whom the evidence is offered were adverse in the former case, and a judgment, decree or other determination cc have been made between them alone, though other parties were joined What determined by former judgment. That only is determined by a former judgment, decree or order which appears upon its face to have been so determined or which was actually and necessarily included therein or necessary thereto Effect on principal of judgment against surety. Whenever, pursuant to ORS to , a party is bound by a record, and stands in the relation of surety for another, the latter is also bound from the time that the latter has notice of the action, suit or proceeding and a request from the surety to defend against it Judicial record of other jurisdictions, effect. The effect of a judicial re- cord of a sister state, the eistrict of Columbia or a territory of the United States is the same in this state as in the place where it was made, except: 1) It can be enforced in this state only by an action, suit or proceeding, and 2) The authority of a guardian, conserv- ator, committee, executor or administrator does not extend beyond the jurisdiction of the government under which the guardian, conservator, committee, executor or adminis- trator is invested with authority. [ Amended by 1973 c [ Repealed by 1975 c Judicial record of foreign admiralty court, effect. The effect of a u- dicial record of a court of admiralty ot a foreign country is the same as if it were the record of a court of admiralty of the United States [ Repealed by 1981 c Impeachment of judicial record. Any judicial record may be impeached and the presumption arising therefrom overcome by evidence of a want of jurisdiction, collusion between the parties, or fraud in the party offering the record. The jurisdiction sufficient to sustain a record is jurisdiction over the cause, over the parties and, when a specific thing is the subject of the determination, over the thing [ Repealed by 1981 c [ Repealed by 1981 c [ Repealed by 1981 c [ Repealed by 1981 c [ Repealed by 1981 c [ Repealed by 1981 c [ Amended by 1967 c.489 l; repealed by 1981 c [ Renumbered [ Repealed by 1981 c [ Repealed by 1981 c [ Amended by 1961 c.150 7; 1961 c a; repealed by 1981 c [ Repealed by 1981 c [ Repealed by 1981 c [ Repealed by 1981 c Official records and files of United States Army, Navy and Air Force. Relevant official records and files of the Departments of the Army, Navy and Air Force of the United States shall be accorded prima

227 EVIDENCE AND WITNESSES facie probative value in evidence before any 43A60 [ Repealed by 1981 c court or agency in which there is an issue 43A70 [ Amended by 1967 c.489 2; repealed by 1981 of fact as to the death or disappearance of c any person while serving in or with the Armed Forces of the United States. r

228 Chapter EDITION Witnesses 44M A GENERAL Protection of witness from improper questions and excessive detention Protection of witness from arrest Service of subpoena H witness concealed Production of witness confined in Department of Corrections institution Authority to take testimony and adminis- ter oath or affirmation Witness presumed to speak truth; jury judges of credibility FEES Fees and mileage of witnesses MEDIA PERSONS AS WITNESSES Definitions for ORS to Limitation on compellable testimony from media persons; search of media persons' papers, effects or work premises prohib- ited; exception Application of ORS Effect of informant as witness CHILDREN AS WITNESSES Expediting proceedings POLICE OFFICERS AS WITNESSES Definitions for ORS ' to Method of eubpoena ng police officer; subpoena to reflect whether expert opinion to be asked WA 44AW Payment of police officer subpoenaed as expert witness; obligation of party to reimburse law enforcement agency; method of payment Prepayment of expenses in certain cases required Payment for additional attendance beyond first day required in advance 44ZW Application to subpoenas for depositions Party and police officer may agree to modify time of appearance 4064 Right of action to recover payment due Provisions not applicable if public body a part' CROSS REFERENCES Fee and mileage provisions applicable to tax court witnesses, Provisions relating to witnesses in: Arbitration proceedings where the domicile of the decedent is in dispute, Criminal cases, to Juvenile proceedings, Legislative proceedings, to Post - conviction relief proceedings, , Tax court proceedings, to Sign language interpreter, , Unfair labor practice investigations, immunity granted,

229 EVIDENCE AND WITNESSES 4-42

230 WITNESSES GENERAL [ Repealed by 1981 c [ Repealed by 1981 c WO [ Repealed by 1981 c [ Amended by 1957 c.44 l; 1963 c ; 1971 c.512 4; 1973 c ; 1973 c a; 1973 c ; 1975 c.694 l; 1975 c.726 l; 1977 c.656 l; 1977 c a; 1979 c ; 1979 c.731 2; 1979 c.744 1a; 1979 c b; repealed by 1981 c [ Repealed by 1981 c [ Repealed by 1981 c [ Repealed by 1981 c Protection of witness from impproper questions and excessive detention. It is the right of a witness to be protected from irrelevant, insulting or improper questions, and from harsh or insulting demeanor. The witness is to be detained only so long as the interests of justice require Protection of witness from arrest. ( 1) Every person who has been, in good faith, served with a subpoena to attend as a witness before a court, fudge, commissioner, referee or other officer, is exonerated from arrest, in a civil case, while going to the place of attendance, necessarily remaining there and returning. The arrest of a witness contrary to this section is void, and when willfully made is a contempt of the court; and the officer making the arrest is responsible to the witness for double the amount of the damages which may be assessed against the officer, and is also liable in an action by the party serving the witness with the subpoena, for the damages sustained by that party in consequence of the arrest. 2) But the officer is not liable in any way, unless the person claiming the exemption makes, if required, an affidavit stating: a) That the person has been served with a subpoena to attend as a witness before a court, judge or other officer, specifying the same, the place of attendance and the action, suit or proceeding in which the subpoena was issued; and b) That the person has not been served by the procurement of the person with the intention of avoiding an arrest. 3) The affidavit may be taken by the officer and exonerates the officer from liability for not making the arrest or for discharging the witness when arrested. 4) The court, judge or officer before whom the attendance of the witness is required may discharge the witness from an arrest made in violation of this section [ 1973 c.386 l; repealed by 1981 c [ Repealed by 1979 c [ Amended by 1969 c. 383 l; repealed by 1979 c [ Amended by 1969 c.383 2; repealed by 1979 c [ Amended by 1977 c.789 2; repealed by Service of subpoena if witness concealed. A sheriff, deputy or some person specially appointed by the sheriff but none other, is authorized and required' to break into any building or vessel in which a witness may be concealed to prevent the service of a subpoena, and serve it on the witness [ Repealed by 1979 c [ Repealed by 1961 c ( enacted in lieu of )] [ ( enacted in lieu of ); repealed by 1979 c [ Repealed by 1979 c [ Repealed by 1979 c [Repealed by 1979 c [ Repealed by 1979 c [ Repealed by 1979 c [ Amended by 1973 c ; repealed by 1979 c Production of witness confined in Department of Corrections institution. 1) Whenever a court or judge makes an or- der for the temporary removal and production of a witness who is confined in a Department of Corrections institution within this state before a court or officer for the pu ose of being orally examined this section applies. The superintendent of the institution shall, at the institution, deliver the witness to the sheriff of the county in which the court or judge making the order is located. 2) The sheriff shall give the superinten- dent a signed receipt when taking custody of the witness under subsection ( 1) of this section. The sheriff shall be responsible for the custody of the witness until the sheriff returns the witness to the institution. Upon the return of the witness to the institution by the sheriff, the superintendent shall give a signed receipt therefor to the sheriff. 3) When a witness is delivered to a sheriff under subsection ( 1) of this section, or at any time while the witness is in the custody of the sheriff as provided in subsection ( 2) of this section, the superintendent 4-43 may give the sheriff a list of persons who may communicate with the witness or with whom the witness may communicate. Except as otherwise required by law, upon receipt of the list and while the witness is in the custody of the sheriff, the sheriff shall permit communication only between the witness and those persons designated by the list. 4) The sheriff and neither the institution nor the Department of Corrections shall be liable for any expense incurred in connection with the witness while the witness is in the custody of the sheriff as provided in sub-

231 EVIDENCE AND WITNESSES section ( 2) of this section. If the witness is a party plaintiff, the sheriff shall recover costs of the care of the witness from the plaintiff, and shall have alien upon any judgment for the plaintiff. In all other cases, the sheriff and not the witness shall be entitled to the witness fees and mileage to which the witness would otherwise be entitled under ORS ( 2), or other applicable law. ( 1955 c.523 1; 1969 c.502 2; 1973 c ; 1987 c ; 1987 c.606 6; 1989 c.980 3a) [ Repealed by 1981 c Authority to take. testimony and administer oath or affirmation. Every court, judge, clerk of a court, justice of the peace, certified shorthand reporter or notary public is authorized to take testimony in any action or proceeding, as are other persons in particular cases authorized by statute or the Oregon Rules of Civil Procedure and is au- thorized to administer oaths and affirmations generally, and every such other person in the particular case authorized. [ Amended by 1979 c ; 1989 c [ Repealed by 1981 c [ Repealed by 1981 c [ Repealed by 1981 c [ Repealed by 1981 c Witness presumed to speak truth; jury judges of credibility. A witness is presumed to speak the truth. This presumption, however, may be overcome by the manner in which the witness testifies, by the character of the testimony of the witness, or by evidence affecting the character or motives of the witness, or by contradictory evidence. Where the trial is by the ' ury, they are the exclusive judges of the crejibility of the witness [ Amended by 1959 c. 158 l; repealed by 1989 c FEES Fees and mileage of witnesses. 1) Except as provided in subsection ( 2) of this section, a person is entitled to receive 30 for each day' s attendance as a witness and mileage reimbursement at the rate of 25 cents a mile if the person is required to travel from a place within or outside this state in order to perform duties as a witness. Total mileage reimbursement shall not exceed the necessary cost of transportation on reasonably available common carriers. 2) In any criminal proceeding, any pro - ceeding prosecuted by a public body or any proceeding where a public body is a party, a person is entitled to receive $ 5 for each day' s attendance as a witness and mileage re- imbursement at the rate of eight cents a mile if the person is required to travel from a place within or outside this state in order to perform duties as a witness: Total mileage reimbursement shall not exceed the necessary cost of transportation on reasonably available common carriers. 3) As used in this section, " public body" means any state, city, county, school district, other political subdivision, municipal corpo- ration, public corporation and any instrumentality thereof. [ 1989 c A20 [ Repealed by 1959 c [ Repealed by 1989 c A40 [ Amended by 1963 c ; x408 l; repealed by 1981 s.s. c [ Amended by 1977 c. 593 l; repealed by 1981 s.s. c.3 141] MEDIA PERSONS AS WITNESSES Definitions for ORS to As used in ORS to , unless the context requires otherwise: 1) " Information" has its ordinary meaning and includes, but is not limited to, any written, oral, pictorial or electronically recorded news or other data. 2) " Medium of communication" has its ordinary meaning and includes, but is not limited to, any newspaper, magazine or other periodical, book, pamphlet, news service, wire service, news or feature syndicate, broadcast station or network, or cable television system. Any information which is a portion of a governmental utterance made by an official or employee of government within the scope of his or her governmental function, or any political publication subject to ORS , and , is not included within the meaning of " medium of communication." 3) " Processing" has its ordinary meaning and includes, but is not limited to, the compiling, storing and editing of information. 4) " Published information" means any information disseminated to the public. 5) " Unpublished information" means any information not disseminated to the public, whether or not related information has been disseminated. " Unpublished information" includes, but is not limited to, all notes, outtakes, photographs, tapes or other data of whatever sort not themselves disseminated to the public through a medium of communication, whether or not published information based upon or related to such material has been disseminated. [ 1973 c.22 2; 1979 x Limitation on compellable testimony from media persons; search of media persons' papers, effects or work premises prohibited; exception. ( 1) No person connected with, employed by or engaged in any medium of communication to the public shall be required by a legislative, 4-44

232 WITNESSES executive or judicial officer or body, or any other authority having power to compel testimony or the production of evidence, to disclose, by subpoena or otherwise: a) The source of any published or unpublished information obtained by the person in the course of gathering, receiving or processing information for any medium of communication to the public; or b) Any unpublished information obtained or prepared by the person in the course of gathering, receiving or processing information for any medium of communication to the public. 2) No papers, effects or work premises of a person connected with, employed by or engaged in any medium of communication to the public shall be subject to a search by a legislative, executive or judicial officer or body, or any other authority having power to compel the production of evidence, by search warrant or otherwise. The provisions of this subsection, however, shall not apply where probable cause exists to believe that the person has committed, is committing or is about to commit a crime. [ 1973 c.22 3; 1979 c Application of ORS ( 1) ORS applies regardless of whether a person has disclosed elsewhere any of the information or source thereof, or any of the related information. 2) ORS continues to apply in relation to any of the information, or source thereof, or any related information, even in the event of subsequent termination of a person' s connection with, employment by or engagement in any medium of communi- cation to the public. 3) The provisions of ORS ( 1) do not apply with respect to the content or source of allegedly defamatory information, in civil action for defamation wherein the defendant asserts a defense based on the content or source of such information. [ 1973 c.22 4, 5; 1979 c Effect of informant as witness. If the informant offers the informant as a witness, it is deemed a consent to the examination also of a person described in ORS on,the same subject. [ 1973 c CHILDREN AS WITNESSES Expediting proceedings. ( 1) Except as otherwise provided in subsection ( 2) of this section or except for good cause shown by either party, in any case where a child or a member of the family of the child is a victim of a crime and where a child under 18 years of age is called to give testimony, the court, consistent with the rules of civil or criminal procedure, shall expedite the action' and insure that it takes precedence over any other. When determining whether or not to grant a continuance, the judge shall take into consideration the age of the child and the potential adverse impact the delay may have on the well-being of the child. The court shall make written findings of fact and conclusions of law when granting a continuance. 2) The provisions of subsection ( 1) of this section do not apply to any juvenile proceeding other than the termination of parental rights. [ 1991 c Note: was enacted into law by the Legislative Assembly but was not added to or made a part of ORS chapter 44 or any series therein by legislative action. See Preface to Oregon Revised Statutes for fur- ther explanation. POLICE OFFICERS AS WITNESSES Definitions for ORS to As used in ORS to : 1) " Civil case" means any proceeding other than a criminal prosecution. 2) " Law enforcement unit" means the police department of a city or the sheriffs department or other police organization of a county. 3) " Police officer" means - an officer or member of a law enforcement unit who is employed full-time as a peace officer by the city or county and who is responsible for enforcing the criminal laws of this state. 4) " Tribunal" means any person or body before which attendance of witnesses may be required by subpoena, including an arbitrator in arbitration proceedings. [ 1991 c Note: to were enacted into law by the Legislative Assembly but were not added to or made a part of ORS chapter 44 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation Method of subpoenaing police officer; subpoena to reflect whether expert opinion to be asked. ( 1) Whenever a police officer is called as an expert witness in a civil case by a party by whom the officer is not employed, a subppoena requiring at tendance may be served by delivering a copyy either to the officer personally or to the of- ficer' s immediate superior. 2) Any person causing a subpoena to be issued to compel the attendance of a police officer before a tribunal shall indicate on the face of that subpoena whether the person or the person' s representative intends to ask the expert opinion of the officer as to any aspect of the proceedings. A police officer shall not be required by a tribunal to give the officer' s expert opinion on any matter before the tribunal unless the subpoena compelling the officer' s presence indicates that

233 EVIDENCE AND WITNESSES the officer' s expert opinion will" be', asked c Note: See note under Payment of police officer subpoenaed as expert witness; obligation of party to reimburse law enforcement agency; method of payment. (1) Any police officer who is obliged by a subpoena issued pursuant to ORS ( 2) to attend as an expert witness shall receive the salary or other compensation to which the officer is normally entitled from the law enforcement unit by which the officer is employed during the time that the officer travels to and from the place where the court or other tribunal is located and while the officer is required to remain at that place pursuant to such subpoena. The officer shall also receive from the law enforcement unit by which the officer is employed the actual necessary and reasonable traveling expenses incurred in complying with the subpoena. 2) The part at whose request a subpoena is issue pursuant to ORS ) compelling the attendance of a police officer as an expert witness shall reimburse the law enforcement unit by which the officer is employed for the full cost to the law enforcement unit incurred in reimbursing the officer as provided in subsection ( 1) of this section for each day that the officer is re- quired to remain in attendance pursuant to the subpoena. The amount of $ 160 shall be tendered with any subpoena issued under ORS ( 2) to compel the attendance of a police officer as an expert witness for each day that the officer is required to remain in attendance pursuant to the subpoena. If the person causing the issuance of a subpoena requiring the expert opinion of a police offi- cer makes arrangements with the officer and with the tribunal prior to the issuance of the subpoena to take the testimony of the officer by telephone, and testimony by telephone is otherwise allowed by the Oregon Rules of Civil Procedure, the amount of $80 shall be tendered with the subpoena for each day that the officer is required to testify pursuant to the subpoena. 3) If the actual expenses should later prove to be less than the amount tendered, the excess of the amount tendered shall be refunded. 4) If the actual expenses should later prove to be more than the amount tendered, the difference shall be paid to the law enforcement unit by which the officer is employed by the party at whose request the subpoena is issued. However, no additional amounts shall be due unless, within seven days after the final day on which the officer appears in the proceedings, the law enforcement unit mails a statement to the party or to the party' s attorney reflecting the additional amounts due. 5) If a court or tribunal continues a proceeding on its own motion,, no additional expert witness fee may be, required prior to the issuance of a subpoena or the making of an order directing the officer to appear on the date to which the proceeding is continued. [ 1991 c Note: See note under Prepayment of expenses in certain cases required. A police officer who is called as an expert witness in a civil case may demand the payment specified in ORS ( 2) for one day, in advance, and when so demanded shall not be compelled to attend until the payment is tendered. [ 1991 c Note: See note under Payment for additional attendance beyond first day required in advance. A ppolice officer shall not be ordered to return by the court or tribunal for subseent proceedings beyond the day stated in 9e subpoena requiring the officer to give the officer' s expert opinion referred to in ORS ( 2) or the day upon which the officer appeared under ORS ( 2), unless the pa at whose request the subpoena was issued, or the party at whose request the officer is ordered to return, shall first tender to the officer the same sum required to be tendered with a subpoena in the first in- stance. [ 1991 c Note: See note under Application to subpoenas for depositions. ORS , and apply to subpoenas issued for the taking of depositions of police officers. [ 1991 c Note: See note under Party and police officer mayy agree to modify time of appearance. A police officer who has been subpoenaed under ORS and for the purpose of giving the officers expert opinion, in lieu of attendance at the time specified in the subpoena, may agree with the party at whose request the subpoena was issued to appear at another time or pursuant to such notice 4-46 as may be agreed upon. [ 1991 c Note: See note under Right of action to recover payment due. Whenever a police officer appears as an expert witness under ORS to and reimbursement is not made as provided for in ORS to , the law enforcement unit by which the officer is employed shall have standing to bring an action in order to recover such funds. [ 1991 c Note: See note under Provisions not applicable if public body a party. ORS to

234 I WITNESSES 44ZM shall not apply to any proceeding in which a [ 1973 c. 136 l; repealed by 1979 c public body is a party. For the purposes of [ 1973 c.136 2,3; repealed by 1979 x this section, " public body" has the meaning [ 1973 c.136 4; repealed by 1979 c given in ORS [ 1991 c [ 1973 c.136 5; repealed by 1979 c Note: See note under

235 EVIDENCE AND WITNESSES 4-48

236 Chapter EDITION Testimony Generally MODES OF TARING TESTIMONY APPOINTMENT OF INTERPRETER Appointment of interpreter for non - Testimony taken in three modes Eaglish speaking ply Affidavit defined Appointment of interpreter for disabled Oral examination defined AFFIDAVITS AND DEPOSITIONS GENERALLY Production of afi9ant for cross - examination Use of deposition Introduction, or exclusion, of part of de- position Use of deposition in same or other pro- ceedings person; provision of assistive communi- cation device CROSS REFERENCES Compelling. witness to test in criminal proceeding, immumty, , Evidence of communication unlawfully obtained not admissible, Juvenile court proceeding, testimony, Tax 305rt proceedings, testimony and depositions, Uniform Law on Notarial Acts, to Witness, testimony under hypnosis, to

237 EVIDENCE AND WITNESSES 4-50

238 TESTIMONY GENERALLY' MODES OF TAKING TESTIMONY Testimony taken in three modes. The testimony of a witness is taken by three modes: 1) Affidavit. 2) Deposition. 3) Oral examination Affidavit defined. An affidavit is a written declaration under oath, made without notice to the adverse party [ Repealed by 1979 c Oral examination defined. An oral examination is an examination in the presence of the jury or tribunal which is to decide the fact, or act upon it, the testimony being heard by the jury or tribunal from the mouth of the witness [ Amended by 1961 c.461 l; 1979 c ; repealed by 1981 c AFFIDAVITS AND DEPOSITIONS GENERALLY [ Repealed by 1979 c [ Repealed by 1979 c [ Formerly ; repealed by 1977 c to enacted in lieu of )] Production of affiant for cross - examination. Whenever a provisional remedy has been allowed upon affidavit, the party against whom it is allowed may serve upon the party by whom it was obtained a notice, requiring the affiant to be produced for cross - examination before a named officer authorized to administer oaths. Thereupon the party to whom the remedy was allowed shall lose the benefit of the affidavit and all proceedings founded thereon, unless within eight days, or such other time as the court or judge may direct, upon a previous notice to the adversary of at least three days, the party produces the affiant for examination before the officer mentioned in the notice, or some other of like authority, provided for in the order of the court or judge. Upon production, the affiant may be examined by either party; but a party is not obliged to make this production of a witness except within the county where the provisional remedy was allowed [ Repealed by 1979 c ] [ Repealed by 1955 c [ 1955 c.611 l; repealed by 1979 c [ Repealed by 1955 c [ 1955 c.611 2; repealed by 1979 c [ Repealed by 1955 c [ 1955 c.611 3; repealed by 1979 c [ Renumbered [ 1955 c.611 5; repealed by 1977 c ] [ 1959 c.354 l; 1977 c.358 6; repealed by 1979 c [ 1955 c.611 6; 1977 c.358 7; repealed by 1979 c ( 1955 c.611 7; repealed by 1979 c2m [ Repealed by 1955 c x20 [ Repealed by 1955 c ,290 [ Repealed by 1979 c ( Repealed by 1979 c Use of deposition. (1) At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence, may be used against any party who was present or represented at the taking of the deposition or who had due notice thereof, in accordance with any of the following provisions of this subsection: a) Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness. b) The deposition of a part y, _ or of anyone w 10 at the time of taking the deposition was an officer, director or managing agent of a public or private corporation, partner- ship or association which is a party, may be used by an adverse party for any purpose. 2) At the trial or upon the hearing of a motion or an interlocutory proceeding,!any part or all of a deposition, so far as admissible under the rules of evidence, may be used against any party for any p. pose, if the party was present or represente at the tak- mg of the deposition or had due notice thereof, and if the court finds that: a) The witness is dead; or b) The witness is unable to attend or testify because of age, sickness, infirmity or imprisonment; or c) The party offering the deposition has been unable to procure the attendance of the witness by subpoena; or 0) Upon application and notice, such ex- ceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used; or e) The deposition was taken in the same proceeding pursuant to ORCP 39 I. [ 1955 c.611 8, 9; 1979 c ; 1987 c.275 l; 1989 c Introduction, or exclusion, of part of deposition. If only part of a deposition is offered in evidence by a party, an adverse party may require the party to introduce all of it which is relevant to the part introduced and any party may introduce any other parts so far as admissible under the rules of evidence. When any portion of a deposition is excluded from a case, so much of the adverse examination as relates thereto is excluded also. [ 1955 c ] 4-51

239 45:270 EVIDENCE AND WITNESSES Use of deposition in same or other proceedings. Substitution of parties shall not affect the right to use the depositions previously taken; and when an action, suit or proceeding has been dismissed and another action, suit or proceeding involving the same subject matter is afterward brought between the same parties or their representatives or successors in interest, any deposition lawfully taken and duly filed in the former action, suit or proceeding may be used in the latter as if originally taken therefor, and is then to be deemed the evidence of the party reading it. [ 1955 c APPOINTMENT OF INTERPRETER Appointment of interpreter for non - English speaking party. ( 1) In any civil or criminal proceeding in which an indigent person is a party, the court shall appoint a qualified interpreter whenever it is necessary: a) To interpret the proceedings to a non - English speaking party; b) To interpret the testimony of a non- English speaking party; or c) To interpret the testimony of any non - English speaking witness testifying on behalf of the indigent party. 2) No fee shall be charged to an indigent party for the appointment of an interpreter under this section. No fee shall be charged to any person for the appointment of an in- terpreter if appointment is made to determine whether the person is indigent for the purposes of this section. 3) A party shall be considered indigent for the purposes of this section if: a) The party makes a verified statement and provides other information in writing under oath showing financial inability to pay for a qualified interpreter, and provides any other information required by the court concerning the inability to pay for such an in- terpreter; and b) It appears to the court that the party is in fact indigent and unable to pay for a qualified interpreter. 4) Fair compensation for the services of an interpreter appointed under this section shall be paid: a) By the county, subject to the approval of the terms of the contract by the governing body of the county, in a proceeding in a county or justice court. b) By the city, subject to the approval ofthe terms of the contract by the governing body of the city, in a proceeding in a municipal court. c) By the state in a proceeding in a circuit or district court. Amounts payable by the state shall be from funds available to the court other than the State Court Indigent Defense Account established by ORS , except that fees of an interpreter necessary for the purpose of communication between appointed counsel and a client or witness in a criminal case shall be payable from that account. 5) For the purposes of this section: a) " Non- English speaking person" means a person who, by reason of place of birth or culture, speaks a language other than English and does not speak English with ade- quate ability to communicate in the proceedings. b) " Qualified interpreter" means a person who is readily able to communicate with the non - English speaking person, translate the proceedings and accurately repeat and translate the statements of the non - English speaking person to the court. [ [ 1955 c ; repealed by 1979 c Appointment of interpreter for disabled person; provision of, assistive communication device. ( 1) In any civil or criminal proceeding, including depositions, in which a disabled person is a party or wit- ness, the court shall appoint a- qualified interpreter and make available appropriate assistive communication devices whenever it is necessary o interpret the proceedings to the disabled person, or to interpret the testimony of the disabled person. 2) No fee shall be charged to the disabled person for the appointment of an inter - preter or use of an assistive communication device under this section. No fee shall be charged to any person for the appointment of an interpreter or the use of an assistive communication device if appointment or use is made to determine whether the person is disabled for the purposes of this section. 3) Fair compensation for the services of an interpreter or the cost of an assistive communication device under this section shall be paid: 4-52 a) By the county, subject to the approval of the terms of the contract by the governing body of the county, in a proceeding in a county or justice court. b) By the city, subject to the approval of the terms of the contract by the governing body of the city, in a proceeding in a municipal court. c) By the state in a proceeding in a circuit or district court. Amounts payable by the state shall be from funds available to the court other than the State Court Indigent Defense Account established by ORS ,

240 TESTIMONY GENERALLY except that fees' of +an- interpreter necessary for the purpose- of communication between appointed counsel and a client or witness in a criminal case shall be payable from that account. 4) The State Court Administrator may enter into service contracts and may establish uniform policies and procedures, subject to the approval of the Chief Justice of the Supreme Court, governing the appointment, provision and payment of interpreters in proceedings, before- the circuit and district courts of the state, including the provision of interpreter services utilizing telecommuni- cations methods. 5) For the purposes of this section: a) " Assistive communication device" means any equipment designed to facilitate communication by a disabled person. b) " Disabled person" means a person who cannot readily understand the proceedings because of deafness or a physical hearing impairment, or cannot communicate in the proceedings because of a physical speaking impairment. c) " Qualified interpreter" means a person who is readily able to communicate with the disabled' person, interpret the proceedings and accurately repeat and interpret the statements of the disabled person to the court. ( l) [ Repealed by 1955 c [ Repealed by 1979 c M ( 1955 c ; repealed by 1979 c [ Repealed by 1979 c [ Amended by ' 1959 c.96 l; repealed by 1979 c [ Repealed by 1979 c [ Repealed by 1979 c [ Repealed by 1979 c [ Repealed by 1955 c [ Repealed by 1979 c [ Repealed by 1979 c [ Repealed by 1979 c A40 [ Repealed by 1979 c!284' [ Repealed by 1979 c [ Repealed by 1979 c [ Repealed by 1979 c [ Repealed by 1981 c ; [ Repealed by 1981 c ,40 [ Repealed by 1981 c [ Repealed by 1981 c [ Repealed by 1981 c [ Repealed by 1981 c [ Repealed by 1981 c [Repealed by 1981 c [ Repealed by 1981 c [ Repealed by 1981 c [ Repealed by 1981 c [ Repealed by 1981 c [ Repealed by 1981 c [ 1959 c ,, 2, 3; repealed by 1979 c

241 EVIDENCE AND WITNESSES 4-54

242 TITLE 5 DISTRICT COURTS AND PROCEEDINGS THEREIN Chapter 46. District Courts and Proceedings Therein Chapter EDITION District Courts and Proceedings Therein DISTRICT COURTS GENERALLY Multnomah County District Court District Courts for Union and Wallowa; Crook and Jefferson; Morrow and Umatilla; and Tillamook Counties District courts in other counties; number of judges Postponement of establishment of certain district courts; selection of judges of such courts Territorial limits of district courts Criminal jurisdiction; concurrent jurisdiction with circuit and municipal courts Jurisdiction over violations of Portland charter and ordinances; disposition of moneys; hearings officers Application of state statutes to municipal ordinance Certain district judges as committing 46AN magistrates Civil jurisdiction generally Transfer of action from district court to circuit court; appeal; exceptions Procedure when case transferred to circuit court; additional pleadings; fees and costs 46AN Jurisdiction in ancillary, supplemental and incidental proceedings Real property not subject to writ of attachment When title to real property not affected by action Transfer of certain judicial jurisdiction of certain county courts to district courts Transfer of pending matters Application of laws governing county courts to district courts exercising jurisdiction formerly vested in county courts Circuit court judge acting as judge of district court Commencement, prosecution and enforce- ment of civil actions; return of process Process returnable before presiding judge and authority of other judges in counties having two or more district judges Disqualification of judges Findings and conclusions Juries in district courts generally Challenges of jurors Witness fees; costs and disbursements Fees; surcharge for dispute resolution pro- grams Fees on appeal to district court from justice or municipal court in certain actions; waiver Appeal to Court of Appeals Appeal to Supreme Court from Court of Appeals Dismissal of civil cases; notice required Filing and docketing transcript of judgment in circuit court; filing fee Lien created by docketing or recording; extension by renewal Execution of judgment not issued against real property until judgment docketed in circuit court Rules of court; filing with State Court Administrator effect of failure to file; fees 463M DISTRICT COURT AS COURT OF RECORD District court as court of record Report of proceedings; exceptions; waiver When record to be prepared; form; rules of Court of Appeals; appeal on record District court reporter, appointment; duties SMALL CLAIMS DEPARTMENT Small claims department; jurisdiction District judges to sit in department; pro- cedure Commencement of actions; contents of claim Department to give explanation of manner of giving notice Notice; content; service Defendant' s rights and liabilities; fees Counterclaims by defendant; transfer of case on counterclaims; fees 5-1

243 DISTRICT COURTS AND PROCEEDINGS THEREIN 46A65 4SA75 46A85 46b80 Time and place of hearing; notice; procedure if defendant claims jury trial;.fees Time extension; default; dismissal; refund of fees; resetting claim for hearing Extent and effect of small claim judgment Where action to be commenced and tried JUDGES Qualifications of judges Oath of judges Terms of judges; private practice of law prohibited Salary and expenses of judges Powers of judges to act in joint or separate session; testing process Departments of district court having two or more judges Presiding judge of district court having two or more judges Filling vacancies in judgeships of Multnomah County District Court 46SM CRIMINAL PROCEEDINGS Criminal procedure generally-, challenges; costs and disbursements; disposition of fines and forfeited bail Appeal from district court in criminal proceeding subject to ORS chapter 138 CROSS REFERENCES Administrative supervision by Supreme Court over other courts, Circuit court, action, transfer district court, , Constable, qualification, Council on Court Procedures, rules of procedure, , Court records, electronic data processing, Supreme Court rules, Courts and judicial officers generally, Ch. 1 Credit card transactions for security deposits, Department of Revenue granted access to court records and dockets in collection of fines, penalties and forfeitures due to state, District court judge as justice of the peace, Enforcement, by mandamus, of performance of court or court officer' s duty relating to administration of justice, Enforcement of city and charter county ordinances and resolutions, Cost of care of person at state institution, determination Felony convictions, required reports to Department of Corrections, of ability to pay, Juvenile jurisdiction, to Judicial Conference, membership, Judicial power vested in courts, Const. Art. VII (A), l, Art. VII (0), 1 Jury service deferred, Jury size, Const. Art. VII (A), 9 Leaves of absence, Open meeting law not applicable to any judicial proceeding, Probate commissioner, appointment, powers, , Transfer from district and certain county courts to circuit court, Proceedings and judgment in criminal actions, Ch. 156 Pro tempore judges, to Residential Landlord and Tenant Act; tenant's counterclaims not to exceed jurisdictional limits of court, Seal of court, Senior judge, designation of retired judge, Special Courts Advisory Committee, Temporary appointment and assignment of judges, Const. Art. VII (A), 2a Terms of court generally, Traffic offenses, jurisdiction of district court, Unclaimed property held for owner, to Tillamook County, transfer of criminal action from justice court to district court, 1985 c Justice districts abolished in cities in which district courts exist, transfer, City charter or ordinances, prosecution of violations, County law, offenses, Jurisdiction of prosecutions for violation of public health statutes, Jurisdiction of prosecutions for violation of timber harvesting requirements, Jurisdiction over wildlife law violation, Transfer of proceeding to juvenile court, ,045 Justice of peace as municipal judge, AN Magistrate, powers and duties, , , , District court without jurisdiction in actions under , Guardianships and conservatorships, Ch. 126 Militia, immunity from civil proceedings, Probate jurisdiction, Costs in actions for damages for personal or property injury, Costs not payable in advance by state, county or incorporated city, Probate jurisdiction: 46,221 Benton, Clatsop, Coos, Curry, Deschutes, Hood River, Lincoln, Wasco and Washington Coun- Legal aid fees in district courts, ties, Waiver of fees and costs for indigents,

244 DISTRICT COURTS AND PROCEEDINGS THEREIN 48A05 to Small claims in justices' courts, Ch. 55 Nonpartisan nomination and election of district judges, Ch. 249 Term of judges, Const. Art. VII (A), Compensation of judges not to be diminished during term, Const. Art. VII (A), 1 Retirement, Public Employes' Retirement System, membership of judges, Salaries and expenses of state officers and employees, Ch. '292 Salary, Appeal from justice court in criminal action, IL 5-3

245 DISTRICT COURTS AND PROCEEDINGS THEREIN 5-4

246 DISTRICT COURTS AND PROCEEDINGS THEREIN DISTRICT COURTS GENERALLY Multnomah County District Court. (1) In Multnomah County there shall be a court that shall be styled " The District Court of the State of Oregon, for the County of Multnomah." 2) The court shall have 14 judges, one of whom shall hold court at Gresham, Multnomah County, as directed by the Chief Justice of the Supreme Court but in no event less than one day a week. The territorial limits of the court and its civil and criminal urisdiction shall be as otherwise provided by aw for district courts. All proceedings re- sulting from alleged state traffic offenses or misdemeanors occurring east of 122nd Ave- nue extended to the north and south boundaries of Multnomah County shall be conducted in the district court in Gresham unless the accused requests trial in Portland. 3) Multnomah County shall provide facilities in the City of Gresham for a district court )'udge to hold court. ( Amended by 1961 x724 16; ; 1965 c.568 1; 1967 c.575 1; 1971 c.633 4; 1973 c.645 1; 1977 c.387 1; District Courts for Union and Wallowa; Crook and Jefferson; Morrow and Umatilla; and Tillamook Counties. (1) There shall be a court styled " The District Court of the State of Oregon, for the Counties of Union and Wallowa." The court shall be considered to be located in the cities that are the county seats of Union and Wallowa Counties. The court shall have one judge, who shall hold court in the City of Enterprise in Wallowa County at least one day a week and in the City of La Grande in Union County the rest of the week. 2) There shall be a court styled " The District Court of the State of Oregon, for the Counties of Crook and Jefferson. The court shall be considered to be located in the cities that are the county seats of Crook and Jefferson Counties. The court shall have one judge. 3) There shall be a court styled " The District Court of the State of Oregon, for the Counties of Morrow and Umatilla." The court shall be considered to be located in the cities that are the county seats of Morrow and Umatilla Counties and in the City of Hermiston in Umatilla County. The court shall have two judges. A judge shall hold court in the City of Heppner in Morrow County at least one day a week. Notwith- standing ORS , organization of the court under this subsection does not affect the justice' s court in, or the justice of the peace district including, the City of Heppner. 4) There shall be a court styled " The District Court of the State of Oregon, for the County of Tillamook." The court shall be lo- cated in the city that is the county seat of Tillamook County. The court shall have one judge. Notwithstanding ORS , organization of the court under this subsection does not prohibit or otherwise affect a justice' s court in, or a justice of the peace district including, the city that is the county seat of Tillamook County. [ 1975 c.327 2, 4; 1979 c.568 1; 1983 c ; 1983 c ; [ Amended b 1957 c.405 1; 1961 c ; repealed by 1965 c District courts in other counties; number of judges. 1) Subject to ORS , in the following cities there shall be a court that shall be styled " The District Court of the State of Oregon, for the County of " ( insert the name of the county in w ich the court is located): a) The cities that are the county seats of Benton, Clackamas, Clatsop, Columbia, Curry, Deschutes, Douglas, Hood River, Jackson, Josephine, Mamath, Lake, Lane, Lincoln, Linn, Malheur, Marion, Polk, Wasco, Washington and Yamhill Counties. b) The city that is the county seat of Coos County and the City f North Bend, or any successor city including the City of North Bend, in Coos County. The court shall be considered to be located in both cities. c) The city that is the county seat of a county for which a county charter providing for the establishment and organization of such district court in such city is adopted under ORS to ) The court for each county described in this section shall have one judge, except that: a) The court for Clackamas County shall have three judges. b) The court for Coos County shall have two judges. c) The court for Deschutes County shall have two judges. d) The court for Douglas County shall have two judges. Jsj e) The court for Jackson County shall have three judges. f) The court for Josephine County shall have two judges. g) The court for Klamath County shall have two fudges. h) The court for Lane County shall have five judges. W The court for Linn County shall have two judges. 0) The court for Marion County shall have four judges.

247 DISTRICT COURTS AND PROCEEDINGS THEREIN k) The court for Washington. County shall have four judges. [ Amended' by 1953 c.563 7; 1957 c ; 1959 c.559 3; 1961 c ; 1965 x510 14; 1965 c.568 4; 1967 c.623, l; 1969 x333 1; 1971 c.640 3; 1975 c.327 l; 1977 c.385 l; 1979' c ; 1981 c.253 l; 1981' c ; 1983 c ; 1989 c ) Note: Section ' 4, chapter 458; Oregon Laws 1991; and the amendments to by section 3, chapter 458, Oregon Laws 1991, become operative June 30, See section 5, chapter 458, Oregon Laws The text that is operative on and after June 30, 1993, is set forth for the mar' s convenience ( 1) Subject to ORS, , in the following cities there ' shall _be a,court,that shall be styled ` The District" Wirt of the' State of O'iegon,' for the County of " ( insert the name of the county in which the court is' Tocated): a) The cities that are the county seats of Benton, Clackamas,, Clatsop,,. Columbia, Curry, Deschutes, Douglas,' Hood River; Jackson, Josephine, Klamath, Lake, Lane, Lincoln, ' Linn, ' Malheur, Marion, Polk; Wasdo, Washmgton and Yamhill Counties. b) The city that is the county seat of Coos County and the City of North.Bend, or any successor city including ' the City of North Bead, in Coos County. The court_ shall be considered to be located in both cities. c) The city that is the county seat of a county for which a county charter providing for the establishment and organization of such district court in such city is adopted under ORS to ) The court for each county described in this section shall have one judge, except that: a) The court for Clackamas County shall have three judges. b) The court for Coos County shall- have two judges. judges. judges. judges. c) The court -for Deschutes County. shall have two a) The court for Douglas, County shall have two e) The court for Jackson County shall have three M The court for Josephine County shall have two judges. g) _The. court for Klamath County shall have two judges., _ h) The- court for Lane County shall have five judges. f) The court for Linn County shall have two judges. j) The court for Marion. County shall have four judges. k) The court for Washington County shall have five - judges. Sec. 4. On or, as soon as practicable after June 30, 1993, the Governor, shall appoint a person as the fifth district court judge for Washington County provided for in ORS 46:025, as amended by section 3 of this Act, to hold office until a successor is elected in and qualifies. [ 1991 c Note: The amendments to by section 7, chapter 458, Oregon Laws 1991, become operative January 1, 1993., See ; section 8, chapter 458, Oregon, Laws The text that is operative on, and after January 1, 1993, is set forth for the users convenience ( 1) Subject to ORS , in the following cities there shall be a court that shall be styled " The District Court of the State of Oregon, -for the County of " ( insert the name of the county in which the court rsrcated): a) The cities that are the county seats of Benton, Clackamas, Clatsop, Columbia, Curry, Deschutes, Douglas, Hood River, Jackson, Josephine, Klamath, Lake, Lane, Lincoln, Linn, Malheur, Marion, Polk, Wasco, Washington and Yamhill Counties. b) The city that is the county-seat of Coos County and the City of North Bend, or any successor city including the City of North Bend, in Coos County. The court shall be considered to be located in both cities. c) The city that is the county seat of a county for which a county charter providing for the establishment and organization of such district court in such city is adopted under ORS to ) The court for each ' county described in' this section shall' have one judge, except `that: a) The court for Clackamas County shall have three judges. b) The court for Coos County shall have two judges. c) The court for Deschutes County shall have two judges. d) The court for Douglas County shall have two judges. e) The court for Jackson County shall have three judges. f) The court for Josephine County shall have two judges. g) The court for Klamath County shall have two judges. h) The court for Lane County shall have five judges. i) The court for Linn County shall have two judges. 0) The court for Marion County shall have five judges. k) The court for Washington County shall have five judges. Sec. 8. ( 1) The amendments to ORS by section 7 of this Act are firat operative on January 1, ) On or as soon as practicable after January 1, 1993, the Governor shall appoint a person as the fifth district court judge for Marion County provided. for in ORS , as amended by section 7 of this Act, to hold office until a successor is elected in 1994 and qualifies x Postponement of establishment of certain district courts; selection of judges of such courts. '( 1) The establishment and organization of a district court in a city under ORS ' is postponed: a) Until the expiration of the elective or appointive term of %the justice of the peace in office in the city at the time it first meets the requirements of ORS , unless the justice of the peace is qualified to be a judge of the district court; or b) If the office of the justice of the peace in the city at the ' time it first meets the requirements of ORS is vacant or thereafter' becomes vacant for an. reason, or if the county court petitions the Governor to appoint a judge of the district court prior to the expiration of the elective or appointive term of the justice of the peace in office in the city at the time it first meets the requirements of ORS , until a person 5-6

248 DISTRICT COURTS' AND PROCEEDINGS THEREIN qualified to be a judge of the district court is appointed by the Governor and qualifies. In the event of such a vacancy, or in the event the county court petitions the Governor to appoint a Judge of the district court prior to the expiration of the elective or appointive term of the justice of the peace, and notwithstanding the provisions of ORS , the Governor, as soon as possible, shall appoint a qualified person to be 'a judge of the district court,, who shall qualify as soon, es,possible afterf appointment, and who shall serve uritil' a, successor is ' elected and qualified under subsection ( 3) of this section. 2) If the establishment of a district court is postponed under paragraph ( a) of subsection ( 1) of this section, when the court is established a qualified person to be a ' udge of the district court shall be nominate and elected in the manner ' by law for district court judges at and general elections next preceg the date of the expiration of the elective or appointive term of the justice of the peace in office in the city at the time it first meets the requirements of ORS 46:025. 3) A person qualified to be a judge of the district court to succeed a persona pointed under paragraph ( b) of subsection ( 1) of this section shall be nominated and elected in the manner provided by law for district court judges at the primary and general elections next succeeding the appointment.. 4) If a ' udge of the district court is apppointed -by t e' Governor under paragraph (b) of subsection ( 1)' of this section upon petition by the county court, the - district court is established and organited, but the justice dis= trict iri the county, seat is not abolished until the expiration of, the elective or, appointive term of the justice of the peace or the- office of the justice of; the -peace becomes. vacant for any reason pii6r to 'that expiration: and the district court has concurrent jurisdiction with the justice' s court of crimes and actions described in ORS to until that abolishment. [ 196i ; 1963 c [ ; repealed by 1965 x Territorial, limits of district courts. ' The territorial, limits -of a district court, over which the court shall have jurisdiction, shall be coextensive -with -the boundaries of the county or counties in which, the court is located.. However, in civil cases.the territorial jurisdiction of the court shall, be the same as that of a circuit court, subject to the same conditions and restrictions as apply to. circuit, courts; and subject to the laws relating to venue, of. actions. [ Amended by 1953 c112 2; 1979 c , Criminal -jurisdiction; concurrent jurisdiction with circuit and munici- pal courts. District courts shall have the same criminal and quasi - criminal jurisdiction as justices' courts, and shall have concurrent jurisdiction with the circuit courts of all misdemeanors committed or triable in their respective counties where the punishment prescribed does not exceed one year's imprisonment in the county jail or a fine of 3,000, or both such fine and imprisonment. District courts shall have concurrent jurisdiction with municipal courts of all violations of the charter and ordinances of any city wholly or in part within their respective counties, committed or triable within their respective counties. [ Amended by 1963 c.513 2; ; 1973 c.645 2; 1983 c Jurisdiction over violations of Portland charter and ordinances; disposition of moneys; hearings officers. ( 1) The district court for a county within the bound- aries of which there is situated the largest part of a city having a population of more than shall have all,judicial jurisdiction, authority, powers, functions and duties of the municipal court of each such city and the judges thereof with respect to all violations of the charter and ordinances of each such city. 2) All fees, fines, bail forfeitures and other moneys collected and received by a district court in matters, causes and proceedings with respect to all violations over which such district court is granted judicial jurisdiction by subsection ( 1) of this section shall be collected, handled and disposed of by the clerk of such district court as otherwise provided by law for moneys collected and received by such district court. 3) Subsection ( 1) of this section does not preclude the city from employing one or more qquasijudicial hearings officers empowered to hold hearings concerning violations of the charter, ordinances, rules and regulations of the city, to adopt rules and regulations relating to the conduct of the hearings process and to impose civil penal- ties and grant other relief as may be necessary to enforce and obtain compliance with the charter, ordinances, rules and regu- lations of the city. The jurisdiction and authority of a hearings officer shall not include any traffic or parking offense. The city may enforce any order of a hearings officer by a civil action in a court of appropriate jurisdiction. [ 1971 c.633 2; Application of state statutes to municipal ordinance. When an offense defined by municipal ordinance is tried in district court, it shall be subject to the same statutes and procedures that govern the trial and appeal of a like offense defined by a statute of this state. [ 1975 c M

249 DISTRICT COURTS AND PROCEEDINGS THEREIN Certain district judges as committing magistrates. One of the judges of a district court having two or more fudges shall sit as committing magistrate as the judges agree among themselves. [ Amended by Civil jurisdiction generally. ( 1) Except as provided in subsection ( 2) of this section, the district courts shall have exclusive jurisdiction in the following cases: a) For the recovery of money or damages only when the amount claimed does not exceed $ 10,000. When, in such a case arising out of contract, the ends of justice demand that an account be taken or that the contract be reformed or canceled, the district court shall have jurisdiction to decree such accounting, reformation or cancellation. b) For the recovery of specific personal property when the value of the roperty claimed and the damages for the detention do not exceed $ 10,000. c) For the recovery of any penalty or forfeiture, whether given by statute or arising out of contract, not exceeding $ 10,000. d) To give judgment without trial upon the confession of the defendant for any of the causes of action specified in this section, ex- cept for a penalty or forfeiture imposed by statute. e) To hear and determine actions of forcible entry and detainer. f) To enforce, marshal and foreclose liens upon personal property where the amount claimed for such liens does not exceed $ 10,000, and to render personal judgment therein in favor of any party. g) Actions and proceedings of inter - pleader and in the nature thereof, when the amount of money or the value of the prop- erty involved does not exceed $ 10,000. h) Actions and proceedings, whether legal or equitable, to preserve the property or rights of any party to an action of which the court has jurisdiction, and to enforce the collection of its own judgments, including all actions and proceedings in the nature of creditors' bills, and, in aid of execution, to subject the interest of a judgment debtor in personal property to the payment of such Judgment. District courts shall not have ju- risdiction to appoint receivers. i) Actions or suits for injunctive relief under ORS to when the amount of any damages claimed does not exceed 10,000. 2) The jurisdiction granted the district court in subsection ( 1) of this section does not affect the jurisdiction of any justice court, and in a county with no district court, the circuit court has jurisdiction to hear all matters otherwise assigned to the district court. 3) The district court shall have jurisdiction to hear cases arising under ORS ) Whenever an action or proceeding is brought in a district court, the court shall have jurisdiction to hear and determine, preserve and enforce all rights involved therein including all cases in equity when pleaded as defensive matter, and to exercise all legal and equitable remedies necessary or proper for complete determination of the rights of the parties, subject to the limitations imposed by this section. 5) For purposes of this section, the amount claimed, value of property, damages or any amount in controversy does not, in- clude any amount claimed as costs and disbursements or attorney fees as defined by ORCP 68 A. [ Amended by 1957 x661 l; 1965 c.495 1; 1975 c ; 1983 x149 $ 1; 1985 c.342 1; 1985 c496 28; 1985 c.588 3a; 1987 c.714 8; 1989 c [ 1975 c ; repealed by 1987 c Transfer of action from district court to circuit court; appeal; exceptions. 1) When it appears to any party that a civil action commenced in a district court involves any claim that is not within the jurisdiction of the district court but is within the jurisdiction of the circuit court, that party shall file a motion requesting transfer and the district court shall not dismiss the action but shall order transfer of the entire action to the circuit court. If no motion is made by a party, the court shall transfer the case on its own motion if the court is aware that a claim is outside the jurisdiction of the court. 2) In any civil action commenced in a district court a defendant may plead a counterclaim or cross -claim in excess of the jurisdiction of the court. If a defendant pleads a counterclaim or cross -claim in excess of the urisdiction of the district court, the court shall not dismiss the action but shall, on motion of a party or if no motion is made by a party, on its own motion, order transfer of the entire action to the circuit court. In any civil action commenced in a district court wherein the amount claimed by the plaintiff is not in excess of the jurisdic- tion of the court and the amount claimed by a defendant by way of counterclaim or cross -claim is not in excess of the jurisdiction of the court, the court shall have jurisdiction of the action notwithstanding that the combined amount of the claim, counterclaim and cross -claim exceeds $ 10,000. 3) A motion to transfer made by a party or an order to transfer made by a district court on its own motion under this section shall be made not less than 14 days before 5-8

250 DISTRICT COURTS AND PROCEEDINGS THEREIN the date set for trial of the action in the court. If no party has made a motion to transfer and the court is otherwise unaware that a claim is outside the jurisdiction of the court and as a result the court has failed to order a transfer of the case, all objections that jurisdiction is not in the district court but is in the circuit court shall be considered waived, and a Judgment of the district court in the action Xall not be void or voidable or subject to direct or collateral attack on the ground that jurisdiction was not in the district court but was -in the circuit court. However, nothing in this section shall be construed to allow a party to agree to waive the jurisdictional limits of the court where the party is aware more than 14 days in advance of the date set for trial of the action that a claim is not within the jurisdiction of the court. 4) An order of a district court to trans- fer under this section may be reviewed on appeal of a judgment of the circuit court in the action by any party who did not make or agree to the motion to transfer. An order of a district court denying a motion of a party to transfer under this section may be reviewed on appeal of a judgment of the district court in the action by the party making the motion. No error in the ruling or order of district court on a motion to transfer under this section shall cause reversal of a judgment unless the error substantially affects the rights of a party and requires a new trial. If an appellate court reverses a judgment of a district or circuit court because of error by a district court in the ruling or order on a motion to transfer under this section, the appellate court shall direct that the district or circuit court transfer the action to the proper court. 5) This section does not apply to any proceedings under ORS chapter 107 or 109 or to probate, conservatorship, guardianship, change of name or juvenile proceedings. [ [ 1965 c.495 3; repealed by 1975 c [ Amended by 1965 c.495 2; 1975 c ; 1985 c.240 l; ; 1985 c ; repealed by 1987 c Procedure when case transferred to circuit court; additional pleadings; fees and costs. ( 1) Within 10 days after a district court orders transfer of an action to the circuit court under ORS the clerk of the district court shall file with the clerk of the circuit court a transcript of the action including all the material entries in the records of the district court and all of the original papers relating to the action. Thereupon the district court shall proceed no further with the action. The action shall be considered transferred to the circuit court which shall then have jurisdiction to try and determine the action. 2) The responding party shall have 10 days after the final date allowed for the transcript and original papers to be filed in the circuit court within which to plead further. If the district court clerk fails to file the transcript and original papers within the time specified, the presiding judge of the circuit court may order that clerk to do so within a specified time. 3) Except as provided in ORS , when the district court orders the transfer of an action to the circuit court: a) The plaintiff, in addition to the fee paid to the district court clerk as required by ORS ( 1)( a), shall pay to the circuit court clerk an amount equal to the differ- ence between that fee and the filing fee required of a plaintiff by ORS b) The defendant, in addition to the fee ppaid to the district court clerk as required by ORS ( 1)( b), shall pay to the circuit court clerk an amount equal to the differ- ence between that fee and the filing fee required of a defendant by ORS c) The party pleading an original claim, counterclaim or cross -claim in excess of the jurisdiction of the district court shall pay to the district court clerk the transfer fee required by ORS ( 1)( h). 4) If the moving party prevails in the circuit court, the required transfer fee paid by that party may be taxed as costs and disbursements. [ 1965 c ; 1985 c ; 1985 c ; ; 1991 c Jurisdiction in ancillary, supp plemental and incidental proceedings. In civil actions the district courts shall have jurisdiction, as in like cases in the circuit courts, in every ancillary, incidental and supplemental proceeding, before and after judgment, including the provisional remedies of attachment and delivery of personal property claimed in the action as well as inter - pleader, trial of rights of personal property, and exemption, aid of execution, revival and renewal of judgment, the direction of references, and the taking of accounts where necessary to preserve the property or rights of any party to an action of which the district court has jurisdiction. All affidavits, orders and undertakings for such provisional, ancillary or supplemental proceedings are to be filed with the clerk of the district court, and such process is to be issued by the clerk and may be made returnable before the judge of the court, or, where the court has more than one judge, before any of the judges. 5-9 Supplemental process against the personal property of the,judgment debtor may be issued by the clerk of the district court to the

251 DISTRICT COURTS AND PROCEEDINGS THEREIN sheriff of any county in this state. A writ of attachment or an order for the delivery of personal property claimed in the action may be served and executed by any person au- thorized to serve a summons. [ Amended by 1957 c.661 2; 1981 x Real property not subject to writ of attachment. Real property or any interest therein cannot be attached upon a writ of attachment in a civil action in a dis- trict court. [ 1977 c When title, to,real, property not affected by -ac'tion:''( 1) Except as provided in subsection ( 2) of this section, while the title to real property may be controverted or questioned in an action in district court, the judgment in the action shall in no way affect or determine title between the parties or otherwise. 2) In an action in a district court involving title to real property and in which objections to the jurisdiction of the court are considered waived as provided in ORS ), a judgment of the court that would affect or determine title to the real property and that is docketed in the judgment docket of the circuit court shall, from the time of that docketing, affect or determine title to the real property as if it were a udgment of the circuit court where it }$ docketed., [ 1977 c.876 6; 1987 c [ Amended by 1955 c.664 l; 1957 c.661 3; repealed -by 1977 c Transfer of certain judicial jurisdiction of certain county courts to district courts. All judicial jurisdiction, au- thority, powers, functions and duties of the county courts and the judges thereof, except juvenile court jurisdiction, authority, powers, functions and duties and the jurisdiction, authority, powers, functions and duties exercisable in the transaction of county business, are transferred to the district courts and the judges thereof: 1) In Benton,, Clatsop, Curry, Deschutes, Hood, River, Lincoln, Linn, ' Polk, Umatilla, Wasco, Washington and Yamhill Counties. 2) In any county for which a county charter providing for such transfer is adopted under ORS to ' , to the extent that the judicial jurisdiction, authority, powers, functions and duties were not previously transferred as provided by law. [ 1955 c.640 l; 1957 c.403 1; 1965 c ; 1967 c ; 1969 c ] [ 1963 c ; repealed by 1965 c Transfer of pending matters. All matters, causes and proceedings relating to such jurisdiction pending in the county court when jurisdiction is transferred to the district court under ORS are trans- ferred -to the district -court. [ 1955 c.540 2; 1957 c.403 2] Application of laws' goveiring county courts to district courts exercising jurisdiction formerly vested-in county courts. The district courts and the judges thereof to which jurisdiction is transferred under ORS shall be governed, by- the existing laws relating to the transferred jurisdiction, in so far as they may be applicable, as though the district courts and fudges thereof ' had originally been referred : to- in such existing laws. [ 1955 c.540 3;' 1957 c.40' [ 1955 c ; 1957 c.403 4; repealed by 1961 c Circuit court judge acting as judge of district court. In case of the absence or incapacity, including voluntary Qdisqualification, of a judge of a district ' court, any judge of the circuit court for the county in which the district- =court is' located ` may exercise the powers and duties of a judge of the district court for the county. [ 1961 x406 R; 1969 c ' Commencement, prosecution and enforcement of civil actions;- return of process. Unless otherwise provided in this chapter, civil actions in district courts, shall be commenced and prosecuted to final determination and judgment : enforced or rqnewed therein in the manner provided..for similar actions in the circuit courts. Process issued by the clerk of the district court is returnable to the clerk or to the judge or judges of the district court. [ Amended by 1957 c.661 4; 1969 c.438 1] 4& 110 [ Amended by 1967 c.391 l; repealed by 1979, c ' 4& I20 [Amended by 1953 c.479 4; 1973 c.827 9; repealed by 1977 c Process returnable before presiding judge and authority, of other judges in counties having, two or -more district judges. In a district court having two or more judges original, process is re- turnable and. the party summoned shall appear before the presiding judge; but any judge of the district court may hear and de- termine any action or proceeding instituted in the court which. may be assigned., or transferred to the judge or any, motion, ap -, plication or issue therein, and may -make, any necessary and proper orders therein. [ Amended by 1957 c.405 4; 1961 c & 140 [ Repealed by 1961 c ( enacted in lieu of )] Disqualification. of- judges. Judges of a district court may be disqualified for like reasons, upon like - procedure- and with like results and provision for obtaining another judge as those which.apply- to judges of circuit court under the provisions of ORS 5-10

252 DISTRICT COURTS AND PROCEEDINGS THEREIN to [ 1961 c ( enacted in lieu of )] Findings and conclusions. In cases tried without a jury by a district court, the.court shall not be required to make any written findings of fact and conclusions of law where the matter involved is $ 50 or less exclusive of interest and costs; and, in ail other cases, written findings of fact and conclusions of law shall be deemed to be waived unless they shall be expressly requested by one. of the parties at the time of the trial. Amended by 1569 c [ 1976 c , 13, 14; repealed by 1979 c [ Repealed by 1979 c [ Amended by 1953 c.398 2; 1961 c.705 l; repealed by 1965 x [ 1961 x705 3; 1965 c ; 1971 c.628 1; 1979 c. 113 l; repealed by 1981 s. s Juries in district courts generally. ( 1) Except as otherwise provided in ORS , in the district court a jury may be demanded in a civil or criminal proceeding upon: a) Notice to the adverse party; and b) Written application to the clerk of the court, and payment in a civil proceeding of the amount of the jury trial fee for the first day of trial, not later than five days before trial. 2) A jury in a district court shall consist of six jurors. Jurors shall be subject to all applicable laws relating to jurors In the cir- cuit court. Jurors required in proceedings in the district court for Multnomah County holding court in the City of Gresham as pro- vided in ORS may be selected from names of persons on the master jury list who reside east of 122nd Avenue extended to the north and south boundaries of Multnomah County. [ Amended by 1957 c.594 3; 1961 x705 2; 1965 x510 17; 1971 x628 2; 1977 c.519 3; 1981 S. B. c.3 61; 1985 c ; 1985 c a] Challenges of urors. In civil actions, each party is entit?ed to take challenges for cause, and shall be entitled to two peremptory challenges and no more. When there are two or more parties plaintiff or de- fendant they must join in the challenge or it cannot be taken. The manner in which chal- lenges may be taken shall be the same as provided for in the circuit court [ Amended by 1961 c.446 2; 1969 c.96 3; 1971 c ; repealed by 1975 c Witness fees; costs and disbursements. In district courts the amount of witness fees shall be the same as in circuit courts. Costs and disbursements shall be allowed the prevailing party in all actions and proceedings. The amount of costs shall be the same as in circuit courts and the amount of disbursements shall be the same as in circuit courts except where otherwise provided in this chapter. Costs and disbursements shall be taxed in the manner provided by law for the allowance and taxation of costs and disbursements in circuit courts. [ Amended by 1955 c.459 1] [ Repealed by 1953 c Fees; surcharge for dispute resolution programs. ( 1) In the district court there shall be charged and collected in civil cases by the clerk of the court the fol- lowing fees services: for the following purposes and a) Appearance for plaintiff or appellant, 48. ( b) Appearance for defendant or respond- ent appearing separately or for defendants or respondents appearing jointly, $ 24. c) Trial fee, for a trial on the merits without a jury, $ 15 for each full or partial day of the trial, to be collected and considered as costs and disbursements as provided in ORS for the trial fee in the circuit court. d) Jury trial fee, for a trial by jury, $ 50 for each full or partial day of the trial, to be collected and considered as costs and disbursements as provided in ORS for the jury trial fee in the circuit court. e) Hearing fees, other than in small claims department, $ 10 or $ 25 for a reported hearing, to be collected and considered as costs and disbursements as provided in ORS for hearing fees for reported hearings in the circuit court. For purposes of the application of ORS , failure of a party to request that hearing be reported constitutes a waiver of reporting by the party. There is no hearing fee under this paragraph for a hearing not reported. f) In small claims department, plaintiff filing a claim, $ 22 when the amount or value claimed does not exceed $ 1, 500, and $48 when the amount or value claimed exceeds $ 1, 500; and defendant demanding a hearing, $ when the amount or value claimed by plaintiff does not exceed $ 1, 500, and $ 24 when the amount or value claimed by plaintiff exceeds $ 1, 500. g) Transcript of judgment in the format provided in ORCP 70 A. from small claims department, $ 4. h) Transfer of cause to circuit court, or transfer of case from small claims deppart' ment to district court on counterclaim, V. 2) Except as otherwise provided in this section, fees provided for in this section shall be collected in advance. No paper constituting an appearance referred to in paragraph a) or ( b) of subsection ( 1) of this section and 5-11

253 46223 DISTRICT COURTS AND PROCEEDINGS THEREIN no claim or demand referred to in paragraph f) of subsection ( 1) of this section shall be deemed filed unless the required fee is paid by the filing party. 3) In addition to the fees charged under paragraphs ( a) and ( b) of subsection ( 1) of this section, the clerk of the court shall col- lect a surcharge at the time of filing an appearance by the plaintiff or the defendant in the district court of any civil action, suit or proceeding, including appeals and actions brought pursuant to ORS or , but not including domestic relations, probate, conservatorship, guardianship, adoption or change of name. The amount of the surcharge shall be $ 5. The surcharge shall be used by the Dispute Resolution Commission to establish community dispute resolution programs under ORS to and to carry out the duties of the commission under ORS to and to The surcharges shall be deposited by the State Court Administrator into the State Treasury to the credit of the Dispute Reso- lution Account. 4) The surcharge imposed under subsection ( 3) of this section shall be collected in any district court action brought under ORS or when the district court has jurisdiction over the matter. [ 1953 c.393 1; 1965 x510 18; 1965 c ; 1971 c.621 8; 1973 c.381 2; 1975 c.88 6; 1975 c.327 6; 1975 c ; 1977 c.875 l; 1979 c ; 1981 c ; 1981 as. c.3 92; 1981 s.s. 0 93; 1983 c ; 1985 c ; 1985 c.496 8; ; ; 1991 x538 5; Fees on appeal to district court from justice or municipal court in certain actions; waiver. ( 1) In an appeal to a district court from a justice' s court or municipal court in an action for commission of a state violation or infraction or an action for violation of a city charter or ordinance, but not in an action for commission of a state crime: a) The appearance, trial and law library fees required by ORS and are required of the appellant and respondent. b) The legal aid fee required by ORS is required of the appellant. 2) Payment of fees required by subsection ( 1) of this section is subject to ORS ) Fees required by subsection ( 1) of this section may be waived or deferred by a judge of the district court for the reason and in the manner provided in ORS [ 1985 c [ Amended by 1965 c ; repealed by 1965 c [ Amended by 1961 c.563 3; 1971 c.621 9; repealed by Appeal to Court of Appeals. ( 1) Any party to a judgment in a civil action or proceeding, including those relating to a traffic infraction, in a district court, other than a judgment given by confession or for want o an answer or a judgment in the small claims department, may appeal therefrom to the Court of Appeals. The plaintiff may appeal from a judgment given by confession or for want of an answer where the judgment is not in accordance with the relief demanded in the complaint. Except for a traffic infraction case, an appeal may be taken only when the amount of money or- the " value of the property' involved, exclusive of costs and disbursements, is more than $ ) Immediately upon service of the copy of the notice of appeal on the district court reporter, the reporter shall authenticate and deposit the transcript with the clerk of the district court. 3) Except as otherwise required by this chapter, an appeal taken from district court shall be in accordance with and subject to the provisions of ORS chapter 19. [ Amended by 1975 x611 20; 1977 c.416 7; 1979 c ; 1985 c M [ 1975 c.611 5; repealed by [ 1975 c.611 6; 1981 c.178 3; repealed by [ Amended by 1969 c.96 4; repealed by 1977 x Appeal to Supreme Court from Court of Appeals. A party aggrieved by a final decision of the Court of Appeals in a case from the district court may petition the Supreme Court for review of that decision in the manner provided for petitions of review c Dismissal of civil cases; notice required. The clerk of every district court shall mail a notice to each of the attorneys of record in every civil action, suit or proceeding in their respective courts in which no proceedings have been had or papers filed for a period of more than one year, unless the court has sent an earlier notice on its own motion. The notice shall state that each such case will be dismissed by the court for want of prosecution 60 days from the date of mailing the notice, unless, on or before the expiration of the 60 days, application, either oral or written, be made to the court and good cause shown why it should be continued as a pending case. If such application is not made or good cause is not shown, the court shall dismiss each such case. Nothing contained in this section shall be construed to prevent the dismissing at any time, for want of prosecution, of any suit, action or proceeding upon motion of any party thereto. Amended by 1971 c Filing and docketing transcript of judgment in circuit court; filing fee. When a judgment is given in a district court

254 DISTRICT COURTS AND PROCEEDINGS THEREIN 46.= in favor of anyone for the sum of $ 10 or more, exclusive of costs or disbursements, the party in whose favor the judgment is given may at any time when the Judgment is enforceable, by paying a fee of 15, file with the clerk of the circuit court for the county wherein the udgment is given a certified transcript of the udgment as docketed in the district court judgment docket. Thereupon the clerk shall docket in the judgment docket of the circuit court the judgment T619in the district court. [ 1955 c.664 2; ; 1971 c ; 1975 c ; 1979 c ; 1981 c.835 3; 1981 s.s. c. 3 32; 1985 c [ 1977 c.876 7; repealed by 1983 c Lien created by docketing or recording, extension by renewal. ( 1) From the time of docketing in the judgment docket of the circuit court in the county wherein the judgment of the district court was ren- dered, the judgment shall be a lien upon the real property of the defendant as provided in ORS and In all other counties in this state, the judgment creditor shall record a certified copy of the judgment or a lien record abstract, whereupon the judgment shall be a lien upon the real property of the judgment debtor in such counties. Neither docketing in the circuit court nor recording in any county other than the county of original circuit court docketing shall extend the lien of the judgment given in the district court more than 10 years from the original entry of the judgment in the district court. 2) Whenever a judgment of the district court which was docketed pursuant to ORS is renewed by the district court, the lien of the renewed judgment may also be extended by docketing in the circuit court or by recording a certified copy of the judgment or a lien record abstract of the renewed judgment in the County Clerk Lien Record of all counties in this state other than the county where the judgment is docketed. The renewed judgment and any lien thereof shall expire 10 years after entry of the renewed judgment. Execution may issue upon the renewed judgment until the judgment expires or is fully satisfied as provided in ORS [ 1955 c.664 3; 1969 c.438 2; 1987 c Execution of judgment not is- sued against real property until judgment docketed in circuit court. Execution to enforce a judgment in a district court must not be issued against or levied upon the real property of the defendant; but when a judgment given by a district court has been duly docketed in the circuit court in the county where the district court is located, thereafter it may be enforced as a judgment of the circuit court as provided in ORS chapter c.876 8; 1987 c Rules of court; filing with State Court Administrator; effect of failure to file; fees. ( 1) A district court may make and enforce all rules necessary for the prompt and orderly dispatch of the business of the court and not inconsistent with applicable provisions of law, the Oregon Rules of Civil Procedure or rules made or orders issued by the Chief Justice of the Supreme Court or the presiding judge of the district court. If a majority of the judges of a court having two or more judges do not agree in respect to the making of rules under this subsection, the decision of the presiding judge shall control. 2)( a) A certified copy of a rule referred to in subsection ( 1) of this section made or in effect before January 1, 1984, shall be filed in the office of the State Court Administrator not later than January 1, If a copy of a rule is not so filed, the rule is void. b) A certified copy of a rule referred to in subsection ( 1) of this section made or amended on or after January 1, 1984, shall be filed in the office of the State Court Administrator. No rule or amendment shall be effective unless so filed, and no rule or amendment so filed shall become effective before the 30th day after the date of filing. c) The State Cdurt Administrator shall maintain the copies (of all rules filed pursu- ant to this subsection, and shall keep a record of the date of filing thereof. The administrator shall, upon request, supply copies of the rules, and may charge a reasonable fee for such copies in order to recover the cost of compilation, copying and distribution of the rules. [ Amended by 1973 c.484 5; 1981 s.s. c.1 11; ] [ Repealed by 1981 s.s [ 1959 c ; ; 1979 c.568 7; repealed by DISTRICT COURT AS COURT OF RECORD District court as court of re- cord. Subject to the provisions of this chap- ter, a district court is a court of record. [ 1975 c.611 2] Report of proceedings; exceptions; waiver. (1) All proceedings in district court shall be reported unless waived by the parties, except that proceedings small claims actions and arraignments in vi- olations and traffic infractions including pleas and sentences thereon, need not be reported if a suitable record is otherwise maintained in accordance with rules of the Court of Appeals. 2) Waiver of reporting in criminal cases or failure to make timely written request in accordance with local district court rule for reporting civil, violation and traffic infrac- in

255 DISTRICT COURTS AND PROCEEDINGS THEREIN tion cases constitutes waiver of the right to appeal issues not otherwise preserved in the record. [ 1975 c.611 3; 1977 c When record to be prepared - form; rules of Court of Appeals; appea on record. ( 1) Upon service of a copy of the notice of appeal, the district court clerk shall prepare the record. The record shall include a copy of all the material entries in the register of the district court relating to the cause and the appeal, and all the original papers, relating to, the cause and the appeal and!,filed with the district' court. The record may include designated exhibits and the transcript of the proceedings in the district court. Upon the request of the Clerk of the Court of Appeals, the district court clerk shall deliver the record of the case. 2) ' Unless some other form of reporting is specifically authorized by order of the Supreme Court, reporting in district court shall be by an audio record reporting device designated by the Supreme Court and operated under such rules as that court may prescribe. The transcript of proceedings reported in this manner shall be the audio record. 3) The Court of Appeals shall make rules governing: i a) Extensions of time for the perform- ance of any act in connection with the prep- aration of the record.-, b) The filing of transcripts- from the district court and their preparation, availability, distribution and charges therefor. Charges shall be reasonably commensurate with the cost incurred. script. c) Procedures for challenging the tran- d) An agreed narrative statement in lieu of or in addition to a transcript. e) Procedures for filing written briefs. f) Presentation of oral argument. 4) The appeal shall be heard and determined by the Court of Appeals on the record. Upon an appeal from a judgment in a case in which the right to jury trial is provided by Oregon law, the judgment shall be reviewed only as to questions of law appearing upon the record' and shall be reversed or modified only for error substantially affecting the rights of the parties. Upon an appeal from a judgment in a case in which no right to jury trial is provided by Oregon law, the action shall be tried anew upon the record. Upon an appeal from a decree, the suit shall be tried anew upon the record. [ 1975 c.611 4; 1985 c District court reporter; appointment; duties. ( 1) If the Supreme Court specifically orders that a district court report its proceedings by court reporter, a reporter shall be appointed under a personnel plan established by the Chief Justice of the Supreme Court, and shall perform the same duties. in the district court as provided by law for the circuit court reporter. 2) When district court proceedings are reported by an audio record reporting device, the district court reporter shall operate the device during the proceedings. The duties of court reporter may be in addition to other duties of the person serving as reporter., [ 1975 c.611 8, 9; 1981 s.s. a3 33; 1985 c [ 1975 c ; repealed' by 1985 c SMALL CLAIMS DEPARTMENT Small claims department; jurisdiction. (1) Each district court shall have a small claims department. 2) All actions for the recovery of money, damages, specific personal property, or any penalty or forfeiture, excepting class actions and actions providing for statutory attorney fees, where the amount or value claimed does not exceed $ 200, shall be commenced and prosecuted only in the small claims depart- ment. Where the amount or value claimed does not exceed $ 2, 500, such actions may be commenced, and prosecuted in the small claims, department. [ 1971 c.760 2; 1973 c.812 2; 1975 c.592 1; 1979 c.567 l; 1983 c.242 l; l; ,410 [ Amended by 1959 c.326 l; 1965 c.569 l; 1969 c ; repealed by 1971 c District judges to sit in department; procedure. ( 1) The judges of a district court shall sit as judges of the small claims department. 2) No formal pleadings other than the claim shall be necessary. 3) The hearing and disposition of all cases shall be informal, the sole ob. ect being to dispense justice promptly and economically between the litigants. The parties shall have the privilege of offering evidence and testimony of witnesses at the hearing. The judge may informally consult witnesses or otherwise investigate the controversy and give judgment or make such orders as the 5-14 fudge deems to be right, just and equitable for the disposition of the controversy. 4) No attorney at law or person other than' the plaintiff and defendant and their witnesses shall appear on behalf of any party in litigation in the small claims department without the consent of the judge of the court. 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 any action in the small claims

256 DISTRICT COURTS AND PROCEEDINGS THEREIN department and m any supplementary proceeding in aid of execution after entry of a small claims judgment. 6) Assigned claims may be prosecuted by an assignee in small claims department to the same extent they may be prosecuted in any other state court. [ 1971 c ; 1973 c.484 6; 1981 s.s. c. 1 22; 1987 c [ Repealed by 1971 c Commencement of actions; contents of claim. ( 1) An action in the small claims department shall be commenced by the plaintiffs filing with the clerk of the district court a verified claim in the form prescribed by the court, and by aying the fee prescribed by ORS ( 1) 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 to , 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 $ 2, ) Notwithstanding subsection ( 3) of this section, a plaintiff bringing an action on as- signed 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 laims to the plaintiff. [ 1971 c.760 4; 1977 c.875 J2; 1991 c Note: The amendments to by section 1, chapter 195, Oregon Laws 1991, apply only to claims M2 on or after September 29, See section 4, chapter 195, Oregon Laws A30 [ Repealed by 1971 c [ 1971 c ; 1973 c.393 2; 1977 c.875 3; 1979 c.567 2; repealed by 1979 c [ Repealed by 1971 c Department to give explanation of manner of giving notice. The small claims department of a district court shall provide to each plaintiff who files a claim with the department a written explanation of how notice may be served in actions in the department. [ 1977 c Notice; content; service. ( 1) Upon the filing of a claim, the clerk shall issue a notice in the form prescribed by the court. 2) The notice shall be directed to the defendant, naming the defendant, and shall contain a copy of the claim. 3) The notice and claim shall be served upon the defendant either in the manner provided for the service of summons and complaint in proceedings in the circuit courts or by certified mail, at the option of the plaintiff. If service by certified mail is attempted, the plaintiff shall mail the notice and claim by certified mail addressed to the defendant at the last -known mailing address of the defendant within the territorial jurisdiction of the court. The envelope shall be marked with the words " Deliver to Addressee Only" and " Return Receipt Requested." The date of delivery appearing on the return receipt shall be prima facie evidence of the date on which the notice and claim was served upon the defendant. If service by certified mail is not successfully accomplished, the notice and claim shall be served in the manner provided for the service of summons and complaint in proceedings in the circuit courts. 4) The notice shall include a statement in substantially the following form: NOTICE TO DEFENDANT: READ THESE PAPERS CAREFULLY!! Within 14 DAYS after receiving this notice you MUST do ONE of the following things: Pay the claim plus filing fees and service expenses paid by plaintiff OR Demand a hearing OR Demand a jury trial If you fail to do one of the above things within 14 DAYS after receiving this notice, then upon written request from the plaintiff the clerk of the court will enter a udgment against you for the amount claimed plus fil- ing fees and service expenses paid by the plaintiff, plus a prevailing party fee. If you have questions about the small claims court filing procedures after reading this notice, you may contact the clerk of the court; however, the clerk cannot give you legal advice on the claim c.760 6; 1977 c.875 4; 1977 c.877 9a; 1989 c.741 1; 1991 c.111 4; 1991 x

257 DISTRICT COURTS AND PROCEEDINGS THEREIN Note: The amendments to by section 2, chapter 195, Oregon Laws 1991, apply only to claims filed on or after September 29, See section 4, chapter 195, Oregon Laws A50 [ Repealed by 1971 c Defendant' s rights and liabilities; fees. Within 14 days after the date of service of the notice and claim upon the defendant as provided in ORS : 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 pa7ing 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) If the amount or value claimed exceeds $ 200, has a constitutional right to a jury trial and may claim that right in a written request to the clerk in the form pre- scribed by the court, accompanied by pay- ment of the appearance fee required from defendants in district court actions together with the amount of the district court jury trial fee for the first day of trial. The request shall designate a mailing address to which a summons and copy of the complaint may be served by mail. Thereafter, the plaintiffs claim will not be limited to the amount stated in the claim, though it must involve the same controversy. [ 1971 c.760 7; 1973 c.654 3; 1973 c.812 3a; 1977 c.875 5; 1977 c a; 1981 s.s. c.3 94; 1983 c.673 2; 1985 c ; 1991 c.111 5; 1991 c. 195 Note: The amendments to by section 3, chapter 195, Oregon Laws 1991, apply only to claims filed on or after September 29, See section 4, chapter 195, Oregon Laws A60 [ Amended by 1965 c ; 1969 c.683 2; repealed by 1971 c Counterclaims by defendant; transfer of case on counterclaims; fees. 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 , 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 $ 2, 500, 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 a court of appropriate jurisdiction. After the transfer the plaintiffs 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, but does not exceed the jurisdictional limit of the district court for a counterclaim, and the defendant files a motion requesting transfer as provided in subsection ( 2) of this section, the case shall be transferred to the district 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 byy 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 depart- ment, an amended claim for the increased amount. Proof of service on the defendant of the plaintiffs reply and amended claim may be made by certificate of the plaintiff or plaintiffs 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 byy ORS ( 1)( h) and an amount equal to the difference between the fee paid by the defendant as required by ORS ( 1)( f) and the fee required of a defendant by ORS )( b). 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 ( 1)( f) and the fee required of a plaintiff by ORS ( 1)( a). 4)( a) If the amount or value of the counterclaim exceeds the jurisdictional limit of the district court for a counterclaim and the- defendant files a motion requesting transfer as provided in subsection ( 2) of this section, the district court shall order transfer of the case to the circuit court and the case shall be transferred and overned as provided in ORS ( 1) and ( 2). The clerk of the 5-16

258 DISTRICT COURTS AND PROCEEDINGS THEREIN district 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 circuit court. b) Upon filing the motion requesting transfer, the defendant shall pay to the clerk of the district court the transfer fee required by ORS ( 1)( h), and thereafter the defendant shall pay to the clerk of the circuit court an amount equal to the difference between the fee paid by the defendant as re- quired by ORS ( 1)( f) and the filing fee required of a defendant by ORS Upon filing a reply to the counterclaim, the plaintiff shall pay to the clerk of the circuit court an amount equal to the difference between the fee paid by the plaintiff as required by ORS ( 1)( f) and the filing fee required of a plaintiff byy ORS ( 1977 c.8'75 10; 1979 c.567 3; 1983 c.242 2; 1983 c.673 5; 1985 c.367 2; 1985 c ; ; ; Time and place of hearing, notice; procedure if defendant claims jury trial; fees. ( 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 yarties 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 contro- versy. 2) If the defendant asserts a counter- claim, the notice of the hearing time shall contain a copy of the counterclaim. 3) If the defendant claims the right to a jury trial, the clerk shall notify the plaintiff to file a formal complaint within 20 days following the mailing of such notice. The notice shall instruct the plaintiff to serve a sum- mons and copy of the complaint by mail on the defendant at the designated address of the defendant. Proof of service of the sum- mons and complaint copy may be made by certificate of the plaintiff or plaintiffs attorney attached to the complaint prior to its filing. The plaintiffs claim in such formal complaint is not limited to the amount stated in the claim filed in the small claims department but it must involve the same contro- versy. The defendant shall have 10 days in which to move, plead or otherwise appear following the day 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 district court, and costs and disbursements shall be allowed and taxed and fees not previously paid shall be charged and col- lected as provided in ORS and for other cases tried in district court, exceppt that the appearance fee for plaintiff shall be an amount equal to the difference between the fee paid by the plaintiff as required by ORS ( 1) ( f) and the fee required of a plaintiff by ORS ( 1)( a). [ 1971 x760 8; 1975 c.346 1; 1983 c.673 3; 1985 c ; [ Amended by 1963 c.248 l; repealed by A75 Time extension; default; dismissal; refund, of fees; resetting claim for hearing. (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. 2) If the defendant fails to yay the claim, demand a hearing, or demand a jury trial, 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 ). 3) If the plaintiff fails within the time provided to file a formal complaint pursuant to ORS ( 3), the clerk shall: and a) Dismiss the,, case without prejudice; t 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 ppaid by the defendant underr ( 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. ( ; 1977 c.875 6; 1985 c ; 1991 c [ Amended by 1969 c.683 3; repealed by Extent and effect of small claim judgment. ( 1) In addition to other award, the prevailing party shall be entitled to a judgment for the small claims filing fees and service expenses paid by the party and the prevailingg party fee provided for in ORS ( 3). The award shall be paid or the property delivered upon such terms and conditions as the judge may prescribe. 2) The court may allow to the defendant a set -off not to exceed the amount of plaintiffs claim, but in such case the court

259 46160 DISTRICT COURTS AND PROCEEDINGS THEREIN shall cause to be entered in the record the amount of the set -off allowed. 3) No attachment shall issue on any cause in the small claims department. 4) A judgment in the small claims department is conclusive upon the parties and no appeal may be taken from the judgment. 5) The clerk of the district court shall keep a record of all actions, proceedings and judgments in the small claims department. 6) A judgment in the small claims department is a] udgment of the district court. The clerk shall enter such jud ent in the register of the district court. Money udgments shall be subject to ORCP 70 A.(21 and ORCP 70 B. Execution and other process on execution provided by law may issue on judgments in the small claims department as in other cases in the district court. [ 1971 c.76o 10; 1977 c.875 7; 1985 c ; 1991 c [ Repealed by [ 1979 c.567 4; repealed by 1981 c [ Amended by 1969 c ; repealed by ( 1969 c.683 6; repealed by [ Repealed by [ Amended by c.683 7; repealed by [ Repealed by 1971 x: [ Amended by 19694c.683 8; repealed by [ Repealed by 1981 s.s. c Where action to be commenced and tried. Except as provided in subsections 1) and ( 2) of this section, all actions in small claims department shall be commenced and tried in the county in which the defendants, or one of them, reside or may be found at the commencement of the action. 1) When an action is founded on an alleged tort, it may be commenced either in the county where the cause of action arose or in the county where the defendants, or one of them, reside or may be found at the commencement of the action. 2) When the defendant has contracted to perform an obligation in a particular county, action may be commenced in either that county or where the defendants, or one of them, reside or may be found at the commencement of the action. [ 1973 c JUDGES Qualifications of judges. ( 1) No person shall be eligible to the office of judge of the district court unless the person is a citizen of the United States, a resident of this state and a member of the Oregon State Bar. 2) Except as provided in subsection ( 4) of this section, each judge of the district court shall be a resident of or have 'a' rinci= pal office in a county in which the district court is located. 3) The residence within this state required by subsection ( 1) of this section shall have been maintained for at least three years, and the residence or principal office required by subsection ( 2) of this section shall have been maintained for at least one year, immediately prior to appointment or becoming a candidate for election to the office of judge of the district court.. 4) In any county having a population of 500,000 or more, according to the latest federal decennial census, an judge of the district court may reside witu 10 miles of the boundary of the county. ( Amended by 1965 c ; 1971 c ; ; 1979 c Oath of judges. District judges shall take and subscribe the same oath as circuit judges Terms of judges; private practice of law prohibited. Except as provided in ORS ( 1)( 1) or in ORS , each judge of a district court shall hold office for a term of six years, and until a successor is elected and qualified. During tenure of office, a judge of a district court shall not engage in the practice of law. [ Amended by 1957 c.726 2; 1963 c.614 2; 1969 c.96 5] Salary and expenses of ' udges. 1) Each judge of a district courts all receive such salary as is provided by law. 2) Each judge of a district court is entitled to reimbursement for hotel bills and traveling expenses of the judge necessarily incurred by the judge in the performance of duties outside the county in which the district court for which the judge was elected or appointed is located. 3) The salaries, hotel bills and traveling expenses of the judges of the district courts shall be paid by the state in the same manner as the salaries, hotel bills and traveling expenses of circuit court *udgges. [ 1959 e.559 5; 1961 c.628 l; 1963 c.487 l; 195 c.171 2; 1967 c.38 2; 1969 c.365 2; 1971 x642 2] [ Amended by 1953 c.563 7; 1955 c.562 l; 1957 c.439 l; repealed by 1959 c [ 1959 c.552 8; repealed by [ Repealed by 1959 c [ 1965 c.377 1; 1969 c.269 3; 1971 c ; repealed by Powers of judges to act in joint or separate session; testing process. If two or more persons are sitting as judges' of the district court in a county: 1) Any two or more of them may act in joint session for the trial or determination Of any cause, matter or proceeding before the court in the county, including jury cases. If the judges acting in joint session are equally

260 DISTRICT COURTS AND PROCEEDINGS THEREIN divided in opinion, the opinion of the; presiding judge, or if none, then of the judge senior in continuous service, or if neither, then of the judge senior in age, prevails; otherwise the decision of the majority prevails. 2) Each of them may proceed separately with and try, simultaneously in the county, all causes, matters and proceedings brought before the court. 3) Process may be tested in the name of any of them. [ 1959 c [ Repealed by 1961 c l Departments of district court having two or more judges. In a district court having two or more fudges there shall be a department for each judge of the district court. The departments shall be designated by consecutive numbers, beginning with Department No. 1. Any successor to the judge in a department shall be elected or appointed as judge in and shall preside over the de- partment. [ 1961 c [ Repealed by 1961 c Presiding judge of district court having two or more judges. ( 1) The presiding fudge of a district court having two or more udges shall be a judge of the court appointed as provided in ORS The Judge of a district court having one judge is the presiding judge of the court. 2) The presiding judge may designate another judge of the court to perform the functions of the office of presiding judge when the presiding judge is temporarily unable to perform those functions. 3) The presiding judge, to facilitate ex- ercise of administrative authority and supervision over the court and consistent` with applicable provisions of law and the Oregon Rules of Civil Procedure, may: a) Apportion and otherwise regulate the disposition of the judicial business of the court. b) Make rules, issue orders and take other action appropriate to that exercise c ; 1981 s.s. c [ Repealed by 1969 c lolling vacancies in judgeships of Multnomah County District Court. All vacancies in judgeships of a district court organized under ORS shall be filled by appointment by the Governor, and district judges so appointed shall hold office until the next general election [ 1957 c.405 5; repealed by 1961 c [ 1957 c.405 6; repealed by 1961 c [ Repealed by 1959 c [ Repealed by 1969 c [ Amended by 1953 c ; 1979 c ; repealed by 1981 s. s. c [ 1975 c ; repealed by 1979 c ) [ Amended by 1955 c.664 4; repealed by 1981 s.s. c [ 1979 c. 58 4; repealed by 1985 c [ Amended by 1955 c.664 5; 1963 c.427 1; 1975 c ; repealed by 1985 c [ Amended by 1959 c.524 l; 1963 c.474 1; 1979 c.58 2; repealed by 1985 c [ Repealed by 1985 c [ Amended by 1977 c. 518 l; repealed by 1981 s.s. c [ 1965 x203 1; 1975 c.327 8; 1979 c ; repealed by 1981 s.s. c CRDHNAL PROCEEDINGS Criminal procedure generally; challenges; costs and disbursements- disposition of fines and forfeited bail'. ( 1) District courts are governed in their criminal and quasi - criminal actions and proceedings by the provisions of law regulating such actions and proceedings as provided in ORS chapters 131, 133, 135, 136 and 137, insofar as the same are or can be made applicable in the several cases arising before them, except when other provisions of law provide for a different procedure in district courts for such actions and proceedings, in which event, such other provisions shall control. 2) In criminal actions in district courts, each party may take challenges for cause and three peremptory challenges, and no more. The manner in which challenges may be taken shall be the same as provided for in the circuit court. 3) In criminal actions in district courts, the costs and disbursements shall be added to the fine, penalty or sentence imposed in a sum not less than $ 5; but the court, at its discretion in justifiable cases, may on behalf of the state waive payment of all or any part of the costs and disbursements in excess of 5. 4) Except as otherwise specifically provided b law, all fines, costs and forfeited bail ordered to be paid in criminal actions and proceedings, as defined in ORS , in the district court shall be accounted for and distributed as provided in ORS and , as monetary obligations payable to the state. [ 1977 c ( enacted in lieu of , , and ); 1981 s.s. c.3 103; 1983 c ; 1985 c.565 6; 1987 c Note: The amendments to by section 4, chapter 905, Oregon Laws 1987, take effect July 1, See section 39, chapter 905, Oregon Laws 1987, as amended by section 1, chapter 460, Oregon Laws The text ( 1989 Edition) is set forth for the user's con- venience ( 1) District courts are governed in their criminal and quasi - criminal actions and proceedings by the provisions of law regulating such actions and proceedings as provided in ORS chapters 131, 133, 135, 136 and 137, insofar as the same are or can be made applicable in the several cases arising before them, except 5-19

261 DISTRICT COURTS AND PROCEEDINGS THEREIN when other provisions of law provide for a different procedure in district courts for such actions and pro - ceedings, in which event such other provisions shall control. 2) In criminal actions in district courts, each party may take challenges for cause and three peremptorryy challenges, and no more. The manner in which challenges may be taken shall be the same as provided for in the circuit court. 3) In criminal actions in district courts, the costs and disbursements shall be added to the fine, penalty or sentence imposed in a sum not less than $ 5; but the court, at its discretion in justifiable cases, may on behalf of the state waive payment of all or any part of the costs and disbursements in excess of $5. 4) Except as otherwise specifically provided by law, all fines, costs and forfeited bail collected by the clerk of a district court in criminal actions and proceedings, as defined in ORS , in the district court shall be deposited in the General Fund available for general "governmental expenses Appeal from district court in criminal proceeding subject to, ORS ch4pter 138. An appeal taken from district court in a criminal action or proceeding shall' be in accordance with and be subject to the provisions of ORS chapter 138. Formerly 1' CHAPTERS 47 TO 50 Reserved for expansion] 5-20

262 CHAPTER RESERVED FOR EXPANSION

263 CHAPTER RESERVED FOR EXPANSION

264 CHAPTER RESERVED Ims EXPANSION

265 CHAPTER RESERVED FOR EXPANSION

266 TITLE 6 JUSTICES' COURTS AND CIVIL PROCEEDINGS THEREIN Chapter 51. Justices' Courts and Civil Jurisdiction Thereof 52. Procedure in Ordinary Actions 53. Appeals in Civil Actions 54. Juries 55. Small Claims Chapter EDITION Justices' Courts and Civil Jurisdiction Thereof ORGANIZATION AND JURISDICTION 5L245 Continuing education Justice' s court defined; no terms of court; 5L250 Time when term begins; filing certificate court always open for business of election, oath of office and undertaking 5LO20 Justice of the peace districts; establishing Filling vacancy; temporary appointment; and modifying boundaries; ma3dmum appointment during justice s vacation number of districts 51,270 Form of justice' s undertaking 5L030 Justice districts abolished in certain 5L280 qualifications of sureties; filing justificacounty seats tion Justice of peace as municipal judge 5L300 District or circuit court judge as justice Agreement between city and county for of peace provision of judicial services 51AW Criminal jurisdiction over specified crimes FEES AND FINES 5LO Schedule of fees; payment of fees to Jurisdiction over misdemeanors; defendnot county treasurer ant's right to transfer after pleading guilty" 5LS40 Monthly report of fines collected 51M Concurrent criminal jurisdiction with cir- cuit courts CONSTABLES Crimea " triable" in justice' s court Appointment of constables; term; removal 5LO80 Civil jurisdiction, generally Qualifications for office 5LO90 Civil jurisdiction not to extend to certain 51,460 Oath and undertaking; amount of under - actions taking 5L100 Where action may be commenced in civil Form of undertaking cases 5L480 Qualifications of sureties Records and files of a justice' s court 5L490 Filling vacancies; qualifying for office Character of docket and entries to be 51ZM Deputies; appointment; revocation; oath made therein of office; authority and powers; compen- sation Disposition of docket and files; docket and files are public writings Civil fees collected in advance; payment to Office, courtroom and clerical assistance; county treasurer books, office equipment and supplies 5L550 Office; clerical assistance; books, office JUSTICES OF THE PEACE equipment and supplies 5L210 Each district to elect one justice CROSS REFERENCES Certain justices as temporary district Administrative supervision over other courts, judges where justice districts abolished Courts and judicial officers generally, Ch. 1 5L230 At what election justice to be elected Duties and powers incident to service of process, Qualifications for office to

267 JUSTICES' COURTS & CIVIL PROCEEDINGS THEREIN Enforcement, by mandamus, of performance by court or court officer of duty relating to the administration of justice, Enforcement of city and charter county ordinances and resolutions, Jurisdiction over wildlife law violations, Municipal or recorder's court, disqualification of judge for prejudice, Open meeting law not applicable to any judicial proceeding, Procedure in criminal actions in justice' s court, Chs. 156, 157 Special Courts Advisory, Committee, Temporary appointment and assignment of judges, Coast. Art. VII (A), 2a Terms of court generally, Traffic offenses, jurisdiction of justice court, Transfer of proceeding to juvenile court, Transmission of warrants of arrest and civil processes by telegraph, Unclaimed property held for owner by court or public officer, to L037 Agreement between cities for provision of judicial services, Ch. 221 Civil jurisdiction of justice's court, LO40 County law, offenses, Jurisdiction of prosecutions for violation of timber harvesting requirements, Jurisdiction over violation of municipal charter or ordinance, L080 Authority to vest justices of the peace with limited judicial power, & nst. Art. VII (0), 1 Counterclaims in excess of jurisdiction, Residential Landlord and Tenant Act, tenant counterclaims not to exceed jurisdictional limits of court, Small claims department of justice court, Supervisory control and appellate jurisdiction of circuit court over inferior courts, Const. Art. VII (0), 9 5LO90 Attachment of real property prohibited in justice court, Execution against real property of defendant, Judgment in justice court not to affect title to realty, Jurisdiction of justice of the peace to cease where title to real property in question, L100 Change of place of trial of action in a justice court, L120 Docket for small claims department, L210 Courts, election of judges, term of office, compensation, Const. Art. VH (A), 1 5L240 County officer qualifications, Coast. Art. VI, 8 5L250 Payment of expenses of official bond or letter of credit, L260 Appointment of justice of the peace pro tem when criminal laws not being enforced, to L310 Commercial fishing law violations, disposition of fines, Disposition of trial fee in justice court, Trial fee in justice court, Wildlife law violations, disposition of fines, L340 Penalty for violation of this section, L450 Elective office abolished, 1971 c Process servers appointed by justice of the peace,

268 JUSTICES' COURTS & CIVII. JURISDICTION THEREOF ORGANIZATION AND JURISDICTION Justice' s court defined; no terms of court; court always open for business. A justice' s court is a court held by a justice of the peace within the justice of the peace district for which the justice of the peace may be chosen. There are no particular terms of such court, but the same is always open for the transaction of business, according to the mode of proceeding prescribed for it Justice of the peace districts; establishing and modifying boundaries; maximum number of districts. The county court or board of county commissioners of every county may set off and establish, or modify the boundaries of, justice of the peace districts within the county. In every county having a district court no more than five justice of the peace districts shall be set off or established or permitted to remain in ex- istence, and then only outside the county seat and outside any other city in which a district court judge regularly holds court. In every county not having a district court no more than six justice of the peace districts shall be, set off or established or permitted to remain in existence. ( Amended by 1965 c Justice districts abolished in certain county seats. Except as provided in ORS ( 4), each justice district in the county seat in each count having a district court organized under ORS is abolished; and all records, registers, dockets, books, papers, pleadings, causes, actions and proceedings lodged, filed, deposited or pending before justice courts in all such county seats are transferred to the district court for the county. Such district court shall have the same power and jurisdiction over them as if they had been in the first instance lodged, deposited, filed or commenced therein. Amended by 1963 c Justice of peace as municipal judge. Except as provided in ORS , any city situated wholly or in largest part within the boundaries of a justice of the peace district may enter into an agreement pursuant to ORS with the county in which the justice of the peace district is located pro - viding that the justice' s court for the district shall have all judicial jurisdiction, authority, powers, functions and duties of the municipal court of the city and the judges thereof anth respect to all or any violations of the charter or ordinances of the city. ( 1975 c Agreement between city and county for provision of judicial services. Any city may enter into an agreement pursuant to ORS with the county in which a justice of the peace district is located for the provision of judicial services. A justice of the peace providing services to a city pursuant to such an agreement shall have all judicial jurisdiction, authority, powers, functions and duties of the municipal court of the city and the judges thereof with respect to all and any violations of the charter or ordinances of the city. Unless the agreement provides otherwise, and subject to the provisions of ORS , all fines, costs and forfeited bail collected shall be paid to the prosecuting city, and the city shall reim- burse the county providing judicial services for expenses incurred under the agreement. The exercise of jurisdiction under such an agreement by a justice of the peace shall not constitute the holding of more than one of- fice. ( 1989 c provides: Note: Section 5, chapter 679, Oregon Laws 1989, Sec. 5. This Act shall apply to any agreement entered into between a city and county or between two cities for the provision of judicial services entered into on or after the effective date of this Act [July 11, 19891, and to any such agreement entered into between a city and county or between two cities within five years before the effective date of this Act. [ 1989 c Criminal jurisdiction over specified crimes. A justice' s court has jurisdic- tion of the following crimes committed or triable in their respective counties: 1) Theft, where the punishment may be imprisonment in the county jail or by fine. 2) Assault, and attempted assault, not charged to have been committed with intent to commit a felony, or in the course of a riot, or with a dangerous or deadly weapon, or upon a public officer in the discharge of the duties of the public officer. 3) Any misdemeanor defined and made punishable by ORS , , or ) Any misdemeanor defined and made punishable by ORS ) Any misdemeanor defined and made punishable by any provision of ORS and [ Amended by 1971 c ; 1979 c ; 1987 c Jurisdiction over misdemeanors; defendant' s right to transfer after pleading " not guilty." ( 1) Except as otherwise provided in subsection ( 2) of this section, in addition to the criminal jurisdiction 6-3 of ustices' courts already conferred upon and exercised by them, justices' courts have jurisdiction of all misdemeanors committed or triable in their respective counties. 2) Any defendant charged with a misdemeanor in a justice court after entering a plea of not guilty, shall be immediately notified of the right of the defendant to have the matter transferred to the district court for the county where the justice court is located, or if there is no district court in the county,

269 JUSTICES' COURTS & CIVEL PROCEEDINGS THEREIN then to the circuit court for the county where the justice court is located. The election shall be made within 10 days after the plea of not guilty is entered and the jus- tice shall immediately transfer the case the appppropriate court. [ Amended b 1963 c.513 3; 1969 c.180 f; 1971 c ; 1973 x Concurrent criminal jurisdiction with circuit courts. Justices of the peace shall have jurisdiction concurrent with the circuit court in addition to the cases already provided by law in all criminal prosecutions arising under. ORS to , , ( 1), ( 1) ana 2) and ( 2), ( 3) and (4). [ Amended by 1957 c ; Crimes " triable" in justice' s court. A crime is triable in a 1ju-stice' s court when, by the provisions of ORS to , an action may be commenced therefor in the county where such court is held. Amended by 1973 c Civil jurisdiction, generally. A justice' s court has jurisdiction, but not exclusive, of the following actions: 1) For the recovery of money or damages only, when the amount claimed does not ex- ceed $ 2,500. 2) For the recovery of specific personal property, when the value of the property claimed and, the damages for the detention do not exceed $ 2,500. 3) For the recovery of any penalty or forfeiture, whether given by statute or arising out of contract, not exceeding $ 2, ) Also, 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 stat- ute. 5) Cases arising under ORS ) 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. ramended by 1973 c.625 2; 1979 c.447 l; 1983 c.149 2; 1989 c Civil jurisdiction not to extend to certain actions. The jurisdiction conferred by ORS does not extend: 1) An action in which the title to real property shall come in question. 2) An action for false imprisonment, libel, slander or malicious prosecution. Amended by 1983 c Where action may be commenced in civil cases. In an action to recover a penalty or forfeiture given by statute, the cause of action, or some part thereof, must have arisen within the county to where the action is commenced, or.,upon a lake, river or other water bordering upon such county and opposite thereto; but otherwise than this the jurisdiction of a justice' s court does not depend upon where the cause arose; provided, that the plaintiff or defendant shall reside in the district where. the action is commenced, or personal service can be had on the defendant in any district in the county; and further provided, that in counties having a population exceeding 80,000 inhabitants, no action in a justice' s court shall be commenced except in the district where the defendant resides or may be found, and if the defendant does not reside in the state the action may be commenced in any justice district in the state; provided, however, that where the plaintiff and defendant reside in the same justice of the peace district having a population of 5,000 or more and where there is a duly qualified and acting justice of the peace, the action shall be commenced in that district Records and files of a justice' s court. The records and files of a justice' s court are the docket and all papers and process filed in or returned to such court, concerning or belonging to any proceeding authorized to be had or taken therein, or before the justice of the peace who holds such court Character of docket and entries to be made therein. The docket of a justice of the peace is a book in which the justice of the peace must enter: 1) The title of every action or proceeding commenced in the court of the justice of the peace or before the justice of the peace, with the names of the parties thereto and the time of the commencement thereof. pleading. 2) The date of making or filing any 3) An order allowing a provisional remedy, and the date of issuing and returning the summons or other process. 4) The time when the parties or either of them appears, or their failure to do.so ) Every postponement of a trial or proceeding, and upon whose application, and to what time. 6) The demand for a jury, if any, and by whom made; the order for a jury, and the time appointed for trial. 7) The return of an order for a jury, the names of the persons impaneled and sworn as a jury, and the names of all witnesses sworn, and at whose request. 8) The verdict of the jury, and when given; and if the jury disagree and are discharged without giving a verdict, a statement of such disagreement and discharge.

270 JUSTICES' COURTS & CIVIL JURISDICTION THEREOF given. 9) The judgment of the court, and when 10) The fact of an appeal having been made and allowed, and the date thereof, with a memorandum of the undertaking, and the justification of the sureties. 11) Satisfaction of the judgment or any part thereof. 12) A memorandum of all orders relating to the admission of bail, taking bail, or commitment for want thereof. 13) All other matters which may be material or specially required by any statute Disposition of docket and files; docket and files are public writings. The docket and files of a justice's court are to be safely and securely kept by the justice of the peace, and by the justice of the peace forthwith delivered to a successor in office. When any justice' s court is abolished, the docket and files of that court shall be turned over to the clerk of the district court, if there is one, otherwise to the county clerk. Such docket and files are public writings Office, courtroom and clerical assistance; books, office equipment and supplies. The county court or board of county commissioners of the county in which the justice of the peace has been elected or appointed: 1) May provide for the office of the jus- tice of the peace the office and courtroom and clerical assistance necessary to enable the justice of the peace to effectuate the prompt, efficient and dignified administration of justice. 2) Shall provide for the office of the justice of the peace: a) The books, records, forms, papers, stationery, postage and office equipment and supplies necessary in the proper keeping of the records and files of the judicial office and the transaction of the business thereof. b) The latest edition of the Oregon Revised Statutes and all official materials published from time to time to supplement such edition. [ Amended by 1955 c.448 1; 1957 c JUSTICES OF THE PEACE Each district to elect one ustice. Each justice of the peace district shall elect one justice of the peace who shall hold office for six years and until a successor is elected and qualified Certain ustices as temporary district udges were justice districts abolishel If the ustice of the peace is qualified to be a judge of the district court, a justice of the peace in a ustice district abolished by ORS shah be the judge of the district court established under ORS during the remainder of the elective term of the justice of the peace, or until a successor is elected and qualified. [ Amended by ; 1965 c At what election ustice to be elected. The election at whicg a justice of the peace shall be elected shall be the general election or if applicable, the election specified in ORS next preceding the expiration of the term of the incumbent of the office. [ Amended by Qualifications for office. ( 1) A person shall not be eligible to the office of justice of the peace unless the person is a citizen of the United States and a resident of this state. 2) Each justice of the peace shall be a resident of or have a principal office in the justice of the peace district in which the justice' s court is located. 3) The residence within this state required by subsection ( 1) of this section shall have been maintained for at least three years, and the residence or principal office required by subsection ( 2) of this section shall have been maintained for at least one year, immediately prior to appointment or becoming a candidate for election to the of- fice of justice of the peace. [ 1991 c Continuing education. ( 1) Each justice of the peace who is not a member of the Oregon State Bar shall attend or participate in a minimum of 30 hours of educational programs every two calendar years. The programs shall be those conducted and supervised or approved by the Special Courts Advisory Committee established by ORS ) Each ' ustice of the peace who is not a member of the Oregon State Bar shall submit a written annual report of the hours of educational programs referred to in subsection ( 1) of this section that are attended or participated in by the justice during each calendar year to the Oregon Justices of the Peace Association and shall submit a copy of that report to the governing body of the county in which the justice has been elected or appointed. The report and copy shall be submitted not later than March 1 of the year following the calendar year for which the 6-5 report is applicable. [ 1989 c.1oo Time when term begins; filmg certificate of election, oath of office and undertaking. The term of office of a justice of the peace shall commence on the first Monday in January next following election. Before entering upon the duties of office, the person elected thereto shall qualify by filing with the county clerk of the county wherein the person is elected:

271 51260 JUSTICES' COURTS & CIVIL PROCEEDINGS THEREIN son. 1) The certificate of election of the per- 2) An oath of office, by the person subscribed, to the effect that the person will support the Constitution of the United States and the Constitution of Oregon and will faithfully and honestly perform the duties of the office. 3) Also an official undertaking, duly approved by the county court or board of county commissioners in the penal sum of 2, 500; provided,,that the_ official undertaking of a justice of the peace in any district in which is located the county seat, or an.7 part thereof, shall be in such greater penal sum, not exceeding $ 10,000, as the court or board shall designate. [ Amended by 1987 c Filling vacancy; temporary ap- pointment; appointment during justices vacation. ( 1) Except as provided in ORS ( 1)( b), if a vacancy occurs in the office of justice of the peace, the Governor immediately shall appoint some person possessing the qualifications for election to that office to fill the vacancy until the next general election and until such appointee' s successor is elected and qualified. The person appointed to fill the vacancy shall qualify in the same manner as a person elected to the office. 2) In the event of a temporary absence or other incapacity of a justice of the peace, the county court, if it deems it in the public interest, may appoint a person possessing the qualifications for election to such office to serve as ustice of the peace pro tempore during such absence or incapacity but not for a period to exceed 60 days. 3) In the event of a temporary absence of a justice of the peace for a period of more than 60 days, or in the event of inability for a like period to act by reason of illness or other cause, the Governor, if the Governor deems it necessary in the public interest that a person be appointed to fill such temporary vacancy, shall appoint some person possess- ing the qualifications for election to such office to fill the temporary vacancy. 4) The person appointed by the county court or Governor pursuant to subsection ( 2) or ( 3) of this section immediately shall qualify in the same manner as a person elected to the office, and thereupon shall perform the duties of justice of the peace for the district during the temporary absence or inability. During the temporary tenure, the person shall receive the salary that the absent justice of the peace otherwise would have received during the period. When any such appointee has qualified and entered upon the duties of office, the appointment thereto shall not be revoked or rescinded during the actual trial or hearing of any action or. proceeding before the appointee; but the temporary appointment may be terminated at any other time by written notice to that effect given by the appointing authority and filed with the county clerk of the county. 5) Every justice of the peace is entitled to two weeks paid vacation every year and during such absence the county court may appoint a justice of the peace pro tempore pursuant to the provisions of subsections ( 2) and ( 4) of this. section. [ Amended by 1961 c Form of justice' s undertaking. The official undertaking of a justice of the peace shall be in substantially the following form: Whereas A B has been duly elected justice of the peace in and for the District of in the County of, at an election eld on the day of, 19, we, C D and SFr hereby un ear e thaat if A B shall not faithfully pay over according to law all moneys that shall come into the hands of A B by virtue of such office, then we, or either of us, will pay to the State of Oregon the sum of $ C D. E F Qualifications of sureties; filing justification. The sureties in the undertaking provided for in ORS shall have the qualifications of bail and shall be residents of the county, and their justification must be filed with the undertaking [ Repealed by District or circuit court judge as justice of peace. A judge of the district court or circuit court for a county may exercise the powers and duties of justice of the peace of any justice' s court in the county: 1) At the request,of the justice of 'the peace of the justice's court; 6-6 2) In the event of a vacancy in the office of the ' ustice of the peace, until the vacancy is fillea as provided by law; or 3) In the event of the absence, incapacity or disqualification of the ustice of the peace, du ing the period of suci absence, Incapachy or disqualification. [ 1965 c-377 2; 1979 c FEES AND FINES Schedule of fees; pa ent of fees to county treasurer. ( 1) Except as provided in ORS , the justice of the peace shall collect, in advance except in

272 JUSTICES' COURTS & CIVIL JURISDICTION THEREOF criminal cases, and issue receipts for, the following fees: a) For the first appearance of the plaintiff, $20. b) For the first appearance of the defendant, $ 15. c) In the small claims department, for a plaintiff filing a claim, $ 15; and for a defend- ant requesting a hearing, $ 10. d) For transcript of judgment, $4. e) For transcript of ' udgment from the small claims department, f) For certified copy of judgment, ' $ g) For issuing writs of execution or writs of garnishment, $3. 75 for each writ. h) For taking an affidavit of a private party, 75 cents. i) For taking depositions, for each folio, 50 cents. 0) For supplying to private parties copies of records and files, the same fees as provided or established for the county clerk under ORS k) For each official certificate, 75 cents. L) For taking and certifying for a o- vate party an acknowledgment of proof of any instrument, $ m) Costs in criminal cases, where there has been a conviction, or upon forfeiture of security or bail, $ 5. 2) Not later than the 15th day of the month 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. [ Amended by 1965 c ; 1979 c.447 2; 1987 c.829 1; 1989 x583 10; 1991 c Monthly report of fines collected. Justices of the peace in each county shall report to the county treasurer once in each month the amount of all fines collected by them, from whom collected, and what the fine was for, and at the same time pay to the county treasurer in money the full amount of the fines collected. If the justices of the peace have collected no fines, they shall report that fact to the county treasurer. 5L350 [ Repealed by and [ Repealed by and 1983 c CONSTABLES 5L410 [ Repealed by 1965 c Appointment of constables; term; removal. ( 1) The county court or board of county commissioners may appoint a constable for: a) Any justice of the peace district in the county. b) The district court for the county. 2) An appointed constable shall hold office for a term of not more than four years to be set by the county court or board of county commissioners. 3) An appointed constable may be removed for cause by order of the county court or board of' county commissioners.' ' 4) An order of appointment or removal under this section shall not take effect until filed with the county clerk. [ Amended by 1965 c.624 l; 1971 c Qualifications for office. A person shall not be eligible to the office of constable of a justice of the peace district or of a district court unless the person is an elector registered in the county in' which the court is located. The county court or county commissioner may designate the district court constable as the constable for one or more justice of the peace districts within the county. [ Amended by 1965 c.624 3; 1983 c Oath and undertaking, amount of undertaking. Before entering upon the duties of the office of constable, the person selected skull. qualify by filing with the county clerk an oath of office subscribed and to the same effect as required of a ' ustice of the peace, and also an official undertaking, duly approved as in the case of a justice of the peace, in the penal sum of $ 2, 500; provided, that the official undertaking of a constable of the district court or' of any justice of the peace district in which is located the county seat, or any part thereof, shall be in such greater penal sum, not exceeding 10,000; as the county court or board of county commissioners shall designate. Amended by 1965 c Form of undertaing: The official undertaking of a constable shall be in substantially the following form:' Whereas A B has been duly selected constable of the district of -, in the County of, ( or, owedistrict Court of the-yete of Oregon, for the County of ) we, C D and E F, hereby une ate Fiat if A B does not faithfully execute and return all process to A B directed and delivered, and pay over according to law all moneys that shall come into the hands of A B byp virtue of office, then we, or either of ufs,,$will pay to the State of Oregon the sum o C D. E F. 6-7

273 JUSTICES' COURTS & CIVEL PROCEEDINGS THEREIN Amended by 1965 c Qualifications of sureties. The sureties in the undertaking provided for in ORS shall have the qualifications of bail and shall be residents of the county; and their justification must be filed with the undertaking Filling vacancies; qualifying for office. If a vacancy occurs in any office of constable, the county court or board of county commissioners may appoint some person possessing scribed by ORS the qualifications pre- to fill the vacancy until the expiration of the term. The person so appointed to fill the vacancy shall qualify in the manner and form prescribed by OR [ Amended by 1965 c Deputies; appointment; revocation; oath of office; authority and powers; compensation. With the approval of the county court or board of county commissioners, a constable may have one or more deputies, who shall be appointed by the constable in writing. Each such appointment shall be filed with the county clerk of the county, and shall be revocable at any time by the constable, by a writing signed by the constable and filed with the clerk; and, upon the filing, the term of the deputy or-deputies therein named shall cease. Every person appointed deputy shall, before entering upon the duties of the office, take and file with the county clerk an oath of office of like effect to that taken and filed by the constable. Each deputy shall have authority and power to perform any duty or act that the appointing constable has the authority and power to perform, and the constable shall be responsible on the official bond of the constable for any act or omission of any deputy. Each deputy shall receive monthly from the county such salary as may be fixed by order of the county court or board of county commissioners. The salary shall be payable in the same manner as the salaries of county officers are paid, and shall be in full compensation for all official duties and services performed and rendered by the deputy; and no other compensation, commissions or fees whatever shall be allowed to, or received or retained by the.deputy. [ Amended by 1965 c [ Repealed by 1953 c [ Amended by 1965 c.624 8; repealed by 1973 c Civil fees collected in advance; payment to county treasurer. The constable shall collect in advance in civil cases for each service performed in the execution of official duties the fees fixed by law to be charged for the same or a similar service by the sheriff of the county wherein such constable has been selected. The constable shall, not later than the 15th day of the month following the month in which such fees are collected, pay them over to the county treasurer of the county wherein the constable has been selected, for crediting to the general fund of the county, and take the receipt of the treasurer for them. [ Amended by 1965 c Office; clerical assistance; books, office equipment and supplies. ( 1) The constable of a justice of the peace district shall have office in and with that of the justice of the peace, without charge. 2) The county court or board of county commissioners of the county wherein a constable has been selected shall provide-the- constable with such office space and clerical assistance as shall be necessary to enable the constable prompt and efficiently to perform the duties of Ice, and also with such books, records, forms, papers, ' stationery, postage and office equipment and supplies as may be necessary in the roper transaction of the business of such office. [ Amended by 1965 c L610 [ Amended b 1965 c. 134 l; 1965 c ; repealed by 1971 c.136 r [ Repealed by 1971 c L630 [ Amended by 1959 c.621 l; repealed by 1971 c [ Amended by 1965 c ; repealed by 1971 x L650 [ Repealed by 1953 c AW [ Repealed by 1965 c [ Amended by 1965 c ; repealed by 1965 c [ Repealed by L690 [ Repealed by 1953 c L700 [ 1965 c.624 2; repealed by 1971 c

274 Chapter EDITION Procedure in Ordinary Actions IN GENERAL Who to pay disbursements for change of venue; no Actions commenced and prosecuted, and necessity for additional subpoenas to witnesses judgments enforced as in circuit court; prevailing party entitled to disbursements When change of venue deemed complete Mode of proceeding and rules of evidence Jurisdiction to cease when title to realty the same as in circuit courts in question; further proceedings in circuit court Court rules and procedures governing certain matters like those in circuit courts Right to and demand for jury; deposit of trial fee as condition Dismissal of civil cases for want of prosecution Judgment Contempts in justices' courts Judgment not to determine or affect title Punishment of contempt to real property Persons entitled to act as attorneys ENFORCEMENT AND SET -OFF OF JUDGMENTS; EXECUTIONS SUMMONS Enforcement, by one justice, of judgment When summons may be served; form, given by another contents and requisites of summons Filing transcript of judgment in another By whom summons served; compensation; county; issuance of execution ' manner of service Lien created by recording certified copy Appointment of persons to serve process of judgment; contents; fee When security for disbursements may be Set -off of judgment; application and notice required 52AN Right of appeal precludes set -off, proce Form of undertaking, qualifications and dure to set off judgment of another court justification of sureties; deposit in lieu of Enforcement of judgment proposed as set - I undertaking;,dismissal for want of under- off stayed, when taking or deposit 52,670 Allowance of set -off if judgments mutual ATTACiIMENT Allowance of set -off if judgments are in different amounts; disallowance of set -off Plaintiff entitled to attachment as in the 52AW Execution not to he issued against or circuit courts levied on real property; enforcement of Attachment proceedings conducted as in judgment when docketed in circuit court circuit court When execution returnable; to whom di Attachment of real property prohibited rected, duty of officer to execute writ ' PLEADINGS Renewal of execution; indorsement and entry of renewal Pleadings governed by statutes applicable CROSS REFERENCES to pleadings in circuit courts Counterclaim exceeding jurisdiction; Juvenile court proceeding, to transfer to circuit court; time allowed Militia, immunity from civil arrest, plaintiff to plead; costs; effect of failure to Municipal or recorder' s court, disqualification of judge tender costs for prejudice, TRIAL FEES Proceedings and judgments in criminal actions, Ch Trial fee Rules governing procedure, council on court procedures, 1.735, Trial fee payable in advance; effect of failure to pay on demand for jury; recovery of fee as disbursement Costs and disbursements, Ch State or county exempted from prepaying trial fee; recovery of the trial fee Small claims department, Ch Accounting for and disposition of the trial fee Juries in justice courts, Ch. 54 TRIAL AND JUDGMENT Postponement of trial 52ZM Depositions of witnesses present as condition to postponement Summons in forcible entry and detainer action, M Change of place of trial Deposits in lieu of bond, Ch

275 JUSTICES' COURTS & CMIL PROCEEDINGS THEREIN Indemnity bond to sheriff or constable, Waiver of fees and costs for indigents, State, county or city not required to advance any fees taxable as costs or disbursements, Postponement for jury trial, Changing place of trial generally, Jurisdiction of justices not to extend to cases involving title to realty, W Time for decision on submitted questions, Recall of execution when proceedings stayed by appeal,

276 PROCEDURE IN ORDINARY ACTIONS IN GENERAL Actions commenced and prosecuted, and judgments enforced as in circuit court; prevailing party entitled to disbursements. ( 1) Actions at law in justices' courts shall be commenced and prosecuted to final determination and judgment enforced therein, in the manner provided for similar actions in the circuit courts, except as in this chapter otherwise provided. 2) All disbursements shall in all cases be allowed the prevailing party Mode of proceeding and rules of evidence the same as in circuit courts. The mode of proceeding and the rules of evidence are the same in a justice' s court as in a like action or proceeding in the circuit courts, except where otherwise specially pro- vided Court rules and procedures governing certain matters like those in circuit courts. The rules in justices' courts governing mistakes in pleadings and amend- ments thereof, vacating defaults and judg- ments for mistake, inadvertence, surprise or excusable neglect, the formation of issues of both law and fact, the postponing of trials for cause shown, the mode of trial, the formation of the jury, the conduct and manner of trial by ju or by the justice without a jury, the procedure regarding the verdict and judgment and the enforcement thereof by execution shall be as prescribed for civil actions in the circuit courts, except as otherwise provided Dismissal of civil cases for want of prosecution. The justice of the peace of every justice court shall mail a notice to each of the attorneys of record, or, to the plaintiff where there is no licensed attorney representing the plaintiff, in every pending civil action, suit or proceeding in their respective courts in which no proceedings have been had or papers filed for a period of more than one year. The notice shall state that each such case will be dis- missed by the court for want of prosecution 60 days from the date of mailing the notice, unless, on or before the expiration of the 60 days, application, either oral or written, be made to the court and good cause shown why it should be continued as a pending case. If such application is not made or good cause is not shown, the court shall dismiss each such case. Nothing contained herein shall be construed to prevent the dismissing at any time, for want of prosecution, of any suit, action or proceeding upon motion of any party thereto. [ Contempts in justices' courts. ORS to , defining contempts, and the proceeding for imposing sanctions for contempt, shall apply to ustices' courts, except as otherwise specially provided in ORS [ Amended by 1991 c Punishment of contempt. The punishment for a contempt in a justice' s court shall be by fine or imprisonment, or both, but such fine shall in no case exceed 25, nor the imprisonment 10 days Persons entitled to act as attorneys. Any person may act as attorney for another in a justice' s court, except a person or officer serving any process in the action or proceeding, other than a subpoena. SUMMONS When summons may be served; form, contents and requisites of sum- mons. ( 1) At any time after the action is commenced by the filing of a complaint with the justice of the peace, the plaintiff may cause a summons to be served on the defendant. It shall be subscribed by the plaintiff or plaintiffs attorney or the justice of the peace. It shall specify the name of the court in which the complaint is filed and shall contain the title of the cause specifying the names of the parties to the action, plaintiff and defendant. It shall be directed to the defendant and shall require the defendant to appear and defend within the time required by ORCP 7 C.( 2) or, in case of failure to so appear and defend, the plaintiff will take judgment against the defendant for the money, property or other relief demanded in the complaint, with costs and disbursements of the action. 2) A summons shall contain a notice printed in type size equal to at least 8 -point type which may be substantially in the following form: NOTICE TO DEFENDANT: READ THESE PAPERS CAREFULLY! You must " appear" in this case or the other side will win automatically. To appear" you must file with the court a legal 6-11 paper called a " motion" or " answer." The motion" or " answer" must be given to the justice of the peace within 30 days along with the required filing fee. It must be in proper form and have proof of service on the plaintiff s attorney or, if the plaintiff does not have an attorney, proof of service on the plaintiff. If you have questions, you should see an attorney immediately. Amended by 1983 c

277 JUSTICES' COURTS & CIVIL PROCEEDINGS THEREIN By whom summons served; compensation; manner of service. ( 1) The summons in an action in a justice' s court shall be served by a person authorized to serve summons, who shall be compensated for service of the summons, as provided for the service of summons in civil action in a circuit court. 2) The summons shall be served in the manner provided for the service of summons in a civil action in a circuit court. The summons shall be returned to the justice by whom it was issued by the person serving it, with proof of service or that the defendant cannot be found. [ Amended by 1953 c.749 4; 1973 c ; 1977 c ; 1979 c ] Appointment of persons to serve process. Whenever it appears to the justice that any process or order authorized to be issued or made will not be served for want of an officer, the justice may appoint any other person authorized by ORS , to serve it. Such an appointment may be made by an indorsement on the process or order, in substantially the following form and signed by the justice with the name of the office of the justice: " I hereby appoint A B to serve the within process or order," as the case may be. [ Amended by 1977 c ; 1979 c [ Amended by 1953 c.479 4; 1977 c ; repealed by 1979' c ' [ Repealed by 1979 c [ Repealed by 1979 c When security for disbursements may be required. If the plaintiff is a nonresident of this state, the justice may require the plaintiff to give an undertaking with one or more sureties, or an irrevocable letter of credit issued by a commercial bank, as defined in ORS , for the disbursements of the action before issuing the summons; and if at any time before the commencement of the trial the defendant ap- plies therefor, the ' ustice must require such plaintiff to give tte undertaking or irrevocable letter of credit. If the plaintiff is a resident of this state, the justice may, in the discretion of the justice, upon a like application on the part of the defendant, require the plaintiff to give such undertaking or irrev- ocable letter of credit. However, if the plaintiff is a resident of Oregon and makes the affidavit that the plaintiff is unable to furnish the undertaking or irrevocable letter of credit as required by this section, the giving of such undertaking or irrevocable letter of credit shall be waived. [ Amended by Form of undertaking; qualifications and justification of sureties; deposit in lieu of undertaking; dismissal for want of undertaking or deposit. The undertaking may be substantially in the following form: I, A B," or " We, A B and C D, undertake to pay E F, the defendant in this action, all disbursements that may be adjudged to E F in this action." The sureties must possess the qualifications of bail upon arrest, and, if required by the defendant, must justify in a sum not less than $ 50. A deposit with the justice of such sum as the justice may deem sufficient shall be equivalent to giving the required undertaking. If the undertaking or deposit in lieu thereof is not given or made by the time the action is at issue and ready for trial on a question of fact, the justice must dismiss the action as for want of pros- ecution. ATTACHMENT Plaintiff entitled to attachment as in the circuit courts. In a civil action in a justice' s court the plaintiff is entitled- to the benefit of the provisional remedies of attachment and delivery of personal property claimed in the action, as in like cases in the circuit courts. All affidavits, orders ' and undertakings for these remedies are to be taken or made and filed with the justice, and the process is to be issued by and made returnable before the justice. A writ of attach- ment or an order for the delivery of personal property claimed in the action, may, be served and executed by any person authorized to serve a summons. [ Amended by 1981 c Attachment proceedings conducted as in circuit court. The provisions for proceedings in the circuit courts on at- tachment and delivery of personal property shall govern in like cases in justices courts, except as otherwise provided. [ Amended by 1981 c [ Repealed by 1981 c [ Repealed by 1981 c Attachment of real property prohibited. Real property or any interest therein cannot be attached upon a writ of attachment in a civil action In a justice' s court [ Repealed by 1981 c PLEADINGS Pleadings, governed by statutes applicable to pleadings in circuit courts: The pleadings in actions in justices' courts, the forms thereof and the rules by which the sufficiency of the pleadings are to be determined, shall be those prescribed for civil actions in the circuit courts Counterclaim exceeding jurisdiction; transfer to circuit court; time allowed plaintiff to plead; costs; effect of failure to tender costs. In all actions instituted in a justice' s court a defendant shall

278 PROCEDURE IN ORDINARY ACTIONS have the right to plead a counterclaim in excess of the jurisdiction of the court, whereupon the justice of the peace shall, within 10 days following the filing of the answer, file with the clerk of the circuit court for the county in which the justice' s court is located, a transcript of the cause containing a copy of all the material entries in the justice' s docket, together with all the original papers relating to the cause. Upon the filing of the transcript with the clerk of the circuit court, the justice of the peace shall proceed no further in the cause, but the cause shall thenceforth be considered as transferred to the circuit court and be deemed pending and for trial therein as if originally commenced in the court. The circuit court shall have jurisdiction of the cause and shall proceed to hear, determine and try the same. In the event of the justice' s failure to file the transcript in the circuit court within the time specified, the judge of the circuit court may make an order upon the justice to comply within a specified time with the provisions of this section. The plaintiff in the action shall have 10 days after the filing of the transcript in the circuit court in which to move against or reply to defendant' s answer. All costs incurred in the transfer of the case, including the fee for filing the same in the circuit court, shall be borne by the defendant and must be tendered by the defendant to the justice of the peace at the time of filing with the justice the counterclaim, and the costs may be recovered by the defendant in the event the defendant prevails. On failure of the defendant to pay to the justice of the peace the required fee at the time of filing the counterclaim, or within two days thereafter, the justice of the peace shall disregard the counterclaim of the defendant and proceed to try the cause as though the counterclaim had never been filed. [ Amended by 1979 c ] TRIAL FEES Trial fee. ( 1) Parties to judicial proceedings in justices' courts are required to contribute toward the expense of maintaining justices' courts, or a particular action or proceeding therein, by the payment of a trial fee. 2) The trial fee in a justice' s court, for every trial by jury, is $ 12. [ Amended by 1979 c.447 3] Trial fee payable in advance; effect of failure to pay on demand for ry; recovery of fee as disbursement. ( 1) V trial fee in a justice' s court shall be paid to the ustice upon the demand for a fury, and unless so paid the demand shall be disregarded and the trial proceed as if no demand had been made. 2) If the party paying the fee prevails in the action or proceeding so as to be entitled to recover costs therein, the fee shall be allowed and taxed as a disbursement and collected off the adverse party State or county exempted from prepaying trial fee; recovery of the trial fee. When the state or any county is a party to a judicial proceeding in a justice' s court, it need not pay the trial fee upon demanding a jury, and if it is entitled to recover costs therein, the trial fee shall be allowed and taxed in its favor as a disbursement, and collected off the adverse party as in ordinary cases Accounting for and disposition of the trial fee. In a justice' s court, the trial fee is paid to the justice. The justice shall keep an account of such fees, and by whom paid, and distribute the amount among the fury in the particular case, in partial payment of their legal fees. TRIAL AND JUDGMENT Postponement of trial. When a cause is at issue upon a question of fact, the justice must, upon sufficient cause shown on the application of either party, postpone the trial for a period not exceeding 60 days Depositions of witnesses pres- ent as condition to postponement. An ap- plication for the postponement of the trial shall not be granted unless the party apply- ing therefor, if required by the adverse party, consents to take the deposition of any witness of the adverse party then in attendance upon the court. If the consent is given, the Vtice shall take the deposition, and it may be read on the trial, subject to the same objection as if the witness were present and gave the testimony orally Change of place of trial. (1) The justice shall change the place of trial, on motion of either party to the action, when it appears from a supporting affidavit of the party that: a) The justice is a party to or directly interested in the event of the action, or connected by consanguinity or affinity within the third degree gh the adverse party or those for whom the justice prosecutes or defends; or 6-13 b) The justice is so prejudiced against the party making the motion that the party cannot expect an impartial trial before the justice. 2) The justice may change the place of trial, on motion of either party to the action, when it appears from a supporting affidavit of the party that the convenience of parties and witnesses would be promoted by the

279 JUSTICES' COURTS & CIVEL PROCEEDINGS THEREIN change, and that the motion is not made for the purpose of delay. 3) The motion for charge of place of trial cannot be made or allowed in any action until after the cause is at issue on a question of fact. The change shall be made to the nearest justice court in the county. If there be only one justice court in the county the change shall be made to the nearest district court in the county. Neither party shall be entitled to more than one change in the place of trial, except for causes not in existence when the first change was allowed. When the place of trial has been changed, the justice shall forthwith transmit to the justice court or district court to whom the case is transferred a transcript of the proceedings had in the case with all the original papers filed thereon. All costs incurred in the transfer of such case, including the fee for filing the same in the court to which the case is transferred shall be borne by the party requesting the change and must be tendered by the party to the justice at the time of filing the motion for the change. Such costs may be recovered by such party in the event the party prevails in the trial of the action. On the failure of the party to tender or pay the required fee at the time the motion is filed the justice shall disregard the motion and proceed to try the action as though no motion had been filed. ( Amended by 1959 c Who to pay disbursements for change of venue; no necessity for addi- tional subpoenas to witnesses. ( 1) The disbursements of the change of venue shall be paid by the party applying therefor, and not taxed as a part of the costs in the case. 2) It shall not be necessary to issue new subpoenas to witnesses, but the witnesses shall appear before the justice before whom the cause has been transferred without the issue of any other notice than the allowance of the motion for the change of venue When change of venue deemed complete. Upon the filing of the transcript and papers with the ustice to whom the cause has been transferred, the change of venue shall be deemed complete, and thereafter the action shall proceed as though it had been commenced before such justice Jurisdiction to cease when title to realty in question; further proceedings in circuit court. If it appears on the trial of any cause before a justice of the peace from the evidence of either party, or from the pleadings, that the title to real property is in question, which title is disputed by the other party, the justice shall immediately make an entry thereof in the docket of the justice and cease all further proceedings in the cause. The justice shall certify and return to the circuit court of the county a transcript of all the entries made in the docket of the justice relating to the case, together with all the process and other papers relating to the action, in the same manner and within the same time as upon an appeal. Thereupon the circuit court shall proceed in the cause to final judgment and execution in the same manner as if the action had been originally commenced therein, and disbursements shall abide the event of the action Right to and demand for jury; deposit of trial fee as condition. When a cause is at issue upon a question of fact, if either party then demands a jury trial and deposits with the ' ustice such trial fee as is regcared to be pai in advance by ORS and , the issue must be tried by a jury and not the justice; but otherwise it must be tried by the justice Judgment. When an issue of fact is tried by the justice, it is not necessary that there be any special statement of the facts found or law determined on the trial. It is sufficient for the justice to gave judgment generally, as the law -and evidence may require, for the plaintiff or the defendant, stating therein for what amount or what relief or to what effect the same is given Judgment not to determine or affect title to real property. Although the title to real property may be controverted or questioned in an action in a ustice' s court, the judgment in the action shall in no way affect or determine the title as between the parties, or otherwise. ENFORCEMENT AND SET -OFF OF JUDGMENTS; EXECUTIONS Enforcement, by one justice, of judgment given by another. A justice of the peace has authority and power to enforce a judgment given by the predecessor in office, or by a justice whose docket has been transferred to the justice of the peace, and to complete any unfinished business begun before such predecessor, or entered in such docket, as if the same had been given or begun before the justice of the peace Filing transcript of judgment in another county; issuance of execution. The party entitled to the benefit of a judgment in a justice' s court may at any time have a certified transcript of the judgment and file it with any justice in any other county. Upon the filing of the transcript, the justice with whom it is filed must make an entry thereof in the docket of the justice, giving the title of the cause, the names of the parties and the substance of the judgment. Thereafter execution may issue to en-

280 PROCEDURE IN ORDINARY ACTIONS force the judgment, or any part thereof remaining unsatisfied, as if it had been given by the justice with whom the transcript is filed Lien created by recording certified copy of judgment; contents; fee. Whenever a judgment is given in a justice' s court in favor of anyone for the sum of $10 or more, exclusive of costs or disbursements, the party in whose favor the judgment is given may at any time thereafter, while the judgment is enforceable, file a certified tran- script thereof with the clerk of the circuit court for the county wherein the judgment is given. Thereupon the clerk shall immediately docket the same in the judgment docket of the circuit court. The transcript shall consist of a copy of all the docket en- tries made in the case and the judgment as extended by the justice, certified to be a true and correct transcript from the original entries by the justice. Once the judgment has been docketed, a certified copy of the judgment or lien record abstract, in the form provided in ORS , may be recorded in the County Clerk Lien Record. From the time of recordation, the judgment shall be a lien upon the real property of the defendant. The recording of the certified copy of the judgment or lien record abstract shall not thereby extend the lien of the judgment more than 10 years from the original entry of the judgment in the justice' s court. The fee for filing each transcript with the clerk of the court shall be $ 5, which shall be paid before the transcript is filed. The fee for recordation shall be as provided in ORS [ Amended by 1965 c ; 1971 c ; 1975 x607 13; 1979 c ; 1981 c.835 4; 1983 c.696 6; 1987 c Set -off of judgment; application and notice. A party against whom a judgment is given in a justice' s court may, upon three days' notice to the adverse party, apply to the justice of the court to have another judgment given in a justice' s court, between the same parties and against the adverse party, set off against the first mentioned judgment Right of appeal precludes setoff, procedure to set off judgment of another court. There must be no existing right of appeal from the judgment proposed as a set -off; and, if the judgment was given in another court than the one where the application is made, the party proposing the set -off must produce the transcript of the judgment, certified by the proper justice, which certificate shall also state how much of the judgment remains unsatisfied and that the transcript is given for the purpose of being a set -off against the judgment to which it is proposed as a set -oft Enforcement of judgment proposed as set -off stayed, when. The justice making the transcript and certificate shall make an entry thereof in the docket of the justice and thereafter all proceedings to enforce the judgment shall be stayed, unless the transcript is returned with the certificate of the proper ustice indorsed thereon, to the effect that it not been allowed to be set off Allowance of set -off if judgments mutual. If upon the hearing of the application the justice finds that the judg- ments are mutual, the justice shall give judgment allowing the proposed set -off Allowance of set -off if judggments are in different amounts; disallowance of set -off. If there is any difference in the amount of the two judgments, judgment for the difference must be given in favor of the party owning the larger judgment. If the justice refuses to allow the set -off, the justice shall so certify on the transcript and return it to the party Execution not to be issued against or levied on real property; enforcement of judgment when docketed in circuit court. Execution to enforce a judgment in a justice' s court must not be issued against or levied upon the real property of the defendant; but when a judgment given by a justice has been duly docketed in the circuit court, thereafter it must be enforced as a judgment of such circuit court When execution returnable; to whom directed; duty of officer to execute writ. An execution issued by a justice must be made returnable within 30 days from the date thereof, and may be directed to the sheriff of the county, or any constable or marshal or police officer authorized to act as a constable therein, and must be executed by any one of such officers when delivered to the officer. [ Amended by 1991 c Renewal of execution; indorsement and entry of renewal. At any time before the expiration of the return day of the execution, it may be renewed for another period of 30 days, at the request of the plaintiff, by an indorsement to that effect made thereon by the justice. The indorsement must be dated and, if any part of the execution has been satisfied, must state the amount then due thereon. An entry of the renewal must also be made in the A ocket of the justice. 6-15

281 JUSTICES' COURTS & CIVEL PROCEEDINGS THEREIN 6-16

282 Chapter EDITION Appeals in Civil Actions Appeals from justices' courts; when allow- able Court to which appeal lies; designation of parties Manner of taking appeal; notice; undertaking for costs and disbursements Requisites of undertaking for costs and disbursements and stay of proceedings Stay of proceedings without undertaking, when Allowance of appeal; recall of execution when stay granted Qualification and justification of sureties Enforcement of judgment notwithstanding appeal and undertaking for stay of pro- ceedings Certified transcript to be filed; proceedings on appeal Amendment of pleadings in appellate court Dismissal of appeal; judgment on dismissal or after trial;,judgment against sureties Insufficiency of undertaking as ground for dismissal of appeal Judgment or order of appellate court Writ of review in civil cases CROSS REFERENCES Enforcement of duties relating to administration of justice, Supervisory control and appellate jurisdiction of circuit court over inferior courts, Const. Art. VII ( 0), Appeals from small claims department, Deposits in lieu of bail or bond, Ch. 22 State or other public corporation not required to advance costs or give bond, , County clerk to serve as clerk of the circuit court, Const. Art. VII (0), Action by appellate court on appeal,

283 JUSTICES' COURTS & CIVEL PROCEEDINGS THEREIN 6-18

284 APPEALS IN CIVIL ACTIONS Appeals from justices' courts; when allowable. Any party to a judgment in civil action in a justice' s court, other than judgment by confession or for want of an answer, may appeal therefrom when the sum in controversy is not less than $ 30, or when the action is for the recovery of personal property of the value of not less than $ 30, exclusive of disbursements in either case, also when the action is for the recovery of the possession of real property under ORS [ Amended by 1977 c.365 4; 1977 x Court to which appeal lies; des - ignation of parties. An appeal is taken to the district court for the county wherein the judgment is given. If there is no district court for the county, the appeal shall be taken to the circuit court for the county. The party appealing is known as the appellant and the adverse party as the respondent, but the title of the action is not thereby changed. Amended by Manner of taking appeal; notice; undertaking for costs and disbursements. An appeal is taken by serving, within 30 days after rendition of judgment, a written notice thereof on the adverse party, or the attorney of the adverse party, and filing the original with the proof of service indorsed thereon with the justice, and by giving the undertaking for the costs and disbursements on the appeal, as provided in ORS A written acknowledgment of service by the respondent or the attorney of the respondent, indorsed on the notice of appeal, shall be sufficient proof of service. When the notice of appeal has been served and filed, the ap- pellate court shall have jurisdiction of the cause. [ Amended by 1973 c Requisites of undertaking for costs and disbursements and stay of proceedings. The undertaking of the appellant must be given with one or more sureties, to the effect that the appellant will pay all costs and disbursements that may be awarded against the appellant on the appeal. The undertaking does not stay the proceedings unless the undertaking further provides that the appellant will satisfy any judgment that may be given against the appellant in the appellate court on the appeal. The undertaking must be filed with the justice within five days after the notice of appeal is given or filed. The justice may waive, reduce or limit the undertaking upon a showing of good cause, including indigency, and on such terms as shall be just and equitable. The justice or the appellate court may waive a failure to file the undertaking within the time required upon a showing of good cause for that failure. [ Amended by 1983 c Stay of proceedings without undertaking; when. If the judgment ap- pealed from is in favor of the appellant, the proceedings thereon are stayed by the notice of appeal and the undertaking for the costs of the appeal Allowance of appeal; recall of execution when stay granted. When an appeal is taken, the justice must allow the same and make an entry thereof in the docket of the justice, stating whether the proceedings are thereby stayed or not. When the proceedings are stayed, if an execution has been issued to enforce judgment, the justice must recall the execution by written notice to the officer holding it. Thereupon it must be returned and all property taken thereon and not sold released. [ Amended by 1981 c Qualification and justification of sureties. All sureties on an undertaking on appeal must have the qualifications of bail upon arrest; and, if required by the adverse party within five days after filing the undertaking, they must justify before the justice in like manner Enforcement of judgment not- withstanding appeal and undertaking for stay of proceedings. When a judgment has been given for money in an action upon a contract to pay money, notwithstanding an appeal and undertaking for the stay of proceedings, the respondent may enforce the judgment, if within five days from the allowance of the appeal the respondent files with the justice an undertaking, with one or more sureties, to the effect that if the judgment is changed or modified on the appeal the respondent will make such restitution as the appellate court may direct. This undertaking must be taken by the justice on not less than two days' notice to the other party Certified transcript to be filed; proceedings on appeal. Within 30 days next following the allowance of the appeal, the appellant must cause to be filed with the clerk of the appellate court a transcript of the cause. The transcript must contain a copy of all the material entries in the justice' s docket relating to the cause or the appeal, and must have annexed thereto all the original papers relating to the cause or the appeal and filed with the justice. Upon the 6-19 fih'ng of the transcript with the clerk of the appellate court, the appeal is perfected. Thenceforth the action shall be deemed pending and for trial therein as if originally commenced in such court, and the court shall have jurisdiction of the cause and shall proceed to hear, determine and try it anew, disregarding any irregularity or imperfection in matters of form which may have occurred in the proceedings in the justice' s court. If the transcript and papers are not filed with the clerk of the appellate court within the

285 JUSTICES' COURTS & CIVIL PROCEEDINGS THEREIN time provided, the appellate court, or the Judge thereof, may by order extend the time for filing the same upon such terms as the court or,fudge may deem dust. However, such order shall be made within the time allowed to file the transcript. [ Amended by 1985 c Amendment of pleadings in a]ppellate court. The appellate court may, in furtherance of justice and upon such terms as may be just, allow the pleadings in the action to be amended so as not to change substantially the issue tried in the justice' s court or to introduce any new cause of action or defense Dismissal of appeal; Judgment on dismissal or after trial; judgment against sureties. The appellate court may dismiss an appeal from a justice' s court if it is not properly taken and perfected. When an appeal is dismissed the appellate court must give judgment as it was given in the court below, and against the appellant for the costs and disbursements of the appeal. When judg- ment is ggiven in the appellate court against the appellant, either with or without the trial of the action, it must also be given against the sureties in the undertaking of the appellant, according to its nature and effect Insufficiency of undertaing as ground for dismissal of appeal. An appeal cannot be dismissed on the motion of the respondent on account of the undertaking therefor being defective, if the appellant before the determination of the motion to dis- miss will execute a sufficient undertaking and file it in the appellate court, upon such terms as may be deemed just Judgment or order of appellate court. The appellate court may give a final judgment in the cause, to be enforced as a judgment of such court; or the appellate court may give such other judgment, or order as may be proper, and direct that the cause be remitted to the court below for further proceedings in accordance with the decision of the appellate court c.558 ' 47; 1981 c ` Writ of review, in civil cases. No provision of ORS to 53:125, in relation to appeals or the right of appeal in civil cases, shall be construed to prevent either party to a judgment given in a justice' s court from having it reviewed in :the circuit court for errors in law appearing upon the face of the judgment or the proceedings connected therewith, as provided in ORS to ' t. 6-20

286 Chapter EDITION Juries LI50 Trial jury defined Order for a jury which is not to be selected from the jury list Service and return of order; persons to be summoned Insufficient number of jurors; summoning others; challenges Qualifications of jurors Making of jury lists Number of names on list; certifying and filing list Justice not in office or present when list was made must procure and file copy thereof Drawing jury list; jury box; depositing ballots Selection of jury from jury list Manner of drawing jury panel; making and signing list of names for panel Names drawn which are not entered on list of panel Selection of jury by striking names from the panel Order for jury selected from jury list; manner of summoning and forming jury; challenges Jurors failing to attend may be fined CROSS REFERENCES Compensation of jurors, , Enforcement of duty relating to selection and empaneling of jury, Juries generally, Ch. 10 Juries in justice court, Jury size, Const. Art. VII (A), 9 Jury trial in criminal case arising under city ordinance, Payment of trial fee before trial by jury, , Penalty for asking to be placed on jury, , Number of jurors who may render a verdict, Const. Art. VII (A), 5 Right to jury in justice court, Juror's religious beliefs not to render juror incompetent, Const. Art. I, 6 Qualifications, exemptions and excuses of jurors, , , Exemptions and excuses from jury duty,

287 JUSTICES' COURTS & CIVEL PROCEEDINGS THEREIN 6-22

288 JURIES Trial jury defined. A trial jury is a body of persons, six in number in the justices' courts, sworn to try and determine a question of fact and drawn according to the mode provided for in this chapter Order for a jury which is not to be selected from the Jury list. When a jury has been demanded by a party to an action in the ustice' s court, and neither party requires that the jury be drawn from the jury list, the justice must make an order in writing, directed to the sheriff of the county, or to any constable of the district or to any marshal or police officer authorized to act as constable therein, commanding the sheriff, constable, marshal or police officer to summon six persons to serve as jurors in the action between the parties, naming the parties, at a time and place to be named in the order. The order shall require the jurors to appear before the justice forthwith, or at some future time to which the trial of the issue may be postponed. [ Amended by 1991 c.67 9] Service and return of order; persons to be summoned. The officer serving the order for a jury must do so impartially by selecting only such persons as the officer knows, or has good reason to be- lieve, are qualified according to law to serve as jurors in the court to which they are summoned and in the particular action for which they are selected. The officer must serve the order, by giving notice to each person selected of the time and place the person is required to appear and for what purpose, and return the same, according to the direction therein, with the names of the persons summoned, verified by the certificate of the officer Insufficient number of jurors; summoning others; challenges. If a sufficient number of jurors does not appear at the time and place required, or if any of those appearing are peremptorily challenged, or upon a challenge for cause are found disqualified, the justice must order the proper officer to summon a sufficient number of other qualified persons until the jury is complete. Each party is entitled to three peremptory challenges, and no more Qualifications of jurors. A person competent to act as a juror in a justice' s court, in addition to the qualifications prescribed in ORS , must be an inhabitant of the district in which the court is being held at the time the person is summoned, and must have been an inhabitant of that district for three months next preceding such time. Amended by 1983 c Making of jury lists. The justice of the peace in each district shall, in January of each year, or in case of an omission or neglect so to do then as soon as possible thereafter, make a jury list for the district. A preliminary jury ist shall be made by selecting names of inhabitants of the district by lot from the latest jury list sources. The iury list sources are the elector registration ist for the district, copies of the Motor Vehicles Division records for the county referred to in ORS ( 2) furnished to the justice at county expense by the clerk of court, as defined in ORS , for the county and any other source that the justice determines will furnish a fair cross section of the inhabitants of the district. From the preliminary jury list the names of those persons known not to be qualified by law to serve as jurors shall be deleted. The remaining names shall constitute the jury list. The preliminary jury list and jury list may be made by means of electronic equipment. Amended by 1983 c ; 1987 c.681 4] Number of names on list; certi- fying and filing list. The jury list shall: 1) Contain the names of at least 50 per- sons, if there are that number of persons in the district who are qualified as provided in ORS ) Contain the first name, the surname and the place of residence of each person named therein. 3) Be certified by the justice of the peace and placed on file in the office of the justice. [ Amended by 1975 c.233 l; 1983 c M [Repealed by 1983 c Justice not in office or present when list was made must procure and file copy thereof. A justice of the peace not in office or attendance when a jury list is made must procure, and file in the office of the justice of the peace, a certified copy thereof Drawing jury list; jury box; depositing ballots. Unless juries are drawn and selected from the jury list of the district by means of electronic equipment, the justice of the peace shall keep in the office of the justice a jury box. After the jury list is filed, the justice shall destroy all ballots remaining in the box and shall prepare and deposit in such box separate ballots, containing the 6-23 name and place of residence of each person named in the list, and folded as nearly alike as practicable so that the name cannot be seen. [ Amended by 1983 c Selection of jury from jury list. When a jury is demanded in a justice' s court, instead of being selected by the officers, as provided in ORS to , the jury must be drawn and selected from the jury list of the district, if either party requires it.

289 JUSTICES' COURTS & CIVIL PROCEEDINGS THEREIN Manner of drawing jury panel; making and signing list of names for panel. When a ury is to be selected from the jury list of the district, the justice shall draw from the box in the presence of the parties, or select by means of electronic equipment, 12 ballots or names, or any greater number, if necessary, until the names of 12 persons, who are deemed able to attend at the time and place required, are obtained. The justice must make and sign a list of the 12 names thus drawn. [ Amended by 1983 x Names drawn which are not entered on list of panel. If it appears to the justice that a person whose name is drawn is dead or resides out of the district, the ballot must be destroyed or the name deleted. If it appears to the justice, or the justice has good reason to believe, that a person whose name is drawn is temporarily absent from the district, or is unwell, or so engaged as to be unable to attend at the time and place required without great inconvenience, the ballot or name must be laid aside, without the name being entered on the list drawn, and returned to the box or restored to the list from which selected by means of electronic equipmentq when the drawing is completed. person whose name is drawn is deemed able to attend within the meaning of ORS , and the name of the person is deemed to be entered on the list drawn, except as provided in this section. [ Amended by 1983 c Selection of jury by striking names from the panel. When the drawing is completed, from the 12 names drawn the parties must select a jury by each striking from the list three names, alternately, commencing with the defendant. The remaining six must be summoned as jurors in the action Order for jury selected from jury list; manner of summoning and forming jury; challenges. The names of the six jurors so selected must be inserted in the order to summon a jury, and thereafter the proceedings in the summoning and formation of the jury must be conducted in the manner provided in ORS to ; but neither party is entitled to a peremptory challenge as to any of the six jurors Jurors failing to attend may be fined. If a person duly summoned to attend a justice' s court as a juror fails to attend as required or to give a valid excuse therefor, the person may be fined by the justice in a sum not exceeding $

290 Chapter EDITION Small Claims Small claims department; jurisdiction Commencement of action Contents of claim Verification and prosecution of claim Notice of claim; content; service Explanation to plaintiff of how notice may be served Admission or denial of claim; request for jury trial Time and place of hearing, procedure if right to jury trial asserted; fees Additional time for appearances; default and dismissal Formal pleadings unnecessary; issuance of attachment, garnishment or execution; costs of execution taxable Right of attorneys or persons not a party to appear, witnesses; disposition of controversy, appearance by attorney not required for certain parties Counterclaim; procedure; fee; transfer of jurisdiction Payment of judgment Conclusiveness of judgment; appeal; costs and fees on appeal Form of appeal; bond; proceedings in appellate court; no further appeal Enforcement of judgment when no appeal is taken; fees Separate docket for small claims depart- ment CROSS REFERENCES Administrative supervision over other courts, Small claims department of district court, Residential Landlord and Tenant Act, tenant counterclaims not to exceed jurisdictional limits of court, Waiver of fees and costs for indigents, Deposit in lieu of bail or bond, Ch

291 JUSTICES' COURTS & CPAL PROCEEDINGS THEREIN 6-26

292 SMALL CLAIMS [ Amended by 1955 c.44 l; 1959 c.326 2; repealed by 1963 c ( enacted in lieu of )] Small claims department; jurisdiction. ( 1) In each justice court created under any law of this state there shall be a department to be known as the Small Claims Department of the Justice Court. 2) All actions in the justice court for the recovery of money or damages only, excepting class actions and actions providing for statutory attorney fees, where the amount claimed does not exceed $ 200, shall be commenced and prosecuted only in the small claims department. Where the amount claimed does not exceed $ 2, 500, such actions may be commenced and prosecuted in the small claims department subject to the provisions of ORS ( 2)( c). 3) 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. 4) Except as provided in ORS )( c), the provisions of ORS to shall apply with regard to proceedings in the small claims department of any ] ustice court c ( enacted in lieu of ); 1965 c ; 1973 c ; 1973 c.812 7; 1975 c.346 2a; 1975 c.592 2; 1983 c.673 6; 1985 c.367 3; 1987 c.725 3; 1989 c Commencement of action. An action in the small claims department shall be commenced by the plaintiff appearing in person or by agent or assignee before the court and filing a verified claim in the form prescribed by the justice of the peace along with the fee prescribed by ORS ( 1)( c). Amended by 1989 c.583 2] Contents of claim. 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 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 justice court. Amended by 1977 c ; 1989 c Verification and prosecution of claim. All claims shall be verified by the real party in interest, the agent or assignee of the party. Any claim may be filed and prosecuted in the small claims department by such agent or the assignee of the cause of action upon which recovery is sought Notice of claim; content; service. ( 1) Upon the filing of a claim, the court shall issue a notice in the form prescribed by the court. 2) The notice shall be directed to the defendant, naming the defendant, and shall contain a copy of the claim. 3) If the amount or value claimed is $ 50 or more, the notice and claim shall be served upon the defendant in the manner provided for the service of summons and complaint in proceedings in the circuit courts. 4) If the amount or value claimed is less than $ 50, the notice and claim shall be served upon the defendant either in the manner provided for the service of summons and complaint in proceedings in the circuit courts or by certified mail, at the option of the plaintiff. If service by certified mail is attempted, the court shall mail the notice and claim by certified mail addressed to the defendant at the last -known mailing address of the defendant within the territorial jurisdiction of the court. The envelope shall be marked with the words " Deliver to Addressee Only" and " Return Receipt Requested." The date of delivery appearing on the return receipt shall be prima facie evidence of the date on which the notice and claim was served upon the defendant. If service by certified mail is not successfully accomplished, the notice and claim shall be served in the manner provided for the service of summons and complaint in proceedings in the circuit courts. 5) The notice shall include a statement in substantially the following form: NOTICE TO DEFENDANT: READ THESE PAPERS CAREFULLY! Within 14 DAYS after receiving this notice you MUST do ONE of the following things: Pay the claim plus fees and service expenses paid by plaintiff OR Demand a hearing OR Demand a jury trial If you fail to do one of the above things within 14 DAYS after receiving this notice, then upon written request from the plaintiff, the court will enter a judgment against you for the amount claimed plus fees and service expenses paid by the plaintiff. If you have questions about this notice, you should contact the court immediately c M [Amended by 1965 c ; 1977 c ; 1981 s.s. c. 3 95; 1987 c.829 2; repealed by 1989 c ] Explanation to plaintiff of how notice may be served. The justice of the peace shall provide to each plaintiff who files a claim with the small claims department of 6-27

293 JUSTICES' COURTS & CIVIL PROCEEDINGS THEREIN the court of the justice of the peace a written explanation of how notice may be served in actions in the department. ( 1977 c ( Amended by 1977 c ; repealed by 1989 c Admission or denial of claim; request for jury trial. Within 14 days after the date of service of the notice and claim upon the defendant as provided in ORS : 1) If the defendant admits the claim, the defendant may settle it by: a) Paying to the court the amount of the claim plus the amount of the small claims fee and service expenses paid by the plaintiff. The court shall pay to the plaintiff the amounts paid by the defendant. 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 the small claims fee and service expenses paid by the plaintiff. 2) If the defendant denies the claim, the defendant: a) May demand a, hearing in the small claims department in p written request to the court in the form prescribed by the court, accompanied by payment of the de- fendant' s fee prescribed; and b) When demanding a hearing, may assert a counterclaim in the form provided by the court; or c) If the amount or value claimed exceeds $ 200, has a constitutional right to a jury trial and may claim that right in a written request to the court in the form prescribed by the court, accompanied by payment of the appearance fee prescribed by ORS ( 1)( b) together with the trial fee prescribed by ORS The request shall designate a mailing address to which a summons and copy of the complaint may be served by mail. Thereafter, the plaintiffs claim will not be limited to the amount stated in the claim, though it must involve the same controversy. ( 1989 c [ Amended by 1957 c.6 l; 1965 c ; 1973 c.393 3; 1977 c875 14; 1977 c877 14a; 1979 c ; repealed by 1989 c Time and place of hearing, procedure if right to jury trial asserted; fees. 1) If the defendant demands a hearing in the small claims department of the court, the court 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) If the defendant claims the right to a jury trial, the court shall notil the plaintiff to file a formal complaint within 20 days following the mailing of such notice. The notice shall instruct the plaintiff to serve a summons and copy of the complaint by mail on the defendant at the designated address of the defendant. Proof of service of the summons and complaint copy mayy be made by certificate of the plaintiff or plaintiffs attorney attached to the complaint prior to its filing. The plaintiffs claim in such formal complaint is not limited to the amount stated ME the claim filed in the small claims department but it must involve the same controversy. The defendant shall have 10 days in which to move, plead or otherwise appear following the day 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 justice court, and costs and disbursements shall be allowed and taxed and fees not previously paid shall be charged and collected as provided in ORS and for other cases tried in justice court, except that the appearance fee for plaintiff shall be an amount equal to the difference between the fee paid by the plaintiff as required by ORS ( 1)( c) and the fee required of a plaintiff by ORS ( 1)( a). ( 1989 am Additional time for appearances; default and dismissal. ( 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. 2) If the defendant fails to pay the claim, demand a hearing or demand a jury trial, upon written request from the plaintiff, the court shall enter a judgment against the defendant for the relief claimed plus the amount of the small claims fee and service expenses paid by the plaintiff. 3) If the plaintiff fails within the time provided to file a formal complaint pursuant to ORS ( 3), the court shall: 6-28 and a) Dismiss the case without prejudice; b) If the defendant applies therefor in writing to the court not later than 30 da s after the expiration of the time provided for the plaintiff to file a formal complaint, refund to the defendant the amount of the uurryy trial fee aid by the defendant under 6RS ( 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

294 SMALL CLAIMS 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. [ 1989 c Formal pleadings unnecessary; issuance of attachment, garnishment or execution; costs of execution taxable. No formal pleading, other than the claim and notice, shall be necessary. The hearing and disposition of all actions shall be informal, the sole object being to dispense justice between the litigants promptly. No attachment, garnishment or execution shall issue from the small claims department on any claim except as provided in this chapter. A prevailing party' s costs in securing and service of such execution shall be taxed against the other party and recoverable as part of the judgment. [ Amended by 1971 c.179 l; 1977 c Right of attorneys or persons not a party to appear; witnesses- disposi- tion of controversy; appearance b; attor- ney not required for certain parties. ( 1) Except as may otherwise be provided by ORS , no attorney at law nor any person other than the plaintiff and defendant shall become involved in or in any manner interfere with the prosecution or defense of the litigation in the department without the consent of the justice of the justice' s court, nor shall it be necessary to summon wit- nesses. But the plaintiff and defendant may offer evidence in their behalf by witnesses appearing at the hearing, and the ' ustice may informally consult witnesses or otherwise investigate the controversy and give judgment or make such orders as the ustice deems right, just and equitable for the disposition of the controversy. 2) Notwithstanding ORS 9.320, a corporation, state or any city, county, district or other political subdivision or public corpo- ration in this state may appear as a party to any action in the department without appearance by attorney. [ Amended by 1973 c ; 1987 c Counterclaim; procedure; fee; transfer of jurisdiction. ( 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 , 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 $ 2, 500, the justice of the peace shall strike the counterclaim and proceed to hear and dispose of the case as though the counterclaim had not 6-29 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 plaintiffs 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' s 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 district or circuit court for the count in which the justice' s court is located, % chever court is the court of appropriate jurisdiction, and be governed as provided in ORS 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 ( 1)( c) and the appearance fee for a defendant in the court of appropriate jurisdiction. [ 1977 c ; 1981 s.s. a 96; 1983 c.673 8; 1985 c.367 4; 1987 Q725 4; 1987 x829 3; 1989 c Payment of judgment. If the judgment is against a party to make payment, the party shall pay the same forthwith upon the terms and conditions prescribed by the justice of the peace. [ Amended by 1977 c Conclusiveness of judgment; apppeal; costs and fees on appeal. The judgment of the court shall be conclusive upon the plaintiff in respect to the claim filed by the plaintiff and upon the defendant in respect to a counterclaim asserted by the defendant. The defendant may appeal if dissatisfied in respect to the claim filed by the plaintiff. The plaintiff may appeal if dissatisfied in respect to a counterclaim asserted by the defendant. A party entitled to appeal may, within 10 days after the entry of the judgment against the party, appeal to the district court for the county in which the justice' s court is located, or if there is no district court for the county, to the circuit court for the county. If final judgment is rendered against the party appealing in the

295 JUSTICES' COURTS & CIVEL PROCEEDINGS THEREIN appellate court, that party shall pay, in addition to the judgment, an attorney' s fee to the other party in the sum of $10. Appeals from the small claims department shall only be allowed in cases in which appeals would be allowed if the action were instituted and the judgment rendered in the justices' courts, as is provided by law. ( Amended by 1977 c ; 1985, Form of appeal; bond; proceedings in appellate court; no further appeal. ( 1) The appeal from the small claims department may be in the following form: In the Court for District, County, Oregon., Plaintiff, vs., Defendant. Comes now, a resident of County, Oregon, and appeals from tie decision of the small claims department of the justice' s court for District, County, Oregon, wherein a judgment for dollars was awarded against the appellant on the day of, 19. Appellant. 2) All appeals shall be filed with the tustice of the peace and accompanied by a ond, with satisfactory surety, to secure the payment of the judgment, costs and attor- ney' s fees, as provided in ORS The appeal shall be tried in the appellate court without any other pleadings than those re- quired in the ustice' s court originally trying the cause. Ad papers in the cause shall be certified to the appellate court as is provided by law in other cases of appeals in civil actions in justices' courts. The appellate court may require any other or further statements or information it may deem nec- essary for a proper consideration of the controversy. The appeal shall be tried in the appellate court without a ury. There shall be no appeal from any judgment of the appellate court rendered upon the appeal, but such judgment shall be final and conclusive. Amended by 1977 c ; 1985 c Enforcement of judgment when no appeal is taken; fees. ( 1) If no appeal is taken by a party against whom a judgment to make payment is rendered and the party fails to pay the judgment according to the terms and conditions thereof, the justice of the peace before whom the hearing was had, may, on application of the prevailing party, certify the judgment in substantially the following form: trict, In the Justice Court for VS. Plaintiff, County, Oregon. Defendant. In the Small Claims Department Dis- This is to certify that in a certain action before me, the undersigned, had on this, the day of 19, wherein was tiff an was defendant, jurisdiction of the defendant having been had by personal service ( or otherwise), as provided by law, I then and there entered judgment against the defendant or plaintiff) in the sum of dollars, which judgment has not been paid. Witness my hand this day of 19 Justice of the Peace Sitting in the Small Claims Department. 2) Upon the payment of a fee of $3. 75 the justice of the peace shall forthwith enter the judgment transcript on the docket of the justice court. Thereafter execution and other process on execution provided b law may issue thereon as in other cases of judgments of justices' courts, and transcripts of the judgments may be filed and entered in judgment dockets in circuit courts with like effect as in other cases. ( Amended by 1965 c ; 1977 c ; 1987 c Separate docket for small claims department. Each justice of the peace shall keep a separate docket for the small claims department of the court of the justice of the peace, in which the justice of the peace shall make a permanent record of all proceedings, orders and judgments had and made in the small claims department. 4cli