Chapter 16: Glossary

Legal Glossary

ACTION, CASE, SUIT, LAWSUIT: These words mean essentially the same thing. They refer to a legal dispute brought into court for trial.
ADVERSARY SYSTEM: The system of justice in the U.S. and some other countries in which court cases are decided on the basis of evidence and arguments presented by each of the opposing, or adversary, parties who thus have full opportunity to present and establish their opposing contentions before the court or jury.
AMICUS CURIAE: (a me’kus ku’re-i) A “friend of the court”; one who interposes and volunteers information and argument on some matter of law before the court. The court has to give permission before someone can appear “amicus curiae.”
ANSWER: The paper in which the defendant answers the claims of the plaintiff.
APPELLANT: (a-pel’ant) The party appealing a decision or judgment to a higher court.
APPELLATE COURT: A court having jurisdiction of appeal and review; not a “trial court.”
ARRAIGNMENT: In criminal law, the stage where a prisoner is brought to court to hear the charge against him or her.
ATTACHMENT: A remedy by which a plaintiff is able to acquire a lien on property of a defendant for satisfaction of a judgment the plaintiff may obtain in the future.
BAIL: To set at liberty a person arrested or imprisoned, on security being taken for his or her appearance on a specified day and place to answer the charges brought against him or her.
BAILIFF: A court attendant whose duties are to keep order in the courtroom and to have custody of the jury.
BENCH WARRANT: An order issued by the court itself “from the bench” for the arrest of a person.
BURDEN OF PROOF: In the law of evidence, the necessity of proving a fact in dispute.
CERTIORARI: (Sur’shi-o-ra’re) An order commanding judges or officers of lower courts to certify or to provide records of proceedings in a case to a higher court for judicial review.
CHANGE OF VENUE: The removal of a lawsuit begun in one county or state to another for trial.
CIRCUIT COURT JUDGE: (See JUDGES).
CIRCUMSTANTIAL EVIDENCE: Evidence of an indirect nature by which a court or jury may reason from proved circumstances to establish by inference a principal fact.
CIVIL CASE: A lawsuit is called a “civil case” when it is between persons in their private capacities; or when the government sues an individual under the law, as distinguished from prosecuting a criminal charge. It results generally in a judgment for the plaintiff or for the defendant and, in many cases, involves the giving or denying of damages.
CLAIMANT: One who claims or asserts a right, demand, or claim.
CLERK: The clerk usually sits at the desk in front of the judge, is an officer of the court and keeps a record of papers filed. He or she has custody of the pleadings and records of the trial of the case, orders made by the court during the trial, and the decision at the end of the trial. He or she also administers the oath to jurors and all witnesses before they testify and marks all exhibits when they are presented as evidence.
CLOSING ARGUMENT: An oral review of the evidence and argument why their clients should win the case, by the attorneys at the end of the case, after all of the evidence is in.
CODE: A collection of laws systemically arranged and adopted by legislative authority.
COMMIT: To send a person involuntarily to prison or to an asylum or reformatory by lawful authority.
COMMON LAW: Law which derives solely from previous legal practice or from the previous decisions of courts.
COMMUTATION: The change of a punishment from a greater degree to a lesser degree, as from death to life imprisonment. In Oregon the governor has the power to commute sentences.
COMPLAINT: The paper in which the person who brings the lawsuit sets forth his or her claims against the defendant.
CONTEMPT OF COURT: Any act calculated to embarrass, hinder or obstruct a court in the administration of justice, or calculated to lessen its authority or dignity. Contempts are of two kinds: direct and indirect. Direct contempts are those committed in the immediate presence of the court; indirect contempt usually refers to the failure or refusal to obey a court order.
CORPUS DELICTI: (kor’pus de-lik’ti) The body (material substance) on which a crime has been committed, e.g., the corpse of a murdered man or woman, the charred remains of a burned house. Commonly used to mean the “body of evidence” indicating that a crime has been committed.
COURTS OF RECORD: Those courts whose courtroom proceedings are recorded by a court reporter. Courts not of record are those of lesser authority, whose proceedings are not recorded.
COURT REPORTER: The court reporter takes down in shorthand or on a machine everything that transpires, which constitutes the record in the case. The notes are subject to transcription later, if necessary.
CRIMINAL CASE: A lawsuit is called a “criminal case” when it is between the state on one side, as plaintiff, and a person on the other side, as defendant, charging the defendant with committing a crime, the verdict usually being “guilty” or “not guilty” and can result in incarceration.
CROSS-EXAMINATION: The questions a lawyer asks the other side’s witness after the other side’s attorney has finished with his or her questions or direct examination.
DECREE: In Oregon, this term has become obsolete. It means the same thing as “judgment,” which now is the technically correct term. A final judgment is one which fully and finally disposes of the litigation; an interlocutory decree or judgment is a temporary or preliminary decree or judgment which is not final.
DEFENDANT: In a civil case, the defendant is the person against whom the lawsuit is brought. In a criminal case, the defendant is the person charged with the crime.
DE NOVO: (de no’vo) Anew, fresh. (See TRIAL DE NOVO).
DEPOSITION: Questioning of a witness either orally by a lawyer in front of a court reporter or by written questions and answers, prior to trial. Depositions may be transcribed and under some circumstances may be used in a trial.
DIRECT EXAMINATION: A lawyer’s questioning of witnesses that he or she has called to provide testimony.
DIRECTED VERDICT: An instruction by the judge to the jury to reach a specific verdict, or the entry of such a verdict by the judge in a jury case.
DISCOVERY: A process for finding out relevant facts in a lawsuit before the trial begins. Discovery methods include depositions; inspections (“production”) of documents, things or property; physical or mental examinations of persons; requests for admission of facts; and written interrogatories that the other side must answer.
DISMISSAL WITHOUT/WITH PREJUDICE: Dismissal of a case “without prejudice” permits the complainant to sue again later on the same facts, while dismissal “with prejudice” bars the right to sue again on the same facts.
DISTRICT COURT JUDGES: (See JUDGES).
DOUBLE JEOPARDY: Common-law and constitutional prohibition against more than one criminal prosecution for the same acts.
DUE PROCESS: The guarantee of due process requires that every person have the protection of a fair hearing and procedures.
EMINENT DOMAIN: The power to take private property for public use by condemnation.
EQUITY, COURTS OF: Historically, courts which administer remedial justice according to the system of equity, as distinguished from courts of law. Equity courts are sometimes called courts of chancery. Juries are never used in equity cases. In Oregon, there is no distinction between courts of equity and courts of law, but some lawsuits are still equitable in nature, e.g. injunctions.
EQUITABLE ACTION FOR INJUNCTION: A lawsuit filed to restrain threatened wrongs, injuries, or actions, or to require a person to do specific actions. Equity cases do not use juries. The judge makes all decisions.
EXHIBITS: Objects, including pictures, books, letters and documents, are often received in evidence. These are called “exhibits” and are generally given to the jury to take into the jury room while deliberating.
EX PARTE: (ex par’te) By or for one party; done for, in behalf of, or on the application of, one party only and without the other parties being present in court for a hearing.
EX POST FACTO: (eks post fak’to) After the fact; an act or fact occurring after some previous act or fact. The Constitution of the United States prohibits ex post facto laws. This means that a person cannot be prosecuted for acts that were not crimes at the time the acts occurred.
EXTRADITION: The surrender of an individual in the custody of one state or nation to another state or nation on its request.
FELONY: A crime of graver nature than a misdemeanor. Generally, an offense punishable by death or one or more years imprisonment in a penitentiary.
GRAND JURY: A jury of inquiry whose duty is to receive complaints and accusations in criminal cases, hear the evidence and find bills of indictment in case where they are satisfied a trial is needed. Grand juries also can initiate their own investigations.
HABEAS CORPUS: (ha’be-as kor’pus) Latin for “You have the body.” The name given a variety of proceedings whose object is to bring a person before a court or judge. Usually, a writ of habeas corpus is directed to the official person detaining another, commanding him or her to produce the body of the prisoner or person detained so that the court may determine if the person is legally held or has been denied his or her liberty without due process of law.
INDICTMENT: An accusation in writing issued by a grand jury, charging that a person has done some act, or been guilty of some omission, which, by law, is a crime.
INJUNCTION: A court order that either requires a person to do an act or forbids a person to do an act.
INSTRUCTIONS OR “CHARGE” TO JURY: The outline of the rules of law which the jury must follow in deciding the factual issues submitted to them is called either the judge’s “charge” to the jury or his or her “instructions” to the jury.
INTERLOCUTORY: Provisional; temporary; not final. Refers to court orders pending final judgment in a case.
INTERPLEADER: When two or more persons claim the same thing (or fund) held by a third person, and he or she, making no claim to it him or herself, is unsure which of them has a right to it, he or she may sue the claimants as defendants and require them to interplead their claims so that he or she can get a court order who has the right to the thing.
ISSUE: A disputed question of fact or law is referred to as an “issue.”
JUDGES: In Oregon, the constitution provides that judges of the Supreme Court and other courts shall be elected by the legal voters of the state or of their respective districts for a term of six years, that their compensation shall not be diminished, and that they shall retire at 75 years of age. All judges must be citizens of the United States, residents of Oregon for three years (exceptions noted below), and members of the Oregon State Bar. Supreme Court judges, at the time of their election, must have been admitted to practice before the Oregon Supreme Court. District judges are required to be residents of the county only, unless they are elected in counties with over 500,000 population. In that case, they must be residents for three years. There are no requirements that county judges, municipal judges or justices of the peace be lawyers.
JUDICIAL CONFERENCE: All the judges of the Supreme Court, Tax Court, and circuit courts belong to the Oregon Judicial Conference, which meets at least annually. The conference is charged by statute with the responsibility of keeping judges aware, through continuous survey and study, of the organization, jurisdiction, procedures, practices, and methods of administration and operation of the various courts of the state, and with the objective of improving the administration of justice in Oregon.
JURISPRUDENCE: The philosophy of law or the science which studies the principles of law and legal relations.
JURY: A certain number of citizens, selected according to law and sworn to consider questions of fact brought to the court for decision.
JURY PANEL: All of the prospective jurors from which the trial jury is chosen.
MANDAMUS: (man-da’mus) The name of an order by which a court of superior jurisdiction directs an inferior court or public officer to perform an official act.
MANDATE: A judicial command directing a public officer to enforce a judgment or sentence.
MISDEMEANOR: An offense less than a felony; generally one punishable by fine or imprisonment other than in penitentiaries.
MISFEASANCE: Usually, the improper performance of some lawful act.
MISTRIAL: An erroneous or invalid trial due to a substantial error that voids the trial.
MOOT: A moot issue is one not settled by judicial decision but no longer in dispute or in need of a decision.
OBJECTION OVERRULED: This term means that, in the judge’s opinion, the lawyer’s objection is not correct under the rules of law. The judge’s ruling, so far as a juror is concerned, is final and must be accepted by the jury.
OBJECTION SUSTAINED: This means that the judge agrees that, under the rules of law, the lawyer’s objection was correct. This ruling likewise is not subject to question by jurors.
OPENING STATEMENT: Before introducing any evidence for his or her side of the case, a lawyer is permitted to tell the jury what the case is about and what he or she expects the evidence to be. This is called the “opening statement.”
PARTIES: The plaintiff and defendant in the case. They are sometimes called the “litigants.”
PEREMPTORY CHALLENGE: The challenge a party may use to reject a certain number of prospective jurors without assigning any reason.
PETIT JURY: The ordinary jury of 12 (or fewer) persons for the trial of a civil or criminal case. So called to distinguish it from the grand jury.
PLAINTIFF: A person who files a lawsuit.
PLEADINGS: The parties in a lawsuit must file in court papers stating their claims against each other. In a civil case, these usually consist of a complaint filed by the plaintiff, an answer filed by the defendant and, oftentimes, a reply filed by the plaintiff. These are called “pleadings.”
POWER OF ATTORNEY: A document authorizing one person to act as another person’s agent.
PREJUDICIAL ERROR: Synonymous with “reversible error;” an error of sufficient seriousness to justify an appellate court’s reversal of a judgment.
PROBATION: In modern criminal administration, allowing a person convicted of some offense to go free, under a suspension of sentence, during good behavior, and generally under the supervision of a probation officer.
PROSECUTOR: One who instigates the prosecution on which an accused is arrested or who presses charges against the party whom he or she suspects to be guilty. Also, the attorney who represents the government in prosecuting a criminal case.
QUASH: To overthrow; vacate; to annul or void a summons or indictment or other document.
QUO WARRANTO: (kwo wo-ran’to) An order issuable by the state, through which it demands an individual to show by what right he or she exercises an authority or claims public office which can only be exercised or claimed through a valid grant or franchise from the state.
RECORD: This refers to the pleadings, the exhibits, and the word-for-word record made by the court reporter of all the proceedings at the trial.
REPLY: The paper in which the plaintiff answers any claims made by the defendant in his or her answer.
REST: This is a legal phrase which means that the lawyer has concluded the evidence he or she wants to introduce in that stage of the trial.
SINE QUA NON: (si’ne kwa non) An indispensable requisite.
STARE DECISIS: (sta’re de-si’sis) The doctrine that, when a court has once decided a principle of law as applicable to a certain set of facts, it will adhere to that principle and apply it to future cases where the facts are substantially the same.
STATUTE: The written law adopted by the Legislature as distinguished from the common law.
STAY: A stopping or temporary halting of a judicial proceeding by order of the court until some future even occurs.
STRIKING TESTIMONY: On some occasions, after a witness has testified, the judge will order certain evidence stricken from the record and will direct the jury to disregard it. When this is done, the jury must treat the evidence stricken as though it had never been given and must wholly disregard it.
SUBPOENA: The document which is issued for service on a witness to compel his or her appearance in court or for a deposition or other hearing.
SUBROGATION: The substitution of one person in the place of another with reference to a claim, so that he or she who is substituted succeeds to the rights of the other in relation to the claim.
SUBROGEE: One who is subrogated; one who succeeds to the rights of another by subrogation.
SUBSTANTIVE LAW: The law dealing with rights, duties and liabilities, as distinguished from the law regulating procedure.
SUMMONS: An order directing the sheriff or other officer to notify the named person that a lawsuit has been commenced against him or her in court and that he or she is required to appear by a certain time, and answer the complaint or suffer a judgment against him or her.
SUPREME COURT JUSTICE: (See JUDGES).
TESTIMONY: Evidence given verbally by a witness, under oath, as distinguished from evidence derived from writings and other sources.
TORT: A tort is negligent or wrongful conduct which causes bodily injury or property damage for which compensation can be recovered in a civil lawsuit. Most torts are the result of negligence such as automobile accidents. Some are intentional, such as libel, slander, assault and battery.
TORT CLAIMS ACT: In Oregon, the traditional doctrine of governmental immunity was ended in large part by legislation enacted in 1967. Under the new law, every public body, including every local government agency, is liable to third parties for wrongful deaths, personal injuries, and property damage that result from governmental operations involving negligent or wrongful conduct, subject to limitations on the amount that can be recovered. This law is commonly referred to as the Tort Claims Act.
TRIAL DE NOVO: (de no’vo) A new trial or retrial in an appellate court in which the whole case is gone into as if there had been no trial in a lower court and regardless of the findings and decisions of the lower court.
TRUE BILL: In criminal practice, the endorsement made by a grand jury on a bill of indictment when they find it sufficient to support a criminal charge.
USURY: Charging an illegally high interest rate.
VENIRE: (ve-ni’re) Technically, an order summoning persons to court to act as jurors; popularly used as meaning the body of people summoned.
VENUE: (ven’u) The particular county, city, or geographical area in which a court with jurisdiction may hear and decide a case.
VERDICT: The formal decision or finding made by a jury and reported to the court.
VOIR DIRE: (vwor dear) To speak the truth. The phrase denotes the preliminary questioning of potential jurors by the court and attorneys to determine the jurors’ qualifications.
WITNESS: One who testifies, under oath, to what he or she has seen, heard, or observed.
WRIT: An order requiring the performance of a specified act or giving authority to have something done.

Chapter 2: Common Law

The system of law in the United States is unique among nations because of its combination of common law and constitutional hierarchy.

Common law is judge-made law. It is case law. The only way that the judiciary can speak is through individual cases brought to it for resolution. Unlike the other branches of government, the judiciary is not a self-starter. Common law begins when citizens file a case in the courts. Only constituents can invoke the workings of common law.

During the past 40 years, federal, state and local governments have enacted increasing amounts of legislative law. However, rather than lessening the impact of judge-made law, this development has added broader dimensions to the common law. Legislation needs interpreting. Courts construe statutes when required to do so in individual cases. Thus a body of common law develops around the enactment.

Many of the legal problems of the media are resolved by common law processes. Libel and privacy cases are common law torts unfettered by comprehensive legislative enactment or administrative regulation. As a result, reporters, editors, broadcasters and publishers must piece together judicial decisions in order to discover the sometimes complex jigsaw of legality.

Dual Function of Common Law:

Case decision in the common law process fulfills two purposes: It resolves the dispute between the litigating parties, and it lays down a precedent on which the future can rely. Thus, it looks backward at a controversy already existent and looks forward to potential controversy not yet in being.

The former function is born out of the need to look at each case anew, to give every citizen a day in court, to examine each case in its own context. It is situational justice; it champions specificity. The latter function, however, is born out of the need to be consistent with the past, to examine previous cases in conjunction with the case at hand. It protects societal security and stability. It fosters generalization.

There is, therefore, a strange mixture of rigid generality with flexible specificity in the common law. The need to be uniform and to apply law consistently in like situations locks common law into fixed rules and principles and regards the common law as a neatly balanced, self-structured system. On the other hand, ad hoc decision-making favors examination of contemporary norms and customs and regards the common law as the reflection of current society.

Justice Oliver Wendell Holmes, Jr., said  “It is the merit of the common law that it decides the case first and determines the principle afterward.” He was urging that the value of common law is its contemplation of each dispute as it arises without its own situational justice. Generalizations that single-package all situations should be mere observations after the fact, not controls before the fact. To this extent, common law is anathema to statutory law.

Statutory law applies deductive thinking. The statutory norm becomes the major premise in a syllogism; the alleged fact of a violation is the minor premise. Outcomes in statutory law are arrived at by application of reasoning from the general to the specific, from abstract to reality. (The case by case tenets of common law suggest an inductive approach.)

A case decision by the courts becomes precedent for future cases. This is called the doctrine of stare decisis (to adhere to decisions). To what degree should judges follow precedent set by former cases? A great deal of controversy has always existed on that issue.

At one end of the spectrum are judges who look to the former case(s) and theorize some generality from it; the “rule” of the prior case becomes mechanically controlling in all similar future cases. The most strict of these judges will give “the rule” a status akin to statute and will deny even their own power to overturn it. This was the clear law in England until as late as 1965 where not even the highest court in England (Law Lords of the House of Lords) would overturn their own prior decisions.

At the other end of the spectrum, there are judges who regard case precedent as simply persuasive analogy. Those judges will not consider the decisions of prior cases as settled law in deciding the case at hand. They are, however, influenced (but not bound) by a need to reason uniformly in similar situations, so that outcomes are reached with logical consistency.

Trial courts are committed to the strict view in applying the decision of higher appellate tribunals. Appeals courts are the ones more apt to evaluate the need for stare decisis.

Some appellate courts will vacillate in choosing the strict or liberal view of precedent. That ambivalence is usually the product of court personnel changes. Our own Supreme Court of Oregon has wavered on stare decisis and the overturning of precedent. In 1955, in Landgraver vs. Emanuel Lutheran Charity Board, Justice Walter L. Tooze speaking for a 5-2 majority refused to strike down the court-created charitable immunity doctrine, stating: “Once the court has ascertained and declared that public policy, it becomes the law of the state, and is as binding as a legislative enactment.”

In the following eight years, five new justices reached the court. This new alignment in 1963 overturned the charitable immunity doctrine. Justice Alfred T. Goodwin, writing the majority opinion, said: “It is neither realistic nor consistent with the common law tradition to wait upon the Legislature to correct an outmoded rule of case law. The pull of stare decisis is strong, but not inexorable.”

In European countries such as France, courts are neither bound nor influenced by their own decisions nor by the decisions of higher courts. Indeed, a judge is precluded from announcing general rules in a given case; citation to the applicable provision of a written legislative code is all that is necessary.

The European courts are also less centralized, so that district appellate courts rather than a central hierarchical court are more likely the final resort. With detailed codes providing national continuity, there is less need for judicial uniformity or centrality.

Distinguishing Common Law Precedent:

The overruling of precedent is, of course, the most drastic result that can occur in the common law. Because overruling precedent disturbs the stability of the common law, judges often employ the tactic of distinguishing precedent rather than overturning it.

One device for ignoring a prior case pronouncement is simply to declare that pronouncement is dictum, a tangential remark not necessary to the decision in the previous case and, therefore, not precedent. Because the judiciaryís power can only be invoked by disputants in controversy, a court cannot broaden its power by going beyond the confines of what is necessary to solve that controversy. Any attempt to do so is mere dictum and not binding.

Another device for distinguishing precedent is to find that facts of the previous case are not analogous. For example, pronouncements in a criminal opinion are not binding in a contract case.

A more candid device for not applying precedent mechanically is the recognition that some precedent is not as compelling as others. The late U.S. Supreme Court Justice Felix Frankfurter urged that cases which were not well researched, carefully argued, or thoroughly considered, should be frankly devaluated on the scale of precedent.

Precedent may be viewed strictly or loosely. It may be strictly construed and held to its narrow environment, thus virtually discarding it as precedent. Or it can be broadly construed and liberally extended to all of its language, thus spreading its mantle over large area of subsequent cases. Whether a given court chooses one or the other deployment depends upon that courtís attitude as persuaded by trends, “trends in the situation or in the times at large.”

Due to the volume of cases and the need to expedite case backlogs, many federal courts and boards have adopted rules whereby certain specified decisions are not to be used as precedent and whereby certain expedited decisions may not be appealed.

Formalization of Common Law Appellate Opinions:

There are by-products of this common law system. A case-by-case approach to the law demands the writing and publication of judicial opinions. In the two centuries of American law, more than 3 million judicial opinions have been written and are housed in over 17,000 volumes of cases. The millions of words of judicial opinions written each year further spawn texts, encyclopedias, and a vast amount of commentary upon the law published in over 500 law reviews and other periodicals, all of which command thousands of pages of indices. Such proliferation unmasks the notion that common law is “unwritten” law. On the contrary, it is the most written law.

The essence of the common law is the written judicial opinion. Unlike statute or executive decree, it spars in the marketplace of ideas. In the pattern of editorials or essays, the judicial opinion talks to us, gives us reasons with which we may agree or differ. It discusses. It attempts to persuade. But most of all, it deals directly with the non-antiseptic world of actual behavior between real and specific people.

Common law is born out of citizen dispute. A legal system that develops from those popular origins in contrast to one where laws are propounded sweepingly by the political elite from abstraction and perceived future needs, is arguably more responsive to the spirit and mores of its constituency.

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Chapter 3: Oregon State Courts

The Oregon Constitution established a supreme court and “such other courts as may from time to time be created by law.” The original Article VII of the constitution provided for circuit courts, county courts, justice of the peace courts and municipal courts. These provisions now have the status of statutes, a result of the adoption of amended Article VII of the constitution on November 8, 1910. This action allowed the legislature to create new courts, such as the tax court. The circuit court is vested with all judicial power, authority and jurisdiction not specially vested in another tribunal.

The geographical, civil and criminal jurisdiction of all trial courts of the state system have been defined by legislative action. Municipal courts are created by local charters, but are subject to legislative directives.

Separate courts of law and equity have never existed in Oregon although some procedural differences between suits and actions were maintained. In 1980, revised criminal proceedings abolished the last vestiges of procedural variations in state trial courts based on cases being historically “legal” or “equitable.” Because it is a constitutional right, the right to a jury trial was not affected by the adoption of the revised proceedings. The procedures unique to trying a case before a court or jury are preserved.

Generally, appeals may be made from decisions of all lower trial courts and tribunals to the appellate courts created by state law. In general, actions at law can be appealed only on issues of law, such as upon an allegedly erroneous ruling by the trial judge. In equity cases, findings of fact can be made by the appellate court based on a de novo review of the record. Trial court decisions on appeal may be affirmed, reversed, or modified and the cause can be remanded for a new trial in the court below. All courts of the Oregon state court system administer both criminal and civil law. Although municipal courts and administrative tribunals are not an integrated part of the Oregon judicial system, appeals from their decisions may be brought in the appropriate state courts.

The Judiciary:

The judiciary of the state court system consists of judges elected by non-partisan ballot for six-year terms. Judges of the Supreme Court, the Court of Appeals and the Tax Court are elected statewide. Circuit judges are elected within the judicial district in which they sit. When a judgeship is vacated between elections by retirement, death or resignation the vacancy is filled by gubernatorial appointment. Such positions are subject to election to full six-year terms at the next general election.

Jurisdiction:

Oregon law provides that the county courts having juvenile and probate jurisdiction, the circuit courts, the Court of Appeals and the Supreme Court are courts of record (those with reported proceedings). Justice courts and municipal courts are not.

Municipal Court:

Municipal courts exist in most Oregon cities; they are established by city charter but controlled in some procedures by state law. The primary function of a municipal court is to decide cases that involve the violation of city ordinances. Such decisions may be appealed to the circuit court.

Municipal judges are appointed by city councils except in two municipalities, where they are elected by the city’s voters. The judges are not required by state law to be attorneys. In a number of cities a position of municipal judge is combined with that of city recorder or some other office.

Justice Court:

Justices of the peace operate the justice courts authorized by boards of county commissioners.

Justice court jurisdiction extends to most civil cases where the amount claimed does not exceed $2,500, except that this jurisdiction specifically excludes cases involving libel, slander, title to real property, criminal conversation, malicious prosecution or false imprisonment. Small claims departments exist in justice courts where actions for recovery of money or damages of $1,000 or less may be heard.

Criminal jurisdiction in justice courts extends to all misdemeanors, but defendants may elect to have their cases transferred to a district court or, in the absence of a district court, to the circuit court in the county of arrest. Justice court jurisdiction also includes traffic and other violations. Decisions of justice courts may be appealed to the circuit court.

Justices of the peace are not required to be attorneys and their courts exist in approximately 37 Oregon communities.

County Court:

In nine Oregon counties an elected county judge performs certain judicial functions in addition to general administrative duties shared with elected county commissioners. Probate, guardianship and conservatorship cases are heard by the county judge in Gilliam, Grant, Harney, Malheur, Sherman and Wheeler counties. Juvenile and adoption matters are handled by the county judge in Crook, Gilliam, Harney, Jefferson, Morrow, Sherman and Wheeler counties. County court judges are not required to be attorneys. Decisions of county courts may be appealed to the circuit court.

District Court:

In 1913 the Legislature established a state district court in every city with a population of 100,000 or more. This was the beginning of the district court, which replaced the justice of the peace court in Multnomah County. Since the original act, district courts have been established in 27 of the 36 Oregon counties.

District courts were abolished by the Oregon Legislature effective January 15, 1998. All former district courts are now circuit courts.

Circuit Court:

The circuit court is a court of record exercising all judicial power, authority and jurisdiction not vested in some other court. The court has jurisdiction in all civil and criminal cases, including the trial of felonies. Circuit courts also hear appeals by trial de novo from justice courts and county courts.

The circuit court operates in 20 judicial districts, each of which contains one or more Oregon counties. Each judicial district has one or more circuit judges elected for a six-year term. ORS 3.225 gives general authority, subject to approval of the chief justice, for circuit courts, by rule, to establish specialized subject-matter departments, such as for probate, domestic relations or juvenile cases. Any judge may serve in any department as assigned by the presiding judge of the court. In a few counties the county judge, rather than a circuit judge, hears the cases involving juvenile, adoption, probate, guardianship and conservatorship matters.

Tax Court:

The Oregon Tax Court has exclusive jurisdiction in personal income tax cases, corporate excise and income tax cases, property tax cases, inheritance and gift tax cases, and appeals from the supervisory orders of the State Department of Revenue in cases involving the local budget laws.

The Tax Court has a regular division and a small claims division. Limits for small claims actions are based on the amount of tax or property value involved. For example, an income taxpayer disputing a tax assessment or refund of $500 or less may appeal directly from the tax auditor of the Tax Court small claims division without first appealing to the department of revenue.

The Tax Court has statewide jurisdiction with headquarters and courtroom in Salem, but the court regularly sits in other counties of the state to be closer to where the taxpayer resides or where the property in question is located. Decisions may be appealed to the Oregon Supreme Court.

Land Use Board of Appeals:

Established as part of Oregon’s land-use laws, the Land Use Board of Appeals (LUBA) is the first state level of appeal of many city and county land use and zoning decisions. Cases brought before LUBA generally cannot be appealed to local circuit courts, and vice versa. The next step from LUBA is the Court of Appeals.

Court of Appeals:

Established in 1969, the Court of Appeals consists of 10 judges who are elected by statewide ballot for six-year terms. These judges elect a chief judge of the court from among themselves also for a six-year term.

The Court of Appeals has jurisdiction over all appeals from decisions of the circuit courts and over the review of decisions made by certain boards and administrative agencies of state government.

Parties to Court of Appeals cases may petition the Supreme Court to review Court of Appeals decisions. The Court of Appeals then decides whether to reconsider its decision and the Supreme Court decides whether to review the decisions of the Court of Appeals.

Supreme Court:

The Supreme Court is established by the state constitution and consists of seven judges elected for a term of six years who in turn elect one of their own to serve as chief justice for a six-year term.

The Supreme Court is a court of review and in its discretion decides which decisions of the Court of Appeals to review, usually selecting those with legal issues calling for significant interpretation of laws affecting many citizens or societal institutions as well as those involved in the case at hand.

In addition to the review of Court of Appeals decisions, the Supreme Court decides appeals from the Oregon Tax Court and is also empowered to assume original jurisdiction in mandamus, quo warranto and habeas corpus proceedings.

Oregon law confers administrative authority and supervision over the courts of the state on the chief justice. The Supreme Court has disciplinary authority over members of the judiciary and members of the Oregon State Bar, including the chief justice of the Court of Appeals and the presiding judges of the circuit and district courts. The principal assistant to the chief justice in carrying out court duties is the state court administrator.

The Supreme Court’s office and principal courtroom are in Salem, but occasionally the court sits elsewhere in Oregon.

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Related posts:

  1. Chapter 2: Common Law

Chapter 4: Federal Courts in Oregon

Civil practice in the U.S. District Court for the District of Oregon is changing rapidly as a result of the court’s increase in filings, number of judges and clerks and the complexity of issues presented. Federal civil practice and procedure are now focused upon pretrial work which is increasingly concerned with committing each party’s case to paper.

U.S. District Court for the District of Oregon:

U.S. District Courts are created by statute. The state of Oregon constitutes one judicial district. Court is held at Coquille, Eugene, Klamath Falls, Medford, Pendleton and Portland. In addition, court may be held at any place in the district that a judge directs. The judges of the court are appointed by the president, by and with the advice and consent of the Senate.

Each judge, with one exception, has an office in the U.S. Courthouse in Portland. The other office is in Eugene. Regular court sessions are scheduled at the Portland and Eugene court facilities. Special sessions of the court are held in the district court facilities in Medford and Pendleton as business requires. When court sits in Coquille, Klamath Falls or other places, arrangements are generally made for temporary use of state court facilities.

Although district courtrooms are often made available to administrative law judges, arbiters and hearings offices, the clerk’s office does not schedule hearings or receive or maintain records for the agencies involved. The administrative staffs of the agencies should be consulted for information concerning any particular case.

Local rules for the United States District Court for the District of Oregon took effect on July 1, 1982. Copies of the local rules may be obtained from the clerk’s office for a minimal fee.

Jurisdiction:

The territorial jurisdiction of the Federal District of Oregon is identical to the state of Oregon, although its jurisdiction may extend on the Columbia River north of the Oregon boundary.

Generally, jurisdiction of a particular subject matter requires the existence of a federal question which arises under the Constitution, laws or treaties of the United States. As a rule, no minimum monetary amount in controversy is required for federal cases, except cases arising under the Consumer Product Safety Act.

Civil Case Management:

Two basic systems are used for assigning cases to judges: the “individual calendar” system, under which a case does not become the responsibility of a single judge until it is actually set for a specific trial date. Until 1981, most cases in the district were processed through a master calendar procedure.

Management of civil cases is now governed by certain additional procedures. Civil cases are classified as “central calendar cases” and “assigned cases.” When initially filed, all cases are “central calendar cases” and remain so until assigned to a particular judge. Generally, cases are assigned to a particular judge or magistrate upon the lodging of a pretrial order (an order embodying the terms and stipulations agreed upon at a pre-trial hearing or meeting). Assigned cases also include Social Security cases, class actions and other cases as assigned by the chief judge or the calendar management committee based on the particular nature of the case or because of a judge’s involvement or investment of time and effort.

Central Calendar Cases:

Central calendar cases are managed on a master calendar concept. A judge will not be assigned until the pretrial order is lodged. The court’s local rules governing all motion procedures apply to central calendar cases. An original copy of all documents should be filed with the clerk’s office. Scheduling is done by the clerk’s office. Appearances, conferences and hearings may be conducted by any judge or magistrate. At the commencement of an action, each party is given a form of consent to a magistrate hearing all matters and entering judgment, an order establishing a date for completion of discovery within 150 days and for lodging of a pretrial order within 180 days. A motion for extension of such times must be filed before the established date. The motion must be supported by affidavit and set forth good cause and appropriate use of prior time. Upon filing of such a motion for extension of time, a conference will be set before the judge or magistrate monitoring the central calendar on the second Monday after filing in Portland, and in Eugene on the second Tuesday after filing.

Assigned Cases:

In all assigned cases, original documents should be filed by the parties with the clerk, and the extra copy should be delivered by the parties directly to the judge to whom the case is assigned. Upon assignment, notification is given to the parties that the case number is changed by the addition of letters indicating the assigned judge or magistrate and that, thereafter, all scheduling including the setting of hearings and trial date is done by that judge or magistrate.

Either at the same time or shortly after the notification of assignment, the parties will be informed of the specific intentions and requirements of the judge to whom the case is assigned. The assigned judge will set a time for a preliminary pretrial conference at which all aspects of the case will be discussed and schedules will be set. The conference may be conducted by telephone.

Special Handling:

Certain types of actions receive special handling:

Government actions for recovery of money upon guaranteed student loans and overpayments of Veterans Administration benefits. No conferences or status reports are scheduled. Upon filing of the complaint, each party is given an order establishing a date for completion of discovery (presently 90 days from filing) and for lodging of the pretrial order (presently 120 days from filing).

Actions against the secretary of the U.S. Department of Health and Human Services relating to Social Security benefits or claims for Social Security benefits. Again no conferences, calendar, or status reports are scheduled by the clerk. At the time of filing, the clerk must provide the parties with a copy of the special order for Social Security review cases. Upon submission of the action for summary judgment these cases are assigned to district judges and magistrates.

Civil Action:

A civil action is commenced by filing a complaint with the court. Actions arising in the northern section of the district are filed with the clerk in Portland. Actions arising in the southern section of the district are filed with the clerk in Eugene.

Upon filing a complaint the clerk issues a summons and delivers it to the marshal or any other person authorized to serve. Summons can be by anyone who is not a party to the litigation and 18 years of age or older. In most cases in the Oregon District Court, however, the marshal cannot serve summons except in cases involving indigent defendants, seamen, on behalf of the United States and certain circumstances under court order. Upon request of the plaintiff, separate or additional summonses shall be issued against any defendants. Summons can also be issued by first-class mail, following special procedures and forms available through the court.

The summons is “issued” by the clerk when it is signed and sealed by the clerk or clerk’s deputy. The time within which a party may answer or otherwise respond is generally 20 days for a party served within the District of Oregon and 60 days when service is made upon the United States or any agency or official thereof.

Motion Practice:

Motions are calendared by the clerk’s office on the fourth Monday after filing in Portland and on the fourth Monday after filing in Portland and on the fourth Tuesday after filing in Eugene if the motion does not pertain to discovery. An original copy of the motion and supporting materials are filed with the clerk. Two weeks before the scheduled motion date, a tentative motion calendar is prepared which apportions motions in unassigned cases among the judges and magistrates available for hearing on the calendar day. Approximately 10 to 12 days before the scheduled date of hearing, notice of the setting is given to counsel by the clerk.

Discovery motions are calendared for the second Monday after filing in Portland, and in Eugene on the Tuesday following the second Monday after the motion is filed.

Upon representation of an attorney that no party affected has an objection to a continuance, the clerk may grant an application to calendar a motion one week later than its regularly scheduled time, in either Portland or Eugene. The application must be made within one week after the motion is filed. Thereafter, continuances may be granted only by the court.

If oral argument is desired on a motion, a request must be endorsed on the motion, statement in opposition or reply to the statement. The determination whether to hear arguments will be made by the judge or magistrate deciding the motion. If no such request is made by any party, the motion will be decided on the written submissions. Special arrangements must be made in an application for a temporary restraining order and motion for preliminary injunction. Ex parte motions upon other central calendar cases are submitted to the clerk’s office for presentation to a judicial officer by the clerk. Counsel’s appearance will not be required unless requested by the court.

Pretrial Order:

A trial judge is assigned to central calendar cases upon lodging the pretrial order. The pretrial order forms the framework for the pretrial conference or conferences.

Agreed facts may be collected from the pleadings, answers to discovery, and additional matter about which there is no dispute. These agreed facts may serve as the basis for motions for summary judgment.

A party’s contentions should include contentions of fact and law. These contentions should be sufficient to withstand a motion to dismiss or, if appropriate, a motion for summary judgment and should include appropriate denial of an opposing party’s contentions which otherwise may be considered admitted.

Pretrial Conference:

Following the lodging of the proposed pretrial order, the assigned judge will schedule a preliminary pretrial conference either by telephone conference call or by personal appearance. The attorney who will try the case must participate in the conference unless permission for substitution is granted in advance. If an attorney does not have authority to discuss settlement, the client or representative of the client with such authority must also be present. In addition to settlement, counsel should be prepared to discuss their estimates of the number of expert and lay witnesses, length of trial, the basic legal and factual questions involved, any special problems anticipated, the dates for further pretrial conferences and for trial and whether the trial is by jury or to the court. Thereafter, the judge or magistrate will issue an order confirming the dates and establishing pretrial requirements.

The trial date will be set by and may only be changed by the judge or magistrate to whom the case is assigned. Usually, all actions are tried where they are filed, either in Portland or Eugene.

The federal rules of evidence apply generally to all civil actions and proceedings, including admiralty and maritime cases, to criminal cases and proceedings, to contempt proceedings except those in which the court may act summarily, and to proceedings and cases under the bankruptcy act. During a trial in the Oregon District Court attorneys may not approach the bench or witness without leave of the trial judge. All papers and items submitted to the court or a witness during a trial must be handed to the bailiff.

All exhibits, except those which the court has specifically authorized to be secret, must be marked in advance of the trial and must be reviewed by counsel for all parties. Without leave of court, no exhibits may be introduced at trial that have not been previously marked.

Juries:

In a civil case any party may demand a trial by a jury of six or twelve persons. In criminal cases, the number of jurors is 12. Alternate jurors may be selected in such numbers as the trial judge determines. Challenges for cause (bias) are taken orally. Peremptory challenges (discretionary) are exercised in writing.

The Clerk’s Office:

In addition to maintaining the file, the clerk keeps a “docket” sheet for each case. An abstract notation is made in the appropriate docket of each paper filed, every process issued and all appearances, orders, verdicts and judgments. The date that the order or judgment is actually noted on the docket is the effective date of the order or judgment for purposes of appeal.

Case Numbering:

The case number assigned at the time of filing indicates the year in which the case was filed. For example, 99-136 was the 136th civil action filed in 1999. To distinguish cases filed in Eugene, the case number consists of the year followed by four digits beginning with 6, such as 82-6042 was the 42nd case in Eugene in 1982. Suffixes may be added to indicate the judge assigned to the case. The initial “C” stands for Coquille; “M” is Medford; and “P” is Pendleton.

U.S. Magistrates:

U.S. magistrates are appointed by the judges of the court. Full-time magistrates are appointed for a term of eight years; part-time magistrates serve a four-year term. Part-time magistrate positions are authorized for Pendleton, Bend and Coos Bay.

Jurisdiction and Powers of Magistrates:

The jurisdiction and powers of the magistrates have been broadly interpreted by the U.S. District Court for Oregon. In addition to traditional powers conferred upon U.S. commissioners and their power to conduct trials of minor offenders, a magistrate may be designated to hear and determine any pretrial matter except motions: for injunctive relief; for judgment on pleadings; for summary judgment; to dismiss or quash an indictment or information; to suppress evidence in a criminal case; to dismiss or to prevent maintenance of a class action; to dismiss for failure to state a claim; and to involuntarily dismiss an action. The district judge may designate a magistrate to conduct hearings, and to submit to a judge proposed findings of fact and recommendations for disposition of those motions and for “applications for post-trial relief made by individuals convicted of criminal offenses and of prisoner petitions challenging conditions of confinement.” In these cases the magistrate files proposed findings and recommendations with the court and a copy is mailed to the parties.

The judge will determine whether to conduct a new hearing or hear arguments or may make a determination based on the record developed before the magistrate. Additionally, the judge may accept, reject or modify, in whole or in part, the magistrate’s findings and recommendations, receive new evidence, recall witnesses or recommit the matter to the magistrate with instructions.

The court has further specially designated the full-time magistrates to conduct any or all proceedings in jury or nonjury civil actions and to order the entry of judgments when consent to exercise such jurisdiction is given by the parties. Upon entry of judgment in such a case, an aggrieved party may appeal directly to the appropriate U.S. Court of Appeals from the judgment of the magistrate in the same manner as an appeal from any other district court judge.

Bankruptcy Court:

Oregon has four full-time judges of the bankruptcy court. Three are in office in Portland; one is in Eugene. In addition to holding court regularly in Portland and Eugene, bankruptcy judges conduct hearings in Pendleton, Roseburg, Klamath Falls, Medford, Bend, Astoria, Seaside, Tillamook, The Dalles, Coos Bay, La Grande, Lincoln City, Albany, Grants Pass, Salem and Coquille. Initial petitions in bankruptcy filed on behalf of persons residing in Coos, Curry, Douglas, Klamath, Lake, Lane, Jackson and Josephine counties are filed with the bankruptcy court in Eugene. Initial petitions for persons residing in any other county in the district are filed with the bankruptcy court in Portland.

The judges of the court appoint a clerk who appoints deputies who may act in the name and with the authority of the clerk. The principal office of the clerk is in Portland. A divisional clerk’s office is in Eugene. The clerk’s duties include maintenance of court records and the docket and schedules.

Major Areas of Difference Between State and Federal Courts in Oregon:

Significant differences occur between state court and federal court systems. These include:

Different statutory systems (state Oregon Revised Statutes v. federal United States Code);
Different procedures for handling of cases (federal courts tend to allow more discovery);
Different privileges as far as excluding evidence (state courts tend to have more evidentiary privileges);
Different case law precedents (the likely results of a case may vary greatly depending upon which court suit is brought in); and
Different fee and cost structures depending on type of case (the costs to try a case vary greatly between state and federal courts).

Oregon Cases in Other Federal Courts:

The federal judiciary includes not only the local U.S. District Courts and regional numbered Circuit Courts of Appeal (Oregon in the 9th Circuit), but a number of specialized federal courts including:

U.S. Supreme Court in Washington, D.C. :The ultimate appeal court, and a special trial court for suits between states;

U.S. Court of Appeals for the Federal Circuit: a national court of appeals in Washington, D.C. with jurisdiction over many types of suits against the United States (monetary claims, taxes, customs, contracts, etc.) and ALL patent appeals form any federal court;

U.S. Court of Federal Claims: a national trial court in Washington, D.C., with jurisdiction over many types of suits against the United States (monetary claims, taxes, customs, contracts, etc.);

U.S. Tax Court: a national trial court in Washington, D.C. for tax refund cases and a few types of other tax cases;

U.S. Court of International Trade in New York City: the trial court for most customs cases and some types of related cases;

U.S. Court of Veterans Appeals in Washington, D.C.: a new court for veterans claims appeals.

Federal Jurisdiction of Oregon Cases in Other States:

Besides Oregon cases in the federal courts listed above, federal law allows Oregonians to sue and be sued in other federal district courts, depending upon the facts and nature of the case.

In addition, federal law allows for consolidation of similar cases in multiple district courts into a single federal district court. Typical of these cases are product liability cases, major airline crash cases, etc.

Also bankruptcy courts and district courts handling limitation of liability admiralty cases can force all related cases to be brought in the same proceeding.

Chapter 5: State Civil Trial Procedures

In civil cases, an action is started by filing a copy of a complaint with the county clerk, generally in the county of the defendant’s residence. A complaint states what the defendant has done wrong, how the plaintiff was injured or damaged and to what degree.

After filing the complaint the sheriff or private process server delivers (serves) a copy of the complaint and a summons upon the defendant. The summons tells the defendant that he or she must “appear” in this case or the other side will win automatically. Appearance is done by filing a legal document (motion, demurrer or answer) with the court. The time for filing an answer, or motion, is within 30 days after the summons is served.

If the defendant is not found, the plaintiff can try again. In some cases where the defendant is not found, service can be upon the public welfare division, the corporation commissioner, the motor vehicles division or by publication in a newspaper of general circulation in the area where the defendant was last known to be. Once the defendant appears, he or she can file motions asking that the service of summons be quashed or disallowed, that the complaint or parts of it be stricken or made more definite and certain. The defendant can file an answer which gives his or her side of the story (affirmative defense or counterclaim), simply deny the complaint, or a combination of these answers.

The court hears legal arguments on motions and can allow or deny all, part or none. Rarely will there be any testimony presented. If the court disallows all or part of a complaint, some period of time, usually 10 days, is allowed to file an amended complaint and the process of motion, demurrer and answer starts again. After the defendant responds, the plaintiff can file motions against the defendant’s answer the same as cited above for the defendant.

If the defendant has answered by giving his or her side of the story, the plaintiff then replies by denying the affirmative allegations.

The court hears legal arguments on motions and can allow or deny all or part or none; again no testimony is presented. The “pleadings” are concluded once a complaint, answer and a reply, if necessary, are filed and all motions and demurrers have been ruled upon.

Summary Judgment:

The judge decides all or part of the case before trial where facts are not in dispute. Any party can ask for summary judgment by a motion filed at least 20 days after the commencement of the case and no fewer than 45 days from trial. The motion is usually accompanied by supporting affidavits and other relevant documents showing there is no genuine issue as to any material fact; and the moving party is entitled to prevail on all or part of the claim.

The party opposing the motion may respond and support his or her response with affidavits and other relevant documents showing there is a genuine issue of fact of trial, the other side is not entitled to relief or the responding party is entitled to win.

The judge may hear oral arguments and consider all documents and grant or deny the summary judgment. Granting a summary judgment decides the case or part of it just as if there had been a trial.

Trial is defined as a judicial examination of the issues between the parties, whether issues of law or fact. A right to jury trial exists where the value in controversy exceeds $200. Right to jury trial can be waived, however, by oral or written motion or by failing to appear for trial. There is no jury trial by right in domestic relations, juvenile, equity or mental hearing matters.

The jury panel is drawn from the registered voters of the county. Jury terms are of a length determined by the presiding judge of the circuit court, but can be no longer than two months. By law, suits for $10,000 or less are to be tried by six-person juries.

At trial the jury is usually 12 persons selected by lot, except that by agreement of the parties there can be a jury of a lesser number — usually six. Challenges to trial jury are for cause or peremptory. Challenges for cause can be of any number and are for such things as being related to a party, having an opinion as to the outcome and other obvious things. Peremptory challenges are for no reason or any reason, and each side can take three (two in a six-person jury). Where there is more than one party plaintiff or defendant they must join in the challenge.

If a trial is to be a lengthy one, the judge can order selection of up to six alternate jurors. They are selected and participate as regular jurors but are excused when the jury retires to deliberate unless a juror has become ill or has been excused during trial.

The trial procedure usually begins when the jury is called to the jury box and examined briefly by the judge. Plaintiff and defense counsel examine each juror and may challenge for cause at this time. Such challenges are then ruled upon by the judge. At the conclusion of counsel’s jury examination (called voir dire) they in turn submit written peremptory challenges (three challenges for each side).

When a jury is picked and all challenges are exhausted or waived the jury is impaneled to try the case.

The plaintiff, followed by the defense counsel, presents opening statements which tell the jury what each intends to prove in the case. The plaintiff then calls witnesses for direct examination. The defendant cross-examines plaintiff’s witnesses. If the judge allows, the lawyers may be allowed some re-direct and re-cross examination.

After the plaintiff has called all witnesses for direct examination, the case rests in chief. At that time, the defendant may move to eliminate certain parts or all of the complaint because the plaintiff has not proved the case, motions to strike, or to dismiss. The judge rules on the motions, often remarking that before the defendant has put on a case, the plaintiff is entitled to all reasonable inferences from the testimony.

The defense then calls witnesses and plaintiff cross-examines and both may re-direct and re-cross examine. The defendant then rests the case in chief. The plaintiff may then move against defendant’s case.

The plaintiff may (or may not) put on witnesses to rebut the testimony of the defense witnesses (not to “prove over again,” but to rebut the defense case). The plaintiff then rests rebuttal.

The plaintiff, followed by the defendant, argues the case to the jury. The plaintiff gets the last word and is allowed to present argument rebutting the defendant’s argument. (The last word goes to the plaintiff because he or she has the burden of proving the case.)

The judge instructs the jury on the general and specific law of the case. The jury deliberates and must find a verdict by the concurrence of at least nine of their number (in a six-person jury, five out of six must concur).

The judge receives the verdict and the jury is discharged.

Probate Procedure:

Probate powers generally include the power to probate and hear contests of wills; to determine heirship; and to control the administration, settlement and distribution of estates of decedents. The judge of the probate court may appoint a commissioner to assist the probate judge. That commissioner may act in most uncontested matters setting up the probate of an estate. The commissioner acts only under the authority of the court and all commissioner orders can be set aside by the court. Unless set aside or modified, however, all commissioner orders have the same effect as if made by the judge.

Domestic Relations Procedure:

In Oregon the grounds for divorce are that “irreconcilable differences” have arisen which have caused the “irremediable breakdown” of the marriage. These grounds can exist even where one side does not want a divorce, as that demonstrates that there are irreconcilable differences.

In Oregon any married person can get a divorce simply by filing a petition with the court and maintaining that there are irreconcilable differences which have caused the irremediable breakdown of the marriage. The petition must be filed in the county in Oregon in which the filing party resides. One of the parties to the suit must have resided in Oregon for at least six months prior to filing. The respondent (the spouse who did not file) need not “answer,” as in an ordinary civil case, but only file a paper saying “respondent appears.”

Either party may ask the court to order the other party to pay temporary child support, spousal support (alimony) or money for filing or attorney fees.

Either party may ask the court for temporary child custody, possession of real or personal property, removal of one spouse from the family home, a restraining order preventing “molesting or interfering with the other or the minor children” or a restraining order preventing either or both from disposing of or encumbering assets. In a court hearing on pre-decree requests the court takes testimony and grants or denies requests such as those listed above. The court may order a child custody study to be made for the purpose of protecting the child’s future interest. This independent investigation helps the court with child custody decisions.

Some courts offer conciliation services authorized by Oregon law. The service is funded by dissolution filing fees and does not cost the parties. The court of its own motion or either party can ask for conciliation services. The court can then suspend the dissolution proceedings for 45 days for conciliation services provided by the court.

Ninety days after filing for dissolution the hearing can commence (90 days can be waived for emergencies). The hearing is conducted as a suit in equity without as judge. The petitioner puts on evidence first. The respondent cross examines and then proceeds when the petitioner has rested the case in chief. The petitioner cross examines and then may proceed with rebuttal evidence if authorized. Then the counsel make closing statements and the court rules.

Often the parties enter into a contract dividing property, providing for custody, support and otherwise settling some or all of the issues. Fault is not an issue in a dissolution. Evidence of causation of the marriage breakdown is irrelevant except as it might bear upon the issue of child custody but only when a direct relationship between fault and custody is shown. The general moral character of a party is not an issue in a custody contest unless it is shown to have a direct effect on the child.

Most dissolutions are obtained when one of the parties has been served with the petition and summons but does not file an answer or appear in court. Often an opposing lawyer is involved but a settlement is made so that the respondent simply agrees to the contents of the petition or the terms of an amended petition or property settlement agreement. Occasionally the opposing counsel or party is physically present at the hearing but does not participate.

Typically the petitioner will testify to the grounds (“irreconcilable differences have arisen causing an irremediable breakdown of the marriage relationship”) and a few other matters and the decree would be granted with the whole thing taking five minutes or less. There is also dissolution by affidavit (mail order divorce?). Some courts may allow a dissolution without a hearing if neither child custody nor support is involved, the parties are co-petitioners or one is in default, the 90-day waiting period has passed and the case is otherwise ready for a hearing or the moving party files an affidavit setting out proof required in a dissolution hearing.

Generally all citizens are allowed access to their courts without the necessity for a lawyer. Several companies sell forms designed to allow persons with no legal training to seek and obtain a dissolution. Some courts require a strict adherence to the rules and others relax the procedure where a party is not represented. But many courts require the intervention of a lawyer where the case is complex, contested, child custody is at issue or where otherwise necessary.

The grounds and other procedures for separation are identical to those for a dissolution. The court shall determine and fix the duration for the separation after which the degree has no effect. The duration can be extended upon motion. The court may decree an unlimited separation. At any time the separation can be changed to a dissolution or dismissed or modified.

Family Abuse Prevention Act:

Under this act, a petition may be filed with the court asking for a temporary restraining order to prevent abuse. The petitioner must show abuse between “family or household members” which causes or attempts to cause bodily injury; fear of imminent serious bodily injury; or causes another to engage in involuntary sexual relations by force, threat of force or duress.

“Family or household member” means spouses, former spouses, adult persons related by blood or marriage or persons who have cohabited with each other within one year of the filing for the restraining order. Petitions and instruction brochures are available from the clerk of the court. There is no filing fee for abuse prevention restraining orders.

The court will hold an ex parte (only one side present) hearing to decide whether or not to grant the relief requested. The court hearing will be held the same day or the day following the filing of the petition.

The court can order temporary child custody, one party be required to vacate the family home, parties be restrained from molesting or interfering with the other or minor children or respondent restrained from entering upon any premises to prevent respondent from molesting or interfering. The order is good for one year. Bail is set for violations of the order. A person who is subject to the restraining order can request a hearing at which the judge may change or cancel all or part of the order. The orders will be entered on the Law Enforcement Data System. A peace officer shall arrest a person where there is probable cause to believe the order has been violated. The judge may release the arrested person on security or on conditional or recognizance release, as in criminal cases.

A hearing is set at which the judge decides whether or not the arrested person is in contempt of court for violation of the order. The penalty can be up to six months in jail and a $300 fine.

* Oregon Revised Statutes which apply include chapters 16 and 107.

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Related posts:

  1. Chapter 1: Free Press and Fair Trial
  2. Chapter 4: Federal Courts in Oregon
  3. Chapter 3: Oregon State Courts

Chapter 6: State Criminal Procedure

The state criminal procedure includes a set of legal proceedings for both a felony case and a misdemeanor case.

Felony Proceedings

Legal proceedings in a felony case typically follow a series of steps from arrest through review by the Oregon Supreme Court. Though proceedings are generally initiated with the arrest (Step 1) , they can also be initiated with the filing of information (Step 3), or the return of an indictment by the grand jury (Step 5). If proceedings are initiated at Step 3 or Step 5, a warrant for the arrest of the defendant is usually issued when the information or indictment is filed.

  1. Arrest: A person can be arrested — taken into custody — for the purpose of charging that person with an offense. A police officer can make an arrest if the officer has probable cause to believe that the person has committed a felony. A police officer can issue a citation in lieu of physical arrest for a Class C felony, unless the crime involves domestic abuse.
  2. Release Decision: This determination establishes the form of release most likely to assure the defendant’s court appearance. Oregon law provides that any person charged with a crime other than murder or treason must be given the opportunity to be released under either: Personal Recognizance — release upon a promise to appear;
    Conditional Release
    — release that imposes regulations on the activities and associations of the defendant; or
    Security Release
    — release conditioned on a promise to appear that is secured by cash, stocks, bonds, or real property. (This is what historically would have been referred to as posting bail. A defendant is entitled to be released upon posting a security deposit that is 10 percent of the total security amount).A judge is likely to impose the least onerous condition reasonably likely to assure the defendant’s later appearance. A defendant in custody shall have the immediate right to security release or shall be taken before a magistrate without undue delay for a release decision. Release authority may be delegated to a release assistance officer. After conviction, the trial judge has discretion whether to grant release pending appeal.
  3. Information: A written accusation is filed with the court charging a person with the commission of a felony offense. If signed by the district attorney, the information is a “district attorney’s information.” If signed by anyone else (such as a victim), it is a “complainant’s information.” This is a preliminary document that serves to commence an action, but it is not the final accusatory instrument that will serve as the basis for the ultimate prosecution in circuit court. An information must be accepted and endorsed by the district attorney.
  4. Arraignment: A person is arraigned in public hearing in court, usually the defendant’s first appearance before a judge. The defendant is advised of the charge and of his or her rights, including the right to remain silent, the right to have an attorney, and the right to have a preliminary hearing within five days if the defendant is in custody or within 30 days if the defendant is not in custody (unless the grand jury considers the case sooner). If the defendant is indigent and requests an attorney, the judge will appoint one.
  5. Grand Jury: A group of seven jurors evaluates evidence and determines whether sufficient evidence exists to warrant filing formal charges against the defendant. The grand jury meets in private and is sworn to secrecy regarding the proceedings. At least five of the seven grand jurors must agree before a formal charge is filed. The district attorney generally presents evidence to the grand jury, calling witnesses one at a time, but the district attorney is not present during the grand jury’s deliberations. The grand jury may return an indictment if it believes the evidence is sufficient to warrant a conviction by a trial jury.
  6. Indictment: This accusatory instrument (formal charge) is filed by the grand jury. This document names the accused and contains a statement of the acts constituting the offense charged. If the grand jury determines there is not sufficient evidence to warrant further proceedings, it returns a not true bill which terminates the case.
  7. Preliminary Hearing: A public court hearing determines whether there is sufficient evidence to warrant holding the defendant for further proceedings. The judge must be satisfied from the evidence that there is probable cause to believe that a crime has been committed and that the defendant committed it. If sufficient evidence is not presented to support a criminal charge, the defendant is discharged.
  8. District Attorney’s Information: This document can be filed for a felony charge if the judge at a preliminary hearing has ruled that there is probable cause to believe that the defendant committed the offense. The filing of a district attorney’s information is an alternative to indictment by the grand jury. The Oregon Constitution provides that, without a waiver, no one can be prosecuted on a felony charge unless there has been either a preliminary hearing or the case has been considered the grand jury. A defendant may waive these rights and agree to the filing of a district attorney’s information to expedite the proceedings.
  9. Arraignment and Plea (following indictment or preliminary hearing): The defendant first appears in court at an arraignment on an indictment or on district attorney’s information. If the defendant is without counsel, the defendant is given an opportunity to obtain counsel before proceeding with the arraignment. If the defendant is indigent, an attorney will be appointed if the defendant requests counsel. The accusatory instrument is read to the defendant and the defendant is given a copy of it and asked how he or she pleads to the charge. Often, a defendant will be allowed a reasonable time to consider the matter before entering a plea. The defendant’s plea can be guilty, not guilty, or no contest. A defendant may plead no contest only with the consent of the court; a no contest plea has the same legal effect as a plea of guilty.
  10. Discovery: A district attorney and the defendant’s attorney are made aware of potential evidence possessed by the other party through discovery. The disclosures required include such things as police reports, the names, addresses, and statements of witnesses, photographs, results of physical and mental examinations, and scientific tests.
  11. Pre-Trial Motions: The state or the defendant may request that the court make certain rulings before trial that have a bearing on the case. A variety of issues can be raised pre-trial. Often, the various pre-trial issues raised by the parties are heard at one time in a pre-trial omnibus hearing. The court might consider issues such as suppression of evidence, admissibility of statements by the defendant, and challenges to the sufficiency of the accusatory instrument.
  12. Trial: Determination is made as to whether the state has proved the guilt of the defendant beyond a reasonable doubt at the trial, a formal public court proceeding. Both the state and the defendant are entitled to a public trial with 12 impartial jurors. (If both the state and the defendant agree, there can be fewer than 12 jurors. In all other cases, at least 10 of the jurors must agree on the verdict. Both the state and the defendant may waive trial by jury and consent to a trial by the judge. In a jury trial, the judge rules on all questions of law and procedure arising during the trial, and instructs the jurors as to the legal principles they are to apply. The jury decides the factual issues and makes the ultimate decision to whether the state has proved the guilt of the defendant beyond a reasonable doubt.
  13. Sentencing: A penalty is imposed upon a convicted defendant at the sentencing. It is the duty of the judge to pass sentence if a defendant has pleaded guilty or has been found guilty. The law establishes maximum sentences for each felony offense. However, sentencing guidelines limit a court’s discretion in most felony cases to a sentence below the statutory maximum. Sentencing guidelines apply to crimes committed on or after November 1, 1989, and take into consideration the severity of the crime and the defendant’s criminal history. In 1994, Oregon voters passed several ballot measures that set mandatory prison terms for certain crimes.
  14. Appeal to Oregon Court of Appeals: Decisions made in trial court can be challenged in an appeal to the Oregon Court of Appeals. The Oregon Court of Appeals is the appellate court having initial jurisdiction to review cases from the trial courts. A convicted defendant has an absolute right to file an appeal with the Court of Appeals. The state can appeal certain pre-trial rulings and sentencing decisions, but cannot appeal a finding of not guilty. The Court of Appeals does not hold trials or hear testimony. It hears legal arguments and reviews the record that has been made in the trial court. Appellate review is generally limited to questions of law and procedure rather than factual findings. That is, possible erroneous rulings by the trial judge are considered, not the jury’s evaluation of the evidence. If it is decided that the trial court made an error that affected a defendant’s right to a fair trial, the conviction is reversed and the case is generally returned to the trial court for a new trial. There are 10 judges on the Court of Appeals. Cases are generally heard by three-judge panels.
  15. Review by Oregon Supreme Court: A decision of the Court of Appeals may be re-examined the Oregon Supreme Court, the highest appellate court in the state court system. The seven-member court has jurisdiction to review decisions of the Court of Appeals. If either the state or the defendant is not satisfied with a decision from the Court of Appeals, a petition can be filed asking the Supreme Court to review the decision. The Supreme Court determines which cases merit review. If review is granted, the court will hear legal arguments, review the record of the case, and issue an opinion that affirms or reverses the decision of the Court of Appeals. The Supreme Court also reviews all death penalty cases.

Misdemeanor Proceedings

Legal proceedings in a misdemeanor case typically follow a series of steps starting with the arrest of the defendant. The proceedings could also be initiated with the filing of a complaint (Step 3), followed by the issuance of a warrant for the arrest of the defendant. Except as described below, the descriptions of procedures followed in a misdemeanor case are the same as those discussed under felony procedures.

  1. Arrest: A police officer may arrest a person without a warrant for any misdemeanor committed in the officer’s presence, or if the officer has probable cause to believe that the person committed a Class A misdemeanor. A police officer can issue a citation in lieu of physical arrest for a misdemeanor, unless the crime involves domestic abuse.
  2. Complaint: This written accusation, verified by oath and filed with the court, charges a person with an offense other than a felony.
  3. District Attorney’s Information: This written accusation is similar to a complaint but signed by the district attorney. Either a complaint or a district attorney’s information can commence an action and serve as a basis for the prosecution of a misdemeanor case. There is no requirement that there be either a preliminary hearing or grand jury consideration as in felony cases. A complaint can be signed by any person, but must be accepted and endorsed by the district attorney before filing.
  4. Arraignment and Plea: Same as for felonies.
  5. Discovery: Same as for felonies.
  6. Pre-Trial Motions: Same as for felonies.
  7. Trial: There are six people on a jury for a misdemeanor charge, and a unanimous verdict is required.
  8. Sentencing: No pre-sentence report is required in a misdemeanor case. Sentencing guidelines and mandatory sentences do not apply to misdemeanors.

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Related posts:

  1. Chapter 3: Oregon State Courts
  2. Chapter 5: State Civil Trial Procedures

Chapter 7: Criminal Records

Police agencies and district attorneys’ offices often receive requests from the press for various criminal records. Access to these records is governed primarily by state statutes and administrative rules. Under Oregon’s Public Records Laws, the record of an arrest or the report of a crime is generally available to the public. Records and reports remain confidential only if, and so long as, there is a clear need in a particular case to delay disclosure in the course of a specific investigation.

Public Records Laws:

What can be disclosed:

If there is no need to delay disclosure, the press may obtain the following information:

The arrested person’s name, age, residence, employment, marital status and similar biographical information:

  • the offense with which the arrested person is charged;
  • the terms upon which the arrested person was released from custody;
  • the identity and biographical information concerning both the complaining party and the victim;
  • the identity of the investigating and arresting agency and the length of the investigations;
  • the circumstances of arrest, including time, place, resistance, pursuit and weapons used;
  • such information as may be necessary to enlist public assistance in apprehending fugitives from justice.

This list is illustrative, not exclusive.

Limitations on Access to Public Records:

The principal limitations on access to information result both from attempts to protect a defendant’s right to a fair trial, and from the exemption in the public records law regarding disclosure of investigatory information compiled for criminal law purposes. This type of information is exempt, unless it is necessary for the public interest.

In interpreting this exemption, the Oregon Court of Appeals rejected two extreme positions: (1) that materials relating to criminal investigations are available if no prosecutions were initiated or all prosecutions were completed; and (2) material once exempt from disclosure is forever exempt. Instead, the court adopted a middle position, in which the agency possessing the information must identify various purposes for keeping such information secret. Thus, criminal investigatory information will not be disclosed if disclosure would:

  • interfere with criminal prosecutions;
  • deprive a defendant of the right to a fair trial;
  • unreasonably invade personal privacy;
  • reveal the identity of a confidential source, or confidential information supplied only by the confidential source;
  • reveal non-routine investigative techniques or procedures;
  • endanger the life or physical safety of law enforcement personnel.

Because police reports often contain information which, if released, would conflict with one or more of these reasons for secrecy, the press may be denied access to the reports themselves. Instead, the relevant agency will furnish only information from those reports that is not exempt from disclosure under the public records law.

Oregon law permits courts to consider pre-sentence reports before imposing sentence upon defendants convicted of crimes. These pre-sentence reports, prepared by the corrections division or community corrections probation officers, usually discuss the circumstances of the offense, the defendant’s social and family history, his or her present condition and environment and his or her criminal record. Often, pre-sentence reports also contain the results of psychological examinations of defendants and diagnostic opinions by the examining professionals. Under Oregon law, pre-sentence reports are not public records, and access is restricted to sentencing judges, the corrections division, the State Board of Parole, appellate or reviewing courts (when the information in the report is relevant to an issue before the court), the district attorney, the defendant, or his or her attorney and other persons or agencies having a legitimate professional interest in the information. Pre-sentence reports will not be released to the press.

When a person under the supervision of the corrections division (such as an inmate, parolee or person housed in a work release facility) is charged with a new crime, the corrections division, pursuant to its administrative rules, will adhere to the Bar-Press-Broadcasters guidelines for disclosure and reporting of information on criminal proceedings. For those guidelines, see Chapter 1, appendix A and appendix B. Oregon law generally limits access to the full compiled criminal history information kept by the Oregon State Police to law enforcement agencies and certain other government agencies. However, state law (ORS 181.555 and 181.560) also provides that any person, including a news reporter, can obtain some information on the criminal history of an individual.

Procedure for Obtaining Criminal History:

The procedure is to apply in writing to the Bureau of Criminal Identification of the Oregon State Police in Salem, identifying as clearly as possible the person about whose record the inquiry is being made. The bureau will give that person 14 days notice that an inquiry is being made about him. The delay is intended to give the person an opportunity to exercise his or her right to inspect his or her own criminal history and to have it corrected if it is wrong. At the end of the 14 days, the bureau will send to the person making the inquiry, information it may have about (a) any conviction of the subject in Oregon, and (b) any arrest in Oregon which is less than one year old and on which there has been no acquittal or dismissal. Included will be information on felonies, on any offense involving sexual misconduct, and on certain drug violations. Records of other misdemeanors will not be reported.

For this service the bureau is authorized to charge a fee for each inquiry. Anyone receiving this criminal history information should use it with care, because the law specifies that the State Police will release it based on similarity of name and description, without confirming it through comparison of fingerprints.

Setting Aside a Conviction or Record of Arrest:

Oregon law provides, under certain circumstances, that a conviction or record of arrest may be set aside. Under ORS 137.225, persons convicted of a class C felony, (except for specified child abuse offenses); possession of marijuana when that crime was punishable only as felony, crime punishable as either a felony or a misdemeanor; and any misdemeanor for which a jail sentence may be imposed may move to have conviction set aside. There are specific exceptions, however, when the offenses involve sexual abuse or child abuse. The statute also does not apply to traffic violations or traffic crimes.

A convicted person who qualifies, based on the type of offenses outlined above, after three years from the date of judgment, may apply to the court to set aside the conviction. The sentence must have been completed by then, and the person must have had no further legal problems. A person who is arrested but not charged within a year from the date of arrest or a person who was arrested and acquitted, at any time after the acquittal or dismissal of the case may apply, likewise to set aside the arrest.

The procedure involves applying to the court, supplying a copy of fingerprints to the District Attorney’s office to verify the identity of the person making application and, when the application is based upon a conviction, paying a fee of $80.00 through the state police office.

The statutes further provide that, unless the court finds clear and convincing evidence that granting the motion would not be in the best interest of justice, an order setting aside the record shall be granted. The defendant may then be considered not to have been convicted or arrested.

There is an exception to the statute, however, for purposes of a civil action in which truth is an element of a claim for relief or affirmation defense, which allows a party to apply to the court for an order requiring disclosure of the official records in the case in the interest of justice. Likewise, if a prosecutor or defendant in a case involving sealed records supplies an affidavit showing good cause, the court may order reopening and disclosure of any records sealed for the limited purpose of assisting in the investigation of the moving party.

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  1. Chapter 6: State Criminal Procedure

Chapter 8: Juvenile Court

In Oregon, except in certain very limited circumstances, the juvenile court has exclusive jurisdiction over persons under the age of 18. The Oregon Juvenile Code refers to them as either delinquent “youths” or dependent “children.”

Delinquency Jurisdiction:

Applies to youths who have committed an act which is a violation, or if done by an adult would constitute a violation of a law or ordinance of the United States or a state, county or city.

In certain circumstances, the juvenile court may waive (or transfer) its exclusive jurisdiction over delinquent youth to adult court after hearing in which the state proves that the youth is not amenable to treatment in the juvenile system and that retaining juvenile jurisdiction will serve neither the interests of the youth or society. Additionally, most juvenile motor vehicle, boating, and game violations are routinely waived into adult court.

Youths charged with committing certain serious felonies after April 1, 1995, are automatically tried and sentenced in adult court.

Dependency Jurisdiction:

Applies to children (1) who are beyond the control of their parents, guardian or another person having custody over them, (2) whose behavior, conditions or circumstances are such as to endanger their welfare or the welfare of others, (3) who are dependent for care and support on a public or private child care agency and need the services of the court in planning for their best interests, (4) who have run away from home, (5) who have applied to be emancipated, or (6) whose parent or custodian has either abandoned them, failed to provide for their care or education, has subjected them to cruelty, depravity or unexplained physical injury, or who has failed to provide the care, guidance or protection necessary for their physical, mental or emotional well-being.

Juvenile Procedure -Preliminary Hearing:

Whenever youths and children are taken into protective custody and placed outside of their home in either detention or shelter care, they are entitled to a judicial “preliminary hearing.” Delinquent youths are entitled to a judicial preliminary hearing within 36 hours, (excluding weekends and holidays) of being placed in detention. Dependent children and their parents or guardians are entitled to a hearing within 24 hours from the time children are placed into shelter care.

At this hearing, the court notifies the parties of the allegations and sets the matter for a jurisdictional hearing. A “petition” stating the allegations is filed with the court. Counsel is appointed to represent delinquent youths. Counsel is appointed for dependent children and their parents or guardians. The court also determines where youths and children will reside pending the resolution of the matter that brought them before the court.

Delinquent youths may be held in detention for up to 56 days prior to adjudication when they (1) are alleged to have committed any offense which involves infliction of physical injury to another person, (2) are alleged to have committed any felony crime, (3) are on probation or have been conditionally released and there is probable cause to believe that they have violated either their probation or release conditions, (4) have a history of failing to appear, or (5) are alleged to be in unlawful possession of a firearm, and (1) that there is no less restrictive placement which would ensure their future appearance in court or (2) that their behavior endangers the community. Youths held in detention are entitled to a placement review hearing every 10 days.

The court may order that dependent children be immediately returned to their parents or custodians. The court may also order the children continued in shelter care upon making written findings that continued removal would be in the best interests of the children.

Juvenile Procedure — Jurisdictional Hearing:

Juvenile court jurisdictional hearings are much like a trial. Parties call witnesses and present evidence. The Oregon Rules of Evidence apply.

When a court determines that a child is under the jurisdiction of the court, this means that the child is under the authority or control of the court.

The court may take jurisdiction over delinquent youths upon a finding that the state has proven allegations of delinquent conduct The standard of proof is beyond a reasonable doubt. The juvenile court may take jurisdiction over dependent children upon a finding that allegations of child neglect or unsafe conditions have been proven by a preponderance of evidence.

Juvenile Procedure — Dispositional Hearing:

A dispositional hearing will follow the jurisdictional hearing when the court finds a youth or child is within its jurisdiction. Youths and children may be made wards of the court, placed on probation with conditions including community service and treatment and be ordered to pay restitution to their victims. Under certain circumstances they may be ordered into the custody of the Oregon Youth Authority for residential placement or placement in a state training school

Dependent children may or may not be immediately returned to their parents. Parents may be ordered to complete certain requirements necessary to ensure the safety of the child as a pre-condition for the child’s return to his or her parent’s custody. If the parents fail to remedy the conditions which allowed the court to take jurisdiction, their parental rights may be terminated.

Access to Records:

Juvenile records are generally confidential and are withheld from public inspection. They are, however, open to all parties and their attorneys.

The name, date of birth, and basis for jurisdiction over a juvenile is not confidential. Neither are the date, time, and place of any juvenile court proceeding, nor the crime charged in the case of a delinquent youth.

Juvenile court orders regarding emancipated children and orders regarding the disposition of adjudicated delinquent youths are not confidential.

Access to Hearings:

All juvenile hearings are open unless the court makes findings that public access would over crowd the courtroom or otherwise interfere with or obstruct the proceedings.

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Related posts:

  1. Brief summary and citation on access to juvenile courts
  2. Media Guide Handbook on Oregon Law and Court System

Chapter 9: Cameras in the Courtroom

In 1999, the Oregon Supreme Court adopted a number of revisions to the state’s Uniform Trial Court Rules that refined the procedures for allowing cameras, both video and still, and audio recording devices to be used by the media in courtrooms. The adoption and revision of Uniform Trial Court Rule 3.180, followed nearly a decade of experimentation with cameras under a temporary Canon of Ethics, the establishment of a court rule and evolutionary revisions recommended by the Oregon Bar-Press-Broadcasters Council.

The text of Uniform Trial Court Rule 3.180 follows:

MEDIA OR OTHER PUBLIC ACCESS COVERAGE OF COURT EVENTS

  1. Courtrooms. Upon request or on the court’s own motion, after notice to all parties, public access coverage shall be allowed in any courtroom, except as provided under this rule.
  2. There shall be no public access coverage of the following:
    1. Proceedings in chambers.
    2. Any notes or conversations intended to be private including, but not limited to, counsel and judges at the bench and conferences involving counsel and their clients.
    3. Dissolution, juvenile, paternity, adoption, custody, visitation, support, mental commitment, trade secrets, and abuse, restraining and stalking order proceedings.
    4. At a victim’s request, sex offense proceedings.
    5. Voir dire.
    6. Any juror anywhere during the course of the trial in which he or she sits.
    7. Recesses.
  3. Limitations on Denial of Public Access Coverage in Courtrooms. A judge may deny a request for or terminate public access coverage only if the judge makes findings of fact on the record setting forth substantial reasons for the denial. The judge may prohibit public access coverage if there is a reasonable likelihood of any of the following:
    1. The public access coverage would interfere with the rights of the parties to a fair trial or would affect the presentation of evidence or outcome of the trial.
    2. Any cost or increased burden resulting from the public access coverage would interfere with the efficient administration of justice.
  4. A judge may summarily prohibit public access coverage of a particular witness only if the judge finds on the record that public access coverage would endanger the welfare of the witness or materially hamper the witness’ testimony.
  5. Areas Outside of Courtrooms. The presiding judge may allow public access coverage in any area outside the courtroom that is on the courthouse premises and under the control and supervision of the court. Courts are encouraged to designate an area or areas outside the courtroom that is on the courthouse premises for public access coverage. For areas subject to this subsection, each judicial district, by SLR, may establish, for any court location, procedures for obtaining permission for public access coverage that differ from this subsection or may designate locations where public access coverage is allowed or prohibited. SLR 3.181 is reserved for SLR adopted under this subsection.
  6. Public Access Coverage Defined. As used in this rule:
    1. “Public access coverage” means coverage by means of any public access coverage equipment.
    2. “Public access coverage equipment” means any of the following in the possession of persons other than the court or the court’s staff: television equipment; still photography equipment; audio, video, or other electronic recording equipment.
  7. Equipment and Personnel for Public Access Coverage. The court may limit the location of public access coverage equipment. One pool video camera and one pool still camera and one pool tape recorder shall be permitted.
    1. No public access coverage device shall be operated by more than one person.
    2. No person shall use public access coverage equipment that interferes or distracts from proceedings in the courtroom.
    3. The video camera must be mounted on a tripod or other device or installed in the courtroom. The tripod or other device must not be moved while the proceedings are in session. Video equipment must be screened where practicable or located and operated as directed by the court.
    4. No artificial lighting devices of any kind shall be allowed.
    5. Any pooling arrangement required by limitations on equipment and personnel imposed by the judge or by this rule must be the sole responsibility of the persons seeking public access coverage, without calling upon the judge to mediate any disputes involved therein. In the absence of agreement on such issues by persons seeking public access coverage, the judge may exclude any or all public access coverage.
  8. Upon request, any person engaging in public access coverage of a court event or in a courtroom, courthouse, its premises, or environs under the control and supervision of the court must provide to the court, without expense, or to any other person, if the requestor pays actual copying expense, a copy of any public access coverage the person performed.
  9. A judge may impose other restrictions or limitations necessary to preserve the solemnity, decorum, and dignity of the court and to protect the parties, witnesses, and jurors. A judge may terminate any or all public access coverage at any point upon finding, based on substantial reasons in the record, that this UTCR or other rules imposed by the judge have been violated.
  10. Nothing in this rule is intended to limit the court’s contempt powers.
  11. Nothing in this rule shall alter or affect the rules of the Supreme Court promulgated under “Video-Trial Project No. 88-38.” Under that project, the audio-video coverage constitutes the entire record. In all other courts, the record shall be preserved with court reporters or audiotape. Restrictions on releasing audio-video coverage in courts participating in the Video-Trial Project shall be set forth in separate rules.

NOTE: Uniform Trial Court Rule 3.180 was adopted by the entire Oregon Supreme Court, and any changes to the rule will be made only with the consent of the Supreme Court.

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Chapter 1: Free Press and Fair Trial

Several institutions exist in Oregon to help assure the rights of free press and fair trial. Their purpose is to protect both— through cooperation and consultation rather than by confrontation.

They include:

Oregon State Bar-Press-Broadcasters Council: This council was established in 1962 by the Oregon State Bar (OSB), the Oregon Newspaper Publishers Association (ONPA) and the Oregon Association of Broadcasters (OAB) to work on matters of common interest to the three professions,

The council is composed of six members appointed by Oregon Association of Broadcasters, six members appointed by the Oregon Newspaper Publishers Association and 12 members appointed by the Oregon State Bar. It operates on a yearly calendar that begins with the September meeting and ends with the May meeting. It meets on the first Saturdays of September, November, February and May, and the meetings are hosted on a rotating basis by the member organizations. If the September meeting date falls on the Labor Day weekend, the September meeting is on the second Saturday.

The council is empowered to act on its own authority, without referring its actions to the parent organizations, but it may not take positions on behalf of its parent organizations.

The chair of the joint council shall rotate annually by its calendar years. For example, in 1997-98, the chair was held by the Oregon State Bar; in 1998-99, the chair was held by the Oregon Newspaper Publishers Association; and in 1999-2000, by the Oregon Association of Broadcasters.

Much of the work of the council is focused on issues of free press and fair trial, but from time to time the joint council organizes and sponsors other activities of mutual benefit to the legal and news professions, such as conferences, seminars and the publication of this handbook.

Any person may bring a matter before the joint council. It can be reached through the central office of any of the three sponsoring organizations: the OSB, ONPA or OAB.

Guidelines for Reporting and Comment on Criminal Proceedings: The first main activity of the joint council was, in 1962, to draft and agree upon a joint statement of principles for news reporting and comment on criminal proceedings, aimed at assuring the public the opportunity to be kept fully informed without violating the rights of any individual.

In 1967 the joint council added to this statement a set of guidelines for reporting of criminal proceedings. These recommendations, often referred to as the ìOregon Bar-Press Guidelines,î are intended to advise reporters, lawyers, law enforcement officials and other involved persons as to what is generally appropriate to say, or not to say, about a criminal proceeding prior to a trial. The guidelines also make recommendations concerning the photographing of criminal defendants.

The guidelines are advisory only. The decision on whether to follow them in a particular case is left to the discretion of the individuals involved. However, they have been approved by the respective conventions of the Oregon State Bar, Oregon Newspaper Publishers Association and Oregon Association of Broadcasters.

The joint council has also established a procedure for dealing with complaints of violations of the bar-press guidelines.  In essence, it calls for the joint council to try to mediate a resolution of the complaint between the parties involved. If this is unsuccessful, the joint council is authorized to appoint a subcommittee to investigate and publish an advisory opinion as to whether a violation of the guidelines has occurred.

Judicial Conference Resolution of 1977: In 1975 and 1976 the joint council considered the constitutional issues raised by judicial restraining orders aimed at limiting news coverage of criminal proceedings, particularly pre-trial proceedings. It proposed a procedure by which a judge, lawyer or journalist who anticipates a possible fair trial-free press conflict in a particular case can attempt to have the issues resolved by voluntary consultation rather than by issuance of a court order. The Oregon Judicial Conference considered and amended the joint councilís draft and then adopted it unanimously on April 20, 1977, as a recommended procedure for Oregon judges to follow.

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