Author: Kellie Baumann

Chief Justice Martha Walters and Former Chief Justice Thomas Balmer to Retire from the Supreme Court

This fall, two Oregon Supreme Court Justices, Chief Justice Martha Walters and former Chief Justice Thomas Balmer announced their retirements from the Oregon Supreme Court.

Justice Thomas Balmer

Justice Balmer announced his retirement from the Oregon Supreme Court on October 3, 2022. He will step down on December 31, 2022, from the Oregon Supreme Court; however he will continue to serve as a Senior Judge.

After many years in private practice, as well as time spent at the Oregon Department of Justice, Justice Balmer joined the Oregon Supreme Court in 2001. From 2012 to 2018, Justice Balmer served as the Chief Justice of the Oregon Supreme Court. During that time he oversaw the successful implementation of the Oregon eCourt system, obtained state funding to help replace unsafe courthouses, and rebuilt Oregon’s court system after severe budget reductions in the 2009 recession. Thank you to Justice Balmer for his years of service to Oregon and its court system.

Chief Justice Martha Walters

Nine days later, on October 18, 2022 Chief Justice Walters announced her retirement from the Oregon Supreme Court as well. She will step down as of December 31, 2022 as well.

Chief Justice Walters joined the Oregon Supreme Court in 2006, after thirty years of private practice in Eugene. In 2018, Chief Justice Walters replaced Justice Balmer as Chief Justice and will serve in that role until her retirement next month. Since 2020 Chief Justice Walters has led the Oregon Judicial Department through the COVI-19 pandemic, guiding the courts efforts to stay open and safe for members of the public, court staff, and judges. She has also been instrumental in the Court’s Strategic Campaign focusing on behavioral health of people in Oregon’s courts and major legislation reducing security release. Thank you to Chief Justice Walters for her years of service to Oregon and its court system.

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Oregon Judicial Department Shares Legislative Priorities during September Legislative Days

During the September Legislative Days, the House and Senate Interim Judiciary Committees met to discuss a number of issues. Of particular interest was an update from the Oregon Judicial Department (OJD) in the House Judiciary Committee. The OJD touched on a number of issues, including equity, diversity, and inclusion; court procedures; and legislative initiatives.

The OJD, like executive branch agencies, is in the process of finalizing a proposed budget for the 2023–2025 legislative session. While the full budget will be shared closer to the legislative session, the OJD shared a list of legislative proposals that it will be submitting for consideration during the 2023 legislative session. The list includes statutory changes, proposed program changes, and funding requests.

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Council on Court Procedures Publishes Proposed ORCP Amendments for Public Comment

The Council on Court Procedures is composed of lawyers and judges from around the state and is charged with drafting and amending the rules that govern litigation in Oregon’s circuit courts (Oregon Rules of Civil Procedure, or ORCP). Each biennium the Council receives feedback from the bench and bar on how the existing ORCPs are working and suggestions for possible improvements. In September of even-numbered years, the Council publishes proposed amendments to the ORCPs for public comment. (Note that some of the ORCPs, by statute, also apply to the litigation of criminal cases, and other rules apply to administrative and other proceedings.)

This year the Council proposed amendments for Rules 7, 39, 55, 57, 58, and 69. The proposed amendments address the following issues:

• • • • • The amendment to ORCP 57 is a response to a national discussion on what is wrong with Batson challenges in jury selection and how to fix the current practice.
        • Amendments to ORCPs 39 and 58 address what has been learned about remote testimony in proceedings during the COVID-19 pandemic.
        • The amendment to ORCP 55 is a procedure for reluctant witnesses who have been subpoenaed.
        • The changes to ORCPs 7 and 69 are technical amendments.

In addition, the Council has proposed a new rule, ORCP 35, which, if adopted, will provide a uniform approach for responding to vexatious litigants.

To review this biennium’s proposed amendments, go to the OJD website at 2022 Proposed Amendments to the Oregon Rules of Civil Procedure. Written comments on the proposed amendments to the ORCPs should be received by the Council by December 2, 2022, to receive full consideration by the Council at its meeting on December 10, 2022. Comments may be emailed to [email protected].

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The archives are available here.

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Oregon Supreme Court Adopts Comity Rule

On Tuesday July 19, 2022, the Oregon Supreme Court approved the adoption of a comity rule to direct how the Oregon State Bar admits licensed attorneys from other jurisdictions.

The rule expands jurisdictions from which licensed and experienced attorneys can be admitted without taking the bar exam, while retaining most other requirements.

The change to the admission rules was spurred in part by the fact that Oregon currently has 2.9 lawyers per 1,000 Oregonians. This ratio, coupled with the fact that many of the state’s lawyers are centered in Oregon’s cities and inside the Willamette Valley, has resulted in a number of “legal deserts” where clients must travel a significant distance to find legal help. Further, Oregon has been experiencing a lack of attorneys in high-volume practice areas such as criminal law and landlord-tenant law.

Under the adopted rule, applicants are still required to meet specific qualifications for admission, but they do not have to come from a jurisdiction that offers the same rules of admission to Oregon attorneys (i.e., reciprocity). Before the rule change, Oregon offered a mechanism for admission without taking a bar exam, reciprocity, to lawyers in 40 jurisdictions. Under the new rule, lawyers from all 54 United States jurisdictions will be able to be admitted to Oregon if they meet the criteria.

For more information, the Board of Bar Examiners has published an FAQ regarding the new rule.

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Oregon Supreme Court Approves Creation of a Licensed Paralegal Program

On July 19, 2022, the Oregon Supreme Court approved a proposal to license paralegals to provide some legal services that currently only lawyers may provide. Under the new rules, licensed paralegals will be allowed to provide limited legal services only in family law cases (divorces, custody, parenting time, etc.), and landlord-tenant cases. These are two of the areas of law with the greatest unmet need for legal assistance in Oregon.

Licensed paralegals will have specific requirements for education and experience, and will be subject to many of the same rules and regulatory requirements that currently apply to lawyers. The intent is to provide access to legal help for those who currently cannot afford a lawyer or who otherwise might go to court with no legal assistance. Details may be found in the materials linked below.

The court has approved new Rules for Admission and Rules of Professional Conduct for Licensed Paralegals, as well as amendments to the OSB Minimum Continuing Legal Education Rules and OSB Rules of Procedure. These rules will go into effect on July 1, 2023.

Throughout the development of this proposal, the Bar received input and comment from hundreds of Oregonians (both lawyers and members of the public). All of the comments received by July 7 were provided to the Court before its decision. This input has improved the proposal, and we thank those who contributed and invite your continued engagement.

For additional information, please visit the Oregon State Bar’s Paralegal Licensing page at (https://www.osbar.org/lp).

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Oregon State Bar House of Delegates to Meet on Friday October 28, 2022

The annual House of Delegates (HOD) meeting provides Oregon lawyers the opportunity to approve increases to annual licensing fees, approve changes to the Oregon Rules of Professional Conduct, modify or rescind actions of the Board of Governors, and direct the Board of Governors in future actions.

This year, the HOD is scheduled to meet on October 28, 2022. On July 29, 2022, the Oregon State Bar held an orientation meeting. The HOD includes approximately 240 members elected from the Bar licensees. To meet quorum requirements, at least 50% plus 1 will need to attend.

Proposed resolutions are due to the Oregon State Bar by September 13, 2022. The HOD agenda with resolutions will be published on October 7, 2022. HOD regional meetings will be held the week of October 17, 2022.

For more information on the HOD meeting, the proposed resolutions, and reports from the Board of Governors, please visit the Oregon State Bar’s HOD webpage. If you have any questions, please contact Kellie Baumann by email at [email protected].

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Celebrate Oregon Attorneys

The Oregon State Bar will hold a Celebrate Oregon Attorneys reception on Thursday October 27, from 5 to 7 p.m., at the Sentinel Hotel in downtown Portland. At this event, we will honor all of the OSB Award winners, the OSB Pro Bono Challenge winners, and the recipient of the Edwin J. Peterson Professionalism Award. President Kamron Graham will be announcing the OSB awards, and Chief Justice Martha Walters will be announcing the Pro Bono Challenge winners.

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Dates of Interest

Revenue Forecast – August 31, 2022
Legislative Days – September 20–23, 2022
General Election – November 8, 2022
Revenue Forecast – November 16, 2022
Legislative Days – December 6–9, 2022

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Speaker of the House Releases New Interim Committee Assignments

In mid-June, Speaker Dan Rayfield (D – Corvallis) released updated committee assignments for interim House committees. Legislators moved into new roles based on interest, expected departures from the legislature, and new responsibilities within their respective caucuses. Below is a partial list of committee membership changes. A full list of changes can be found here.

House Interim Committee on Business and Labor. Representative Nathan Sosa (D – Hillsboro) joined the committee.

House Interim Committee on Economic Development and Small Business. Representative Janelle Bynum (D – Happy Valley) became the chair of the committee. Representative John Lively (D – Springfield) will stay on as a vice chair. Representative Jason Kropf (D – Bend) was discharged from the committee.

House Interim Committee on Housing. House Majority Leader Julie Fahey (D – West Eugene and Junction City) will remain as a member but is no longer chair of the committee. Representative Maxine Dexter (D – Portland) will now chair the committee.

House Interim Committee on Judiciary. Representative Jason Kropf became the new chair of the House Judiciary Committee. Representative Janelle Bynum is no longer serving as Judiciary chair but will remain as a member.

House Interim Committee on Rules. Representative Barbara Smith Warner (D – Portland) will no longer be chair of the committee but will remain as a member. Representative Julie Fahey will chair the committee, with Representative Paul Holvey (D – Eugene) serving as vice chair.

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Emergency Board Releases State Funding to Public Defense Services Commission

The Oregon Legislature’s Emergency Board takes on many of the responsibilities of the Joint Committee on Ways and Means in the second year of the two-year budget cycle. The Board, which is made up of legislators and has three subcommittees (Education, General Government, and Human Services), reviews funding requests, approves federal grant requests, and generally oversees the state budget between the end of a short legislative session in an even-numbered year and the beginning of a long legislative session held during an odd-numbered year.

This spring the Emergency Board met in early June to receive reports, approve grant requests, and allocate previously appropriated funds. In addition, the Emergency Board reviewed approximately 40 individual items ranging from licensing fees for nurses to affordable housing stabilization.

During the June Legislative Days, the Emergency Board and the General Government Subcommittee received reports and requests for funds from the Public Defense Services Commission (PDSC). Of particular interest was $100 million that was earmarked through a special-purpose appropriation for the PDSC during the 2021 Legislative Session. After discussion at both the subcommittee and full committee levels, the funding was released to the PDSC. Funding is expected to be directed as follows:

• • • • • $70.3 million for the Criminal Trial Division,
        • $14.6 million for nonroutine expenses,
        • $5 million for court-mandated expenses, and
        • $10.2 million for the Juvenile Division.

The legislature will meet again in September for another three days of policy and budgetary hearings.

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Oregon Judicial Department Establishes Pretrial Release Guidelines

During the 2021 Legislative Session, the legislature passed Senate Bill (SB) 48. The bill, which was introduced by the Oregon Criminal Justice Commission, requires the establishment of pretrial release guidelines. On June 7, 2022, Chief Justice Walters signed Chief Justice Order (CJO) 22-010, which establishes release guidelines that govern pretrial release orders (PROs) issued by presiding judges in each judicial district.

The legislature’s stated goals in the establishment of statewide PRO guidelines, found in SB 48, were to

• • • • • provide a consistent pretrial release decision-making structure across the state;
        • reduce reliance on the use of security to govern pretrial release;
        • include provisions for victim notification and input; and
        • balance the rights of the defendant and the presumption of pretrial release (for most crimes) against community and victim safety, and also the risk of failure to appear.

The criteria in CJO 22-010 was developed with input from the Chief Justice’s Criminal Advisory Committee. The CJO went into effect immediately, and a standing PRO in each judicial district will go into effect on July 1, 2022.

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Chief Justice Issues New Order on Remote Proceedings and Protective Measures

On June 23, 2022, Chief Justice Walters issued CJO 22-012 on remote hearings and protective measures. CJO 22-012 consolidates many provisions from previous CJOs issued since the beginning of the COVID-19 pandemic and will go into effect on June 30, 2022.

Key provisions include the following:

• • • • • Court proceedings may be conducted in person or by remote means, as determined by the presiding judge or, as applicable, the Tax Court Judge, Chief Judge of the Court of Appeals, or Chief Justice of the Supreme Court.
        • In forcible entry and detainer (FED) proceedings, whether held remotely or in person, an attorney representing a party may appear by remote means, with no need to file a motion requiring court approval (and regardless of any Supplementary Local Rule to the contrary), as long as the attorney has provided notice to the court of the intent to appear remotely.
        • Notwithstanding any statutory requirement to the contrary, any category of arraignment may be conducted remotely, without agreement of the parties.
        • Exhibits may continue to be eFiled in the circuit courts, at the presiding judge’s determination, and the presiding judge also may establish timing and form-of-submission requirements.
        • Protective face coverings are not required to be worn, unless an exception applies. Exceptions include requirements that apply in correctional facilities, requirements that apply by Presiding Judge Order, or when otherwise directed or required as a reasonable protective measure.
        • Social distancing may be required in the public areas of a court facility by Presiding Judge Order, and social distancing otherwise may be directed or required as a reasonable protective measure.
        • Any person in a court proceeding may request that appropriate protective measures be taken, to be determined by the judge presiding over the proceeding.

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BOG Public Affairs Committee Reviews Proposed 2023 OSB Legislative Concepts

On April 21, 2022, the Oregon State Bar (OSB) Board of Governors (BOG) Public Affairs Committee met to host the 2022 Legislative Forum. This year six OSB sections, workgroups, and committees submitted nine law improvement proposals. If adopted, these proposals, along with any BOG priority legislative proposals, will be submitted to the Oregon Legislature’s Office of Legislative Counsel for drafting. The proposals are reviewed by the bar’s General Counsel and the Public Affairs Committee to ensure that they meet the criteria established by both the OSB bylaws and the U.S. Supreme Court case Keller v. State Bar of California, 496 US 1 (1990).

This year, due to the lingering challenges arising from COVID-19, the Legislative Forum was a hybrid event. Representatives from the sections, workgroups, and committees, as well as other interested parties, attended the forum and listened to the presentations from section representatives. The Public Affairs Committee submitted recommendations to the full BOG, which will be reviewed during the May 13, 2022, BOG meeting. The BOG will review the proposals in the fall before submission to the Oregon Legislature for consideration.

To review the proposed legislative concepts and guidance on Keller, please visit the OSB’s Public Affairs/Legislative web page (https://www.osbar.org/pubaffairs). If you have questions about the Bar’s legislative process or about a specific proposal, please contact Public Affairs staff at [email protected].

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Three Branch Summit to Address Indigent Defense in Oregon

In late April, Governor Kate Brown, Chief Justice Martha Walters, Senate President Peter Courtney, and Speaker of the House Dan Rayfield created a work group to address the challenges that Oregon’s public defense system is currently experiencing. The work group, chaired by Senator Floyd Prozanski and Representative Paul Evans, is expected to meet over the next 20 months and potentially develop legislation for the 2023 and 2024 legislative sessions. The first meeting of the work group, held in early May, provided an overview of Oregon’s public defense system and identified immediate state funding needs for indigent defense. Future meetings are expected to delve further into the Oregon service delivery model and other states’ public defense service models, as well as review the findings of the American Bar Association’s report and the Sixth Amendment Center’s report on Oregon’s indigent defense system.

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OSB Publishes Judicial Candidate Voting Guide for Primary Election

Each election cycle, the OSB publishes an online Judicial Candidate Voting Guide to provide the public and media with information about judicial elections. It includes a substantive questionnaire regarding the professional history of candidates for judicial office. Participants also answer questions about the judicial role and key issues facing the Oregon court system. Participation is optional, and candidates in both contested and uncontested races participate. The site has received accolades for making judicial elections more open and accessible to the public, while adhering to the judicial canons and maintaining the impartiality of the justice system. The guide can be found at www.osbar.org/judicial/JudicialVotingGuide2022Primary.html.

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2022 Oregon State Bar Award Nominations Due June 1

Every year, the Oregon State Bar honors community members, lawyers, and judges for their contributions to their communities and the profession. The bar is accepting nominations for the following awards:

• • • Award of Merit
    • Wallace P. Carson, Jr., Award for Judicial Excellence
    • President’s Diversity & Inclusion Award
    • President’s Membership Service Award
    • President’s Public Service Award
    • President’s Public Leadership Award
    • President’s Sustainability Award
    • President’s Technology & Innovation Award

   

• The Oregon Bench & Bar Commission on Professionalism is also accepting nominations for its Edwin J. Peterson Professionalism Award.

This year the nomination deadline is Wednesday, June 1, 2002 at 5:00 pm. The nomination form, and information on the awards, can be found on the Oregon State Bar’s website (Oregon State Bar Events).

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Justice System Funding Update from the 2022 Legislative Session

One of the last bills to pass through a legislative session is the budget rebalance bill. In a short session, the budget rebalance bill is used not only to make budget adjustments halfway through the two-year budget cycle, but also to fund projects and programs that were either left over from the previous long session or proposed after the current budget cycle began.

Due to a significant increase in revenue as well as federal funds, the Oregon Legislature had approximately $2.5 billion to distribute this year. While legislators ultimately held on to approximately $750 million as a cushion in the ending fund balance, a number of policy bills, as well as the en of session budget bills, distributed approximately $1.7 billion. This year, the budget rebalance bill, House Bill 5202 was almost 200 pages long and included funding for programs across the state, including a variety of programs and projects housed at the Oregon Judicial Department (OJD) and the Public Defense Services Commission (PDSC).

For those interested in a full review of the projects funded through HB 5202, the legislature provides a budget summary that can be found here.

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Oregon Judicial Department Receives Funding for Projects Throughout State

Pretrial Release

During the 2021 legislative session, the legislature directed the OJD in Senate Bill 48 (2021) to modify the pretrial release program. This included the removal of minimum bail amounts and the establishment of pretrial release guidelines.

This session, the OJD received $3.9 million to expand the program. Not only will the funding allow for the expansion of established programs in Josephine and Washington Counties, it will also add staffing in 17 counties that do not currently have programs.

Family Treatment Courts

During the 2021 legislative session, the legislature directed the OJD to work with the PDSC, the Department of Justice, the Department of Human Services, the Criminal Justice Commission, and the Oregon Housing and Community Services Department to develop and strengthen a statewide family treatment court system. This session, the legislature approved approximately $760,000 to the OJD to increase staffing, create a statewide family treatment court governance committee, increase the number of existing staff in Columbia County, and add a new treatment court in Clatsop County.

Courthouse Investments

This session, the legislature continued its commitment to updating and replacing Oregon’s state and county courthouses. The Oregon Supreme Court and Benton, Crook, Deschutes, Columbia, and Clackamas Counties all received state support in their efforts to either replace or update their existing courthouses.

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Legislature Continues Focus on Indigent Defense

During the 2021 session, the legislature earmarked $100 million for the PDSC based on caseload and financial projections. This session, the PDSC returned to the legislature to share that based on its projections, it would need approximately $76 million of those earmarked funds. However, the PDSC is also projecting an additional $50 million is necessary for non-routine expenses. These issues are expected to be addressed through the legislature’s Emergency Board in spring 2022.

While a more robust conversation about the structure and funding of the Office of Public Defense Services is expected this spring, the PDSC did receive a 5.1% increase ($16.2 million) in funding during the 2022 legislative session. The legislature directed $12.8 million to Multnomah, Washington, Marion, and Lane Counties for the procurement of indigent defense counsel, while approximately $743,000 was appropriated to begin the planning phase for a financial and case management upgrade. In addition, new positions were approved for guardianship and juvenile representation.

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Bills of Interest

Unlike the 2020 legislative session, which ended early with only three bills passed out of both chambers, the 2022 legislative session resulted in a significant number of policy bills sent to the Governor for her signature. Below are a few bills that generated a significant amount of interest throughout the legislative session.

HB 4002 – Prohibits employers from permitting or requiring agricultural workers to work in excess of maximum allowable hours unless workers are compensated for overtime hours worked.
SB 1501 – Directs State Board of Forestry to adopt single rule package on or before November 30, 2022, to implement Private Forest Accord Report.
SB 1510 – Requires police officer to inform stopped person of right to refuse consent to search.
SB 1536 – Limits restrictions on portable cooling devices in residences by landlords, homeowners associations, condominium associations and local governments.

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Board of Governors Meets with Chief Justice and Legislators to Discuss Legislative Session

On Friday, February 18, 2022, members of the Board of Governors (BOG) had the opportunity to discuss the 2022 legislative session with Chief Justice Martha Walters and legislative leaders. Oregon State Bar (OSB) President Kamron Graham hosted the early breakfast over Zoom. At this year’s breakfast, the Chief Justice opened with an update on the State of the Courts followed by legislators sharing their perspectives on the legislative issues and the processes this session. Over the course of the morning, the Chief Justice, legislators, and BOG members discussed a number of bills that intersected with the justice system, including: HB 4007, HB 4075, HB 4120, HB 4121, SB 1510, and SB 1543.

Thank you to the following legislators for joining us early on Friday morning to share your support for the justice system and your legislative priorities this session.

Senators
Sen. Tim Knopp (R – Bend)
Sen. Kate Lieber (D – Beaverton)
Sen. Floyd Prozanski (D – Eugene)

Representatives
Rep. Ken Helm (D – Beaverton)
Rep. Jason Kropf (D – Bend)
Rep. Karin Power (D – Milwaukie)
Rep. Barbara Smith Warner (D – Portland)
Rep. Duane Stark (R – Grants Pass)
Rep. Kim Wallan (R – Medford)
Rep. Marty Wilde (D – Eugene)

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Bills of Interest

HB 4002 – Prohibits employers from permitting or requiring agricultural workers to work in excess of maximum allowable hours unless workers are compensated for overtime hours worked. Specifies exemptions to overtime compensation requirements.

HB 4086 – A mends provisions of workers’ compensation law related to beneficiaries. Expands scope of retaliation provision for workers’ compensation benefits. Amends definitions of “beneficiary,” “child,” and “dependent” and replaces term “invalid” with “incapacitated.”

HB 4105 – Authorizes duly authorized traffic enforcement agents to review and issue citations based on photographs taken by photo red light cameras or photographs taken by photo radar cameras. Defines “duly authorized traffic enforcement agent.” Authorizes duly authorized traffic enforcement agents to present evidence in trials relating to citations issued by agent.

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Public Defense Services Commission Reports to Ways and Means Committee

On February 21 and February 23, 2022, the Public Defense Services Commission (PDSC) testified on a number of issues in the Public Safety Subcommittee of the Ways and Means Committee. The first hearing focused on the compensation plan for Office of Public Defense Services (OPDS) employees.

The second hearing included two separate reports. The first was a financial update on the PDSC, and the second stemmed from direction by the legislature found in HB 5536 (2021) focusing on the reorganization of public defense services. Per Ramfjord, Chair of the PDSC, Stephen Singer, Executive Director of the OPDS, and Brian DeForest, Deputy Director of Business Services for the OPDS, presented the two reports to the Public Safety Subcommittee. Both reports were accepted, and moving forward, the PDSC is expected to continue to work with the legislature to direct funding where it is most needed while continuing to focus on its reorganization. A funding request to the legislature’s Emergency Board is expected in spring 2022.

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2023 Law Improvement Program – Proposals due April 1, 2022

Is your section or committee interested in participating in the Bar’s legislative activities? If a Bar group would like to propose legislation for the 2023 legislative session, proposals should be submitted to the Board of Governors Public Affairs Committee through the Public Affairs Department by April 1, 2022, for approval by the Public Affairs Committee and Board of Governors.

If your section or committee is interested in submitting proposed legislation for consideration to the Public Affairs Committee, please contact the Public Affairs Department for assistance. Additional information on the process can be found on the Public Affairs Department’s web page.

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2022 Legislative Session Opens on February 1, 2022

The 2022 legislative session began on February 1, 2022. Unlike a regular session held in an odd-numbered year, which can last up to 160 days, a regular session held during an even-numbered year is limited to 35 days. With such a short window of opportunity, the number of bills are capped and the chamber deadlines are quite tight. In fact, the first deadline, a requirement to schedule a work session for a specific bill, occurred only seven days after the opening of the legislative session (for the complete calendar, visit the Secretary of the Senate’s web page, https://www.oregonlegislature.gov/secretary-of-senate/).

Similar to the 2021 legislative session, public hearings and work sessions will be held remotely due to the recent rise in COVID-19 cases in Oregon. Floor sessions, however, will continue to be held in person. Unlike the 2021 legislative session, the state capitol has reopened to the public.

There are a number of bills that may be of interest to practitioners. Examples include:

• • • House Bill 4120 – Authorizes court to waive minimum fine in violation proceedings in certain circumstances. Modifies types of documents that must accompany request for filing fee waiver or deferral by adult in custody. Specifies filing fees that may be charged in protective proceedings when petition requests multiple fiduciaries or multiple protective orders. Prohibits charging of filing fee when amended affidavit is filed in small estate probate case. Modifies manner of requesting filing fee waiver for writ of habeas corpus. Authorizes Chief Justice to direct or permit electronic court appearances. Authorizes presiding judge to order in-person appearance in specified circumstances
    • House Bill 4121 – Authorizes presiding judge of judicial district to appoint child support referee to process or hear certain child support or parentage matters. Prescribes procedure for rehearing following issuance of child support referee order. Directs clerk or court administrator to enter child support referee order in register.
    • Senate Bill 1543 – Provides for nonprofit organization that addresses and executes worker relief to serve as fiscal agent to award grants to organizations to provide services related to immigration matters through universal representation program. Requires fiscal agent to report annually to appropriate committee or interim committee of Legislative Assembly, Oregon Department of Administrative Services and Legislative Fiscal Officer. Directs Chief Justice of Supreme Court to transfer funds to Oregon State Bar for use by Legal Services Program to provide legal services to individuals on immigration matters and related matters. Establishes Universal Representation Fund in State Treasury. Appropriates moneys from General Fund to Oregon Department of Administrative Services for purposes of deposit in Universal Representation Fund. Appropriates moneys from General Fund to Judicial Department for purposes of transfer to Oregon State Bar.
    • Senate Bill 1581 – Increases annual salary of judges of Supreme Court, Court of Appeals, circuit courts and Oregon Tax Court.

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How to Track Proposed Legislation

The Public Affairs Program is available to assist all Oregon State Bar sections and committees track proposed legislation. If a section or committee has already identified specific bills to follow, please contact Matt Shields in Public Affairs at [email protected] to ensure that legislation is included in the section’s bill-tracking list.

As bills are introduced, Public Affairs staff will review all proposed legislation and refer specific bills to groups that may be interested in the subject. Because this is a short legislative session, the majority of bills were publicly posted on February 1, 2022 and are now available for review.

Once a section or committee has identified bills to follow, those bills will be input into the group’s bill-tracking page. Each group has its own page on the Public Affairs’ webpage. This will enable each group to receive updates and to review changes to any legislation that a group has expressed an interest in following. In addition, bar staff has reviewed proposed legislation and posted many of the bills by subject area.

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Representative Dan Rayfield Elected Speaker of the House

On February 1, 2022, Representative Dan Rayfield (D-Corvallis) became the Speaker of the Oregon House. After nine years as Speaker, former Representative Tina Kotek (D-Portland) stepped down from her position as Speaker and her seat to run for Governor in the 2022 Election.

Speaker Rayfield first was elected to the House of Representatives in 2014. He is one of the nine legally-trained legislators currently serving in the state legislature. Over the last several years he has primarily focused on the state budget and government ethics. Most recently he served as the House Co-Chair of the Ways and Means Committee from 2019-2021. To watch his swearing in and opening remarks, please follow this link.

Congratulations to Speaker Rayfield!

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2023 Law Improvement Program – Proposals due April 1, 2022

Is your section or committee interested in participating in the Bar’s legislative activities? If a Bar group would like to propose legislation for the 2023 legislative session, proposals should be submitted to the Board of Governors Public Affairs Committee through the Public Affairs Department by April 1, 2022, for approval by the Public Affairs Committee and Board of Governors.

Proposals from sections and committees are commonly referred to as law-improvement legislation, which includes proposals to clarify statutory ambiguities, to modify unforeseen glitches in major legislation passed in previous sessions, and to codify case law as necessary. To ensure that groups are able to devote adequate time to the bills they propose, each Bar group may propose no more than three law-improvement bills. While Public Affairs staff provide lobbying assistance to section and committee members for law-improvement proposals, each section or committee is responsible for supporting their proposed legislation through the process.

The OSB Public Affairs Committee will host a legislative forum in May, during which Bar groups that have proposed legislation will have an opportunity to present their proposals, and stakeholders will have an opportunity to comment. The Public Affairs Committee will take these comments into account when deciding whether to recommend to the Board of Governors approval of Bar sponsorship of the proposed legislative concepts.

If your section or committee is interested in submitting proposed legislation for consideration to the Public Affairs Committee, please contact Public Affairs for assistance.

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Oregon Judicial Department Launches eFiling of Fee Waivers and Deferrals

Beginning February 2, 2022, filers will be able to electronically submit fee waiver and deferral applications to Oregon’s circuit courts and the Oregon Tax Court. Click here for the Chief Justice’s Announcement, and here for a detailed guide to submitting electronically.

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House and Senate Judiciary Committees Hold Informational Hearings on 2022 Legislative Concepts and Proposals

On January 12 and 13, the House and Senate Judiciary Committees each met to receive reports on issues of interest and to hold informational hearings on possible legislative concepts. Due to scheduling difficulties, the committees met separately. Both committees took the opportunity to discuss bills that will be introduced during the 2022 legislative session.

In addition, both committees received reports from a variety of entities on issues of interest, including a presentation in the Senate Judiciary Committee by the Oregon State Bar on Oregon Law+Connect, a legal services web portal for self-represented Oregonians.

House Interim Judiciary Committee

Updates regarding the Department of Corrections

• • Jailhouse Lawyer Incident
  • Tear Gas Incident

2022 Legislator Concepts

• • HB 4110 – Survivor Access to Police Records
  • HB 4073 – Peremptory Challenges, Disqualifying Judges, and Justified Use of Physical Force
  • HB 4075 – Restitution Reform for Crime Victims
  • SB 1510 – Justice Reinvestment Program

2022 House Judiciary Committee Bills

• • HB 4007 – Relating to Courts
  • HB 4008 – Relating to Public Safety
  • HB 4009 – Relating to Criminal Law

Senate Interim Judiciary Committee and Ballot Measure 110 Implementation Committee

Informational Hearings

• • Psychiatric Security Review Board
  • Oregon Justice for Exonerees Act
  • Universal Representation
  • Oregon Law+Connect Portal Project

2022 Senate Judiciary Committee Bills

• • SB 1510 – Relating to Public Safety
  • SB 1511 – Relating to Crime
  • SB 1512 – Collateral Consequences

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Ways and Means Public Safety Subcommittee Considers Funding Requests

During the January Legislative Days, the Oregon Judicial Department (OJD) submitted two budgetary items for consideration by the Joint Ways and Means Committee, the budget committee for the Oregon Legislature. Both requests, discussed during a hearing held held on January 12, 2022, were adopted and will be incorporated into a budget rebalance bill during the 2022 legislative session. The Public Defense Services Commission, as well as the Oregon Department of Justice, also submitted funding requests. To review the full agenda, please go to the Public Safety Subcommittee’s agenda.

Clackamas County Courthouse

During the 2021 legislative session, the legislature provided placeholder funding for the Clackamas County Courthouse Replacement Project, with a request that OJD and the county return during the 2022 legislative session with additional information (HB 5006 – Bill and Budget Report). During the January Legislative Days, the Ways and Means Committee acknowledged receipt of the report. The authority to move forward with the project along with approximately $94.5 million bonding authority is expected to be included in the end of session rebalance legislation. Similar to other courthouse replacement projects over the last decade, Clackamas County will be responsible for one half of the funding for the project.

Reorganization of the Office of the State Court Administrator

The Office of the State Court Administrator (OSCA) resides within OJD and assists the Chief Justice with the administration of the circuit, tax, and appellate courts in Oregon. The OSCA supports and assists the Chief Justice in her administrative duties by providing oversight of central business and infrastructure, including budget, accounting, revenue/collections, procurement, human resources, legal, internal audit, public information, data analysis, education and outreach, statewide forms and materials, business continuity planning, and information technology.

OJD’s proposal, which was accepted by the full Ways and Means Committee, and is expected to be included in the 2022 budget rebalance bill, will provide an approximately $2.5 million increase in funding during the 2021–2023 biennial budget and provide authority for 15 new positions and a reorganization of the office.

Public Defense Services Commission

During the January Legislative Days, the Public Defense Services Commission had three budgetary proposals for the legislature to consider: the implementation of SB 578 (2021), an information technology contract extension, and an increase in funding for staff for the juvenile appellate section.

SB 578 (2021) establishes a pilot project to provide counsel for persons in protective proceedings when certain criteria are met. An attorney will be funded by the state unless a protected person has sufficient funds in their estate. The Ways and Means Committee approved funding for one limited-duration full-time position to be included in the 2022 budget rebalance bill. In addition, the Ways and Means Committee approved funding for a senior juvenile appellate attorney. The requested authority for the information technology contract extension will be revisited in May 2022.

Oregon Department of Justice

During January Legislative Days, the Oregon Department of Justice submitted a request for funding for additional staff to represent state agencies. Nine permanent full-time senior assistant attorney general positions were approved to be included in the 2022 legislative session rebalance bill.

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Bills of Interest

The deadline for submitting legislation for the 2022 legislative session was January 14, 2022. These bills were published on the Oregon Legislative Information System (OLIS) on January 25, 2022, prior to the beginning of the session. Below are some of the legislative concepts that may be of interest.

• • HB 4017 – Requires business entity that collects, stores or transfers personal data of resident individual to register with Department of Consumer and Business Services as data broker.
  • HB 4073 – Modifies provisions relating to peremptory challenges to jurors.
  • HB 4075 – Modifies procedures for requesting and ordering restitution in criminal cases.
  • SB 1511 – Creates process by which person convicted or found guilty except for insanity as result of nonunanimous jury verdict may file petition for postconviction relief within one year of effective date of Act. Sunsets on January 1, 2025.

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Turnover in Oregon Legislature Brings Many New Faces

Since 2020, ten legislators have resigned their seats in the state House and Senate either to retire or to run for a different office. This has led to a waterfall of position changes both in the addition of new faces in the legislature and changes in leadership. Since the end of the 2021 legislative session, the following legislators have been appointed:

Representative Anna Scharf (R-Dallas)
Representative Christine Goodwin (R – Roseburg)
Senator Akasha Lawrence Spence (Dt – Portland)
Representative Chris Hoy (D – Salem)
Representative Jessica George (R – Keizer)
Senator Rachel Armitage (D – Scappoose)
Senator Janeen Sollman (D – Hillsboro)

On January 27, 2022, Travis Nelson was appointed to fill former Representative Tina Kotek’s seat by the Multnomah County Commissioners. There are currently two seats open and scheduled to be filled by county appointment. Representative Christine Drazen resigned in January and Representative Sollman has been appointed to fill former Senator Chuck Riley’s seat.

Thank you to those legislators who have served in the Oregon Legislature and specifically to the legally trained legislators.

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2021 Second Special Session Held on December 13, 2021

In mid-December, the Oregon State Legislature held the Second Special Session of 2021. This session, which lasted one day, was called by the Governor to address continuing landlord-tenant issues, the drought in much of Oregon, an increase in illegal marijuana grows throughout the state, and to provide support to the Afghan refugees who are arriving in Oregon.

This session the legislature considered four bills and one concurrent resolution:

• • • Senate Bill 891 – Extends suspension of termination of residential tenancies for nonpayment of rent for tenants who have applied for emergency rental assistance and provided documentation of application to their landlord on or before June 30, 2022, throughout period that application is pending.
    • Senate Bill 892 – Directs State Department of Agriculture to establish forgivable loan program to provide financial assistance to farming and ranching producers in Oregon with lost gross farm income in calendar year 2021 due to qualifying natural disaster.
    • Senate Bill 893 – Requires prioritizing financial assistance to local law enforcement agencies to partner with community-based organizations in order to address humanitarian crisis associated with unlawful marijuana cultivation or distribution operations in awarding grants through Illegal Marijuana Market Enforcement Grant Program.
    • Senate Bill 5561 – Appropriates moneys from General Fund to specified state agencies for specified expenses.
    • Senate Concurrent Resolution 41 – Adjourning sine die 2021 second special session of Eighty-first Legislative Assembly.

All four of the bills passed both chambers and were signed by the Governor on December 14, 2021.

Similar to other special sessions over the last few years, committee hearings and the submission of public testimony were completed before the legislature gaveled in for the session. To review the public testimony, please visit the committee hearing held on December 11, 2021. The legislature’s deliberations and votes were held during the special session. Materials and video for the special session can be found here.

Landlord-tenant information. During the regular 2021 legislative session, the Oregon Legislature passed SB 278. The bill, which passed in June of 2021, provided an eviction safe harbor for renters if they showed their landlords documentation of their application to the state’s rental assistance program. Under SB 278, the safe harbor lasted, depending on location, either 60 or 90 days. The rental assistance provided by the program covered 12 months of back rent and utilities as well as three months of future rent and utilities.

Under SB 891, which passed last week, the safe harbor for nonpayment of rent was extended. Renters now have until before their first court appearance or June 30, 2022, (whichever comes first) to share their Oregon Emergency Rental Assistance Application with their landlord and establish the safe harbor. If, however, the application is closed, or the funding does not cover the cost of unpaid rent, the landlord may continue with eviction proceedings for unpaid months.

Drought Relief. SB 892, created a forgivable loan program for farmers and ranchers in Oregon who lost gross farm income due to a qualifying natural disaster. The legislature, in SB 5561, the session’s funding bill, provided the Department of Agriculture $40 million for the program.

Public safety. SB 893 builds off legislation (SB 1544, 2018) first passed in 2018. The original legislation created the Illegal Marijuana Market Enforcement Grant Program at Oregon’s Criminal Justice Commission (CJC). SB 893 requires the CJC to prioritize local law enforcement efforts to address unlawful marijuana cultivation or distribution operations when awarding grants.

Afghan refugees. SB 5561 was the sole budget bill passed during the second special session. In addition to funding for the bills mentioned above, the budget bill provided approximately $18 million in funding to assist Afghan refugees in their transition to Oregon. This funding will be used for a variety of services, including immigration legal services.

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2022 Legislative Session – What to Expect

The 2022 Legislative Session will open on Tuesday, February 1, 2022, and constitutional sine die (last day of session) is March 7, 2021. Colloquially referred to as the “short session,” expected topics include a budget rebalance, continued focus on COVID-19 and the attendant challenges, housing, the Ramos decision, the Private Forest Accord, and the Public Defense Services Commission.

Before the 2022 session, the legislature will hold Legislative Days. During this three-day period, January 11–13, 2022, legislators will meet to discuss legislative concepts expected to be introduced during the 2022 legislative session, hold hearings, and finalize legislative concepts. Bills must be pre-session filed with the Secretary of the Senate or the Clerk of the House on January 14, 2022.

Over the last few years, significant work has been done on the state Capitol, with a focus on seismic retrofitting. This project will continue through the 2022 legislative session, and parts of the state Capitol, including the majority of the hearing rooms, are expected to be closed while construction continues. Additional information on the 2022 legislative session, hearings, chamber votes, and access is expected to be shared in the new year.

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Dates of Interest

Legislative Days	January 11 – 13, 2022
Bill Submission Deadline	January 14, 2022
First Day of Legislative Session	February 1, 2022
First Chamber Deadline	February 14, 2022
Release of Revenue and Economic Forecast	February 9, 2022
Second Chamber Deadline	February 24, 2022
Constitutionally-required last day of session	March 7, 2022

 

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Judiciary and Public Safety Committees Meet during Legislative Days

Last week the interim Senate Committee on Judiciary and Ballot Measure 110 Implementation Committee and the interim House Judiciary Committee met during the November Legislative Days. Due to scheduling complications, the committees met separately rather than jointly. Over the two days of hearings, the two committees focused on a wide variety of issues, including the Ramos decision, the Public Defense Services Commission (PDSC), an update on Ballot Measure 110, an Oregon Judicial Department (OJD) grant request, and a discussion of potential 2022 legislation. The full agendas and links to the recordings for each hearing can be found on the House Judiciary and the Senate Judiciary pages on the Oregon Legislative Information System (OLIS).

In addition, the interim Ways and Means Public Safety Subcommittee met to discuss a variety of public safety issues including a grant request from the Oregon Judicial Department.

Nonunanimous Jury Decisions

The Senate Committee began its hearing with testimony regarding nonunanimous jury decisions and the recent U.S. Supreme Court decision in Ramos v. Louisiana (140 S. Ct. 1390, 1395 (2020)). The informational hearing included testimony from Judiciary Counsel, Legislative Counsel, the Criminal Justice Commission, the Oregon Department of Justice, Lewis and Clark’s Criminal Justice Reform Clinic, and the Oregon District Attorneys Association. The presentation covered a high-level history of the use of nonunanimous juries in Oregon, the court and appellate processes, the cost to the state, and a brief discussion of a work group expected to work through many of these issues.

Public Defense Services Commission

The House Committee received a report from the PDSC. During the 2021 Legislative Session, the legislature passed HB 2003, which updated the structure of the PDSC and provided it with the ability to respond the to the Sixth Amendment Center’s report. In addition, the legislature funded Oregon’s Office of Public Defense Services while holding back approximately $100 million to be held by the Legislature’s Ways and Means Committee. Interim Director Edward Jones presented to the House Committee on the efforts made by the PDSC to address the requests and guidance from the 2021 legislative session.

Ballot Measure 110

Both the Senate and the House Judiciary Committees received reports on the implementation of Ballot Measure 110. The Senate reports included not only a presentation from the Oregon Judicial Department on the implementation of the ballot measure and statutory changes found in SB 755 (2021), but also presentations from the Oregon Health Authority and the tri-chairs of the Measure 110 Oversight and Accountability Council.

Oregon Judicial Department Grant Request

Last year, the OJD identified conservatorships as a priority under its 2020–2021 Strategic Plan. During the November Legislative Days, the OJD presented to the interim Ways and Means Public Safety Subcommittee its request to apply for an Elder Justice Innovation Grant. The grant funds will be used to conduct a self-assessment of guardianship and conservatorship court monitoring practices across Oregon’s circuit courts. The request was approved retroactively by the full interim Ways and Means Committee.

2022 Potential Legislation

During the House interim Committee on the Judiciary, Representatives Reynolds, Kropf, Sanchez, and Morgan, as well as House Judiciary Chair Bynum, shared possible legislative concepts for the 2022 Legislative Session. Concepts addressed medical liability, restitution, legal services at Coffee Creek Correctional Facility, as well as criminal and civil law placeholders. Additional concepts and draft language will be shared in the coming months. Bill drafts are historically publicly shared by the legislature in January before a short legislative session.

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Board of Governors Adopts 2022 Legislative Priorities and Guidelines

The Oregon State Bar’s Board of Governors (BOG) met from November 18 to 20 for its annual retreat and board meeting. On the agenda of both the Public Affairs Committee and the BOG were proposed 2022 Legislative Priorities and Legislative Guidelines. Both the Public Affairs Committee and the BOG adopted the Legislative Priorities and Guidelines for the upcoming 2022 Legislative Session.

Oregon State Bar
2022 Legislative Priorities

1. 1. 1. Support Court Funding. Continued support for stable funding for Oregon’s courts.
         • • Advocate that the Legislative Assembly improve funding to provide needed court services, support suitable and sufficient court facilities, work to attract and retain high quality judges, and support the goals of the Judicial Department Strategic Campaign.
      2. Support legal services for low-income Oregonians.
         • • Civil Legal Services. Legal assistance and representation for financially qualified individuals in Oregon’s civil justice system.
             • • Request that Congress and the President of the United States make a genuine commitment to equal justice by adequately funding the Legal Services Corporation, which provides federal support for legal aid;
               • Work with Oregon’s legal aid programs and the Campaign for Equal Justice to preserve and increase state funding for legal aid and explore other sources of new funding.
           • Indigent Defense. Constitutionally and statutorily required representation of financially qualified individuals in Oregon’s criminal and juvenile justice systems:
             • • Partner with stakeholders to obtain adequate resources and commensurate compensation for public defense providers, and support the development of caseload standards that ensure those public defense providers can meet their constitutional and ethical obligations.
      3. Track and engage on 2022 legislation per Oregon State Bar Legislative Guidelines.

OSB Public Affairs Committee
2022 Legislative Session Guidelines

Mission Statement: The Oregon State Bar Board of Governors must at all times direct its power to serve the public interest by (a) regulating the legal profession and improving the quality of legal services; (b) supporting the judiciary and improving the administration of justice; and (c) advancing a fair, inclusive, and accessible justice system.

To that end, the OSB Public Affairs Committee supports the following legislative goals:

1. 1. 1. Protect the public, the administration of justice and the rule of law.
      2. Create meaningful access to justice and provide information about the law, legal issues, and the civil and criminal justice system.
      3. Make Oregon laws more consistent and more uniform.
      4. Improve the ability of attorneys to competently serve the interests of the Oregonians.
      5. Ensure efficient, competent and ethical delivery of legal services.
      6. Foster diversity, equity and inclusion among legal service providers and in the justice system.
      7. Support a fair and effective criminal justice system.
      8. Promote the protection of privileged and confidential information while promoting access and education regarding public records.
      9. Provide appropriate information and assistance regarding ethical issues to legislators, especially legally-trained legislators.
      10. Improve the juvenile justice system and encourage better coordination between the different components of the system.

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Deadline for 2023 Law Improvement Proposals

Is your section or committee interested in the legislative process? Is there a statutory fix that needs to be made? It may feel like the 2021 legislative session just ended, but it’s time to start planning for the 2023 legislative session. The Oregon State Bar Law Improvement Program is an avenue for Bar sections and committees to participate in the legislative process. Law improvement legislation includes proposals to clarify statutory ambiguities, to modify unforeseen glitches in major legislation passed in previous sessions, and to codify case law as necessary. In 2021, Bar members advocated to provide that Oregon courts should provide full faith and credit to orders and judgments issued by tribal courts, to clarify military and veterans preferences, and to update will retention timelines.

The Public Affairs Committee (PAC) of the Board of Governors oversees the Bar’s legislative activities and establishes priorities on public policy issues important to the legal profession. The PAC, chaired by Katherine Denning, is made up of eight members of the Board of Governors.

If your Bar group intends to propose legislation for the 2023 legislative session, proposals should be submitted to the PAC through the Public Affairs Department by April 1, 2022, for review, approval, and potentially pre-session drafting and filing. Bar legislative activities involve the regulation of the legal profession or the improvement of the quality of legal services available to the people of Oregon.

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