ORS Chapter 33 - Oregon Statutes

Chapter 33 — SpecialProceedings and Procedures

 

2009 EDITION

 

 

SPECIALPROCEEDINGS AND PROCEDURES

 

SPECIALACTIONS AND PROCEEDINGS

 

CONTEMPTPROCEEDINGS

 

33.015       Definitionsfor ORS 33.015 to 33.155

 

33.025       Natureof contempt power; corporate defendants

 

33.035       Appointedcounsel

 

33.045       Typesof sanctions

 

33.055       Procedurefor imposition of remedial sanctions

 

33.065       Procedurefor imposition of punitive sanctions

 

33.075       Compellingattendance of defendant

 

33.085       Compellingtestimony of witness

 

33.096       Summaryimposition of sanction

 

33.105       Sanctionsauthorized

 

33.115       Referralto another judge

 

33.125       Appeal

 

33.135       Limitationsof actions

 

33.145       Rules

 

33.155       Applicability

 

CHANGEOF NAME

 

33.410       Jurisdiction;grounds

 

33.420       Noticeof application and judgment; notice for change of name of minor child

 

33.430       Changeof name on birth certificate; court conference with child

 

33.440       Applicationby minor child; court conference

 

CHANGEOF SEX

 

33.460       Jurisdiction;grounds; procedure

 

SURETIES

 

33.510       Dischargeof surety or letter of credit issuer on application of surety or issuer

 

33.520       Dischargeof surety or letter of credit issuer on application of principal

 

33.530       Liabilityof sureties or letter of credit issuer after termination of bond or letter ofcredit

 

EVALUATINGSECURITIES OF SECURED CREDITOR

 

33.610       Evaluatingsecurities of secured creditor

 

DETERMINATIONOF LEGALITY OF MUNICIPAL CORPORATION ORGANIZATION AND ACTIONS

 

33.710       Definitions;judicial examination to determine legality of any municipal corporation’sorganization and actions

 

33.720       Proceedingin rem; practice and procedure as in action not triable by right to jury;service by publication; appeal; costs

 

TRANSFEROF STRUCTURED SETTLEMENT PAYMENT RIGHTS

 

33.850       Definitionsfor ORS 33.850 to 33.875

 

33.855       Transferof payment rights; application; notice

 

33.860       Statementcontaining terms of transfer

 

33.865       Requiredfindings by court or responsible administrative authority

 

33.870       Liabilityof parties after transfer

 

33.875       Limitationson transfers

 

      33.010 [Amended by1981 c.898 §37; repealed by 1991 c.724 §32]

 

CONTEMPTPROCEEDINGS

 

      33.015Definitions for ORS 33.015 to 33.155. For the purposes of ORS 33.015 to33.155:

      (1)“Confinement” means custody or incarceration, whether actual or constructive.

      (2)“Contempt of court” means the following acts, done willfully:

      (a)Misconduct in the presence of the court that interferes with a court proceedingor with the administration of justice, or that impairs the respect due thecourt.

      (b)Disobedience of, resistance to or obstruction of the court’s authority,process, orders or judgments.

      (c)Refusal as a witness to appear, be sworn or answer a question contrary to anorder of the court.

      (d)Refusal to produce a record, document or other object contrary to an order ofthe court.

      (e)Violation of a statutory provision that specifically subjects the person to thecontempt power of the court.

      (3)“Punitive sanction” means a sanction imposed to punish a past contempt ofcourt.

      (4)“Remedial sanction” means a sanction imposed to terminate a continuing contemptof court or to compensate for injury, damage or costs resulting from a past orcontinuing contempt of court. [1991 c.724 §1; 2005 c.22 §23]

 

      33.020 [Repealed by1991 c.724 §32]

 

      33.025Nature of contempt power; corporate defendants. (1) The powerof a court to impose a remedial or punitive sanction for contempt of court isan inherent judicial power. ORS 33.015 to 33.155 establish procedures to governthe exercise of that power.

      (2)A corporation is liable for contempt if:

      (a)The conduct constituting contempt is engaged in by an agent of the corporationwhile acting within the scope of employment and on behalf of the corporation;

      (b)The conduct constituting contempt consists of an omission to discharge aspecific duty of affirmative performance imposed on corporations by a court; or

      (c)The conduct constituting contempt is engaged in, authorized, solicited,requested, commanded or knowingly tolerated by the board of directors or by ahigh managerial agent acting within the scope of employment and on behalf ofthe corporation.

      (3)The board of directors and high managerial agents shall be subject to thecontempt powers of a court for contempt by a corporation if those personsengage in, authorize, solicit, request, command or knowingly tolerate theconduct constituting contempt.

      (4)As used in this section, “agent” and “high managerial agent” have thosemeanings given in ORS 161.170. [1991 c.724 §2]

 

      33.030 [Repealed by1991 c.724 §32]

 

      33.035Appointed counsel.Whenever ORS 33.015 to 33.155 provide for appointed counsel, appointment ofcounsel and payment of counsel and related expenses shall be made as follows:

      (1)For contempt of a circuit court, the Oregon Tax Court, the Court of Appeals orthe Supreme Court, appointment and payment of counsel shall be made as providedin ORS 135.055, 151.216 and 151.219.

      (2)For contempt of a justice court, municipal court or other public body notdescribed in subsection (1) of this section, payment for and appointment ofcounsel shall be made as otherwise provided by law for the court or publicbody. [1991 c.724 §3; 2001 c.962 §63]

 

      33.040 [Amended by1955 c.648 §2; 1961 c.210 §5; repealed by 1991 c.724 §32]

 

      33.045Types of sanctions.(1) A court may impose either remedial or punitive sanctions for contempt.

      (2)Confinement may be remedial or punitive. The sanction is:

      (a)Remedial if it continues or accumulates until the defendant complies with thecourt’s order or judgment.

      (b)Punitive if it is for a definite period that will not be reduced even if thedefendant complies with the court’s order or judgment.

      (3)A fine may be remedial or punitive. A fine is:

      (a)Punitive if it is for a past contempt.

      (b)Remedial if it is for continuing contempt and the fine accumulates until thedefendant complies with the court’s judgment or order or if the fine may bepartially or entirely forgiven when the defendant complies with the court’sjudgment or order.

      (4)Any sanction requiring payment of amounts to one of the parties to a proceedingis remedial.

      (5)Any sanction imposed by a court for contempt is in addition to any civil remedyor criminal sanction that may be available as a result of the conductconstituting contempt. In any civil or criminal proceedings arising out of theconduct constituting contempt, the court shall take into consideration anycontempt sanctions previously imposed for the same act. [1991 c.724 §4]

 

      33.050 [Repealed by1991 c.724 §32]

 

      33.055Procedure for imposition of remedial sanctions. (1) Except asotherwise provided in ORS 161.685, proceedings to impose remedial sanctions forcontempt shall be conducted as provided in this section.

      (2)The following persons may initiate the proceeding or, with leave of the court,participate in the proceeding, by filing a motion requesting that defendant beordered to appear:

      (a)A party aggrieved by an alleged contempt of court.

      (b)A district attorney.

      (c)A city attorney.

      (d)The Attorney General.

      (e)Any other person specifically authorized by statute to seek imposition ofsanctions for contempt.

      (3)A motion to initiate a proceeding under this section shall be filed in theproceeding to which the contempt is related, if there is a related proceeding.

      (4)The person initiating a proceeding under this section shall file supportingdocumentation or affidavits sufficient to give defendant notice of the specificacts alleged to constitute contempt.

      (5)(a)The court may issue an order directing the defendant to appear. Except as otherwiseprovided in paragraph (b) of this subsection, the defendant shall be personallyserved with the order to appear in the manner provided in ORCP 7 and 9. Thecourt may order service by a method other than personal service or issue anarrest warrant if, based upon motion and supporting affidavit, the court findsthat the defendant cannot be personally served.

      (b)The defendant shall be served by substituted service if personal service iswaived under ORS 107.835. If personal service is waived under ORS 107.835, thedefendant shall be served by the method specified in the waiver.

      (6)The court may impose a remedial sanction only after affording the defendantopportunity for a hearing tried to the court. The defendant may waive theopportunity for a hearing by stipulated order filed with the court.

      (7)A defendant has no right to a jury trial and, except as provided in thissection, has only those rights accorded to a defendant in a civil action.

      (8)A defendant is entitled to be represented by counsel. A court shall not imposeon a defendant a remedial sanction of confinement unless, before the hearing isheld, the defendant is:

      (a)Informed that such sanction may be imposed; and

      (b)Afforded the same right to appointed counsel required in proceedings for theimposition of an equivalent punitive sanction of confinement.

      (9)If the defendant is not represented by counsel when coming before the court,the court shall inform the defendant of the right to counsel, and of the rightto appointed counsel if the defendant is entitled to, and financially eligiblefor, appointed counsel under subsection (8) of this section.

      (10)Inability to comply with an order of the court is an affirmative defense.

      (11)In any proceeding for imposition of a remedial sanction other than confinement,proof of contempt shall be by clear and convincing evidence. In any proceedingfor imposition of a remedial sanction of confinement, proof of contempt shallbe beyond a reasonable doubt.

      (12)Proceedings under this section are subject to rules adopted under ORS 33.145.Proceedings under this section are not subject to the Oregon Rules of CivilProcedure except as provided in subsection (5) of this section or as may beprovided in rules adopted under ORS 33.145. [1991 c.724 §5; 1993 c.448 §7; 2001c.962 §77; 2005 c.22 §24]

 

      33.060 [Amended by1981 c.781 §1; 1983 c.561 §1; repealed by 1991 c.724 §32]

 

      33.065Procedure for imposition of punitive sanctions. (1) Except asotherwise provided in ORS 161.685, proceedings to impose punitive sanctions forcontempt shall be conducted as provided in this section.

      (2)The following persons may initiate the proceeding by an accusatory instrumentcharging a person with contempt of court and seeking a punitive sanction:

      (a)A city attorney.

      (b)A district attorney.

      (c)The Attorney General.

      (3)If a city attorney, district attorney or Attorney General who regularly appearsbefore the court declines to prosecute a contempt, and the court determinesthat remedial sanctions would not provide an effective alternative remedy, thecourt may appoint an attorney who is authorized to practice law in this state,and who is not counsel for an interested party, to prosecute the contempt. Thecourt shall allow reasonable compensation for the appointed attorney’sattendance, to be paid by:

      (a)The Oregon Department of Administrative Services, if the attorney is appointedby the Supreme Court, the Court of Appeals or the Oregon Tax Court;

      (b)The city where the court is located, if the attorney is appointed by amunicipal court; and

      (c)The county where the prosecution is initiated, in all other cases.

      (4)The prosecutor may initiate proceedings on the prosecutor’s own initiative, onthe request of a party to an action or proceeding or on the request of thecourt. After the prosecutor files an accusatory instrument, the court may issueany order or warrant necessary to compel the appearance of the defendant.

      (5)Except as otherwise provided by this section, the accusatory instrument issubject to the same requirements and laws applicable to an accusatoryinstrument in a criminal proceeding, and all proceedings on the accusatoryinstrument shall be in the manner prescribed for criminal proceedings.

      (6)Except for the right to a jury trial, the defendant is entitled to theconstitutional and statutory protections, including the right to appointedcounsel, that a defendant would be entitled to in a criminal proceeding inwhich the fine or term of imprisonment that could be imposed is equivalent tothe punitive sanctions sought in the contempt proceeding. This subsection doesnot affect any right to a jury that may otherwise be created by statute.

      (7)Inability to comply with an order of the court is an affirmative defense. Ifthe defendant proposes to rely in any way on evidence of inability to complywith an order of the court, the defendant shall, not less than five days beforethe trial of the cause, file and serve upon the city attorney, districtattorney or Attorney General prosecuting the contempt a written notice ofintent to offer that evidence. If the defendant fails to file and serve thenotice, the defendant shall not be permitted to introduce evidence of inabilityto comply with an order of the court at the trial of the cause unless thecourt, in its discretion, permits such evidence to be introduced where justcause for failure to file the notice, or to file the notice within the timeallowed, is made to appear.

      (8)The court may impose a remedial sanction in addition to or in lieu of apunitive sanction.

      (9)In any proceeding for imposition of a punitive sanction, proof of contemptshall be beyond a reasonable doubt. [1991 c.724 §6; 2001 c.962 §78]

 

      33.070 [Amended by1973 c.836 §321; repealed by 1991 c.724 §32]

 

      33.075Compelling attendance of defendant. (1) If a person served with an order toappear under ORS 33.055 fails to appear at the time and place specified in theorder, the court may issue any order or warrant necessary to compel theappearance of the defendant.

      (2)A person against whom a complaint has been issued under ORS 33.065 may be citedto appear in lieu of custody as provided in ORS 133.055. If the person fails toappear at the time and place specified in the citation, the court may issue anyorder or warrant necessary to compel the appearance of the defendant.

      (3)When the court issues a warrant for contempt, the court shall specify asecurity amount. Unless the defendant pays the security amount upon arrest, thesheriff shall keep the defendant in custody until either a release decision ismade by the court or until disposition of the contempt proceedings.

      (4)The defendant shall be discharged from the arrest upon executing and deliveringto the sheriff, at any time before the return day of the warrant, a securityrelease or a release agreement as provided in ORS 135.230 to 135.290, to theeffect that the defendant will appear on the return day and abide by the orderor judgment of the court or officer or pay, as may be directed, the sumspecified in the warrant.

      (5)The sheriff shall return the warrant and the security deposit, if any, given tothe sheriff by the defendant by the return day specified in the warrant.

      (6)When a warrant for contempt issued under subsection (2) of this section hasbeen returned after having been served and the defendant does not appear on thereturn day, the court may do either or both of the following:

      (a)Issue another warrant.

      (b)Proceed against the security deposited upon the arrest.

      (7)If the court proceeds against the security under subsection (6) of this sectionand the sum specified is recovered, the court may award to any party to theaction any or all of the money recovered as remedial damages.

      (8)Security deposited under this section shall not be subject to the assessmentsprovided for in ORS 137.309 (1) to (5). [1991 c.724 §7; 1993 c.196 §3]

 

      33.080 [Amended by1973 c.836 §322; repealed by 1991 c.724 §32]

 

      33.085Compelling testimony of witness. (1) Upon the motion of the personinitiating the proceeding, the court may compel the testimony of a witness asprovided under ORS 136.617 in a contempt proceeding under ORS 33.055 or 33.065.

      (2)In any case where the person initiating the proceeding is not represented bythe district attorney, county counsel or Attorney General, the personinitiating the