Washington and Clackamas Courts Update 2015 Materials

Washington & Clackamas
County Courts Update
Hon. Charlie Bailey
Washington County Presiding Judge
Hon. Robert Herndon
Clackamas County Presiding Judge
Multnomah Bar Association
Continuing Legal Education Seminar
April 23, 2015
4/21/2015
d.charles.bailey@ojd.state.or.us
503‐846‐4403
Major Changes‐Criminal
 4 Years ago started looking at PTC and ineffectiveness
 Result was a reengineering of our Case Management System
 Also some “guidelines” for criminal matters.
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Section #1: Purposes (Goals)
 Improve & continually assess our procedures
 Promote uniformity throughout each courtroom
 Promote Meaningful hearings early and often
 While balancing defendants right to speedy trial, and victims and witnesses timely, fair and just resolution of cases with the court’s limited resources.
 To take a more active roll in encouraging cooperation between parties with a view towards just/efficient disposition of cases.
 To identify non trial cases early on in order to allow more time for court and attorneys to work on cases that need to be tried.
Case Management Schematic
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LEC ARRAIGNMENT
SPECIALTY COURTS
NON ECR ELIGIBLE
-DUII Diversion
-DV Deferred Sentencing
Further Proceedings
-Multiple Files
-Person Crimes
-Measure 11 (ORS 137.700)
-Others Per Program
ECR ELIGIBLE
-Change of Plea
-Reject ECR offer
-Set over ECR hearing
PRELIMINARY HEARINGS
ECR SETOVERS
-Change of plea
-Reject Plea offer
PTC/CASE MANAGEMENT
-PTC does not apply to M 11 cases
-Change of plea
-CMC on all cases that do not
 Case Management Conference (CMC)
 Those cases previously given PTC will still have PTC & CMC (if needed)
 All criminal cases will have a CMC, including Measure 11 (Ors 137.700)
 Parties shall confer prior to hearing
 Attorney with authority to resolve the case and/or discuss trial issues needs to be present at the CMC.
MOTION HEARINGS
ADDITIONAL CASE MANAGEMENT
-As needed Per CM Judge
-Preference same CM Judge (not required)
-Suppressions
-Speedy Trial
-Others requiring time/witnesses
MURDER/ COMPLEX
LITIGATION
-Assigned to a Judge by PJ
-Calendared by assigned judge
FINAL RESOLUTION CONFERENCE
CASE ASSIGNMENT
(Set 2 Fridays before week of trial)
-Final Plea Offer
-If Trial:
-Some pre-trial motions
-Days & Witnesses
-Felony cases only
TRIAL
-No Plea negotiations without specific/special reasons.
-Pleas will be to entire charging instrument
-Local Court Sentencing Guidelines no longer in effect
PTC/CASE MANAGEMENT
‐PTC does not apply to M 11 cases
‐Change of plea
‐CMC on all cases that do not resolve
Further Proceedings
 Case Management Conference (CMC)
 CMC Worksheet (Appendix B):
• Discovery
• Plea offer given/discussed by parties
• Motions for case
• Timelines to accomplish any assignment given by the judge
 An additional CMC may be set by the judge if the judge feels more progress is needed before sending to Final Resolution Conference (FRC).
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Further Proceedings
 Case Management Conference (CMC)
 If additional CMC not needed, court will set: FRC/Trial for Misdemeanors (No CAD date)
 FRC/CAD/Trial for Felonies &  For in‐custody defendants, court will set FRC/CAD/Trial w/in 60 days of custody
 For in‐custody defendants court may also use the hearing for resets/waivers

Further Proceedings
 Final Resolution Conference (FRC):
 Set 2nd Friday before trial week
 Used for Change of Plea if ready
 Can be used as Settlement Conference or used to set a settlement conference (may be required to do ORS 135.432(5)Waiver)
 For in‐custody cases, reset motions
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Further Proceedings
 Final Resolution Conference (FRC):
Last chance to agree on resolution absent extraordinary circumstances—All open pleas after FRC.
If going to trial court will require trial readiness information (below)




Length of trial & # Witnesses & Motions
Interpreters needed
Equipment needed
Special Considerations (experts, traveling witnesses etc. )
CONTINUANCES OF TRIAL
 Intent of new system is once case is set for trial, it will commence on that date
 If a party believes good cause exists to reset the trial then request must be made as follows:
 Written motion with affidavit or declaration of moving party
 Motion & affidavit must include at least the following:
 Current trial date and proposed new trial date
 Whether party has conferred with opposing counsel
 Whether date is within Oregon Standards (see Appendix D)
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CONTINUANCES OF TRIAL
 Motion & affidavit must include at least the following:


The number of previous resets, if any, and who requested those resets;
If defendant in custody, counsel has talked to client and client is willing to waive;
Final Thoughts
 Pirates of Caribbean~ sometimes more mere “guidelines” than rules.  Judicial Discretion is allowed.
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CRIMINAL GUIDELINES FOR WASHINGTON COUNTY CIRCUIT COURT
SENTENCING POLICES
1. Should obey all laws.
2. Should result in predictable dispositions.
3. Should encourage the resolution of cases.
4. Should allow flexibility for the Sheriff to manage the jail population.
5. Should be understood as flexible guidelines for Domestic Violence Deferred
Sentencing and DUII Diversion Courts.
6. Should not apply to Drug Court and Mental Health Court.
MISDEMEANORS
1. Community service should be in multiples of 16, consistent with OAR guidelines. So 16
hours of community service equals one day in jail. When converting community service
hours into a fine, each hour of community service is converted to $10.00. Six months
should be the due date for all community service. Defendants will be allowed one
extension to complete community service. If community service is not completed after
the first extension, the Chief Criminal Judge will issue a bench warrant.
C Misdemeanors will be 16 hours.
B Misdemeanors will be 32 hours.
A Misdemeanors will be 48 hours.
C Felony will be 64 hours.
DUII will remain at 80 hours (which is a multiple of 16).
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3-13-15 (Approved by the Washington County Circuit Court)
2. The “fine” should include the mandatory minimum fine for each count; $100.00 for a
misdemeanor and $200.00 for a felony plus any additional fine. For example, CT-1 $500
(includes $100 mandatory minimum fine and $400 additional fine), CT-2 $100
(mandatory minimum fine only). EXCEPT where there is already a statutory minimum
fine required by law, i.e., DUII, DWS (based on a DUII conviction), MCS/DCS
methamphetamine. The statutory minimum fine replaces the mandatory minimum fine.
3. The Court will presumptively authorize a “turn self in” (TSI) date. But if the defendant
“fails to appear” (FTA) the sentence doubles with no “alternative incarceration
programs” (AIPs). Compelling reasons to not authorize a TSI may override the
presumption of a TSI date. Compelling reasons may include, but are not limited to,
violation of a release agreement, failing to appear, prior criminal history, and safety of
the victim, witnesses and community. A further reason to decline a TSI date includes if
the trier of fact, by its verdict, clearly finds the defendant’s testimony not credible. If the
defendant fails to TSI, the Court will issue a zero bail bench warrant.
4. When ordering bench probation conditions, the Court will only order basic conditions
that do not require affirmative action by the defendant and that the Court can reasonably
enforce and manage. For example, the Court will not order as a condition of bench
probation that the defendant complete an evaluation, counseling and treatment for alcohol
or mental health issues. Instead, the Court will order “Do not possess or consume
alcohol” or “Take all medication as prescribed”.
FELONIES
1. The above guidelines apply to felonies if applicable.
2. On drug cases where the defendant is put on probation, the judge will order a driver
license suspension unless the defendant provides compelling circumstances not to
suspend. The court will consider the following, which is not an exclusive list, in deciding
whether compelling circumstance exists: Need to drive to drug or other counseling;
work; school; parenting obligations; Dr. appointments; or providing care obligations. On
attempted drug convictions, driver’s licenses will not be suspended. DMV will suspend
defendants that go into DOC custody upon their release.
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3-13-15 (Approved by the Washington County Circuit Court)
SENTENCING
1. There is a presumption that the Court will order AIPs including good time and earned
time, unless the parties agree otherwise.
2. If the Court orders an “if you return again” (IRA) as part of the sentence, it will be
attached to a specific condition (contact with victim, drinking, treatment, etc.). IRA will
not be used for failure to pay court ordered financial obligations (except for restitution)
and failure to do community service.
3. The Court will discontinue the practice and no longer order “strict compliance” or that
“probation be revoked upon a material breach of probation”, or “any nonmonetary breach
of probation will result in imposition of the guideline sentence”, or words to the same
effect. The Court may consider ordering that a specific violation “may result in a
presumptive revocation of probation”, but the Court will not order a stipulation as to what
sentence will be imposed if probation is revoked. Parties should seek prior Court
approval to include any such presumption in stipulated sentences.
4. Generally, a specific judge will not retain jurisdiction on a probation violation.
5. Except for DUII/Diversion, no contest pleas will not be accepted without prior judicial
approval.
6. The Court will generally follow stipulated sentences, except when the stipulated
sentences are inconsistent with these Criminal Guidelines.
7. Except for good cause, no defendant should have more than three open probation files. If
a new probation file is added to a defendant with three open probation files, one should
be closed and final disposition given.
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3-13-15 (Approved by the Washington County Circuit Court)
DUII SENTENCING
1. The Court will follow these Pretrial DUII Sentencing Guidelines for cases that resolve
with a change of plea before they are assigned to a judge for trial, or are placed on
callback for assignment to a judge on day of trial.
2. First DUII, defendant without significant criminal history: Enhanced Bench probation; 48
consecutive hours imprisonment with no AIPs or 80 hours community service. See
813.020 (2).
3. Second DUII: Enhanced Bench Probation; 30 to 60 days imprisonment with all AIPs
after 48 consecutive hours.
4. Third DUII: Formal Probation; 90 to 180 days imprisonment with all AIPs after 48
consecutive hours.
5. All probations will include evaluation and treatment and appropriate testing for alcohol,
drugs or both, depending on facts of the case. Victim Impact panel, license
suspension/revocation, no driving unless licensed and insured, fines, fees, and court
appointed attorney fees. $2000 fine for 3rd DUII will be imposed if the person is not
sentenced to a term of imprisonment, at which point the minimum or appropriate fine will
be imposed. ORS 813.010(6)(c).
6. Like any guidelines, they may be adjusted depending on the particular circumstances of
the individual defendant. A defendant’s individual criminal history and facts of the case
will be factored into the sentence. Moreover, not all DUII defendants are similarly
situated. For example, a defendant having recently completed Diversion and being
sentenced on a new DUII may receive a different sentence from someone with no prior
diversion. Likewise, a defendant with a DUII conviction more than 10 years old may be
differently situated than a defendant with DUII convictions occurring within a short
period of time, or a defendant with a drug conviction occurring between DUII
convictions.
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3-13-15 (Approved by the Washington County Circuit Court)
SETTLEMENT CONFERENCES
1. Settlement conferences should be scheduled through the calendaring office and
calendaring will contact staff to schedule an appropriate time.
2. Settlement conferences should be before the Presiding Judge or Chief Criminal Judge
unless another judge has involvement with the case through a previous hearing, or good
cause exists for the settlement conference to be conducted by a particular judge.
3. The “Written Waiver By Defendant And Consent Of Parties” form should be submitted
before the settlement conference occurs.
4. A request for a settlement conference to be conducted by an out of county judge should
occur only upon a compelling reason and approval of the Presiding Judges of this county
and the county of the visiting judge.
5. The settlement judge will enter a GPO after the settlement conference to document the
event for the file.
TURN SELF IN - FTA DOCKET
1. Defendants who fail to appear for a court hearing will have an opportunity to set an
appearance before the LEC judge, rather than be required to turn themselves into the jail
on their warrant.
2. Eligible cases are misdemeanors and C felonies. The defense Attorney will file a written
motion with the LEC judge’s staff requesting the client be set on the TSI - FTA
DOCKET. The motion shall include good cause for the FTA. Open cases must be filed
within 30 days of FTA. On other cases, the motion shall state the defendant has had no
new criminal matters since the FTA. All motions must be served on the District
Attorney.
3. The docket will be every Friday at 11:00 a.m. All motions filed prior to Tuesday at 4:30
p.m. will be scheduled on Friday. Motions filed after Tuesday will be scheduled the
following Friday. LEC staff will schedule the hearing and email notices to the parties:
Defense Attorney; District Attorney; Victims Assistance; the Court Release Officer.
Warrants will not be recalled during this scheduling process.
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3-13-15 (Approved by the Washington County Circuit Court)
PROBATION VIOLATION DOCKET
1. Except for good cause, probation should be revoked upon a third material breach of
probation. The Court defines a “material breach” as a violation that significantly
undermines the defendant’s ability to be successful on probation.
2. Generally, continuing probation after a probation violation presumes the defendant is
learning how to meet the conditions of probation and is being rehabilitated.
3. A defendant should not be committing new crimes while on probation. Absent
significant mitigating factors, committing the same or similar crimes while on probation
will presumptively result in a probation revocation. The same presumption applies to
committing new unrelated serious crime. Addictions and mental health considerations
may require a different approach.
4. The theory of restitution is penological and the Oregon Supreme Court has held that it is
intended to serve rehabilitative and deterrent purposes by causing the defendant to
appreciate the relationship between his/her criminal activity and the damage suffered by
the victim. Restitution is a material condition of probation. A defendant who willfully
fails to pay restitution fails to appreciate the cost of his/her criminal behavior.
5. The Court will schedule show cause hearings for first time violations involving payment
of fines and fees, community service and other minor violations, unless the defendant
has a prior history of not paying fines and fees or not doing community service. These
hearings will be set on the Position One docket at 1:32 P.M. The expectation is that the
Court will not find a violation but resolve the reasons for the violation and allow the
defendant more time where appropriate. If the defendant fails to appear at the show
cause hearing, the Court will issue a “release after arraignment” (RAA) bench warrant.
The matter will then be resolved at LEC at the defendant’s first appearance.
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3-13-15 (Approved by the Washington County Circuit Court)
PIF
CASE MANAGEMENT / FINAL RESOLUTION WORKSHEET
Date:_______________
Judge: __________________________
Defendant’s Name: __________________________
DDA:_______________________________
In Custody?
Case #: ___________
Measure 11?
Defense Attorney:____________________________
Arraignment Date: _______________
To DDA
Discovery completed? yes
no
If not, why? ____________________________________________
When will it be completed? ___________________________________________________
Plea offer given? yes
no
If not, why? ____________________________________________
When will it be extended?__________________________________________________
Issues from DDA’s perspective: ____________________________________________________
_______________________________________________________________________________
To Defense Attorney
Mitigation complete? yes
no
If not, why? ____________________________________________
When will info be completed? ________________________________________________
Counter offer? yes
no
If not, why? ____________________________________________
When will it be extended?__________________________________________________________
Issues from defense’s perspective:___________________________________________________
________________________________________________________________________________
To Defendant
Have you reviewed discovery? yes
no
If not, why? ______________________________________
Have you reviewed plea offer? yes
no
If not, why? _____________________________________
When will you review?_______________________________________________________
When will you review?_______________________________________________________
Issues to be resolved by the next hearing:
Case Mgmt
Final Resolution
Hearing:____________
________________________________________________________________________________
________________________________________________________________________________
Motions to be filed:
Miranda
Hearsay (child abuse statements)
Drug Court/Mental Health Court
Other ____________________________
Release
Suppression
Pre-trial in camera subpoena
Civil Compromise
When will parties be ready resolve/try the case?_____________________________________________
Notes:_________________________________________________________________________________
_________________________________________________________________________________
TRIAL: Witnesses: State ____ Defense ____ Days:_______
Interpreter
language?___________
Other/Equipment need: __________________________________________________________________
Experts?________________________ Motions/Type:__________________________________________
MULTNOMAH COUNTY BAR ASSOCIATION
CLACKAMAS COUNTY COURTS
UPDATE - April 23, 2015
COURT PROCEDURES IN CLACKAMAS COUNTY, April 2015
GENERAL INFORMATION:
Clackamas County has (11) elected judges, and one referee. We also have (4) protem judges who serve as our civil motion panel and another group of( 5) pro-tem
volunteers who handle the short Friday domestic relations docket. Judge Breithaupt
of the Tax Court assists us with summary judgment motions. Court staff is
currently at approximately (85) full time employees, down from (110), in 2009.
JUDICIAL ASSIGNMENTS:
Juvenile cases are now divided between Judge Deanne Darling, who continues to
manage the delinquency docket, and a (4) judge panel consisting of Judges
Karabeika, Wetzel, Norby and Steele who handle juvenile dependency matters on a
rotating basis, one week at a time. Termination of Parental Rights cases (TPR)
matters are assigned by the docket clerk as part of the regular civil docket.
CENTRAL DOCKET CONTROL:
We continue to use the master calendar system with cases assigned to judges by
the docket clerk’s office.
Homicide cases and civil cases which have been designated as complex by the
presiding judge are assigned to an individual judge for case management and trial.
Please review UTCR 7.030 before seeking designation of a complex case.
Although not completely controlling, UTCR 7.030(2) provides as follows:
(2) The criteria used for designation as a “complex case” may include, but
shall not be limited to, the following: the number of parties involved, the
complexity of the legal issues, the expected extent and difficulty of discovery, and
the anticipated length of trial.
Requests for complex case designation need to be made early. Such motions which
accompany a motion to continue are very unlikely to be granted.
Page | 1 Domestic relations cases rarely satisfy the requirements, but on occasion, a family
law case warrants designation as a complex case.
If you have a show cause or half-day or less domestic relations matter, you may
find docketing tells you your case is a “holding case” and will proceed to trial if a
judge becomes available. We recognize this is an inconvenience for litigants, but
one regrettably necessary in order to assure judges are kept busy the entire day. In
a perfect world, every case would have a date certain and maybe an assignment to
an individual judge for case management. Limited resources simply make such a
procedure impossible. In the category of good news, I can tell you “holding cases”
do get a judge a little over 90 percent of the time, so there is a very high probability
your matter will proceed as scheduled.
TREATMENT COURTS:
We have seven (7) treatment courts. Judge Norby supervises the DUII Court.
Judge Steele manages Drug Court and Mental Health Court. The domestic violence
deferred sentence program (DVDSP) is supervised by Judge Karabeika. Judges
Darling and Judge Miller handle the juvenile and family drug court programs.
Judge Darling also has an MIP court and Truancy Court. Several of these courts,
particularly, the family focused courts operate after normal business hours to allow
the parents to attend without missing any work.
PROBATE MATTERS:
Probate matters are the responsibility of Judge Herndon. Until 2012, we had the
assistance of Senior Judge Welch who was fulfilling her Plan B service
requirements. Unfortunately, she completed that process and the state was not
willing to provide the court with a paid pro tem judge.
We now have a (3) judge panel which hears routine probate matters. Judges
Herndon, Rastetter and Norby rotate this docket monthly with hearings typically
held on two Fridays per month. Lengthy matters such as will contests and longer
contested guardianship and conservatorships are assigned as part of the regular
civil docket.
As of April 1, 2015, any person appointed as a fiduciary must attend a fiduciary
training class through SAVO. A copy of the notice and SLR are attached to my
material.
Page | 2 ADOPTIONS:
Adoptions are the responsibility of Judge Darling.
COMMUNITY COURT:
Community Court which is intended to connect minor criminal offenders,
primarily from the 82nd avenue area, with needed social services including mental
health and housing providers through a deferred sentencing program is supervised
by our Referee, Ken Stewart.
HOPE COURT:
The Court has joined with the District Attorney’s office and the county to obtain a
grant from the federal government to institute an enhanced probation and postprison supervision program modeled on a very successful program operated by a
judge in Hawaii. The court is a study grant designed to determine what kind of
probation works best for probationers with substance abuse problems. Judge Steele
and Judge Herndon are responsible for this program. Defendants cannot seek entry
into this program. Selection is by random lot to provide for a comparison of
probation performance in this program and regular probation as supervised by
Clackamas County Community Corrections.
JUDICIAL SETTLEMENT CONFERENCE:
We continue to set every civil case, excluding domestic relations, for a judicial
settlement conference. If you would like a settlement conference on a domestic
case, you should contact the docket clerk and we will do our best to provide a
judge to assist you in resolving the case.
Judicial settlement conferences are also being done on serious criminal matters.
Contact Judge Herndon or the docket clerk if you believe you have a case which
would be appropriate for a conference.
PRO SE/ SELF-REPRESENTED DOCKET:
In 85 percent of domestic cases, one or both parties are self-represented. Those
cases where both parties are self-represented are a serious drain on judicial
resources. In the hope of better management of those cases, a special docket has
been created which is managed by Judge Darling.
Page | 3 CIVIL MOTIONS PANEL:
Unless a case has been designated as a complex case and assigned to an individual
judge, civil motions expect motions for summary judgment are heard by our civil
motions panel of pro tempore judges. Unlike other counties which have a pro
tempore motion panel, we do not have an SLR which allows a party to request a
regular elected judge hear the motions. Unless all of members of the motion panel
are disqualified for some reason, such motions are denied.
TRIAL DOCKET:
Civil and Criminal trials (jury or bench) are scheduled for Tuesday – Friday each
week. Unless as case has been designated as complex or a homicide assigned to a
single judge, trials never start on Mondays. Unless a judge has responsibility for a
portion of the omnibus docket, Mondays are reserved for scheduling matters which
require special sets such as objections to forms of orders and judgments and such.
If your motion to continue contains a proposed future trial date, do not select a
Monday. If you have a future date which works for all the parties, please check
with the docket office to see if the date works for the court.
OMNIBUS DOCKETS:
All judges, expect for Judge Darling, cover two (2) weeks of general criminal
matters as part of what we call the Omnibus docket. One week the docket will
include case manager hearings (CMA), which are set in all criminal cases except
Ballot Measure 11 matters. This brings the defendant, his/her counsel and the
district attorney together to discuss resolution of the case. A large percentage of
cases settle at that time. If the case cannot be resolved, it will then be set for trial.
The idea is to expedite early resolution of cases. Resets of CMA’s are discouraged.
Ordinarily, we will grant one reset of a case manager. Thereafter, you will find it
very difficult to obtain a continuance. If your client does not wish to take
advantage of the early resolution offer, the case will be set for trial and the offer is
withdrawn.
The criminal clerk has authority to reset a CMA without a written motion if you
request a reset within one week of the defendant’s arraignment. The clerk can reset
the CMA for a date not to exceed seven (7) days from the original CMA date.
The second week of the Omnibus docket includes probation violation hearings,
pleas and the criminal motion docket.
Page | 4 If there is a shortage of criminal motions, the afternoons will be filled with halfday family law matters, small claims, and motions for preliminary injunctions.
MEDIATION SERVICES:
We have an excellent mediation service available. Previously known as Family
Court Service, it has now merged with another county program and is now called
Clackamas Resolution Services. It also provides mediation for small claims cases.
Lately, they have been very effective in resolving contested Guardianship and
Conservatorship matters in cases where all agree a guardian or conservator is
needed but the family members are unable to agree on a suitable person.
REQUESTS FOR CONTINUANCES:
All Motions to Continue are the responsibility of the Presiding Judge. Do not file
your motion with the judge, but instead file the motion with the clerk’s office. The
motion will be entered in OJIN, and sent to the Presiding Judge for consideration.
In seeking a continuance, be mindful of the dates for disposition for civil cases
(one year from date of filing) and domestic relations cases (9 months from date of
filing). Your motion should comply with UTCR 6.030. DO NOT LEAVE YOUR
MOTION TO CONTINUE WITH THE PRESIDING JUDGE’S OFFICE. FILE
IN THE CLERK’S OFFICE IN ROOM 104.
LAWYERS SURVIVIAL GUIDE AND SLR’S:
The Lawyer’s Survival Guide which contains our SLR’s can be found on the
court’s website. The website also has the names and contact information for all of
the judges and staff.
eCOURT AND CLACKAMAS COUNTY:
We are presently in the training and configuration phase of eCourt. Our go live
date is December 7, 2015. As you know, during this training phase, we are
required to set our dockets much lighter than normal, particularly as we approach
our go live date. We are told we will need to continue to set a lighter docket for a
couple of weeks after we go live.
THE FUTURE OF THE COURTS IN CLACKAMAS COUNTY:
Although we hope for more judges, we believe in the short term a better strategy is
to seek funding for return of the pro tempore support we previously enjoyed. Until
the major budget shortfalls of 2007 and 2009, OJD filled the gap for our judicial
Page | 5 district by funding night court positions which operated three (3) nights per week.
They handled most FED first appearances, non-jury FED trials and many small
claims trials. When we lost their support, the court had to roll those cases back
into our regular docket.
FED cases are entitled to statutory priority and as a result, other civil matters must
be reset. Small claims cases are simply not heard. The night court judges also
handled the bulk of traffic violation trials which we luckily have not had to return
to our regular docket because the county created a Justice Court which now
handles the majority of non-criminal traffic matters.
The use of pro tempore judges will take advantage of the facilities we have during
the evening hours at significantly less cost than the creation of new judicial
positions.
Overall, the funding of the court remains completely inadequate. We have not been
able to fill a single position lost during the 07-09 reductions. Unless there is a
seismic shift in support for the courts in the Legislature, do not expect things to get
better.
Page | 6 Error! Reference source not found.
RE:
Conservatorship of Error! Reference source not found.
No. Error! Reference source not found.
Dear Error! Reference source not found.:
You have been appointed an officer of this court effective Error! Reference source not found..
As conservator, you are bound to exercise scrupulous good faith in the management of financial
affairs of the protected person. Everything you do in the administration of this conservatorship
must be for the benefit of the protected person and to protect his/her economic interests.
Enclosed is a list of some of your more important duties as conservator and of the time deadlines
for filing with the court and notification of various persons. You should keep the list available
for your reference, and to keep track of the time deadlines.
1. Take possession of all of the property of the protected person and the income arising from
that property.
2. If real property of the protected person is located in a county other than the county of
appointment, you must file a certified copy of the inventory or a real property abstract in the
county or counties where that real property is located.
3. Enroll in, and complete the non-professional fiduciary education program, unless you are a
professional fiduciary as defined by ORS 125.240(5).
4. Within 90 days of appointment, you must file with the court an inventory of all property of
the protected person. This must include all property of the protected person that you know
about or that is in your possession. Amend the inventory in case of later-discovered property.
5. Pay the obligations of the protected person that are chargeable against the conservatorship
estate.
6. Make prudent investments with the conservatorship assets. In most cases, this will require the
advice of a professional.
7. When managing the conservatorship assets, take into consideration the estate plan of the
protected person, including review of any will, trusts, or joint ownership arrangements.
8. Evaluate the need to obtain insurance on conservatorship assets and obtain such insurance if
advisable.
9. Pay, contest, or settle claims submitted against the conservatorship estate.
10. Prepare and submit necessary tax returns.
Page | 7 11. Set up a separate conservatorship bank account. Depending on the county in which the
conservatorship is filed, you may be required to have the checks returned to you by the bank
and to submit those canceled checks to the court with your periodic accountings.
12. Carefully account for all income and expenditures. Written statements of all accounts and a
final accounting upon termination of the conservatorship must be prepared and filed with the
court.
13. Submit a list of disbursements, including check numbers, in chronological order with each
account filed with the court, as well as a statement from depositories showing current
balances. Some counties may require you to file the original canceled checks.
14. Copies of the accountings, at a minimum, must be provided to the protected person, the
protected person’s spouse, parents of a minor under age 14, any guardian appointed for the
protected person or personal representative of the estate, and other persons either requesting
notice through the court or directed to be notified by the court.
15. Court approval must be obtained before payment can be made to you as conservator, or to a
lawyer who is the lawyer for you as conservator.
16. When the court is satisfied that the protected person’s disability no longer exists, you must
pay all claims and expenses of administration, and you must file a final accounting with the
court. You must then distribute all funds and properties to the former minor or protected
person as soon as possible.
17. Upon the death of the protected person, you must deliver to the court any will of the deceased
that has come into your possession, inform the personal representative or a beneficiary
named in the will that you have done so, and preserve the conservatorship estate for delivery
to the personal representative of the deceased protected person.
TIME DEADLINES
The following summarizes significant time deadlines involved in initiation and
administration of a conservatorship:
Notice to interested persons mailed No sooner than 15 days before the deadline for filing
objections to a petition or motion. ORS 125.065(3).
or served
Page | 8 Objections to petition or motion
Filed within 15 days after the petition or motion is served
or mailed. ORS 125.075(2). If UCCJEA is involved, 21
days. ORS 125.065(3).
Notice of a hearing on objection
Given 15 days before the hearing. ORS 125.075(3).
Visitor’s report due
Fifteen (15) days after the visitor is appointed. ORS
125.155(1).
Non-Professional fiduciary
education program
Register within 15 days after the guardian’s appointment,
successful completion within 60 days of the guardian’s
appointment. SLR 9.076 and/or Presiding Judge’s Order.
Notice of cancellation of bond
Surety must give 30 days prior to cancellation. ORS
125.415(1).
Supplemental inventory
To be filed within 30 days of learning of additional estate
property. ORS 125.470(2).
Conservator’s accounting
Filed with the court and served on interested persons
within 60 days after each anniversary of the conservator’s
appointment, within 30 days after the conservator is
removed, or within 60 days of the occurrence of an event
justifying termination of the proceeding. ORS 125.475(1).
Exercise of remedies against estate Thirty (30) days after disallowance of a claim. ORS
125.500(2).
Notification to commence separate
action on claim
When a creditor has requested a summary hearing of a
claim against the conservatorship, the conservator has 30
days to notify the claimant. ORS 125.510(2).
Acknowledgment of restricted
account by depository
Writing signed by depository to be filed within 30 days of
entry of order restricting account. UTCR 9.050.
Disallowance of claims
Claim not allowed within 60 days after it is presented is
presumed to be disallowed. ORS 125.500(1).
Commencement of separate claim
When the conservator has notified a creditor that a
separate claim must be filed, the creditor has 60 days to
file that separate claim. ORS 125.510(2).
File inventory
Ninty (90) days after appointment of conservator. ORS
125.470(1).
Page | 9 File accounting
One (1) year after appointment, and every year thereafter
during conservatorship. ORS 125.475(1).
Your promptness in complying with the above requirements and with any Court
notices you might receive will simplify your task.
The Court personnel are unable to give you legal advice and so again we
recommend you contact your attorney.
Page | 10 Letter date
RE:
Guardianship of Error! Reference source not found.
Case No. Error! Reference source not found.
Dear Error! Reference source not found.:
You have been appointed an officer of this Court effective Error! Reference source not found. which
places you in a position of great responsibility. As guardian, you stand in a fiduciary and trust
relationship with the protected person and you will be held to high standards in the exercise of your
powers and undertaking your duties as guardian. Enclosed is a list of some of your more important duties
as guardian and of the important time deadlines for filing with the court and notifying various persons. I
suggest that you keep the list available for your reference, and also keep track of the time deadlines.
The laws in regard to administration of guardianships are complicated and you should not undertake to
perform your duties without legal advice. Therefore, seek the advice and assistance of your attorney in all
matters pertaining to your administration.
1. Take custody of the protected person, which entails an element of control over the
activities of that person, including, for instance, determining where he or she lives.
2. Enroll in, and complete the non-professional fiduciary education program, unless you are
a professional fiduciary as defined by ORS 125.240(5).
3. You are required to notify the Court whenever there is a change of address.
4. If you are guardian of a minor and the child returns to his/her natural parents or becomes
emancipated, there is no longer a need for the guardianship. You should notify the court
as soon as possible if this should occur.
5. Provide for the care, comfort, maintenance, and, if necessary, the training and education
of the protected person.
6. Take reasonable care of the protected person’s clothing, furniture, and personal effects.
7. If a conservator has been appointed for the protected person, work with the appointed
conservator to see that the protected person has adequate funds to provide for his or her
support, care, and education.
8. You are required to file a guardian’s report once a year. Your anniversary date is the day
you were appointed guardian. You may obtain the report form from your attorney or the
Court issuing the letters.
Page | 11 Your compliance with the foregoing rules and your prompt attention to notices from the Court or
clerks thereof will simplify your tasks and will be appreciated.
TIME DEADLINES
The following summarizes significant time deadlines involved in the initiation and administration
of a guardianship:
Notice to interested persons
mailed or served
No sooner than 15 days before the deadline for filing objections to a
petition or motion. ORS 125.065(3).
Objections to petition or motion Filed within 15 days after the petition or motion is served or mailed.
ORS 125.075(2). If UCCJEA involved, 21 days. ORS 125.065(3).
Notice of a hearing on
objection
Given 15 days before the hearing. ORS 125.075(3).
Visitor’s report due
Within 15 days after the visitor is appointed. ORS 125.155(1).
Non-Professional fiduciary
education program
Register within 15 days after the guardian’s appointment, successful
completion within 60 days of the guardian’s appointment. SLR 9.076
and/or Presiding Judge’s Order.
Guardian’s report due
Within 30 days after each anniversary of the guardian’s appointment.
ORS 125.325.
COMMENT: See §§1.6, 2.19, 3.13, 3.26, supra. This form is courtesy of the Professional Liability
Fund.
Page | 12 (503) 655-8623
SLR 9.076:
NON-PROFESSIONAL FIDUCIARY EDUCATIONAL PROGRAM
(1) The following court appointment non-professional fiduciaries are subject to this rule:
(a) Any guardian or conservator appointed pursuant to ORS Chapter 125 on or after
the effective date of this Rule.
(b) Any personal representative appointed pursuant to ORS Chapter 113 on or after
the effective date of the Rule.
(c) Any Trustee appointed pursuant to ORS Chapter 130 on or after the effective date
of this Rule.
(d) Any non-professional fiduciary cited for a deficiency in the handling of fiduciary
duties pursuant to the show cause process.
(2) All non-professional fiduciaries involved in a case described under subsection (1) above,
shall:
(a) Successfully complete an education class for non-professional fiduciaries with a
curriculum as prescribed by the Presiding Judge of Clackamas County within 90
days of appointment as fiduciary by the Court; and
(b) Register for the program no later than fifteen (15) days from appointment as
fiduciary by the Court.
(3) A professional fiduciary, for purposes of this Rule, is defined in ORS 125.240(5).
Professional fiduciaries are exempt from this Rule.
(4) The Court will send notice and instructions of this requirement to the non-professional
fiduciary at the time of appointment as guardian, conservator, or personal representative.
The attorney representing a trustee shall provide notice and instruction to the trustee of
this requirement.
(5) Fees for the court-required class shall be considered a cost of administration of the
protective proceedings, estate, or trust. The fee for the court-required class may be
waived or deferred in the Court’s discretion, in keeping with the Court’s policy of fee
waiver and deferrals.
(6) Upon successful completion of the court-required class, the non-professional fiduciary
shall file a certificate of completion with the Probate Department stating the date and
time the class was taken as well as the provider of the class.
(7) Upon showing of good cause, a non-professional fiduciary may request a waiver of the
requirements of this Rule. The request must be made by motion, supported by affidavit,
and filed within fifteen (15) days of receipt of notice.
Page | 13 (8) The Court may, in its discretion, require a non-professional fiduciary to retake the class.
(9) Failure to timely comply with this Rule may result in removal of the non-professional
fiduciary by the court.
Page | 14