2007 Oregon Code - Chapter 151 :: Chapter 151 - Public Defenders - Counsel for Financially Eligible Persons
Chapter 151
Public Defenders; Counsel for Financially Eligible Persons
2007 EDITION
PUBLIC DEFENDERS; COUNSEL FOR ELIGIBLE
PERSONS
PROCEDURE IN CRIMINAL MATTERS GENERALLY
151.010 Public
defender services by county
PUBLIC DEFENSE SERVICES COMMISSION
151.211 Definitions
151.213 Public
Defense Services Commission; membership; terms
151.216 Duties;
rules
151.219 Public
defense services executive director; duties
151.221 Status
of officers and employees of office of public defense services
151.225 Public
Defense Services Account
DETERMINATION OF FINANCIAL ELIGIBILITY
151.485 Financial
eligibility; determination; financial statement; termination of appointed
counsel
151.487 Ability
to pay; effect
151.489 Personnel
to verify financial eligibility
151.491 Authority
of person verifying financial eligibility
151.493 Release
of information by state agency to State Court Administrator
151.495 Confidentiality
of information obtained by state courts; exceptions
151.497 Counsel
defined
MISCELLANEOUS
151.505 Authority
of court to order repayment of costs related to provision of appointed counsel
151.010
Public defender services by county. (1) The governing body of a county, on behalf of the county, may
contract with an attorney, group of attorneys or full-time not-for-profit
public defender organization for the provision by the attorney, group of
attorneys or organization of services as counsel for financially eligible
persons in proceedings in which a court or magistrate has the power to appoint
counsel to represent a financially eligible person and the county is required
to pay compensation for that representation.
(2) A court or magistrate may appoint an
attorney who is, or an attorney member of a public defender organization that
is, under a contract with a county as provided in this section to represent a
financially eligible person in any proceeding in which the court or magistrate
has the power to appoint counsel to represent a financially eligible person and
the county is required to pay compensation for that representation. [1971 c.432
§1; 1973 c.836 §311; 1985 c.502 §11; 2001 c.962 §32]
151.020 [1971 c.432 §2; repealed by 1985 c.502 §13]
151.030 [1971 c.432 §3; repealed by 1985 c.502 §13]
151.040 [1971 c.432 §4; 1983 c.740 §22; repealed by
1985 c.502 §13]
151.050 [1971 c.432 §5; repealed by 1985 c.502 §13]
151.060 [1971 c.432 §6; repealed by 1985 c.502 §13]
151.070 [1971 c.432 §7; repealed by 1985 c.502 §13]
151.080 [1971 c.432 §8; repealed by 1985 c.502 §13]
151.090 [1971 c.432 §9; repealed by 1985 c.502 §13]
151.150 [1981 s.s. c.3 §117; 1985 c.502 §9;
renumbered 151.460]
151.210 [Formerly 138.710; repealed by 2001 c.962 §114]
PUBLIC
DEFENSE SERVICES COMMISSION
151.211
Definitions. For purposes of
ORS 151.211 to 151.221:
(1) Bar member means an individual who
is an active member of the Oregon State Bar.
(2) Chief Justice means the Chief
Justice of the Supreme Court.
(3) Commission means the Public Defense
Services Commission.
(4) Director means the public defense
services executive director appointed under ORS 151.216.
(5) Office of public defense services
means the office established by the commission under the director to handle the
cases assigned and to carry out the administrative policies and procedures for
the public defense system. [2001 c.962 §1; 2007 c.71 §43]
Note: 151.211 to 151.225 were enacted into law by
the Legislative Assembly but were not added to or made a part of ORS chapter
151 or any series therein by legislative action. See Preface to Oregon Revised
Statutes for further explanation.
151.213
Public Defense Services Commission; membership; terms. (1) The Public Defense Services Commission
is established in the judicial branch of state government. Except for the
appointment or removal of commission members, the commission and employees of
the commission are not subject to the exercise of administrative authority and supervision
by the Chief Justice of the Supreme Court as the administrative head of the
Judicial Department.
(2) The commission consists of seven
members appointed by order of the Chief Justice. In addition to the seven
appointed members, the Chief Justice serves as a nonvoting, ex officio member.
The Chief Justice shall appoint at least two persons who are not bar members,
at least one person who is a bar member and who is engaged in criminal defense
representation and at least one person who is a former
(3) The term of a member is four years
beginning on the effective date of the order of the Chief Justice appointing
the member. A member is eligible for reappointment if qualified for membership
at the time of reappointment. A member may be removed from the commission by
order of the Chief Justice. If a vacancy occurs for any cause before the
expiration of the term of a member, the Chief Justice shall make an appointment
to become immediately effective for the unexpired term.
(4) A chairperson and a vice chairperson
shall be appointed by order of the Chief Justice every two years with such
functions as the commission may determine. A member is eligible for
reappointment as chairperson or vice chairperson.
(5) A majority of the voting members
constitutes a quorum for the transaction of business.
(6) A member of the commission is not
entitled to compensation for services as a member, but is entitled to expenses
as provided in ORS 292.495 (2). [2001 c.962 §2; 2003 c.449 §15]
Note: See note under 151.211.
151.216
Duties; rules. (1) The
Public Defense Services Commission shall:
(a) Establish and maintain a public
defense system that ensures the provision of public defense services in the
most cost-efficient manner consistent with the Oregon Constitution, the United
States Constitution and
(b) Establish an office of public defense
services and appoint a public defense services executive director who serves at
the pleasure of the commission.
(c) Submit the budget of the commission
and the office of public defense services to the Legislative Assembly after the
budget is submitted to the commission by the director and approved by the
commission. The Chief Justice of the Supreme Court and the chairperson of the
commission shall present the budget to the Legislative Assembly.
(d) Review and approve any public defense
services contract negotiated by the director before the contract can become
effective.
(e) Adopt a compensation plan,
classification system and personnel plan for the office of public defense
services that are commensurate with other state agencies.
(f) Adopt policies, procedures, standards
and guidelines regarding:
(A) The determination of financial
eligibility of persons entitled to be represented by appointed counsel at state
expense;
(B) The appointment of counsel;
(C) The fair compensation of counsel
appointed to represent a person financially eligible for appointed counsel at
state expense;
(D) Appointed counsel compensation
disputes;
(E) Any other costs associated with the
representation of a person by appointed counsel in the state courts that are
required to be paid by the state under ORS 34.355, 135.055, 138.500, 138.590,
161.346, 161.365, 161.385, 419A.211, 419B.201, 419B.208, 419B.518, 419B.908,
419C.206, 419C.209, 419C.408, 419C.535, 426.100, 426.135, 426.250, 426.307,
427.265, 427.295, 436.265 or 436.315 or any other provision of law that
expressly provides for payment of such compensation, costs or expenses by the
commission;
(F) Professional qualifications for
counsel appointed to represent public defense clients;
(G) Performance for legal representation;
(H) The contracting of public defense
services;
(I) Contracting with expert witnesses to
allow contracting with out-of-state expert witnesses only if in-state expert
witnesses are not available or are more expensive than out-of-state expert
witnesses; and
(J) Any other matters necessary to carry
out the duties of the commission.
(g) Establish a peer review system for the
approval of nonroutine fees and expenses incurred in cases involving aggravated
murder and the crimes listed in ORS 137.700 and 137.707. The review shall be
conducted by a panel of attorneys who practice in the area of criminal defense.
(h) Establish a complaint process that
allows district attorneys, criminal defense counsel and the public to file
complaints concerning the payment from public funds of nonroutine fees and
expenses incurred in cases.
(i) Reimburse the State Court
Administrator from funds deposited in the subaccount established under ORS
151.225 for the costs of personnel and other costs associated with location of
eligibility verification and screening personnel pursuant to ORS 151.489 by the
State Court Administrator.
(2) Policies, procedures, standards and
guidelines adopted by the commission supersede any conflicting rules, policies
or procedures of the Public Defender Committee, State Court Administrator,
circuit courts, the Court of Appeals, the Supreme Court and the Psychiatric
Security Review Board related to the exercise of the commissions
administrative responsibilities under this section and transferred duties,
functions and powers as they occur.
(3) The commission may accept gifts,
grants or contributions from any source, whether public or private. However,
the commission may not accept a gift, grant or contribution if acceptance would
create a conflict of interest. Moneys accepted under this subsection shall be
deposited in the Public Defense Services Account created in ORS 151.225 and
expended for the purposes for which given or granted.
(4) The commission may not:
(a) Make any decision regarding the
handling of any individual case;
(b) Have access to any case file; or
(c) Interfere with the director or any
member of the staff of the director in carrying out professional duties
involving the legal representation of public defense clients. [2001 c.962 §§3,106;
2003 c.449 §§1,2,42; 2005 c.843 §23]
Note: See note under 151.211.
151.219
Public defense services executive director; duties. (1) The public defense services executive
director shall:
(a) Recommend to the Public Defense
Services Commission how to establish and maintain, in a cost-effective manner,
the delivery of legal services to persons entitled to, and financially eligible
for, appointed counsel at state expense under Oregon statutes, the Oregon
Constitution, the United States Constitution and consistent with Oregon and
national standards of justice.
(b) Implement and ensure compliance with
contracts, policies, procedures, standards and guidelines adopted by the
commission or required by statute.
(c) Prepare and submit to the commission
for its approval the biennial budget of the commission and the office of public
defense services.
(d) Negotiate contracts, as appropriate,
for providing legal services to persons financially eligible for appointed
counsel at state expense. No contract so negotiated is binding or enforceable
until the contract has been reviewed and approved by the commission as provided
in ORS 151.216.
(e) Employ personnel or contract for
services as necessary to carry out the responsibilities of the director and the
office of public defense services.
(f) Supervise the personnel, operation and
activities of the office of public defense services.
(g) Provide services, facilities and
materials necessary for the performance of the duties, functions and powers of
the Public Defense Services Commission.
(h) Pay the expenses of the commission and
the office of public defense services.
(i) Prepare and submit to the commission
an annual report of the activities of the office of public defense services.
(j) Prepare and submit to the Legislative
Assembly a biennial report on the activities of the office of public defense
services.
(k) Provide for legal representation,
advice and consultation for the commission, its members, the director and staff
of the office of public defense services who require such services or who are
named as defendants in lawsuits arising from their duties, functions and
responsibilities. If requested by the director, the Attorney General may also
provide for legal representation, advice and consultation for the commission,
its members, the director and staff of the office of public defense services in
litigation.
(2) The director may designate persons as
representatives of the director for the purposes of determining and paying
bills submitted to the office of public defense services and determining
preauthorization for incurring fees and expenses under ORS 135.055. [2001 c.962
§§4,106a; 2003 c.449 §§3,4]
Note: See note under 151.211.
151.220 [Formerly 138.740; repealed by 2001 c.962 §114]
151.221
Status of officers and employees of office of public defense services. Officers and employees of the office of
public defense services, who are appointed under a personnel plan adopted by
the Public Defense Services Commission, are state officers or employees in the
exempt service and are not subject to ORS chapter 240. [2003 c.449 §17]
Note: See note under 151.211.
151.225
Public Defense Services Account. (1) There is created a Public Defense Services Account in the General
Fund. The Public Defense Services Account is continuously appropriated to the
Public Defense Services Commission to pay compensation of counsel and other
expenses in connection with the legal representation of persons for which the
commission is responsible by law.
(2) All moneys appropriated to the
commission to pay compensation of counsel and other expenses in connection with
the legal representation of persons for which the commission is responsible by
law shall be deposited in the Public Defense Services Account.
(3) All moneys received by the Judicial
Department under ORS 135.050 (8), 151.487 (1), 151.505 (3), 419A.211, 419B.198
(1) or 419C.203 (1) shall be deposited in a separate subaccount created in the
Public Defense Services Account to be used by the public defense services
executive director to reimburse the actual costs and expenses, including personnel
expenses, incurred in administration and support of the public defense system.
(4) All gifts, grants or contributions
accepted by the commission under ORS 151.216 shall be deposited in a separate
subaccount created in the Public Defense Services Account to be used by the
commission for the purpose for which the gift, grant or contribution was given
or granted.
(5) As used in this section, other
expenses in connection with the legal representation of persons for which the
commission is responsible by law includes expenses incurred in the
administration of the public defense system. [2001 c.962 §§5,106b]
Note: See note under 151.211.
151.230 [Formerly 138.750; 1983 c.740 §23; repealed
by 2001 c.962 §114]
151.240 [Formerly 138.760; repealed by 2001 c.962 §114]
151.250 [Formerly 138.770; 1973 c.694 §19; 1987
c.320 §84; 1991 c.724 §26; 1993 c.33 §303; 1995 c.117 §3; repealed by 2001
c.962 §114]
151.260 [Formerly 138.780; repealed by 2001 c.962 §114]
151.270 [Formerly 138.720; repealed by 2001 c.962 §114]
151.280 [Formerly 138.730; 1983 c.740 §24; repealed
by 2001 c.962 §114]
151.290 [Formerly 138.790; repealed by 2001 c.962 §114]
151.410 [1985 c.502 §2; repealed by 1987 c.803 §27]
151.420 [1985 c.502 §3; repealed by 1987 c.803 §27]
151.430 [1985 c.502 §5; 1987 c.803 §10; 1995 c.677 §2;
2001 c.962 §109; repealed by 2001 c.962 §115]
151.440 [1985 c.502 §6; repealed by 1987 c.803 §27]
151.450 [1985 c.502 §7; 1987 c.803 §11; 1991 c.724 §27;
1991 c.750 §9; 1993 c.33 §304; 2001 c.480 §13; 2001 c.962 §110; repealed by
2001 c.962 §115]
151.460 [Formerly 151.150; 1987 c.803 §12; 1989
c.1053 §8; 1995 c.677 §3; 2001 c.962 §111; repealed by 2001 c.962 §115]
151.465 [1987 c.803 §9; 1997 c.761 §13; 2001 c.480 §14;
repealed by 2001 c.962 §115]
151.470 [1985 c.502 §15; repealed by 1987 c.803 §27]
151.480 [1985 c.502 §18; 2001 c.962 §112; repealed
by 2001 c.962 §115]
DETERMINATION
OF FINANCIAL ELIGIBILITY
151.485
Financial eligibility; determination; financial statement; termination of
appointed counsel. (1) For
purposes of determining the financial eligibility for appointed counsel of
persons with a constitutional or statutory right to counsel in matters before
the state courts and whose counsel is authorized to be paid by the public
defense services executive director under ORS 151.219, a person is financially
eligible for appointed counsel if the person is determined to be financially
unable to retain adequate counsel without substantial hardship in providing
basic economic necessities to the person or the persons dependent family under
standards established by the Public Defense Services Commission under ORS
151.216.
(2) A determination of financial
eligibility shall be made upon the basis of information contained in a detailed
financial statement submitted by the person for whom counsel is requested or
appointed or, in an appropriate case, by the persons parent, guardian or
custodian. The financial statement shall be in the form prescribed by the
Public Defense Services Commission. The form shall contain a full disclosure of
all assets, liabilities, current income, dependents and other information
required by ORS 135.050 (4) and, in addition, any information required by the
commission and state courts as necessary to determine eligibility. The
commission shall adopt uniform statewide guidelines and procedures that
prescribe how to use the form and determine financial eligibility for appointed
counsel.
(3) If at any time after the appointment
of counsel the court having jurisdiction of the case finds that the defendant
is financially able to obtain counsel, the court may terminate the appointment
of counsel. If at any time during criminal proceedings the court having
jurisdiction of the case finds that the defendant is financially unable to pay
counsel whom the defendant has retained, the court may appoint counsel as
provided in this section.
(4) In addition to any criminal
prosecution, a civil proceeding may be initiated by any public body that has
expended moneys for the defendants legal assistance within two years of
judgment if the defendant was not qualified for legal assistance in accordance
with subsections (1) and (2) of this section. As used in this subsection, legal
assistance includes legal counsel, transcripts, witness fees and expenses and
any other goods or services required by law to be provided to a financially
eligible person at state expense under ORS 151.216 and 151.219.
(5) The civil proceeding shall be subject
to the exemptions from execution as provided for by law. [1989 c.1053 §13; 1991
c.825 §6; 2001 c.962 §33]
151.487
Ability to pay; effect. (1)
If in determining that a person is financially eligible for appointed counsel
under ORS 151.485, the court finds that the person has financial resources that
enable the person to pay in full or in part the administrative costs of
determining the eligibility of the person and the costs of the legal and other
services to be provided at state expense that are related to the provision of
appointed counsel, the court shall order the person to pay to the Public
Defense Services Account in the General Fund, through the clerk of the court,
the amount that it finds the person is able to pay without creating substantial
hardship in providing basic economic necessities to the person or the persons
dependent family. The amount that a court may order the person to pay is
subject to the guidelines and procedures issued by the Public Defense Services
Commission as provided in subsection (4) of this section.
(2) Failure to obey an order under this
section is not grounds for contempt or grounds for withdrawal by the appointed
attorney, but any part of the amount ordered under this section and not paid
may be:
(a) Enforced against the person as if the
order is a civil judgment; or
(b) Enforced as otherwise permitted by
law.
(3) Except as authorized in this section,
no person, organization or governmental agency may request or accept a payment
or promise of payment for assisting in the representation of a person by
appointment.
(4) The commission shall promulgate and
issue guidelines and procedures:
(a) For the determination of persons
provided with appointed counsel who have some financial resources to pay in
full or in part the administrative, legal and other costs under subsection (1)
of this section; and
(b) Regarding the amounts persons may be
required to pay by a court under subsection (1) of this section.
(5) The determination that a person is
able to pay or partially able to pay, or that a person no longer has the
ability to pay the amount ordered in subsection (1) of this section, is subject
to review at any time by the court. [1989 c.1053 §14; 1993 c.33 §305; 1997
c.761 §3; 2001 c.962 §34]
151.489
Personnel to verify financial eligibility. For the purpose of aiding courts in making determinations of financial
eligibility for appointed counsel at state expense under ORS 151.485 and
151.487, the State Court Administrator may locate eligibility verification and
screening personnel or otherwise arrange for such services in the state trial
and appellate courts or other locations and shall prescribe the policies and
procedures for their use. [1989 c.1053 §15; 2001 c.962 §35]
151.491
Authority of person verifying financial eligibility. (1) State courts or authorized designees who
conduct the verification of the financial statement submitted by a person
seeking or having appointed counsel payable at state expense under ORS 151.216
and 151.219 may require the person to execute and deliver any written requests
or authorizations as may be necessary under applicable law to provide the state
court or authorized designee with access to records of public or private
source, otherwise confidential, as may be needed to evaluate eligibility.
(2) In performing the verification duties
under subsection (1) of this section, the state courts are authorized to obtain
information from any public record office of the state or of any subdivision or
agency of the state upon request and without payment of any fees ordinarily
required by law. [1989 c.1053 §16; 2001 c.962 §36]
151.493
Release of information by state agency to State Court Administrator. (1) Notwithstanding any other provision of
law, any state agency as defined in ORS 192.410 that receives a request for
release of information from the state courts for the purpose of verifying the
financial eligibility of a person under ORS 151.485 to 151.497 shall release
all requested information to the state court. The court shall forward to the
state agency a certification signed by the person about whom the requested
information is sought that authorizes the release of the information.
(2) Upon its own motion or motion of the
public defense services executive director, a court that has appointed counsel
for a person by reason of financial eligibility may order the release of any
information relating to the persons financial situation held by any other
person. [1991 c.825 §4; 2001 c.962 §37]
151.495
Confidentiality of information obtained by state courts; exceptions. (1) All information supplied by a person seeking
appointed counsel and all information collected by the state courts for
purposes of determining financial eligibility for appointed counsel under ORS
151.485 to 151.497 is confidential and shall not be used for any purpose other
than determining financial eligibility.
(2) Notwithstanding subsection (1) of this
section, information supplied by a person seeking appointed counsel and
information collected by the state courts for purposes of determining financial
eligibility may be:
(a) Introduced in a proceeding, criminal
or civil, arising out of a determination that a person is not financially
eligible for appointed counsel;
(b) Introduced in a proceeding, criminal
or civil, arising as a result of an allegation that a person has supplied false
information in seeking appointed counsel;
(c) Used by the court in a sentencing
proceeding resulting from the defendants conviction on the matter for which
the information was provided or collected; and
(d) Used by the court, the Department of
Revenue, or the assignees of the court or the Department of Revenue, for the
purpose of collecting delinquent amounts owed to this state by the person. [1991
c.825 §5; 1997 c.761 §4; 2001 c.962 §38]
151.497
Counsel defined. As used
in ORS 151.485 to 151.497 unless the context requires otherwise, counsel
includes a legal advisor appointed under ORS 135.045. [2001 c.472 §10]
MISCELLANEOUS
151.505
Authority of court to order repayment of costs related to provision of
appointed counsel. (1) At
the conclusion of a case or matter in which the first accusatory instrument or
petition in the trial court was filed after January 1, 1998, and in which the
court appointed counsel to represent a person, a trial, appellate or
post-conviction court may include in its judgment an order that the person
repay in full or in part the administrative costs of determining the
eligibility of the person for appointed counsel and the costs of the legal and
other services that are related to the provision of appointed counsel.
(2) Costs repayable under this section
include a reasonable attorney fee for counsel appointed to represent the person
and a reasonable amount for expenses authorized under ORS 135.055. A reasonable
attorney fee is presumed to be a reasonable number of hours at the hourly rate
authorized by the Public Defense Services Commission under ORS 151.216. For
purposes of this subsection, compensation of counsel is determined by reference
to a schedule of compensation established by the commission.
(3) Costs repayable under this section do
not include costs imposed and paid under a previous order under ORS 151.487,
but may include costs imposed under an order under ORS 151.487 that are unpaid
at the time the judgment is filed.
(4) The court may not order a person to
pay costs under this section unless the person is or may be able to pay the
costs. In determining the amount and method of payment of costs, the court
shall take account of the financial resources of the person and the nature of
the burden that payment of costs will impose.
(5) A person who has been ordered to pay
costs under this section and who is not in contumacious default in the payment
of the costs may at any time petition the court for remission of the payment of
costs or any unpaid portion of the costs. If it appears to the satisfaction of
the court that payment of the amount due will impose manifest hardship on the
person ordered to repay or on the immediate family of the person, the court may
remit all or part of the amount due or modify the method of payment.
(6) Except for moneys payable under
subsection (1) of this section pursuant to an order under ORS 151.487, all
moneys collected or paid under this section shall be paid into the General Fund
and credited to the Criminal Fine and Assessment Account.
(7) Any part of the costs ordered to be
paid under this section that is not paid may be enforced against the person as
provided in ORS 137.450 if the judgment is a judgment in a criminal action or
in the same manner as unpaid costs may be enforced under ORS 151.487. [1997
c.761 §2; 2001 c.962 §39; 2003 c.334 §§1,2; 2003 c.449 §§18,19]
Note: 151.505 was enacted into law by the
Legislative Assembly but was not added to or made a part of ORS chapter 151 or
any series therein by legislative action. See Preface to Oregon Revised
Statutes for further explanation.
_______________
CHAPTER 152
[Reserved for expansion]
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