2017 ORS 2.570¹
Departments of court
  • sitting in departments or en banc
  • participation in decision of matter

(1) In hearing and determining causes, the judges of the Court of Appeals may sit together or in departments.

(2)(a) Except as provided in paragraph (b) of this subsection, a department shall consist of three judges. For convenience of administration, each department may be numbered. The Chief Judge shall from time to time designate the number of departments and make assignments of the judges among the departments. The Chief Judge may sit in one or more departments and when so sitting may preside. The Chief Judge shall designate a judge to preside in each department.

(b) The Chief Judge may order that a department consist of two judges unless a third judge is necessary to break a tie vote by the department.

(3) Except as provided in this subsection, the majority of any department shall consist of regularly elected or appointed judges of the Court of Appeals. If disqualifications, recusals or other events reduce the number of available judges to fewer than the necessary number of judges, the Supreme Court may appoint such number of qualified persons as may be necessary as pro tempore members of the Court of Appeals.

(4) The Chief Judge shall apportion the business of the court between the departments. Each department shall have power to hear and determine causes, and all questions that may arise therein, subject to subsection (5) of this section. The presence of two judges is necessary to transact business in any department, except such business as may be transacted in chambers by any judge. The concurrence of two judges is necessary to pronounce judgment.

(5) The Chief Judge or a majority of the regularly elected or appointed judges of the Court of Appeals at any time may refer a cause to be considered en banc. When sitting en banc, the court may include not more than two judges pro tempore of the Court of Appeals. When the court sits en banc, the concurrence of a majority of the judges participating is necessary to pronounce judgment, but if the judges participating are equally divided in their view as to the judgment to be given, the judgment appealed from shall be affirmed.

(6) The Chief Judge may rule on motions and issue orders in procedural matters in the Court of Appeals or may delegate the authority to rule on motions and issue orders in procedural matters to an appellate commissioner as provided for in the court’s rules of appellate procedure.

(7) A judge or judge pro tempore of the Court of Appeals may participate in the decision of the matter without resubmission of the cause even though the judge is not present for oral argument on the matter.

(8) A judge or judge pro tempore of the Court of Appeals may participate in the decision of a matter without resubmission of the cause in the following circumstances:

(a) The judge was appointed or elected to the Court of Appeals after submission of the cause.

(b) The judge is participating in the decision of a cause that was submitted to a department, and the judge is participating in lieu of a judge of the department who has died, become disabled, is disqualified or is otherwise unable to participate in the decision of a cause submitted to the department.

(c) The judge is considering a cause en banc, but the judge was not part of the department that originally considered the cause. [1969 c.198 §6; 1973 c.108 §1; 1985 c.734 §1; 1989 c.124 §3; 1999 c.59 §2; 1999 c.659 §2; 2003 c.14 §5; 2007 c.547 §13; 2009 c.231 §1]

Notes of Decisions

When three judges of Court of Appeals hear oral argu­ment, all three must participate in decision, but only two judges must concur to pronounce judg­ment. State v. Fry Roofing Co., 263 Or 300, 502 P2d 253 (1972)

Under this sec­tion, “to transact business” includes the participa­tion of the judge in decision-making process. State v. Fry Roofing Co., 263 Or 300, 502 P2d 253 (1972)

“Concurrence” to pronounce judg­ment means concurrence in result, not concurrence in theory supporting result. SAIF v. Allen, 320 Or 192, 881 P2d 773 (1994)

Procedural matter stands in contrast to disposi­tion of ap­peal on merits of ap­peal, and order on procedural matter includes order relating to undertaking or stay. Bova v. City of Medford, 236 Or App 257, 236 P3d 760 (2010), Sup Ct review denied

1 Legislative Counsel Committee, CHAPTER 2—Supreme Court; Court of Appeals, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors002.­html (2017) (last ac­cessed Mar. 30, 2018).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2017, Chapter 2, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano002.­html (2017) (last ac­cessed Mar. 30, 2018).
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.