658
Submitted September 23, 2019, supplemental judgments imposing attorney fees
reversed August 5, 2020
STATE OF OREGON,
Plaintiff-Respondent,
v.
CRAIG ABE ALAN McCARTHY,
Defendant-Appellant.
Clackamas County Circuit Court
17CR23252, 17CR36649;
A167384 (Control), A167385
473 P3d 74
Defendant appeals two supplemental judgments ordering him to pay attorney fees. First, he challenges the court collection clerk’s authority to sign the
judgments. Second, he challenges the trial court’s imposition of attorney fees,
arguing that the trial court erred because the record lacked information that he
had the financial resources to pay those fees. Held: The court collection clerk was
authorized to sign the judgments under CJ Order No. 04-031 and PJ Order No.
2015-06. Further, because ORS 151.487 requires a court to first find that a defendant has the financial resources to pay the attorney fees before it is authorized to
impose them, and the record does not support an inference that the court made
such a finding, the Court of Appeals accepts the state’s concession that the trial
court erred in imposing the attorney fees.
Supplemental judgments imposing attorney fees reversed.
Michael C. Wetzel, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Andrew D. Robinson, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Michael A. Casper, Assistant Attorney
General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Shorr, Judge, and
James, Judge.
ORTEGA, P. J.
Supplemental judgments imposing attorney fees reversed.
Cite as 305 Or App 658 (2020) 659
ORTEGA, P. J.
Defendant appeals two supplemental judgments,
arguing for the first time on appeal that the trial court
erred when it ordered him in each judgment to pay $120
toward court-appointed counsel, because the record lacked
information that he had the financial resources to pay those
fees. Defendant argues that he was not required to preserve
his claim of error on the facts of this case. Alternatively, he
argues, and the state agrees, that the trial court plainly
erred in imposing the fees.
A court collection clerk—not a judge—signed the
supplemental judgments on appeal in this case. After the
briefing was complete, we requested supplemental briefing from the parties addressing the court collection clerk’s
authority to sign the supplemental judgments. The parties
subsequently filed a joint motion asking us to decide the
merits by unpublished order under ORAP 10.35, stipulating
that the trial court erred in ordering the attorney-fee contribution amount absent any evidence in the record of defendant’s ability to pay. Without ruling on the parties’ joint
motion, we renewed our earlier request for supplemental
briefing on the authority of the court collection clerk to sign
the supplemental judgments which, as we address below,
affects our capacity to review the judgments on appeal.
In the state’s supplemental brief, it contends that
the court collection clerk had the authority to sign the
supplemental judgments pursuant to Chief Justice Order
No. 04-031 (CJ Order No. 04-031) and Presiding Judge of
Clackamas County Circuit Court General Order No. 2015-06
(PJ Order No. 2015-06). Defendant disagrees that those
orders or any other legal authority provide the court collection clerk with the authority to sign the supplemental judgments. As we shall explain, we agree with the state that
CJ Order No. 04-031 and PJ Order No. 2015-06 legally
authorize the court collection clerk to sign the supplemental
judgments on appeal in this case. On the merits, we conclude that the rules of preservation do not apply here and
that, as the parties agree, the trial court erred in imposing
attorney fees on this record.
660 State v. McCarthy
The following procedural facts are undisputed. On
July 10, 2017, defendant was convicted of first-degree failure
to appear (Case No. 17CR36649) and unlawful possession of
heroin (Case No. 17CR23252). Defendant was sentenced to,
among other conditions, probation.
On January 3, 2018, defendant was arraigned incustody on allegations that he had violated his probation on
both cases. While the court order signed by Judge Ulanda
Watkins from that hearing does not include any information
about the appointment of an attorney or the imposition of
attorney fees,1 the transcript reflects that the court appointed
an attorney at the hearing but did not impose attorney fees.
That same day, however, the court collection clerk signed
two judgments titled, “SUPPLEMENTAL JUDGMENT RE:
COURT-APPOINTED ATTORNEY FEES.” The top of each
judgment notes that defendant was determined to be financially eligible for court-appointed counsel and that counsel
was appointed. Further, each judgment states:
“THE COURT ORDERS:
“Payment of the amounts listed in the Money Award are
due as follows, payable to the State of Oregon:
“Amount ordered must be paid in full by 2/2/2018
“…
“MONEY AWARD
“…
“3. The total amount awarded by this judgment is
$120.00 [.]”
(Boldface, underline, and uppercase in original.) And,
although the court collection clerk’s signature appears on
each supplemental judgment below the court’s order, next
to the entry in the official court register for the filing of the
“Order—Appointing Counsel” appears the note, “Judicial
Officer: Watkins, Ulanda.” Further, next to the entries in
1
The court order from the January 3 hearing contains handwritten notes
that the court ordered “no bail” and that defendant be placed in “full restraints,”
and it also notes defendant’s future probation violation hearing date.
Cite as 305 Or App 658 (2020) 661
the official court register for the filing of each of the supplemental judgments that were signed by the clerk appears the
note, “Judicial Officer: Authority, Administrative.” Defendant appeals those judgments, arguing that the trial court
erred in ordering him to pay attorney fees without evidence
that he had the ability to pay them.
Before we may reach the merits of the parties’ arguments, we must address whether the court collection clerk
was authorized to sign the supplemental judgments at
issue. That question determines whether we may consider
defendant’s appeal. See ORS 18.038(4)(c) (providing that
a judgment document must include the “signature of the
judge rendering the judgment, or the signature of the court
administrator if the court administrator is authorized by
law to sign the judgment document”); ORS 18.245 (providing that the judgment “must comply with the requirements
of ORS 18.038(4),” and that those requirements are “jurisdictional for the purposes of appeal of [the] judgment”); State
ex rel Juv. Dept. v. J. W., 345 Or 292, 299,
193 P3d 20 (2008)
(dismissing an appeal where the judgment did not meet the
signature requirements of ORS 18.038(4)). We have an independent duty to ensure that a judgment is appealable even
when, as in this case, the parties have not raised the issue.
A. M. v. N. E. D.,
287 Or App 36, 37-38,
400 P3d 1036 (2017).
We begin by setting out the relevant law. A court
is authorized to order a defendant to contribute toward the
costs of court-appointed counsel in two ways: at the conclusion of a defendant’s case at sentencing, ORS 151.505,
ORS 161.665, or, as in this case, before the conclusion of a
case once it is determined that the defendant is financially
eligible for court-appointed counsel, ORS 151.487. ORS
151.487(1) provides, in part:
“If in determining that a person is financially eligible for
appointed counsel …, 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 enter a limited judgment requiring that the person pay to the Public
Defense Services Account … the amount that it finds the
662 State v. McCarthy
person is able to pay without creating substantial hardship
in providing basic economic necessities to the person or the
person’s dependent family. …”
In 2004, Chief Justice Carson issued CJ Order No.
04-031 to establish, among other objectives, uniform procedures for circuit courts to follow in implementing the
requirements of ORS 151.487. As the Chief Justice noted in
the order, the procedures were used partially to help manage and reduce unnecessary cost and workload on judges
and court staff resulting from the programs to recover
court-appointed attorney fees. The order states that,
“[w]hen a court orders payment under [ORS 151.487] for a
pending probation violation in a criminal … case, the court
will reduce the order to a supplemental judgment … and
cause the supplemental judgment to be entered in the register.” 2 Further, CJ Order No. 04-031 “authorizes courts to
delegate, by presiding judge order … to trial court administrators of their courts the authority to sign … judgments
and orders [issued under ORS 151.487], subject to judicial
review under ORS 151.487(5).”
In 2016, Presiding Judge Herndon of the Clackamas
County Circuit Court issued PJ Order No. 2015-06, authorizing the “Trial Court Administrator, … through deputy
court clerks,” to sign and enter limited or supplemental
judgments for court-appointed counsel.
The state argues that the court collection clerk’s
authority to sign the judgments in this case derives from
CJ Order No. 04-031, and that the presiding judge of the
2
At the time that CJ Order No. 04-031 was issued in 2004, ORS 151.487 did
not specifically direct courts to use a “limited judgment” when ordering a defendant to contribute to court-appointed attorney costs. Instead, the statute provided that, if the court finds that the person has the financial resources to contribute to court-appointed attorney costs, “the court shall order the person to pay
to the Public Defense Services Account.” ORS 151.487 (2003) (emphasis added).
In 2011, ORS 151.487 was amended to add the language that courts must issue
a limited judgment when ordering court-appointed contribution costs under ORS
151.487. Or Laws 2011, ch 597, § 42. Neither party argues that the court’s use of
a supplemental judgment as opposed to a limited judgment affects the issues in
this case, and we agree. See ORS 18.245 (noting that “the only requirements …
that are jurisdictional for the purposes of appeal of a judgment,” and including
ORS 18.038(1) (“judgment document must be plainly titled as a judgment”), but
excluding ORS 18.038(2) (“judgment document must indicate whether the judgment is a limited judgment, a general judgment or a supplemental judgment”)).
Cite as 305 Or App 658 (2020) 663
Clackamas County Circuit Court was acting pursuant to the
authority of the CJ order when he delegated the authority to
the trial court administrator, through deputy court clerks,
to sign the supplemental judgments. Defendant disagrees,
arguing that the Chief Justice did not have the authority to
authorize presiding judges to delegate the signing of judgments issued under ORS 151.487 to trial court administrators. He further contends that, even if the Chief Justice was
legally so authorized, CJ Order No. 04-031 authorizes the
delegation of the signing of judgments to trial court administrators only, not to them through deputy court clerks.3
Under ORS 18.038(4)(c), a court administrator may
sign a judgment document only if “authorized by law.” 4
Because CJ Order No. 04-031 relies on, as relevant to this
appeal, ORS 1.002 as the authority under which the Chief
Justice issued the procedures in the order, we begin by
examining the authority ORS 1.002 confers on the Chief
Justice and presiding judges of the circuit courts.
Pursuant to ORS 1.002, the legislature has designated the Chief Justice as “the administrative head of the
judicial department” who is required to “exercise administrative authority and supervision over the courts of this
state consistent with applicable provisions of law and the
Oregon Rules of Civil Procedure.” ORS 1.002(1). The legislature has granted the Chief Justice the power to “[m]ake
3
Defendant does not argue that CJ Order No. 04-031 improperly delegated
to trial court administrators the authority to determine the amount a defendant
is ordered to pay because ORS 151.487 requires such a determination to be made
by a judge and not a court administrator. See, e.g., State v. Flynn, 89 Or App
47, 49,
747 P2d 376 (1987) (concluding that, by ordering the defendant to pay
an undefined amount in statutory fees “ ‘upon direction of the probation officer
commensurate with [the defendant’s] financial capabilities,’ ” the court improperly delegated its judicial authority to determine the defendant’s “ability to pay”
before imposing fees because the court “cannot delegate the judicial determination required by ORS 161.665(3)”). Accordingly, we state no opinion on the merits
of, or the sufficiency of the record to support, such an argument.
4
ORS 18.038(4)(c) provides, in part:
“A judgment document must include:
“…
“(c) The signature of the judge rendering judgment, or the signature of
the court administrator if the court administrator is authorized by law to sign
the judgment document.”
(Emphasis added.)
664 State v. McCarthy
rules and issue orders,” ORS 1.002(1)(a), and to take “any
other action appropriate to the exercise of the powers specified in [ORS 1.002] and other law, and appropriate to the
exercise of administrative authority and supervision by the
Chief Justice over the courts of this state,” ORS 1.002(1)(k).
Further, ORS 1.002(9) allows the Chief Justice to
“delegate the exercise of any of the powers specified [in ORS
1.002] to the presiding judge of a court.” Lastly, in addition
to the express authority granted by ORS 1.002, the Chief
Justice’s administrative authority under ORS 1.002 may be
implied. See Smith v. Washington County, 180 Or App 505,
521-22,
43 P3d 1171, rev den,
334 Or 491 (2002) (concluding
that ORS 1.002 includes the implied administrative authority for the Chief Justice and presiding judges to regulate the
security of courthouse facilities).
The “statutes that apply to the presiding judges of
the judicial districts confer complementary authority [to the
Chief Justice’s authority] at the local level.” Id. at 518. ORS
1.002(8) provides that “the presiding judge of each judicial
district of this state are the administrative heads of their
respective courts.” In executing their administrative duties,
ORS 1.171(4) states that the “presiding judge[s] may delegate the exercise of any of the administrative powers of the
presiding judge[s] … to the trial court administrator.”
Here, the Chief Justice’s implied administrative
authority under ORS 1.002 includes the authority to authorize courts to delegate, by presiding judge order, to trial
court administrators the authority to sign judgments issued
under ORS 151.487. To begin, it is well established that the
Chief Justice has wide-ranging administrative authority
over Oregon courts. See Smith, 180 Or App at 521 (concluding that “administrative authority and supervision” as used
in ORS 1.002 are “broad in their scope”). As we have previously explained:
“As ordinarily understood, administrative authority encompasses the full range of management and executive policy choices involved in ensuring that an organization or
institution can serve its mission. That understanding
of the language is underscored by context. In particular,
the legislature granted the Chief Justice the authority to
Cite as
305 Or App 658 (2020) 665
‘[t]ake any other action appropriate to the exercise of the
powers specified in this section and other law, and appropriate to the exercise of administrative authority and supervision by the Chief Justice over the courts of this state.’ ORS
1.002(1)[(k)]. The broad scope of authority granted to the
Chief Justice in that regard is significant in determining
what powers are implicit in the grant.”
Id. at 521-22 (emphasis in original; footnote omitted).
Moreover, signing judgments—at least in this
context—qualifies as an administrative function of supervising a court system because, for example, allowing court staff
to assist judges in signing judgments could reduce workload
for individual judges. Indeed, reducing judicial department
workload was one of the purposes of issuing the procedures
in CJ Order No. 04-031, and managing workload—either
directly or indirectly—is central to the Chief Justice’s role
as administrator and supervisor of the Oregon Judicial
Department. See, e.g., ORS 1.002(1)(d) (allowing the Chief
Justice to set staffing levels for all courts within the Judicial
Department); ORS 1.002(1)(e) (allowing Chief Justice to
establish time standards for the disposition of cases); ORS
1.002(1)(f) (allowing Chief Justice to establish budgets for
the Judicial Department); ORS 1.002(1)(g) (allowing Chief
Justice to assign or reassign all court staff operating under
the Judicial Department). Therefore, so long as the order is
“consistent with applicable provisions of law,” ORS 1.002(1),
the Chief Justice’s administrative authority includes the
implied authority to designate by order who may sign judgments imposing attorney fees under ORS 151.487. See, e.g.,
ORS 1.002(1)(k) (allowing Chief Justice to take “any other
action appropriate to the exercise of the powers specified in
this section and other law, and appropriate to the exercise
of administrative authority and supervision by the Chief
Justice over the courts of this state”); ORS 1.002(5) (“Rules
made and orders issued by the Chief Justice under this section shall permit as much variation and flexibility in the
administration of the courts of this state as are appropriate
to the most efficient manner of administering each court,
considering the particular needs and circumstances of the
court, and consistent with the sound and efficient administration of the judicial department of government in this
666 State v. McCarthy
state.”); see also ORS 1.002(2)(c) (allowing Chief Justice to
make rules allowing for the use of electronic signatures).
Further, because the legislature has also authorized the Chief Justice to delegate the Chief Justice’s administrative authority to presiding judges, ORS 1.002(9), and
has also allowed presiding judges to delegate the presiding
judge’s administrative authority to trial court administrators, ORS 1.171(4), the Chief Justice properly exercised
his administrative authority when he issued CJ Order No.
04-031 and allowed presiding judges to delegate to trial
court administrators the authority to sign judgments issued
under ORS 151.487.
Defendant does not address the Chief Justice’s
authority under ORS 1.002, focusing instead on ORS
18.038(4)(c), ORS 18.052(1), and ORS 18.058(1), arguing that
those statutes do not operate as a source of authority for the
Chief Justice to allow presiding judges to delegate to court
administrators the authority to sign the judgments in this
case. Paragraph seven of CJ Order No. 04-031 provides:
“This paragraph authorizes courts to delegate, by presiding judge order and as allowed under ORS 18.052(2) and
18.058(1), to trial court administrators of their courts the
authority to sign ACP judgments and orders, subject to
judicial review under ORS 151.487(5).”
(Emphasis added.) Defendant argues that neither ORS
18.052(2) and ORS 18.058(1), cited in the CJ Order, nor ORS
18.038(4) provide the Chief Justice with the authority to promulgate the procedures at issue in this case because those
statutes all “assume that a trial court administrator may
sign a judgment document only if the administrator is separately ‘authorized by law’ to do so.” Although defendant is
correct on that point,5 the order specifically and permissibly
5
See ORS 18.052(1) (providing that the “judge must sign the judgment document unless the court administrator is authorized by law to sign the judgment
document” (emphasis added)); ORS 18.058(1) (providing that the “court administrator shall note in the register that a judgment document has been filed if the
judgment document is signed by a judge of the court, or by the court administrator if the court administrator is authorized by law to sign the judgment document”
(emphasis added)); ORS 18.038(4) (requiring a judgment to include the “signature
of the judge rendering the judgment, or the signature of the court administrator
if the court administrator is authorized by law to sign the judgment document”
(emphasis added)).
Cite as 305 Or App 658 (2020) 667
relied on ORS 1.002 for authority to issue the procedures
outlined in the order. Accordingly, the Chief Justice was
authorized to allow courts to delegate, by presiding judge
order, to trial court administrators the authority to sign
judgments issued under ORS 151.487.
The remaining question is whether the presiding
judge had the authority to delegate the signing of judgments
issued under ORS 151.487 to the trial court administrator
through a deputy court clerk, as provided in PJ Order No.
2015-06. Like the Chief Justice, presiding judges are authorized to “[m]ake rules, issue orders and take other action
appropriate to [the] exercise [of the presiding judge’s administrative authority].” ORS 1.171(2)(b). A presiding judge may
also “delegate the exercise of any of the administrative powers of the presiding judge … to the trial court administrator,” ORS 1.171(4), who, in turn, has the “duties, powers
and functions prescribed by law or by rules of the circuit
courts” and may “delegate powers of the office of trial court
administrators to [their] employees,” ORS 8.225(1), (4).
Deputy court clerks, including the court collection clerk
who signed the judgments in this case, are employees of the
trial court administrator. See Oregon AFSCME Council 75
v. OJD - Yamhill County, 304 Or App 794, 801,
469 P3d 812
(2020) (“Under the Chief Justice’s rules, a [trial court administrator] … has supervisory authority over all staff, including judicial staff, for the [trial court administrator’s] respective court, unless the presiding judge in writing specifies
otherwise. [Judicial Department Personnel Rules] 1.02(8).”).
Here, once the presiding judge authorized the trial
court administrator to sign the types of judgments at issue
in this case, ORS 8.225(4) allowed the trial court administrator to delegate that same administrative authority to
court employees, including court clerks. Accordingly, we
conclude that the court collection clerk was authorized to
sign the supplemental judgments in this case. We therefore
have jurisdiction over the appeal and turn to the merits.
Although defendant raises his argument for the first
time on appeal, we conclude that the rules of preservation do
not apply in this case because the asserted error appeared
for the first time in the judgment. See, e.g., Walker v. State of
668 State v. McCarthy
Oregon, 256 Or App 697, 699,
302 P3d 469, rev den,
354 Or
62 (2013) (concluding that the petitioner was not required to
preserve an issue where purported error appeared for the
first time in the judgment because “petitioner had no reason to know that [the judgment]” would include the asserted
error). At defendant’s arraignment hearing, the trial court
appointed an attorney but made no mention that it would
be imposing attorney fees. However, the supplemental
judgments that reflect the court’s order appointing counsel included the imposition of attorney fees. On these facts,
defendant “cannot be required to [have] raise[d] an objection contemporaneously with a trial court’s ruling … when
[defendant] was not on notice of the trial court’s intended
action and had no opportunity to be present when the trial
court acted.” State v. DeCamp,
158 Or App 238, 241,
973 P2d
922 (1999).
On the merits, and relying on ORS 151.505(4) and
ORS 161.665(4), defendant argues that “each [of those statutes] provide that a court may order the defendant to pay
court-appointed attorney fees only if the defendant ‘is or
may be able’ to pay them.” Defendant continues that a “court
may not impose attorney fees when the record is ‘silent’
regarding ability to pay. State v. Pendergrapht, 251 Or App
630, 634,
284 P3d 573 (2012) [(construing ORS 151.505 and
ORS 161.665)].” The state, relying on the same authorities,
concedes that the trial court erred, adding in its supplemental brief that ORS 151.487—the statute at issue here—
“authorizes imposition of attorney fees only if the court ‘finds
that the person has financial resources that enable the person to pay,’ ” and that the record here contains “no evidence
to support such a finding.”
In accepting the state’s concession that the trial
court erred, we focus on ORS 151.487, the statute that
authorizes the judgments in this case. As previously noted,
ORS 151.487(1) provides:
“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
Cite as 305 Or App 658 (2020) 669
and other services to be provided at state expense that are
related to the provision of appointed counsel, the court shall
enter a limited judgment requiring that the person pay to
the Public Defense Services Account established by ORS
151.225, 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 person’s dependent family. The amount that a
court may require 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.”
(Emphases added.)
The statute requires a two-step process. First, the
court must “find” that the “person has financial resources
that enable the person to pay in full or in part … the costs
of the legal and other services.” Second, if the court makes
that finding, the court must next determine “the amount
that it finds the person is able to pay.” Because the statute
requires that the court first find that a “person has [the]
financial resources” to pay the attorney fees before it may
impose them, the record must establish that the defendant
has sufficient financial resources to pay the imposed attorney fees to infer that the court made the statutory finding.
See, e.g., State v. Venturi, 166 Or App 46, 52-53,
998 P2d
748, rev den,
330 Or 375 (2000) (concluding that the record
was sufficient to support the court’s imposition of attorney
fees under ORS 151.487); accord State v. Mickow,
277 Or
App 497, 498-500,
371 P3d 1275 (2016) (holding, in addressing the procedural requirements of imposing attorney fees
under ORS 151.505 and ORS 161.665, that, “when evaluating an award of court-appointed attorney fees, we do not
assume that the trial court complied with applicable statutory procedures unless the record provides some affirmative
support for that assumption. Where the record contains no
affirmative indication that the trial court complied with the
statutory requirements for imposing fees, we will conclude
that the court did not, in fact, do so.”).
Here, the parties agree that nothing in the record
establishes that defendant “has [the] financial resources”
to pay the attorney fees that were imposed in this case.
Therefore, there is no basis for the necessary inference that
670 State v. McCarthy
the trial court made a finding that defendant had the financial resources to pay the attorney fees before imposing them.
For that reason, the trial court erred in imposing the attorney fees in this case, and we reverse those judgments.
In summary, we conclude that we have jurisdiction because CJ Order No. 04-031 and PJ Order No. 2015-
06 legally authorized the court collection clerk to sign the
supplemental judgments on appeal in this case. Further,
because ORS 151.487 requires a court to first find that a
defendant has the financial resources to pay the attorney
fees before it is authorized to impose them, and the record
does not support an inference that the court made such a
finding, we conclude that the trial court erred in imposing
the attorney fees.
Supplemental judgments imposing attorney fees
reversed.
