The Brief is also available on line with the record. These is also a page with links to the sections describing events as they occurred.

Page breaks have been moved slightly to avoid page splits in the middle of paragraphs. Hand written entries (signatures) are shown in italics and underlined.

IN THE COURT OF APPEALS OF THE
STATE OF OREGON

1. That this matter be scheduled for oral argument.

2. That the record in this case be expanded to include the exhibits attached to this motion along with the supporting affidavit.

3. That this matter be processed expeditiously by the Court of Appeals.

4. That the Motion for Extension of Time by the Respondent be denied and the Respondent be deemed to have answered in that the papers submitted by the Multnomah County District Attorney are adequate to address the questions of law presented to the Court.

5. In the event that the Court grants an extension of time to the Respondent of duration greater than four weeks from the date this motion is decided, that the Appellant be permitted to submit an appended Brief in this matter with a new question of law supported by the expanded record.

IN THE COURT OF APPEALS OF THE
STATE OF OREGON

1. There were no issues of fact raised before the trial court. Further, before the hearing conducted on April 13, 2006, the parties determined that there were several questions of law which they disagreed on and that appellate review was likely. As such, both parties presented their arguments in writing prior to the hearing.

2. While all of the Appellant's arguments are presented in the Appellant's Brief, it is possible that the Oregon Court of Appeals may not be familiar with the subtleties of Washington law with respect to Superior Court Commissioners and the different references in the constitution, statutes, and case law. As such oral argument could be useful to the Court of Appeals and is requested.

3. RCW 26.50 (domestic violence) cases in Washington are problematic as many cases can be handled by the District Court (a court of limited jurisdiction), but the final hearing in cases of a shared residence (as was the case in the matter at hand) must be transferred to the Superior Court (see RCW 26.50.020 (5)) which can be disruptive and confusing. Since 1998, the Superior Court in Clark County addressed this problem by delegating authority to hear RCW 26.50 matters to the District Court (see 'A Process Evaluation of the Clark County Domestic Violence Court', Kleinhesselink and Mosher, Department of Sociology, Washington State University Vancouver). They did this by appointing all the District Court judges as Superior Court Commissioners.

   
   

   Mtn to Rcnsdr, Sep 18, 2006

   3 / 9

   ---

4. That would be fine except that Washington Constitution Article IV, Section 23 limits the appointment of such Commissioners in any given county to 'not exceeding three in number' and Clark County Superior Court appointed nine. This has far reaching effects in that if the these appointments are found invalid, the likely outcome is that all orders made by these improper Commissioners will be invalidated as will any arrests and / or convictions that follow. This would be quite disruptive, but the alternative is to just ignore the requirements of the constitution and give up on our government of law.

5. In Washington the Appellant appealed the validity of the Order for Protection due to the number of Superior Court Commissioners appointed in Clark County, but the Court of Appeals (Case 32671-0-II) did not address that issue and the Washington Supreme Court (case 78768-9 ) has been asked to address the issue. Until such time as Washington courts address the issue, Oregon courts must determine the validity of such orders before enforcing them.

6. In apparent recognition that the prior appointments of Superior Court Commissioners violated the numeric limits of the Washington Constitution and were not valid, in 2006 the Superior Court instead appointed the District Court Judges as Family Law Court Commissioners under RCW 26.12. However, the Family Court is a court of limited jurisdiction (Ordell v. Gaddis, 99 Wn.2d 409) and can only hear those matters listed in RCW 26.12.010 which does not include RCW 26.50 matters. Further, these recent appointments specifically do not include any authority under the Washington Constitution Article IV, Section 23 which is the source of Commissioners' authority to issue orders of duration longer than 14 days, State v. Karas, 108 Wn. App. 692, 700-02, 32 P.3d 1016 (2001). The individuals hearing RCW 26.50 matters in Clark County at this time do not have jurisdiction to hear those matters and, hence, any Orders they issue are invalid.

7. While Washington Courts have not to date published any decisions concerning the implications of Commissioners appointed in violation of the limits of the Washington Constitution Article IV, Section 23, the law is clear on the effect of Orders made when the court did not have jurisdiction. An order can be 'declared void for the reason that the ... court did not have jurisdiction to enter such decree.' Barker v. Barker, 31 Wn. (2d) 506. It is also well established that all subsequent actions based on the void order are void ab initio Beyerle v. Bartsch, 111 Wash. 287. or void from the beginning. As the orders appointing the Commissioners were void, all their subsequent orders were similarly void and any arrests and convictions which stem from these are void. Oregon has a similar history voiding court actions which are without jurisdiction. Li v. State of Oregon, 338 Or 376, 391, 110 P3d 91 (2005), Montoya v Housing Authority of Portland, 192 Or App 408, 86 P3d 80 (2004), Cooley v. Fredinburg, 144 Or App 410, 927 P2d 124 (1996)

   
   

   Mtn to Rcnsdr, Sep 18, 2006

   4 / 9

   ---

8. The Appellant did not expect that the Washington Court of Appeals would not address the question of the validity of the RCW 26.50 Orders in Clark County, nor that Clark County Superior Court would choose an alternate strategy for delegating authority to the District Court. The new exhibits are requested to be included in the record as they assist the court in determining the larger question of can the Washington Superior Court legitimately delegate authority to hear RCW 26.50 matters to the District Court. Further, exhibits B through D were not available to the Appellant until after the hearing of April 13, 2006.

9. While the Appellant himself is not incarcerated, his ability to seek alternative employment is greatly diminished due to the unfounded entry in his criminal record. Further, given the volume of Domestic Violence cases processed in Clark County, it is possible that there could be dozens of individuals improperly incarcerated in Oregon and thousands of individuals whose criminal records are improperly hindering their employment prospects. These issues should be addressed as promptly as possible.

10. While it is apparent that opposing counsel has a heavy case load, what is not described is why the case was transferred from the previous counsel in this matter, Erika Hadlock, #91297, and whether any other attorney could have dealt with the matter in a more timely fashion. The Attorney General and Solicitor General certainly have the authority to assign counsel however they choose, but it is not proper to surreptitiously prioritize the processing of cases by the court through these assignments. Further, if the case load exceeds the available resources, then it is not a solution to simply delay the current cases as this will result in ever increasing delays that are interminable. Rather, the Attorney General and Solicitor General need to prioritize their cases and the effort spent to match the available resources, not initiating appeals in more cases than they can process and not opposing appeals beyond those they are able to process.

    
    

    Mtn to Rcnsdr, Sep 18, 2006

    5 / 9

    ---

11. The Motion For Extension of Time does not offer any indications that opposing counsel has any meritorious points to raise. Indeed, as there are no issues of facts in this case, there is no real need for opposing counsel to offer any reply at all. It is the responsibility of the court to answer the questions of law in such a fashion that it comports with the relevant constitutions, statutes, and case law. While the legal arguments of the parties can be helpful to the court in insuring that the relevant issues are considered, they are hardly essential. Further, the Multnomah County District Attorney was well aware that this issue was likely to be submitted for appellate review and there are no indications that the arguments of the state were in any way inadequate. Appellant conscientiously insured that all the papers submitted by the state in this matter were referred to in Appellant's Brief so that they would be included in the record reviewed by the Court of Appeals. All the legal points raised by the District Attorney are available to the court for consideration.

12. Further, even if there are new points which the state wishes to raise in this matter, it certainly does not take 161 days to prepare them. If the state has relevant points to raise and the desire to present them, surely counsel can prepare them in a few days rather than the 161 requested. Indeed, if the state's workload is so large, it would help the state manage its workload with a finding that no answer is necessary and proceeding directly, relying on the legal arguments previously presented by the Multnomah County District Attorney.

13. If this case is going to be delayed because of the state's workload, the Appellant would like to raise an additional question of:

    Can Oregon courts enforce Washington RCW 26.50 Orders for Protection which are issued by Family Court Commissioners who are not also appointed as Superior Court Commissioners under Washington Constitution Article IV, Section 23?

    It will only take a few days to prepare an Appended Brief to present this further question.
    
    

    Mtn to Rcnsdr, Sep 18, 2006

    6 / 9

    ---

14. For the convenience of the court and opposing counsel, a copy of this motion is posted on the web at: http://brian.carr.name/Mt060918.htm (capitalization is important). This copy of the motion has links to the different cases, statutes, and constitutions referred to in the motion which may be useful in the event that these references (many of which are in Washington) are not readily available in Oregon.

IN THE COURT OF APPEALS OF THE
STATE OF OREGON

I, Brian P Carr, am the Defendant - Appellant in this matter, have knowledge of the facts of this matter, and make the following statements under oath and penalty of perjury.

1. In Washington Court of Appeals case 32671-0-II, I submitted a question of:

   Can the Superior Court in any given county make more than three valid simultaneous appointments of Commissioners who aren't Family Court Commissioners? The trial court answered in the affirmative.

   and submitted as evidence copies of Orders appointing four Commissioners who weren't Family Court / Law Commissioners. The response of the Court of Appeals was:

   Carr argues that his due process rights and his right to have a judge adjudicate his case were violated because Clark County allegedly appointed more than three court commissioners. However, a family law commissioner is not a "commissioner" within the meaning of the constitutional provision limiting the number of court commissioners in counties.

   The Court of Appeals simply ignored the question before it and answered a well understood question which is not relevant to the case at hand.

2. In the record in this case, there are Orders appointing four contemporaneous Superior Court Commissioners in Clark County under Washington Constitution Article IV, Section 23 and not under RCW 26.12 (Family Court) for 2004. Exhibit A is copies of orders appointing these same individuals for 2005 as they were received from the office of the Clark County Superior Court Chief Administrator.

   
   

   Mtn to Rcnsdr, Sep 18, 2006

   8 / 9

   ---

3. Exhibit B is copies of orders appointing these same individuals as Superior Court Commissioners in Clark County in 2006 except that the Honorable Osler is substituted for the Honorable Anders and are as received from the office of the Clark County Superior Court Chief Administrator. Exhibit C is a copy of a letter dated August 19, 2006 I sent to the Superior Court inquiring about other appointments and continued hearings under RCW 26.50. Exhibit D is a copy of the response from the Court dated August 22, 2006.

4. On September 18, 2006 , true and accurate copies of this motion as well as the associated papers were served on opposing counsel in an envelope addressed to:

   Department of Justice,
   Ref: Case A132012
   1162 Court Street NE
   Salem, OR 97301-4096

   with first class postage attached which I placed in a U.S.P.S. mail box located at SW 5^th Ave and Stark in Portland, OR.

I certify under penalty of perjury under the laws of the state of Oregon that the foregoing is true and correct.

Dated: Location:

September 18, 2006 Portland, OR

Brian P. Carr Signature of Defendant - Appellant Brian P. Carr 11301 NE 7th St., Apt J5 Vancouver, WA 98684 360-607-0556

Plaintiff - Respondent:
Hardy Myers, #64007, Attorney General
Mary Williams, #91124, Solicitor General
1162 Court Street NE
Salem, OR 97301
503-378-4402