71st OREGON LEGISLATIVE ASSEMBLY--2001 Regular Session
 
NOTE:  Matter within  { +  braces and plus signs + } in an
amended section is new. Matter within  { -  braces and minus
signs - } is existing law to be omitted. New sections are within
 { +  braces and plus signs + } .
 
LC 1113
 
                         House Bill 2219
 
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
  Presession filed (at the request of Attorney General Hardy
  Myers for Department of Justice)
 
 
                             SUMMARY
 
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
 
  Establishes rules and procedures for transmission of record to
court when petition is filed in circuit court challenging order
other than contested case issued by state agency. Provides for
award to agency of costs of preparing record in certain
circumstances. Provides that review of order other than contested
case by court is confined to record transmitted to court and
certain additional evidence that may be included in record.
Provides that court may not substitute its judgment for that of
agency as to any issue of fact or agency discretion.
 
                        A BILL FOR AN ACT
Relating to judicial review of orders other than contested cases;
  creating new provisions; and amending ORS 183.484.
Be It Enacted by the People of the State of Oregon:
  SECTION 1. ORS 183.484 is amended to read:
  183.484. (1) Jurisdiction for judicial review of orders other
than contested cases is conferred upon the Circuit Court for
Marion County and upon the circuit court for the county in which
the petitioner resides or has a principal business office.
Proceedings for review under this section shall be instituted by
filing a petition in the Circuit Court for Marion County or the
circuit court for the county in which the petitioner resides or
has a principal business office.
  (2) Petitions for review shall be filed within 60 days only
following the date the order is served, or if a petition for
reconsideration or rehearing has been filed, then within 60 days
only following the date the order denying such petition is
served.  If the agency does not otherwise act, a petition for
rehearing or reconsideration shall be deemed denied the 60th day
following the date the petition was filed, and in such case
petition for judicial review shall be filed within 60 days only
following such date. Date of service shall be the date on which
the agency delivered or mailed its order in accordance with ORS
183.470.
  (3) The petition shall state the nature of the petitioner's
interest, the facts showing how the petitioner is adversely
affected or aggrieved by the agency order and the ground or
grounds upon which the petitioner contends the order should be
 
reversed or remanded. The review shall proceed and be conducted
by the court without a jury.
   { +  (4) Within 30 days after service of a petition under this
section, or within such further time as the court may allow, the
agency shall transmit to the court any record on which the order
was based. The agency need not transmit any large maps or
documents that are difficult to duplicate until the date of the
hearing established by the court. The agency shall serve a copy
of the record on the petitioner at the time the record is
transmitted to the court. The record shall include all evidence
and other factual, nonprivileged information considered by the
agency in issuing the order, without regard to whether that
evidence or information was reflected in a document or other
written form at the time the order was issued. Upon motion by the
agency, the court shall allow the agency to correct a record
after the record has been transmitted to the court by adding
additional material evidence that was considered by the agency in
issuing the order but that was not included in the record
transmitted to the court.  The court shall resolve any dispute
over the contents of the record. The record may be shortened for
the purposes of the proceeding if all parties so stipulate.
  (5) The court may not order that the petitioner or other
intervening party pay the cost of preparing the record, except
that:
  (a) The petitioner or other party may be ordered by the court
to pay additional costs incurred by the agency or other parties
by reason of an unreasonable refusal to stipulate to a shortening
of the record under subsection (4) of this section; and
  (b) The petitioner may be ordered to pay to the agency the cost
of preparing the record if the court determines that the petition
is frivolous.
  (6) The court shall consider evidence in addition to the record
transmitted to the court under subsection (4) of this section if
a motion is made for leave to present additional evidence before
the date set for hearing and the moving party establishes that
the additional evidence is material and that there were good and
substantial reasons for the failure to present the additional
evidence to the agency before the agency issued the challenged
order. If the court allows a motion to present additional
evidence under this subsection, the agency may also present
additional evidence in response to the evidence produced by the
moving party. The additional evidence shall be taken by the
agency unless the agency requests that the court receive the
evidence. The court shall allow the agency to reconsider the
order after the additional evidence is received. If the agency
declines to reconsider the order, or if the petitioner remains
dissatisfied with the agency action after reconsideration,
proceedings under this section shall continue and the additional
evidence shall be included in the record reviewed by the
court. + }
    { - (4) - }   { + (7) + } At any time subsequent to the
filing of the petition for review and prior to the date set for
hearing, the agency may withdraw its order for purposes of
reconsideration. If an agency withdraws an order for purposes of
reconsideration, it shall, within such time as the court may
allow, affirm, modify or reverse its order. If the petitioner is
dissatisfied with the agency action after withdrawal for purposes
of reconsideration, the petitioner may refile the petition for
review and the review shall proceed upon the revised order. An
amended petition for review shall not be required if the agency,
on reconsideration, affirms the order or modifies the order with
only minor changes.  If an agency withdraws an order for purposes
of reconsideration and modifies or reverses the order in favor of
the petitioner, the court shall allow the petitioner costs, but
not attorney fees, to be paid from funds available to the agency.
 
   { +  (8) Review of an order in other than a contested case
shall be confined to the record transmitted to the court under
subsection (4) of this section and any additional evidence that
is included in the record under subsection (6) of this section.
In reviewing the record, the court may not substitute its
judgment for that of the agency as to any issue of fact or agency
discretion. If a party alleges the existence of bias on the part
of the agency or decision maker that is not shown in the record,
and that bias would warrant reversal or remand if proved, the
court shall take evidence and make findings of fact on those
allegations. The court shall remand the order to the agency for
further action if the court determines that bias existed and that
the bias may have impaired the fairness or correctness of the
agency action. + }
    { - (5)(a) - }   { + (9)(a) + } The court may affirm, reverse
or remand the order. If the court finds that the agency has
erroneously interpreted a provision of law and that a correct
interpretation compels a particular action, it shall:
  (A) Set aside or modify the order; or
  (B) Remand the case to the agency for further action under a
correct interpretation of the provision of law.
  (b) The court shall remand the order to the agency if it finds
the agency's exercise of discretion to be:
  (A) Outside the range of discretion delegated to the agency by
law;
  (B) Inconsistent with an agency rule, an officially stated
agency position, or a prior agency practice, if the inconsistency
is not explained by the agency; or
  (C) Otherwise in violation of a constitutional or statutory
provision.
  (c) The court shall set aside or remand the order if it finds
that the order is not supported by substantial evidence in the
record. Substantial evidence exists to support a finding of fact
when the record, viewed as a whole, would permit a reasonable
person to make that finding.
    { - (6) - }   { + (10) + } In the case of reversal the court
shall make special findings of fact based upon the evidence in
the record and conclusions of law indicating clearly all aspects
in which the agency's order is erroneous.
  SECTION 2.  { + The amendments to ORS 183.484 by section 1 of
this 2001 Act apply only to petitions for review under ORS
183.484 filed on or after the effective date of this 2001
Act. + }
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