72nd OREGON LEGISLATIVE ASSEMBLY--2003 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 1626
 
                         House Bill 2435
 
Sponsored by Representative KROPF
 
 
                             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.
 
  Requires hearing officer in contested case hearing to award
reasonable attorney fees and reasonable expenses to party other
than state agency if hearing officer finds in favor of party and
also finds that agency did not have reasonable basis in fact or
in law for issuing order. Specifies that order of hearing officer
is final order. Provides for appeal by agency.
  Requires similar award for certain orders of Department of
Consumer and Business Services.
 
                        A BILL FOR AN ACT
Relating to awards of attorney fees in administrative
  proceedings; creating new provisions; and amending ORS 182.090.
Be It Enacted by the People of the State of Oregon:
  SECTION 1. ORS 182.090 is amended to read:
  182.090. (1) In any civil judicial proceeding involving as
adverse parties a state agency, as defined in ORS 291.002, and a
petitioner, the court shall award the petitioner reasonable
attorney fees and reasonable expenses if the court finds in favor
of the petitioner and also finds that the state agency acted
without a reasonable basis in fact or in law.
  (2) Amounts allowed under  { + subsection (1) of + } this
section for reasonable attorney fees and expenses shall be paid
from funds available to the state agency. The court may withhold
all or part of the attorney fees from any award to a petitioner
if the court finds that the state agency has proved that its
action was substantially justified or that special circumstances
exist which make the award of all or a portion of the attorney
fees unjust.
   { +  (3) In any contested case proceeding under ORS 183.310 to
183.550, the hearing officer shall award reasonable attorney fees
and reasonable expenses to a party other than a state agency if
the hearing officer finds in favor of the party and also finds
that the state agency did not have a reasonable basis in fact or
in law for issuing the order that is the subject of the hearing.
  (4) Notwithstanding any other provision of law, the finding of
a hearing officer under subsection (3) of this section is a final
order and may not be modified or disapproved by the state agency.
  (5) Notwithstanding any other provision of law, a state agency
may appeal a final order entered under subsection (3) of this
section. An appeal under this subsection may be made in the
manner provided by ORS 183.482. The court may not set aside the
order unless the court finds that the order is not supported by
substantial evidence in the record, as described in ORS 183.482
(8)(c). + }
    { - (3) - }   { + (6) + } As used in this section, 'civil
judicial proceeding' means any proceeding, other than a criminal
proceeding as defined in ORS 131.005 (7), conducted before a
court of this state.
  SECTION 2.  { + Section 3 of this 2003 Act is added to and made
a part of ORS chapter 654. + }
  SECTION 3.  { + The Workers' Compensation Board shall award
reasonable attorney fees and reasonable expenses to an employer
that contests a citation or a proposed assessment of civil
penalty, or any other order of the Department of Consumer and
Business Services issued under this chapter, if after hearing the
board finds in favor of the employer and also finds that the
department did not have a reasonable basis in fact or in law for
issuing the citation or other order, or for proposing the civil
penalty. An award of attorney fees and expenses under this
section is subject to judicial review in the manner provided by
ORS 182.090. + }
  SECTION 4.  { + (1) The amendments to ORS 182.090 by section 1
of this 2003 Act apply only to orders issued by state agencies on
or after the effective date of this 2003 Act.
  (2) Section 3 of this 2003 Act applies only to citations,
proposed civil penalties and orders issued under ORS chapter 654
on or after the effective date of this 2003 Act. + }
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