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 861
 
                         Senate Bill 100
 
Printed pursuant to Senate Interim Rule 213.28 by order of the
  President of the Senate in conformance with presession filing
  rules, indicating neither advocacy nor opposition on the part
  of the President (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 receive and 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, the moving party
establishes that the additional evidence is material and the
moving party establishes that there was good and substantial
reason for the failure to present the additional evidence to the
agency before the agency issued the order. If the court
determines that it is necessary to receive and consider
additional evidence under this subsection, the court shall
authorize the agency to conduct a supplemental evidentiary
proceeding to receive and consider the evidence upon such
conditions as the court may prescribe. The agency may consider
additional evidence submitted by the agency in response to
evidence submitted by the moving party in a supplemental
evidentiary hearing. If an agency elects to conduct a
supplemental evidentiary proceeding, the agency shall issue an
order upon reconsideration that affirms, vacates, reverses or
modifies the agency's original order. The order upon
reconsideration shall be based on the original record as
supplemented by the additional evidence received by the agency.
Within such time as may be prescribed by the court, the agency
shall file the supplemented record with the court, along with the
agency's order upon reconsideration. If the petitioner is
adversely affected or aggrieved by the order upon
reconsideration, the petitioner may request that the court review
the order as provided in subsection (9) of this section. If the
agency does not elect to conduct a supplemental evidentiary
proceeding, or fails to conduct the proceeding in the manner
prescribed by the court, the court shall take such additional
evidence as the court determines to be necessary and appropriate
in an evidentiary hearing conducted by the court, and shall
review the order as provided in subsection (9) of this
section. + }
    { - (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 2003 Act apply only to petitions for review under ORS
183.484 filed on or after the effective date of this 2003
Act. + }
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