Oregon Department of Justice

Attorney General Ellen F. Rosenblum

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Information for Client Agencies

Preparing a record for judicial review in a contested case

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What the record must contain - generally

ORS 183.415(11) sets out in detail what the record in a contested case must include:

 (a)All pleadings, motions and intermediate rulings.
(b)Evidence received or considered.
(c)Stipulations.
(d)A statement of matters officially noticed.
(e)Questions and offers of proof, objections and rulings thereon.
(f)A statement of any ex parte communications on a fact in issue made to the officer presiding at the hearing.
(g)Proposed findings and exceptions.
(h)Any proposed, intermediate or final order prepared by the agency or an administrative law judge.

Rule 4.20(3) of the Oregon Rules of Appellate Procedure states that "[w]henever feasible," the original record shall be transmitted to the court. So the agency should use the original where possible, keeping a copy for itself and making copies for the Attorney General's office and all parties who must be served.

This listing is a starting point. The next step is the format, which is specified by the Oregon Rules of Appellate Procedure.

How to format the record, and specific points on contents

Under Rules 3.05(1) and 4.05 of the Oregon Rules of Appellate Procedure (ORAP), the record is divided into three separate parts:

  • Exhibits
  • Transcript of all oral proceedings
  • Procedural documents

Exhibits

(1) The record must include all exhibits received at the hearing.

(2) The record also must include all exhibits offered by either side at the hearing but not received into evidence.

NOTE: This will give a party on judicial review the opportunity to argue that the exhibit should have been received.

The requirement that the record include all exhibits offered but not received means that, when an ALJ or other person conducting a hearing refuses to receive an exhibit into evidence, the exhibit nonetheless must be kept for purposes of preparation of the record for judicial review.

The rules require that the exhibits be indexed. The index should state the exhibit number and the page of the record at which the exhibit appears.  If an exhibit was offered but not received, the index should so state.

A sample index of exhibits — actually used in a case in the Oregon Court of Appeals — is attached as an example of how an index should look.

Transcript

The record should contain a transcript of all oral proceedings. See ORAP 4.20(1). That will include any prehearing conferences; the evidentiary hearing; and any posthearing arguments or other proceedings, including those at which a party or the party's representative argues the case before the decisionmaker (whether the ALJ, an agency head or other official, or a board or commission).

The rules require that the transcript be prepared in a specific format, which is the same as that required in cases that come from a trial court. ORAP 3.35 describes that format in detail.[1]

If your agency contracts out its transcript preparation to a professional transcription service, the transcriptionist generally will be familiar with that format.

If you choose to have transcripts done in house, you will need to make sure that the person transcribing the hearing prepares the transcript in the proper format.

Procedural documents

This separate portion of the record includes all of the documents that show the procedural history of the case.[2] These include:

The initial notice: typically a notice of the agency's proposed action (such as denial, suspension, or revocation of a license, or the imposition of a civil penalty);

  • Any responsive pleading (often called an "answer) filed by the party;
  • All motions and written orders deciding those motions;

All correspondence involving the agency or its representative; the party or its representative; and the ALJ or agency decisionmaker concerning such matters as scheduling;

  • All written stipulations
  • Any separate written statement of matters officially noticed
  • Any statement of ex parte communications on a fact in issue made to the officer presiding
  • Any proposed order;
  • All written exceptions;
  • Any amended proposed order;
  • All written exceptions to the amended proposed order;
  • The final order;
  • Any petition for rehearing or petition for reconsideration;
  • Any order ruling on a petition for rehearing or reconsideration.

This portion of the record must be formatted as follows:

  • Documents in chronological order, starting with earliest document (usually the original notice) on the bottom;
  • Pages consecutively numbered at the bottom of the page, starting with the bottom page;

NOTE: This means that the documents are numbered backwards. In other words, the bottom page in the stack will be number "1," and the top page will be the highest page number.

  • Documents indexed, showing name or description of document and page of record where it appears;
  • Index and documents securely fastened in a suitable cover or folder showing on outside the caption of the case, which includes the title of the case, the name of the agency, any agency case number, and the appellate court number.

NOTE: You can obtain the proper caption for the case from the Appellate Division of the Department of Justice, which will be representing the agency on judicial review.

See ORAP 3.20 (rule governing preparation of trial court files; same format applies in administrative cases under ORAP 4.05).

A sample index for the record, which should be in the form of a transmittal (again, one used in an actual case in the Oregon Court of Appeals) is attached as an example of what this should look like.

Confidential Documents

The laws applicable to many agencies make some of the documents that might appear in the record in a contested case confidential. ORAP 3.07 describes how to handle two different categories of documents:

  • Documents that are subject to inspection only by the parties or their attorneys must be separated from the rest of the record and submitted in a sealed envelope marked "confidential."
  • Documents that are not subject to inspection by anyone, including any party or any party's attorney, must be separated from the rest of the record and submitted in a sealed envelope marked "sealed."

NOTE: The agency should consult with its assigned general counsel attorney to determine which documents are confidential and the level of confidentiality that applies.

NOTE ON DOCUMENTS SUBJECT TO ATTORNEY-CLIENT PRIVILEGE: The agency need not and should not include with the record letters or memos containing legal advice sent from an assistant attorney general to the agency decisionmaker (for instance, an agency head, board, or commission) stating that they are confidential and protected by attorney-client privilege. Those are not properly part of the judicial review record.

Cases in which no hearing is held

In some cases - for instance, where a party fails to request a hearing - an agency issues a final order without a hearing. Typically, in those cases the agency will have designated the agency "file" as the record on judicial review.

If a party seeks judicial review of a final order in a contested case where no hearing has been held, the agency must prepare the record:

  • Because there was no hearing, there will be no transcript and no exhibits;
  • The agency "file" must be formatted as explained above for the procedural documents.

How many copies to make

The record needs to be filed with the Oregon Court of Appeals and served on the parties. Additionally, because the Appellate Division of the Department of Justice represents the agency on judicial review, the Appellate Division will need a copy. So you will need to prepare as many copies as it will take to submit one to the court, serve one on each party (other than the agency), and provide one for the Appellate Division. You should also keep a copy for the agency as a reference in case questions arise - as they sometimes do - concerning the completeness of the record, or in case the agency decides to reconsider the final order. And note that as stated above, the appellate court rules express a preference for submission of the original to the court.

What to do when you're done preparing the record

The Appellate Division of the Department of Justice takes care of filing and service of the record. So once you are done preparing the record, you will need to send the original (if the original is being filed) along with the necessary number of copies (including an extra copy if a copy rather than the original will be filed with the court) to the Appellate Division at 1162 Court Street, Salem, OR 97301. The current contacts are:

Richard Wasserman
Attorney in charge
Civil/Administrative Appeals Unit
378-4402 ext 346

Kristin Dunaway
Civil/Administrative Appeals Assistant
378-4402 ext 312

[1] |A copy of rule 3.35 is attached (pdf). All of the Rules of Appellate Procedure are available at the Oregon Judicial Department website.

[2] Ordinarily, most if not all of these documents will be in the file held by the ALJ or other official who conducted the hearing.

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