Evidence in contested cases
Source:
Section 183.450 — Evidence in contested cases, https://www.oregonlegislature.gov/bills_laws/ors/ors183.html.
Notes of Decisions
A state agency need not be represented at administrative hearings by an attorney unless it chooses to be. Hanchett v. Juras, 12 Or App 33, 504 P2d 1060 (1973)
Reports are not excludable as hearsay where petitioner has option of calling or cross-examining preparer of report. Matthew v. Juras, 16 Or App 524, 519 P2d 402 (1974), Sup Ct review denied; Felling v. Motor Vehicles Division, 30 Or App 479, 567 P2d 581 (1977)
Under provision of this section which provides that agencies may utilize their experience, technical competence and specialized knowledge in evaluation of evidence, finding of Racing Commission that public may lose wagers where licensees enter horse older than conditions set forth for race was permissible though no evidence was offered on point as point was subject with which Commission could be assumed to be familiar. Gregg v. Racing Comm’n., 38 Or App 19, 588 P2d 1290 (1979), Sup Ct review denied
Where Builders Board hearing was reopened and parties stipulated that second hearing was continuation of first, order based on evidence from second hearing plus exhibits from first hearing was invalid because testimony from first hearing was not considered. Schmidt v. Builders Board, 46 Or App 509, 612 P2d 312 (1980)
Where facts which formed basis for decision of Psychiatric Security Review Board did not appear in hearing record but were supplied only from personal knowledge, they could not form the basis for agency decision without notification and opportunity to rebut. Rolfe v. Psychiatric Security Review Board, 53 Or App 941, 633 P2d 846 (1981), Sup Ct review denied
Evidence that employer of petitioner, a pharmacist, had been suspended because of same series of events which gave rise to charges against petitioner was immaterial and should have been excluded, but since there was no showing that evidence influenced board’s decision it was harmless. Nichols v. Board of Pharmacy, 61 Or App 274, 657 P2d 216 (1983), Sup Ct review denied
Order dismissing petitioner as student from Oregon Health Sciences University School of Dentistry was reversed and remanded where Hearing Committee considered factual information outside hearing record in contravention of school’s guidelines and this section. Morrison v. U. of O. Health Sciences Center, 68 Or App 870, 685 P2d 439 (1984)
Hearings officer’s “general awareness” that persons with serious disabilities are gainfully employed is not proper subject of administrative notice. Benson v. AFSD, 69 Or App 185, 684 P2d 624 (1984)
Failure of hearings officer to assist petitioner in presenting evidence constitutes abuse of hearings officer’s broad discretion in controlling hearing under this section and ORS 183.415. Berwick v. AFSD, 74 Or App 460, 703 P2d 994 (1985), Sup Ct review denied
Polygraph evidence is admissible over objection of party in prison disciplinary proceeding to test credibility of unnamed informant. Wiggett v. OSP, 85 Or App 635, 738 P2d 580 (1987), Sup Ct review denied
Party may prove case by hearsay evidence even if other party presents direct evidence. Tri-Met v. Employment Div., 88 Or App 122, 744 P2d 296 (1987)
Where facts can be found in record or were permissible inferences from facts in record, referee did not err in taking “judicial notice.” Automotive Technology v. Employment Division, 97 Or App 320, 775 P2d 916 (1989), Sup Ct review denied
Absent clear expression of contrary intent by legislature, requirement that agency decision be supported by “substantial evidence” mandates use of preponderance standard. OSCI v. Bureau of Labor and Industries, 98 Or App 548, 780 P2d 743 (1989), Sup Ct review denied; Gallant v. Board of Medical Examiners, 159 Or App 175, 974 P2d 814 (1999); Staats v. Newman, 164 Or App 18, 988 P2d 439 (1999)
Hearsay evidence is admissible under this section so long as it meets statutory test of reliability. Reguero v. Teacher Standards and Practices Comm., 312 Or 402, 822 P2d 1171 (1991)
Limitations placed on agency representatives regarding giving legal advice or making legal arguments do not apply to assistant attorneys general representing agency at contested case hearings. Llewellyn v. Board of Chiropractic Examiners, 318 Or 120, 863 P2d 469 (1993)
“Judicially cognizable facts” is equivalent to “judicially noticed fact” as used in ORS 40.065 (Oregon Evidence Code Rule 201(b)). Arlington Education Association v. Arlington School District No. 3, 177 Or App 658, 34 P3d 1197 (2001), Sup Ct review denied
In general, where party does not request that agency subpoena person who made report, agency is not obligated to produce person at hearing in order to introduce report. Cole/Dinsmore v. DMV, 336 Or 565, 87 P3d 1120 (2004)
Where petitioner, arrested for driving under influence of intoxicants, refused urinalysis after arrest then completed voluntary urinalysis at private lab on morning following arrest, urinalysis results are relevant to corroborate petitioner’s account of facts and should be admitted as evidence. Gaylord v. Driver and Motor Vehicle Services Division, 283 Or App 811, 391 P3d 900 (2017)
Correct standard of proof applicable in agency proceedings, including licensing proceedings, under Oregon Administrative Procedures Act is substantial evidence under this section, which is synonymous with preponderance of evidence standard. Dixon v. Board of Nursing, 291 Or App 207, 419 P3d 774 (2018), Sup Ct review denied
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