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The Perez-Selsky Druckenmiller Law Office is proud to provide effective representation to appellants and respondents before Oregon’s high courts.
Appeals are among the most intellectually demanding fields of legal practice. Since appellate courts review trial court decision for legal error, appeal outcomes depend heavily on appellate counsel’s knowledge of statutes, judicial opinions, and the rules of appellate procedure. Without such knowledge, and the skill to write a clear legal argument, even a meritorious appeal will find no traction, leaving the appellant at the mercy of the trial court’s judgment.
A successful appeal demands the expertise of practiced, disciplined legal counsel. Aron Perez-Selsky has practiced extensively before Oregon’s appellate courts, resulting, to the benefit of his clients, in several opinions reversing trial court decisions. Call today to see whether an appeal can help your case.
How can an appellate attorney help my case?
Appellate law is a specialty concerned with the representation of litigants in state and federal courts of review (“appellate courts”). Trial courts decide cases based on the law, argument, and evidence adduced by trial attorneys. When a litigant is unhappy with the decision of a trial court, they can appeal that decision to an appellate court.
Appellate law is a distinct field of practice with its own rules, procedures, and timelines. Even the most skilled trial attorneys may struggle with an appeal if they lack prior appellate experience. Further, a trial attorney may be ethically constrained from handling appeals where the quality of their trial work is at issue.
The window for filing an appeal is extremely small, so if you are unhappy with a decision it is essential that you contact an appellate attorney as soon as possible to explore your options.
When does an appeal need to be filed?
An appeal is initiated by the filing of a “notice of appeal.”
In most cases, the notice of appeal must be filed with the court and served on the opposing party no later than 30 days after the judgment from which the appeal is taken is entered into the court register. However, in a criminal or juvenile case, an appeal may be filed as late as 90 days after entry of judgment if the appellant can show that (1) the failure to file a timely notice of appeal was not attributable to the appellant personally; and (2) The appellant shows a colorable claim of error in the proceeding from which the appeal is taken.
The time for filing and serving a notice of appeal begins from the date the judgment is entered (in other words, the date the judgment is recorded in the court’s register).
Court deadlines are extremely strict, and exceptions to those deadlines rarely granted. If you wish to pursue an appeal it is essential that you speak with an appellate lawyer as soon as possible to preserve your right to appeal.
What issues can be raised in an appeal?
An appeal does not entail a re-hearing for the appellant, and the appellant may not submit new evidence in support of their argument. Rather, appellate courts review the trial court’s decision for legal error. In other words, appellate courts look at the trial court’s decision and decide whether the court made a mistake of law in reaching that decision.
For the appellate court to review an issue it must usually be “preserved” at the trial court level. Unless the court finds that the court committed “plain error” the appellant must first argue an issue before the trial court. If not, the issue is considered “unpreserved” and beyond the scope of appellate review.
Preservation rules are narrow, and even a meritorious issue may be ignored by the appellate court if trial counsel fails to preserve it. For this reason, a trial attorney may best serve his client by consulting with an appellate lawyer to ensure that strong issues are preserved for appellate review.
How can an appellate court ruling help my case?
In reviewing trial court decisions appellate courts rely on statutes, judicial opinions, maxims of construction, and the record created at the trial court to determine whether the court correctly applied the law to a given set of facts.
After employing these tools an appellate court will reach a decision. The appellate court may decide to uphold (“affirm”) or annul (“reverse” or “vacate”) the trial court’s decision. Sometimes appellate courts will “remand,” or send back the case to the trial court to take further action. The appellate court may instruct the trial court to conduct a new trial, impose a different sentence, or dismiss the case entirely. Appeals from agency decisions may result in an order requiring the agency to conduct a new hearing or issue a new order.
What is the sequence of an appeal?
All appeals start with the filing of a notice of appeal with the Court of Appeals upon the entry of judgment in circuit court (or the exhaustion of administrative appeals of an agency decision). The notice of appeal must be served on the opposing party at the time it is filed.
After the notice is filed and served a transcript of the proceeding from which the appeal is taken is prepared. Preparation of the transcript can take several weeks or months depending on its length.
Once the transcript is prepared it is disseminated to the parties and the appellant is given a date by which the opening brief must be filed with the court and served on the opposing party. Depending on the nature of the appeal this due date may be extended for good cause.
After the opening brief is filed the opposing party (or “respondent”) is given a due date for filing and serving its “answering” brief. The court also sets a submission date at which any party may request oral arguments.
After oral arguments the court takes the case under advisement, and eventually renders a decision. Sometimes this decision will result in an opinion describing the court’s reasoning and directing the trial court to take certain actions to effect its decision. Sometimes the decision will result in an “AWOP” or “affirmed without opinion,” upholding the trial court’s decision without explanation.
Any party to an appeal may petition the Supreme Court of Oregon for review of a Court of Appeals decision by filing a petition for review within 35 days of the issuance of that decision. Petitions for review are rarely granted. In the unlikely event that a petition for review is granted, the parties will repeat the sequence described above.
Decisions by the Oregon Supreme Court, including denials of petitions for review, are only reviewable by the United States Supreme Court. The Supreme Court will only review state Supreme Court decisions in the extremely unlikely event that it grants a writ of certiorari to hear the appeal.
Is the judgment I am appealing enforceable during my appeal?
Appeals can often take years to resolve. In most cases, a judgment or agency decision will be enforceable against the losing party during the pendency of their appeal.
Enforcement of a judgment or agency decision may have serious immediate consequences inflicting irreversible harm on the losing party. Where that is the case, and where the appellant has a “colorable claim of error,” the appellant may petition the trial court or agency to “stay” enforcement of its decision pending the resolution of an appeal. A denial of a stay in most cases is reviewable by the Court of Appeals.
In most cases the filing of a notice of appeal does not automatically stay enforcement of a trial court judgment. If enforcement of an adverse judgment threatens immediate harm you need to speak with an appellate attorney as soon as possible to review your options.
What is administrative law?
Understanding administrative law requires us to step back and recall the basic structure of American state and federal government. American federal and state governments are divided into three branches: the legislative branch (congress), which passes laws; the judicial branch (courts), which interprets laws; and the executive branch (the President and state governors), which carries out the laws passed by the legislative branch.
To carry out the laws passed by the legislative branch, the executive and legislative branches create “agencies.” Agencies are headed by individuals usually (but not always) appointed by the chief executive and staffed with employees educated on the law and procedures relating to the agency’s purpose.
To ensure that agencies effectively and lawfully carry out their intended purpose, each agency has their own rules governing how employees are to perform their work. To protect the constitutional due process rights of individuals and entities affected by agency actions, most agencies exercise their power through a quasi-judicial process. Depending on the agency and interest at stake, the agency may use contested-case hearings under the Oregon Administrative Procedures Act, or if the agency is exempt under that act, an alternative procedure.
Administrative law is the area of law concerning the rights of individuals and entities in relation to state agencies. Effective practice in this area requires knowledge of State and federal constitutional law, Oregon Administrative Rules, the Oregon Administrative Procedures Act, and Oregon Attorney General Opinions. Call us if you have received a subpoena or notice of intent to take adverse action against you from a state agency.
What does administrative law have to do with professional licensing and certification?
Agencies are responsible for issuing licenses and permits, restricting who can participate in a commercial activity, trade, occupation or profession. The conditions for holding a license or permit generally connect to a public policy objective.
For example, the Oregon Department of Public Safety Standards and Training Agencies (“DPSST”) is responsible for training and certifying members of law enforcement. To advance the public policy objective of maintaining an ethical and trustworthy police force, DPSST will not certify any person with a felony conviction to work as a member of law enforcement.
In addition to issuing licenses and permits, agencies can suspend, revoke, or reprimand license and permit holders. Agencies can also issue cease-and-desist orders, and impose civil (i.e. monetary) penalties when they find that the person or entity has violated an agency rule. Some agencies even enjoy statutory power to issue citations initiating criminal proceedings.
Agencies exercise significant power over private individuals and entities through their licensing power. A loss or suspension of your license or permits through agency action may result in loss of employment and more. Given the stakes, you should contact an experienced attorney immediately if you receive a subpoena or notice of adverse action by a state agency.
Who is responsible for investigating license and permit holders?
Most agencies employ their own internal staff for conducting investigations. For example, the Oregon Department of Human Service’s Office of Training, Investigations and Safety (“OTIS”) is responsible for coordinating and conducting abuse investigations and providing protective services statewide to reports of neglect and abuse of vulnerable adults. If OTIS conducts and investigation, and finds that an employee abused or neglected a vulnerable adult he or she was responsible for, that finding of abuse or neglect may result in revocation of that person’s certification as a health care worker. Meeting with an experienced attorney before a formal investigation concludes gives you a better chance of heading off an adverse finding.
How will I know if I need a lawyer?
You should contact an attorney immediately upon receipt of any notice from a state agency announcing intent by that agency to take some adverse action against you.
Sometimes the notice itself will describe simple actions you can take to prevent or reverse the adverse action. For example, if the Oregon Driver and Motor Vehicles Service Division (“DMV”) sends a notice of suspension due to unpaid traffic tickets, the letter usually explains why the person’s license is being suspended, and what the person can do to prevent the suspension or reinstate their license. In such cases, unless the recipient of that notice disputes the basis for the suspension, it is generally a better use of time and money to follow the letter’s instructions than to retain an attorney.
However, as discussed above, agency acts can result in far more severe deprivations than suspension of a driver’s licens. In such cases it is advisable to quickly speak with an attorney with experience in administrative law before contacting the agency.
What happens after I am served notice by a state agency of adverse action?
The Oregon Administrative Procedures Act (“Oregon APA”) divides cases into “contested cases” and “other than contested cases.” The path your case takes will depend on several factors, but the most important factor is whether yours is a “contested case” or an “other than contested case.”
What is a "contested case"?
A contested case is one that meets one or more of the following criteria under the Oregon APA: (1) the case is one in which the individual legal rights, duties or privileges of specific parties are required by statute or Constitution to be determined only after an agency hearing at which such specific parties are entitled to appear and be heard; (2) the case is one in which the agency has discretion to suspend or revoke a right or privilege of a person; (3) the case is one in which agency’s suspension, revocation or refusal to renew or issue a license is at stake; or (4) the case is one where the agency by rule or order provides for hearings substantially of the character required by ORS 183.415.
In addition, the Fifth Amendment due process clause of the United States Constitution may require a contested-case hearing in cases that do not fall within the above described categories. In the case of Mathews v. Eldridge, 424 US 319, 335, 96 S Ct 893, 47 L Ed2d 18 (1976), the Supreme Court held that contested case rights are to be afforded based on an assessment of the following factors:
“[f]irst, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.”
If an order arises out of a “contested case,” the agency must observe prescribed statutory procedures before taking action against a person or entity. Generally speaking, “Contested case” procedures are designed to provide greater protections to subjects of agency action than those in “other than contested cases.”
Subjects of agency action in “contested cases” are entitled to notice by the agency of the subject’s rights and remedies with respect to the contemplated action. The agency’s notice must contain a statement of the person or entity’s right to a hearing, with a description of the procedure and time to request a hearing, or state the time and place of the hearing. The agency’s written notice must also include: (1) a statement of the authority and jurisdiction under which the hearing is to be held; (2) a reference to the relevant sections of the statutes and rules involved; (3) a concise, plain statement of the matters asserted or charged; and (4) a statement indicating the circumstances under which an order by default may be entered. The notice must be served personally or by registered or certified mail.
People or entities entitled to contested case rights must be afforded a hearing before revocation or suspension of their license or other privilege. The hearing itself is held before an administrative law judge from the Oregon Office of Administrative Hearings.
At the hearing, the subject of agency action may be represented by counsel. The judge may receive all evidence of a type commonly relied upon by reasonably prudent persons in conduct of their serious affairs is admissible. The rules of evidence do not apply. Irrelevant, immaterial, or unduly repetition evidence must be excluded, but hearsay evidence may be accepted unless it is shown to be unreliable. Evidence supporting agency orders must be reliable, probative and “substantial.” “Substantial evidence” exists when the record, viewed as a whole, would permit a reasonable person to make a particular finding. Generally, the agency carries the burden of proof, but in some situations the burden may shift to the subject of agency action. For example, where an agency has denied a person’s application for licensure, the person carries the burden of proving that they are eligible for the license denied.
At the conclusion of the hearing an administrative law judge employed with the Oregon Office of Administrative Hearings will render a decision approving or denying the agency’s contemplated action. This order can be appealed directly to the Oregon Court of Appeals by filing a notice of appeal within 30 days of the order’s date.
What is an "other than contested case"?
An “other than contested case” is simply a case that does not qualify as a “contested case.” If an order arises out of an “other than contested case,” the Oregon APA prescribes virtually no procedures that the agency is obliged to follow in taking action (although it does prescribe the means by which they must be appealed).
In other than contested cases, agencies are not required to provide a hearing before taking action against a person or entity, and appeals are made to the circuit court (either Marion County Circuit Court or the circuit court in the appellant’s county), not the Court of Appeals, and must be made within 60 days of the final order (however, some statutes have shorter filing deadlines for petitions for judicial review of agency decisions, so heed the deadline, if any, indicated on the final order).
ORS 183.484(5) severely limits the scope of circuit court review for agency orders in other than contested cases. Generally, the court’s review is limited to ensuring that the agency (1) followed the prescribed procedure (including the agency’s own rules); (2) correctly interpreted the applicable laws; (3) exercised its discretion within the range of discretion delegated to the agency by the legislature; (4) acted in accordance with its policies and practices; (5) acted on the basis of substantial evidence in the record; and (6) did not base its consideration on unconstitutional criteria.
Because there is often little or no record for the order appealed, the circuit court may create a record during the court proceedings, meaning that the agency and the subject of agency action may call witnesses, offer exhibits, and so forth. The court is allowed to consider the whole record, that is, evidence available to the agency before it entered its final order, and evidence submitted at the circuit court hearing.
If the subject of agency action challenges the agency’s order based on a lack of “substantial evidence,” it is important to understand that the court may not reweigh or assess the credibility of the evidence that was presented to agency. When the court reviews for substantial evidence, the agency’s decision is presumptively correct as a matter of law. The subject of agency action carries the burden of proof. To succeed, that person or entity must show that the agency acted without substantial evidence, in abuse of its discretion, or contrary to law.
On review the circuit court may only evaluate the evidence for and against the order, and determine whether substantial evidence exists to support the agency’s findings. The court cannot substitute its own judgment for that of the agency; it can only determine whether reasonable person could reach the same conclusion as the agency based on the record and findings of fact.
If the court finds that the agency’s decision was not supported by “substantial evidence” it must set aside or remand the order to the agency for reconsideration. If must do the same if it finds that the agency has erroneously interpreted a provision of law and that a correct interpretation compels a particular action, or if it finds that the agency’s exercise of discretion was outside the authority delegated to the agency; inconsistent with an agency rule, position, or practice, without explanation; or in violation of a constitutional or statutory provision.
Circuit court judgments regarding “other than contested” cases may be appealed to the Oregon Court of Appeals by filing a notice of appeal within 30 days of the entry of the final judgment.
Will the state have to pay my expenses for contesting agency action?
Whether the state is responsible for reimbursement of expenses incurred by a person or entity impacted by agency action depends on the stage at which the case resolves, and how it resolves.
At any time subsequent to the filing of a petition for review in an “other-than-contested” case, the agency may withdraw its order for purposes of reconsideration. The agency may affirm, modify, or reverse its order. When an agency modifies or reverses its own in favor of the petitioner, the court may award costs, but not attorney fees, to the petitioner.
If the agency does not modify or reverse its order, and the court finds in favor of the petitioner, the court may compel agency action required by law, order ancillary relief, and issue interlocutory orders as needed. “Ancillary relief” may include money damages resulting from erroneous agency action or inaction. However, the court may not award compensation for tort claims in the course of reviewing administrative orders.
Pursuant to ORS 183.487, the court may award attorney fees and costs in accordance with ORS 183.497 if it finds “in favor” of petitioners. The court finds “in favor” of the petitioner when a significant portion of the challenged order is altered or invalidated by the court in a manner that benefits the petitioner. In short, the mere fact that a petitioner prevails on some point during judicial review does not entitle the petitioner to an award of attorney fees; the court must find “in favor” of the petition, and find that the state acted without “a reasonable basis in law or in fact,” to award attorney fees. The court may not award attorney fees and costs to an agency or intervenor.
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