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.