Petition For Judicial Review (Driver And Motor Vehicle Services)
Petition For Judicial Review (Driver And Motor Vehicle Services) Form. This is a Oregon form and can be use in Court Of Appeals Appellate.
Tags: Petition For Judicial Review (Driver And Motor Vehicle Services), Oregon Appellate, Court Of Appeals
KINGSLEY W. CLICK State Court Administrator INFORMATION ON FILING A PETITION FOR JUDICIAL REVIEW (DRIVER & MOTOR VEHICLES SERVICES) In response to your request, enclosed is information on how to file a petition for judicial review. Herein you will find a standard form of petition for judicial review for this type of case, and a form of certificate of service. You will also find the instructions for completing these forms. Additional information relating to handling a petition for judicial on your own without an attorney is enclosed as “ .” You should read this information carefully. A petition for judicial review must be submitted to the Court of Appeals in the manner prescribed in the relevant Oregon Revised Statutes (ORS) and the Oregon Rules of Appellate Procedure (ORAP). The ORAP rules which apply to the filing of a petition for judicial review are also enclosed. If you wish to request judicial review of an agency decision/order, you must file a petition for judicial review with the Court of Appeals. The original of the petition should be filed with the State Court Administrator at the following address: ATTN: Records Section State Court Administrator Supreme Court Building 1163 State Street Salem, OR 97301-2563 A petition for judicial review from a Driver and Motor Vehicle Services order must be filed within 60 days of the date the order was mailed to you. Unless a petition for judicial review is filed within the time required by statute (most orders contain a notice of judicial review rights, including the time within which a petition for judicial review must be filed), the Court of Appeals will not be able to consider it. “Filed” means that the petition must be in the possession of the office of the State Court Administrator on or before the date it is due, or must be mailed on or before the date it is due by certified or registered mail with proof from the Post Office of such mailing date. See ORS 19.260(1). A copy of the agency order you wish reviewed must be attached to the petition. A $237.00 filing fee is required pursuant to ORS 21.010. A motion to waive or defer the filing fee is enclosed for you use. If you wish to have the court consider this motion, you should complete the form and send it back with the filing of the petition for judicial review. The motion must also be served on all parties to the appeal. Any document filed with the Court of Appeals must be served on all parties to the case. See ORAP 1.35(2). The document being filed must include a statement of service (“proof of service”) which states that the document has been served on all parties. Therefore, you must serve a copy of the petition on all parties. These parties include the Driver and Motor Vehicle Services and the Attorney General. American LegalNet, Inc. www.FormsWorkFlow.com When the petition for judicial review is filed and served, the state agency has 30 days in which to prepare and file the agency file (“record”). You are required to file a brief (“opening brief”) within 49 days of the filing date of the agency record. The briefs of the opposing parties (“responding brief”) are due 49 days after you file your brief. All briefs must be prepared according to the ORAPs and applicable statutes or they will not be accepted. You are urged to seek legal counsel. If you need additional information, call the Records Section at (503) 986-5555. If you wish to obtain a copy of the ORAP, send a written request with your name and address, along with payment of $15.00 to: ATTN: Publications Section State Court Administrator Supreme Court Building 1163 State Street Salem, OR 97301-2563 INSTRUCTIONS FOR COMPLETING PETITION FOR JUDICIAL REVIEW CAPTION On line 1 fill in your name. You will be the “Petitioner” on judicial review. The name for the Driver and Motor Vehicle Services has already been provided for you. AGENCY NO. Fill in the agency assigned case number on the line provided. This number is written on all of the agency documents. SECTION 1:a Again, fill in the agency number. SECTION 1:b Give the date that the order from which you are appealing was dated. Remember to attach a copy of the agency order to the petition for judicial review. SECTION 2 Fill in your name and address and the name and address for the employer (if any). SECTION 3 Attach a copy of the order, rule or ruling from which you are requesting review. SECTION 5 Mark the appropriate statement indicating what portions of the agency record you wish to be reviewed by this court. The first statement designates all portions of the agency record be reviewed. The second statement designates only certain portions of the agency record be reviewed, in which case, you need to indicate what portions of the record you wish to have this court review on the lines provided. American LegalNet, Inc. www.FormsWorkFlow.com INSTRUCTIONS FOR COMPLETING CERTIFICATE OF FILING Fill in the date you filed the petition with the State Court Administrator. Mark the appropriate method of filing used. INSTRUCTIONS FOR COMPLETING CERTIFICATE OF SERVICE Fill in the date you served the petition to the other parties. You must send a copy of the petition to the parties which are listed. Although the names and addresses for some of the parties have been provided, you must indicate that you have served them with a copy of the petition. Mark the appropriate method of service you used to serve the parties. FILE THE PETITION FOR JUDICIAL REVIEW WITH THE COURT OF APPEALS BEFORE THE DEADLINE, AND SEND COPIES OF EVERYTHING YOU FILE WITH THE COURT OF APPEALS TO THE PARTIES LISTED ON THE CERTIFICATE OF SERVICE. American LegalNet, Inc. www.FormsWorkFlow.com IN THE COURT OF APPEALS OF THE STATE OF OREGON , Petitioner, v. DRIVER AND MOTOR VEHICLE SERVICES BRANCH (DMV), Respondent. ) ) ) ) ) ) ) ) ) ) Agency No. PETITION FOR JUDICIAL REVIEW 1. Petitioner seeks judicial review of the final order of the Driver and Motor Vehicle Services in agency case number (a) dated (b) . 2. The parties to this review are: DRIVER AND MOTOR VEHICLE SERVICES BRANCH, 1905 Lana Avenue NE, Salem, Oregon 97314 3. Attached to this petition is a copy of the order, rule or ruling from the agency for which judicial review is sought. 4. Petitioner was a party to the administrative proceeding which resulted in the order for which review is sought. 5. “ “ DATE: Petitioner is not willing to stipulate that the agency record may be shortened. Petitioner is willing to stipulate that the agency record may be shortened and designates only the following portions to be included in the record: SIGNATURE: American LegalNet, Inc. www.FormsWorkFlow.com CERTIFICATE OF FILING I certify that on , I filed the original of the petition for judicial review with the State Court Administrator at the following address: ATTN: Records Section State Court Administrator Supreme Court Building 1163 State Street Salem, OR 97301-2563 by the following method of filing: “ “ “ “ United States Postal Service, ordinary first class mail. United State Postal Service, certified or registered mail, return receipt requested. Hand delivery Other (specify): CERTIFICATE OF SERVICE I certify that on , I served a true copy of the petition for judicial review to the following parties at the addresses set forth below: “ “ “ DRIVER AND MOTOR VEHICLE SERVICES BRANCH, 1905 Lana Avenue NE, Salem, Oregon 97314 SOLICITOR GENERAL, Office of the Attorney General, 400 Justice Building, Salem, Oregon 97301-4096 OTHER PARTIES: by the following method of service: “ “ “ “ United States Postal Service, ordinary first class mail. United State Postal Service, certified or registered mail, return receipt requested. Hand delivery Other (specify): DATE: SIGNATURE: IN THE COURT OF APPEALS OF THE STATE OF OREGON ) ) ) ) APPELLATE CASE NO. MOTION FOR WAIVER OR DEFERRAL American LegalNet, Inc. www.FormsWorkFlow.com ) ) ) ) ) OF FILING FEES STATEMENT OF ASSETS AND LIABILITIES MOTION APPELLANT, PETITIONER, RESPONDENT, (CROSS OUT NONAPPLICABLE WORDS) MOVES THE COURT FOR WAIVER OR DEFERRAL OF FILING FEE IN THE ABOVE CASE. I, THE UNDERSIGNED, SAY THAT THE FOLLOWING INFORMATION IS TRUE, AND I ASK THE COURT TO USE THE INFORMATION TO DECIDE WHETHER I CAN HAVE A WAIVER OR DEFERRAL OF THE FILING FEE. I UNDERSTAND THAT IF I DO NOT TELL THE TRUTH, I CAN BE CHARGED WITH UNSWORN FALSIFICATION. SEE ORS 162.085. IN THE EVENT THAT ANY PORTION OF THE FILING FEE REMAINS UNPAID AT THE TIME OF FINAL WRITTEN DISPOSITION OF THIS CASE, THE COURT MAY SEEK ENTRY OF JUDGMENT AGAINST YOU FOR THE UNPAID PORTION OF THE FILING FEE. SEE ORS 21.605. 1. FULL NAME (PLEASE PRINT) ADDRESS CITY / / STATE ZIP 1 SSN PHONE “ MALE “ DIVORCED “ FEMALE 2. BIRTH DATE 3. “ MARRIED 4. NAME AND ADDRESS OF SPOUSE OR NEAREST RELATIVE: 5. NAMES, ADDRESSES, AGES AND RELATIONSHIP OF DEPENDENTS OTHER THAN SPOUSE: 6. LAST OR CURRENT EMPLOYER: “ SINGLE “ SEPARATED ADDRESS: HOW LONG EMPLOYED: NOW EMPLOYED: 7. “ YES MONTHLY GROSS PAY: “ NO IF MARRIED, YOUR SPOUSE'S LAST OR CURRENT EMPLOYER: ADDRESS: HOW LONG EMPLOYED: NOW EMPLOYED: 8. “ YES MONTHLY GROSS PAY: “ NO LIST ALL SOURCES OF MONEY BESIDES EMPLOYMENT PAY FOR YOU AND YOUR SPOUSE. FOR EXAMPLE: SOCIAL SECURITY, UNEMPLOYMENT COMPENSATION, RETIREMENT BENEFITS, WORKERS' COMPENSATION, WELFARE. 1 Although it may assist the court in verifying the information you are submitting in support of the motion, you cannot be required to provide your social security number. American LegalNet, Inc. www.FormsWorkFlow.com 9. REAL ESTATE OWNED BY YOU AND YOUR SPOUSE: ADDRESS WHAT IS IT WORTH AMOUNT YOU OWE ON PROPERTY AUTOMOBILES AND OTHER MOTOR VEHICLES OWNED BY YOU AND YOUR SPOUSE: VEHICLE: VEHICLE: WHAT IS IT WORTH: WHAT IS IT WORTH: AMOUNT YOU OWE: AMOUNT YOU OWE: BANK OR SAVINGS ACCOUNT, INCLUDING CREDIT UNIONS, OWNED BY YOU AND SPOUSE: ALL OTHER PROPERTY OR ASSETS EXCEEDING $200 IN VALUE. FOR EXAMPLE, FURNITURE, STOCKS, BONDS, BOATS, RV'S, TRAILERS, CAMPERS, GUNS AND JEWELRY. DESCRIPTION: VALUE: DESCRIPTION: 10. 11. VALUE: MONEY OWED TO YOU OR SPOUSE BY OTHERS: NAME OF DEBTOR: MONTHLY EXPENSES: RENT/HOUSE PMT: $ FOOD: $ UTILITIES: $ CAR PAYMENT: $ I RECEIVE FOOD STAMPS: “ YES AMOUNT OWED: DEPARTMENT STORES: DOCTORS/MEDICAL: : : $ $ $ $ “ NO IF YES, CURRENT ELIGIBILITY AMOUNT: DATE: SIGNATURE: CERTIFICATE OF SERVICE I CERTIFY THAT I SERVED A COPY OF THIS MOTION AND AFFIDAVIT FOR WAIVER OR DEFERRAL OF FILING FEE ON: (NAME OF OPPOSING PARTY) (ADDRESS OF OPPOSING PARTY) (NAME OF OPPOSING PARTY) (ADDRESS OF OPPOSING PARTY) DATE: SIGNATURE: R:\Shared Folders\Team1\Pro Se Packets\DMV.wpd American LegalNet, Inc. www.FormsWorkFlow.com (Page 1 of 5) IF YOU WANT TO HANDLE YOUR OWN CASE You are not required to hire a lawyer in order to file an appeal, but we strongly recommend that you consider doing so. Filing and handling an appeal is not easy. It can seem especially hard to a person who is not a lawyer. The Supreme Court, Court of Appeals, and State Court Administrator's Office will not bend the rules for you if you act as your own lawyer. If you wish to have legal advise, you may contact the Oregon State Bar at 503-620-0222 or toll free in Oregon at 1-800-452-8260 for information as to appellate attorneys. You may contact the Lawyer Referral Service at 503-684-3763, or toll free in Oregon at 1-800-452-7636. Under ORS 9.320, you have a right to act as your own lawyer. (ORS is a set of books containing all of the laws passed by the state legislature. These sets are kept in law libraries and some public libraries.) If you are not represented by a lawyer, your case will not be heard orally by this Court but will be decided on the parties' written briefs. You are not allowed to represent your husband or wife or any other person or a corporation. Corporations are required by law to be represented by lawyers. You must read, learn, and follow all of the laws and rules that tell you how to do an appeal. If you do not follow the laws and rules, your appeal may be dismissed. If it is dismissed because you did not follow the laws or rules, the court may never consider your case or decide the points that you want to bring up. In appeals from state agency orders, the notice of appeal is called a "petition for judicial review." See ORAP 4.15 and Appendix-E. In these instructions, the term "notice of appeal" refers also to petitions for judicial review. LAWS ON APPEAL If, in spite of all the problems, you still choose to handle your own appeal, you must learn the rules written by the state legislature: ORS ORS ORS Chapter 19--for civil appeals from circuit court Chapter 138--for all criminal and post-conviction appeals Chapter 183--for most state agency appeals (Motor Vehicles Division, for example) If your case involves workers' compensation, unemployment compensation, juvenile, parental rights or other cases not covered by the general chapters numbered above, then you will need to follow the special laws affecting appeals in those kinds of cases. Also, check ORS Chapter 20 on the subject of costs and attorneys' fees, and ORS Chapter 21 on fees generally. You should know what is contained in those chapters and that the loser on appeal may be responsible for the winner's costs. RULES You will need to consult, very often, the Rules of Appellate Procedure (ORAP) of the Oregon Supreme Court and Court of Appeals. You may want to buy a copy. To obtain a copy, send a written request with American LegalNet, Inc. www.FormsWorkFlow.com (Page 2 of 5) your name and address, along with payment of $15.00 to: ATTN: Publications Section State Court Administrator Supreme Court Building 1163 State Street Salem, OR 97301-2563 The Records Section of the State Court Administrator's Office will try to help you understand the rules if you have questions about what they mean, but they cannot tell you how to handle your case. By law, they cannot give you legal advice. They will not, in other words, substitute in any way for the lawyer that you have chosen not to hire. NOTICE OF APPEAL There are two things that must be done on time to be certain that your case gets to court. If these two things are not done on time, your case will be automatically dismissed. If that happens, neither the Court of Appeals nor the Supreme Court will ever consider your case. See ORS 19.270(2). These two things are: 1) file the notice of appeal; and 2) serve the notice of appeal. Ordinarily, you have 30 days from the date of entry of the judgment or mailing of the agency order being appealed to file your appeal. See ORS 19.255. However, certain cases have a different filing time. You must check the right part of the ORS for the time limit in your particular case. (1) To "file" a notice of appeal means that it must be received in the State Court Administrator's Office on or before deadline date. Dropping it in the mail is not enough, unless you go to the post office and mail it to the State Court Administrator by registered or certified mail, and get proof from the post office of the mailing date. If you do that, the notice of appeal will be treated as "filed" on the date that it was mailed. See ORS 19.260 and ORAP 1.35. Be sure to retain the proof because if the timeliness of your appeal is in question, you will be asked to send it in. (2) To "serve" a notice of appeal means that you must mail or deliver personally a copy of the notice of appeal to the lawyer or the party on the other side of the case. The notice must be served on all other parties or their lawyers, no matter how many there are. Service by certified mail is required by statute for certain types of cases. The copy must, therefore, be mailed within the same time frame for the filing of the notice of appeal in most instances. On the original of the notice of appeal that you file with the Court of Appeals, you must include a written and signed statement that you have served a copy of the notice of appeal on the other side. You must name the person to whom you mailed it, the address to which you mailed it and the date that you dropped the copy in the mailbox addressed to that person. American LegalNet, Inc. www.FormsWorkFlow.com (Page 3 of 5) FILING FEES There is a filing fee of $237 for the following types of cases: Circuit Court Adoption Circuit Court Civil Circuit Court Domestic Relations Circuit Court Probate Circuit Court Traffic Infractions / Violations Land Use Board of Appeals (LUBA) Workers’ Compensation Most Agency review cases There is NOT a filing fee for the following types of cases: Circuit Court Criminal Circuit Court Post-Conviction Circuit Court Habeas Corpus Circuit Court Mental Commitment Circuit Court Juvenile Circuit Court Termination Parental Rights Board of Parole & Post-Prison Supervision Psychiatric Security Review Board For those cases which require a filing fee, the filing fee should accompany the notice of appeal. Checks should be made payable to the State Court Administrator. The court has the authority to waive or defer payment of the filing fee on the ground of indigence. If you want to ask the court to waive or defer the filing fees, the court can furnish on request a form for the appellant to fill out. If the court waives the filing fee, the filing fee need never be paid. If the court defers the filing fee, you still owe it and if it is not paid by the time the appeal is finished, the unpaid filing fee becomes a judgment against you. See ORS 21.605(1)(c). UNDERTAKING ON APPEAL IN CIVIL CASES (TRIAL COURT CASES ONLY) The appellant (the person who is appealing) is required to file an "undertaking," which is a written promise to pay the costs incurred by the respondent on appeal if the appellant loses the appeal. The promise must be supported by a corporate bond, the promise of another person with unencumbered property worth more than twice the amount of the undertaking, or a cash deposit. The undertaking must be in the amount of $500, unless the trial court sets a different amount. The trial court may waive the undertaking on the ground of indigence or for other reasons. The undertaking must be filed in the trial court and a copy served on the opposing party and on the appellate court. Note that all filings in connection with the undertaking take place in the trial court, not the appellate court. RECORD ON APPEAL Record on Appeal Generally: An appellate court usually will need some or all of the lower court (trial court or agency) record in order to decide an appeal. The complete lower court record would include the lower court file (containing all the papers filed with the lower court), exhibits (the evidence offered at trial), and a record of oral proceedings of hearings and the trial, if a trial was held. The lower court file will always be part of the record on appeal. You decide in the first instance whether you want to make exhibits and the transcript part of the record on appeal. The act of informing the appellate court and other parties to the appeal of how much of the record is to be the record on appeal is called "designating the record." If you designate less than the complete trial court record as the record on appeal, the other side can designate additional parts of the record. Audio Record for Trial Court Case: Neither the lower court nor the appellate court is responsible for getting a transcript prepared. Usually, the party who designates a transcript is responsible for making arrangements with the trial court transcript coordinator for preparing it, including payment for it. MOTION TO DISMISS APPEAL American LegalNet, Inc. www.FormsWorkFlow.com (Page 4 of 5) A "motion" is any request by a party that the court take some action. If the other side, at any time, files a motion to dismiss your appeal, the other side must mail you a copy of that motion. You have 14 days from the date it was mailed to file and serve a response to that motion. See ORAP 7.05 to 7.30. If you do file a response, the court will be able to consider your point of view in deciding whether to dismiss the case. If your appeal is dismissed, either on motion of the other side or on the court's own motion, you will receive a notice that it has been dismissed. That notice will be in the form of an order. If your case is dismissed, you have 35 days from the date of the order of dismissal to file and serve a petition for review with the Oregon Supreme Court under ORAP 9.05. This gives you a chance to tell the Supreme Court that the Court of Appeals made a mistake when it dismissed your appeal and to seek reinstatement of the appeal. BRIEFS ON APPEAL ORAP Section 5 covers the subject of "briefs" completely. A "brief" is a statement of your side of the case. You must follow the format required by the rules. See ORAP 5.05 through 5.80. The appealing party's brief must include a statement of the facts of the case. Each statement of fact must refer to the record and show where that fact appears. If it does not, the court may strike the entire brief. Appeals are for the purpose of reviewing alleged legal errors committed by the trial court or agency in rulings or motions or in the final decision. Appeals are not for the purpose of introducing new factual evidence to support your point of view. Therefore, if you try to include new evidence on appeal, it will not be considered and the court may decide not to consider your brief at all. The rules also require that you tell the court, in your brief, what mistake you believe the trial court or agency made. These are called "assignments of error," and they must be very specific. The rules require that you set out in the brief the exact words used by the trial court or agency when it made what you claim to be an error. After each "assignment of error," you have to make your "argument." This is a brief statement of the legal reasons why the trial court or agency was wrong. You ordinarily may not include in your brief a statement about anything that has happened after the date of the trial court judgment or agency order that you are appealing. American LegalNet, Inc. www.FormsWorkFlow.com (Page 5 of 5) NO RIGHT TO MAKE ORAL PRESENTATION After both your brief and the other side's brief have been filed, you will be informed that the case has been submitted to the court for decision and the date of the submission. Because you do not have a lawyer, the Court of Appeals will not hear argument in the case by either side. See ORAP 6.05(2). This means that, unlike a case where both sides have lawyers, you will not have a chance to talk personally to the court in a public court session. The court will only read the briefs and the trial court record and then decide your case. You may, however, make a motion to seek permission to argue. See ORAP 6.10(4). After your case is submitted for decision, it will ordinarily take from one week to several months for the court to decide it. Many cases are decided without a full written "opinion." This means that the court may decide your case without writing any explanation of the reasons for its decision. You will receive by mail a copy of the court's decision. Any party seeking to obtain review of a Court of Appeals decision must file a petition for review with the Oregon Supreme Court within 35 days of the date of the Court of Appeals decision. See ORAP 9.05. If the Oregon Supreme Court denies your petition for review, or the petition for review filed by the other side, that is ordinarily the end of the case in the Oregon courts. The Records Section of the State Court Administrator's Office will issue the "appellate judgment." The appellate judgment is the document that officially notifies the court or agency from which the appeal was taken of the appellate court's decision and transmits the case back to the agency or lower court. If a timely petition for review has been filed by any party, the appellate judgment in the case cannot issue from the Records Section until the Supreme Court decides to allow or deny review. R:\Shared Folders\Team1\Pro Se Packets\DMV.wpd American LegalNet, Inc. www.FormsWorkFlow.com