Petition For Judicial Review (Employment Division-Tax) Form. This is a Oregon form and can be use in Court Of Appeals Appellate.
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Page 1 of 7 State Court Administrator OREGON JUDICIAL DEPARTMENT Appellate Court Records Section, 503-986-5555 INFORMATION ON FILING A PETITION FOR JUDICIAL REVIEW (EMPLOYMENT DEPARTMENT - TAX) In response to your request, we have enclosed information on how to file a petition for judicial review and the forms necessary to do so. GENERAL INFORMATION 1. Please understand that filing and pursuing a case with the appellate court is technical legal work. Read all of these instructions, completely and carefully, because you must follow the relevant Oregon Revised Statutes (ORS) and the Oregon Rules of Appellate Procedure (ORAP). Unlike the previous stages of Employment Department tax proceedings, under ORS 9.320, at the appellate court level, a corporation must be represented by an attorney who is an active member of the Oregon State Bar. Oregon Peaceworks Green, PAC v. Secretary of State, 311 Or 267 (1991). We strongly urge you to consider use of an attorney to help you file your petition for judicial review as well. The Supreme Court, Court of Appeals, or Appellate Court Administrator's Office cannot change the rules for you because you act as your own lawyer. You will have to follow all the rules and meet all deadlines, without exception. Provisions of ORS Chapter 657 and 183 apply to Employment Department tax cases. ORAP 4.05 to 4.40 applies to Court of Appeals review of administrative agency cases in general. You may wish to access reference materials, including the ORS or ORAP online at www.courts.oregon.gov/programs/acrs/Pages/default.aspx . To access the ORS or ORAP, go to http://www.courts.oregon.gov/programs/acrs/resources/Pages/default.aspx and choose "Oregon Revised Statutes (ORS)", or choose "Oregon Rules of Appellate Procedure (ORAP)". The ORS and ORAP are also available in law libraries and some public libraries. If you need additional information about procedures, you may call the Records Section at 503-986-5555; however, while the staff can try to answer procedural questions, staff cannot provide legal advice. In other words, they will not substitute in any way for a lawyer222s assistance. If you wish to seek legal advice, 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 American LegalNet, Inc. www.FormsWorkFlow.com Page 2 of 7 attorneys. You may contact the Lawyer Referral Service at 503-684-3763, or toll free in Oregon at 1-800-452-7636. 2. Generally, you will not be able to introduce new evidence to the appellate court. The court will review the record (testimony, documents, legal argument) that was received into the agency record. 3. Motions: A "motion" is any request by a party that the court take some action. All motions must be served on the adverse party and the adverse party has 14 days from the date a motion is filed to serve a response. A response allows the court to consider the adverse party222s point of view in deciding what action to take concerning the motion. See ORAP 7.05 to 7.30 for rules concerning motions. ORAP 7.30 lists the motions that toll the time for filing the next event. The court will usually issue a decision on a motion in the form of a written order. 4. 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 (223proof of service224) which states that the document has been served on all parties. WHERE TO FILE To request judicial review of an Employment Department tax decision, you must file an original petition for judicial review with the Court of Appeals by submitting it to the following address: ATTN: Records Section Appellate Court Administrator Supreme Court Building 1163 State Street Salem, OR 97301-2563 WHEN TO FILE A petition for judicial review from an Employment Department tax order must be filed within 20 days of the date the order was mailed to you. Unless a petition for judicial review is filed and served within the time required by statute, the Court of Appeals will not be able to consider your case. "Filed" means that the petition must either 1) be in the possession of the Office of the Appellate Court Administrator on or before the date it is due, or 2) it must be mailed by certified or registered mail on or before the date it is due, with proof from the United States Post Office of such mailing date. See ORS 19.260(1) and ORAP 1.35. (If you choose option 2, be sure to retain the proof of mailing, because you may be asked to send it in if the timeliness of your appeal is ever questioned). 223Served224 means that an exact copy of the original document(s) that is being filed at the Court of Appeals, is mailed or personally delivered to all other necessary parties and participants according to the applicable statutes. Some statutes require service to be accomplished by certified or registered mail. HOW TO FILE 1. File an original petition for judicial review with the Court of Appeals. You must attach to the petition for judicial review a copy of the Employment Department decision that you American LegalNet, Inc. www.FormsWorkFlow.com Page 3 of 7 wish to have reviewed. 2. You must pay a $391.00 filing fee. See ORS 21.010; HB 2795. Make checks payable to: 223State Court Administrator.224 Failure to pay the filing fee can eventually result in dismissal of your appeal (ORAP 1.20(4)). However, you may be eligible to receive a waiver (elimination) of the fee, or you may be eligible to defer (delay) payment of the fee. To have the court determine whether you may be entitled to such waiver or deferral, you must complete a 223Motion and Declaration for Waiver or Deferral of Fees,224 and file it with the Court of Appeals. You can download the motion and instructions at: http://www.courts.oregon.gov/programs/acrs/forms/Pages/filing-fee.aspx . If the court defers the filing fee, you still owe it. If it is not paid by the time the appeal is complete, the unpaid filing fee will become a judgment against you. See ORS 21.605(1)(c). You must file the motion along with the petition for judicial review. Do not include payment if you file the motion. 3. You must complete a Certificate of Filing that indicates the date that you filed your petition, and the method that you used to file your petition. 4. You must serve copies of the petition and all attachments that you file with the Court of Appeals, to all other parties (or to their lawyers) to the case, no matter how many there are via certified or registered mail (ORS 183.482(2)). See ORAP 1.35(2). However, you do NOT need to serve the Declaration for Waiver or Deferral of Fees or any documents pertaining to government assistance such as food stamps, Social Security Income, Oregon Health Plan eligibility, Temporary Assistance to Needy Families, etc. In the case of Employment Department tax cases you must serve the Employment Department, the Attorney General, and any other parties listed on the decision (if any). The document(s) being filed must also include a certificate (or proof) of service, that identifies everybody you have served. A sample of the certificate of service is enclosed for your use. WHAT HAPPENS NEXT? 1. The record is prepared: After you file and serve the petition for judicial review, the Employment Department has 30 days in which to prepare and file the agency record (the transcript of the testimony of the hearing, copies of documents that were received into evidence, etc.). You have 15 days to review that record and seek to correct it; when the record is an accurate reflection of the agency record, the record will be considered 223settled.224 See ORAP 4.22. 2. Briefs are prepared: 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 for more information about the procedures concerning briefs. Sample briefs are available at: http://www.courts.oregon.gov/programs/acrs/briefs-motions/Pages/briefs.aspx . You are required to file an "opening brief224 within 49 days of the date that the record is settled. The opening brief must include a statement of the facts of the case. Each