Current through Register Vol. 63, No. 3, March 1, 2024
Except as otherwise stated in OAR 839-050-0050, all pre-hearing
and post-hearing motions will be submitted in writing to the Administrative Law
Judge through the Contested Case Coordinator. If the nonmoving participant
chooses to respond, the nonmoving participant must file a written response to a
written motion with the Contested Case Coordinator within seven days after
service of the motion, unless the Administrative Law Judge orders otherwise.
Motions include but are not limited to the following:
(1) Motion to dismiss: This motion must be
based upon:
(a) Lack of jurisdiction over the
subject matter or person;
(b)
Insufficiency of process or service of process; or
(c) Failure to state a claim upon which
relief can be granted; or
(d) The
commissioner's discretion to dismiss a complaint pursuant to ORS
659A.830(2)(a);
or
(e) The requirement pursuant to
ORS
659A.830(2)(a)
that the commissioner dismiss a complaint filed under ORS
659A.820 upon the
written request of the person who filed the complaint.
(f) Subsection (e) of this section does not
apply to a complaint alleging an unlawful practice under ORS
659A.145
or
659A.421
or discrimination under federal housing law.
(2) Motion to change the place of
hearing.
(3) Motion to exclude
witnesses:
(a) The motion may be made by any
participant at any time prior to or during the hearing.
(b) The Administrative Law Judge may, without
a motion being made by a participant, exclude witnesses from the hearing except
for a party, counsel, the Administrative Prosecutor, one agency officer or
employee, an authorized representative, claimant, complainant and any person
authorized by statute to attend. Notwithstanding this rule, an Administrative
Law Judge may expel any person from the hearing if that person engages in
conduct that disrupts the hearing.
(4) Motion for summary judgment:
(a) A motion for summary judgment may be made
by a participant or by decision of the Administrative Law Judge for an
accelerated decision in favor of any participant as to all or part of the
issues raised in the pleadings. The motion may be based on any of the following
conditions:
(A) Issue or claim
preclusion;
(B) No genuine issue as
to any material fact exists and the participant is entitled to a judgment as a
matter of law, as to all or any part of the proceedings; or
(C) Such other reasons as are just.
(b) When the Administrative Law
Judge grants the motion, the decision will be set forth in the Proposed
Order.
(c) A motion for summary
judgment shall be denied if, at the time of its filing, the contested case
hearing is scheduled to commence in fewer than 21 days.
(5) Motion for a postponement:
(a) Any participant making a request for a
postponement of any part of the contested case proceeding must state in detail
the reason for the request. The Administrative Law Judge may grant the request
for good cause shown. In making this determination, the Administrative Law
Judge will consider:
(A) Whether previous
postponements have been granted;
(B) The timeliness of the request;
(C) Whether a participant has previously
indicated it was prepared to proceed;
(D) Whether there is a reasonable alternative
to postponement; for example, submitting a sworn statement of a witness;
and
(E) The date the hearing was
originally scheduled to commence.
(b) The Administrative Law Judge will issue a
written ruling either granting or denying the motion and will set forth the
reasons therefore;
(c) If all
participants agree to a postponement, in order for the postponement to be
effective, the Administrative Law Judge will approve of this agreement. Whether
the Administrative Law Judge grants or denies such a motion for postponement,
the Administrative Law Judge will issue a written ruling setting forth the
reasons therefore.
(6)
Motion for consolidation of hearings: This motion must allege facts sufficient
to meet the criteria of OAR 839-050-0190.
(7) Motion for hearing by telephone: Any
participant may file a motion to conduct the hearing by telephone. The motion
must contain:
(a) A statement setting forth
the reason(s) for the request;
(b)
A statement explaining why no participant will be substantially prejudiced by
having a hearing in this manner;
(c) A statement of the location of the
majority of witnesses expected to be called;
(d) A statement estimating the number and/or
volume of documents to be introduced into the record;
(e) A statement indicating whether the
participant intends to call any expert witness; and
(f) A statement indicating whether an
interpreter or an assistive communication device under OAR 839-050-0300 will be
required for any witness.
(8) Motion for a protective order.
(9) Motion for default when a respondent has
failed to timely file an answer within the time specified in the charging
document.
(11) Motion to make more
definite and certain.
(12) Motion
for prevailing party costs and reasonable attorney fees for an aggrieved person
who intervenes in a proceeding alleging an unlawful practice under ORS
659A.145
or
659A.421
or discrimination under federal housing law.
Statutory/Other Authority: ORS chapter 183 & ORS
651.060(4)
Statutes/Other Implemented: ORS
279C.860,
279C.865,
652.332(3),
653.065(1),
658.115,
658.407(3),
658.820,
659A.845
& 659A.850
