Fox v. Real Estate Agency

An agency, in this case, the ALJ, can alternate facts determined by another agency when there is clear and convincing evidence that the original finding was wrong. ORS 183.650. When those new findings are challenged in judicial review, the court must not determine whether the evidence supports the alteration of fact, but instead becomes a factfinder itself. ORS 183.650.

Petitioner sought judicial review of an order which revoked his Real Estate Principal Broker license. Petitioner assigned error to the Commissioner’s alteration of facts, which included that Petitioner intended to mislead the buyer of property and that Petitioner did not recklessly fail to include information on the property, but instead was purposeful. On review, Petitioner argued that the Commissioner erred in modifying the ALJ’s findings that his failure to supply accurate information about the zoning issues at various times was the product of carelessness and that Petitioner did not have the intent to mislead. In response, the Commissioner acknowledged that he changed the ALJ’s factual findings when he rejected the ALJ’s findings but urged the Court, on de novo review, to find those facts in the same manner that he did. An agency, in this case, the ALJ, can alternate facts determined by another agency when there is clear and convincing evidence that the original finding was wrong. ORS 183.650. When those new findings are challenged in judicial review, the court must not determine whether the evidence supports the alteration of fact, but instead becomes a factfinder itself. ORS 183.650. The Court of Appeals held that viewing all the evidence together and giving some weight to the ALJ's credibility finding, Petitioner’s misrepresentations were a product of carelessness and not intentional. Reversed and remanded.