NORTHWESTERN TITLE LOANS v. DCBS

• Decision Date: 13 March 2002
• Parties: NORTHWESTERN TITLE LOANS, LLC, dba Northwest Title Loans, Petitioner, v. DIVISION OF FINANCE AND CORPORATE SECURITIES, a DIVISION OF the DEPARTMENT OF CONSUMER AND BUSINESS SERVICES, Respondent.
• Court: Oregon Court of Appeals

42 P.3d 313

180 Or. App. 1

NORTHWESTERN TITLE LOANS, LLC, dba Northwest Title Loans, Petitioner, v. DIVISION OF FINANCE AND CORPORATE SECURITIES, a DIVISION OF the DEPARTMENT OF CONSUMER AND BUSINESS SERVICES, Respondent.

A113713

Court of Appeals of Oregon.

March 26, 2001.

April 9, 2001.

Decided March 13, 2002.

James M. Brown and Enfield Brown Collins Knivila & Cook for the motion.

Hardy Myers, Attorney General, Michael D. Reynolds, Solicitor General, and Richard D. Wasserman, Assistant Attorney General, contra.

Before BREWER, Presiding Judge, and DEITS, Chief Judge, and KISTLER, Judge.

On Petitioner's Emergency Motion Under ORAP 7.35 (Renewed Upon Leave Granted by the Court) March 26, 2001.

On Respondent's Response to Emergency Motion for Stay April 9, 2001.

DEITS, C.J.

Pursuant to ORS 183.400(1),¹ Northwestern Title Loans has petitioned for judicial review of a rule promulgated by the Division of Finance and Corporate Securities of the Department of Consumer and Business Services (DCBS) limiting petitioner's ability to make and roll over short-term loans. See OAR 441-730-0270. In conjunction with its petition, petitioner has moved to stay enforcement of the challenged rule. The primary question presented here is whether this court has the authority to stay enforcement of an administrative rule pending judicial review of the rule under ORS 183.400(1). We hold that the court does have such authority. However, we also conclude that petitioner has not demonstrated that the court should stay the challenged rule pending judicial review, and, therefore, we deny the motion to stay.

We begin with the text and context of ORS 183.400(1). See PGE v. Bureau of Labor and Industries, 317 Or. 606, 610-11, 859 P.2d 1143 (1993). In relevant part, ORS 183.400(1) provides: "The validity of any rule may be determined upon a petition by any person to the Court of Appeals in the manner provided for review of orders in contested cases." Arguably, the text of ORS 183.400(1) could be read as authority for the issuance of a stay by this court. As noted, the statute provides that this court shall determine the validity of any rule "in the manner provided for review of orders in contested cases." ORS 183.482 is one of the statutes that addresses the manner in which this court reviews orders in contested cases. That statute contains a stay provision, ORS 183.482(3).² Consequently, it could be said that ORS 183.400(1) incorporates the stay provisions for review of orders in contested cases into judicial review of rules.

We are not convinced, however, from the text of ORS 183.400(1) that the legislature intended to incorporate the stay provisions. As the concurrence points out, a number of the provisions relating to judicial review of contested cases simply do not make sense in the context of judicial review of a rule. 180 Or.App. at 18-19, 42 P.3d at 322 (Brewer, J., concurring). Consequently, the statutory text does not provide a clear answer to the question of whether this court has the authority to issue a stay in a rule review proceeding.

Petitioner, in fact, does not contend that the text of ORS 183.400 authorizes this court to stay enforcement of an administrative rule that is the subject of a petition for judicial review under that statute. It is petitioner's position that this court has the inherent powers of a court of equity, including the inherent power to grant injunctive relief, and that this court may invoke that power to stay enforcement of an administrative rule pending direct judicial review under ORS 183.400(1). We agree that we have the inherent powers of a court of equity and that those powers include the authority to grant provisional, including injunctive, relief. Blair v. Blair, 199 Or 273, 287, 247 P.2d 883, 260 P.2d 960 (1953) ("[T]he granting of appellate jurisdiction necessarily vests in this court the power to stay * * * an order [transferring custody] pending an appeal, and that such power is of the incidental nature required to make the granted jurisdiction effective."); Helms Groover & Dubber Co. v. Copenhagen, 93 Or. 410, 416, 177 P. 935 (1919) (as a general rule, both a circuit court and an appellate court have inherent power to grant a stay of proceedings pending an appeal even when there is no statute entitling a party to a stay); Livesley v. Krebs Hop Company, 57 Or. 352, 356-57, 97 P. 718, 107 P. 460, 112 P. 1 (1910) (concluding that court has incidental power to issue restraining order); Armatta v. Kitzhaber, 149 Or. App. 498, 501, 943 P.2d 634 (1997) (the Court of Appeals has inherent authority to stay an injunction that bars the state from enforcing a provision of a ballot measure enacted by the voters).³

Respondent appears to agree that, generally, this court has inherent authority, but it argues that a court's inherent power to grant provisional relief is subject to limitation by the legislature and that, here, the legislature has enacted a statutory scheme showing a deliberate choice not to give this court authority to grant a stay in a rule review proceeding. In Blair, the Supreme Court explained:

"It is the general rule that either the lower or appellate court, according to the circumstances, has inherent power to grant a stay of proceedings pending an appeal even where there is no statute entitling a party to such stay. Where the right to a stay is entirely regulated by statute, or where the statute prescribes the conditions upon which it may be obtained or allowed, the courts cannot grant a stay of proceedings in a case which is not within the statute, or in the absence of compliance with the prescribed conditions [.]" 199 Or at 284, 247 P.2d 883 (emphasis added; citations omitted).

As noted above, the critical question presented here is whether the authority of this court to stay enforcement of an administrative rule in the course of a direct rule review proceeding under ORS 183.400(1) is entirely regulated by statute. If not, the court may act pursuant to its inherent authority and determine whether the issuance of a stay is appropriate in this case. For the reasons we will discuss, we conclude that this matter is not entirely regulated by statute; indeed, it may not be regulated by statute at all. Consequently, it is within the court's inherent authority to issue a stay in a rule review case.

In the first level of analysis of a statute under PGE, we consider previous versions of a statute. See Owens v. Maass, 323 Or. 430, 435, 918 P.2d 808 (1996) (related statutory provisions, applicable case law interpreting those other provisions, and prior legislative changes constitute context). ORS 183.400(1) is a part of the Administrative Procedures Act (APA). The APA was first enacted in 1957. Or. Laws 1957, ch. 717. As initially enacted, the APA divided agency actions into two groups: rulemaking and adjudication of contested cases. Or. Laws 1957, ch. 717, §§ 3, 8. The APA authorized review of "final decision[s] in * * * contested case[s]" in circuit court. Or. Laws 1957, ch. 717, § 12(1). It also specifically authorized either the agency or the circuit court to issue a stay pending review of a final decision in a contested case, and it set out the terms on which a stay could be granted. Or. Laws 1957, ch. 717, § 12(3).⁴ Regarding rules, the act provided that the "validity of any rule may be determined upon a petition for a declaratory judgment thereon filed as provided by ORS chapter 28 for declaratory judgment in actions at law or suits in equity." Or. Laws 1957, ch. 717, § 6(1). The 1957 APA did not specifically authorize either the agency or the reviewing court to stay the effect of a rule pending review, as it did with respect to final decisions in contested cases.

Since 1957, the legislature has amended the APA numerous times. It has expanded judicial review to include orders in other than contested cases. See Or. Laws 1971, ch. 734, § 18. It also has transferred jurisdiction to hear a rule challenge under ORS 183.400 from the circuit courts to the Court of Appeals. Or. Laws 1975, ch. 759, § 9. However, the initial distinction that it made in 1957 has remained. The present version of the APA continues to authorize an agency to stay an order in a contested case, establishes the terms on which an order may be stayed, and provides for review in the Court of Appeals of an agency's denial of a motion for stay. ORS 183.482(3)(a) to (d). In contrast, ORS 183.400(1) does not explicitly provide a procedure by which either the agency or a court may stay the agency's rule unless, as discussed above, it can be said that ORS 183.400(1) incorporates the stay provisions for review of contested cases.

Respondent argues that the evolution of the APA generally, and ORS 183.400 in particular, especially the legislature's failure to grant explicit authority to this court to issue stays, while at the same time explicitly giving the court the authority to stay enforcement of orders in contested cases, indicates a legislative intent that this court should not have such authority in rule review cases. We do not agree.

As noted above, when the APA was originally enacted in 1957, ORS 183.400 provided, in part, that the validity of any rule could be determined by a petition for declaratory relief filed in the circuit court:

"The validity of any rule may be determined upon a petition for a declaratory judgment thereon filed as provided by ORS chapter 28 for declaratory judgment in actions at law or suits in equity. The agency shall be made a party to the proceeding. The declaratory judgment may be rendered whether or not the petitioner has first requested the agency to pass upon the validity of the rule in question. However, this section shall not apply in any case where the petitioner is not bound by law to any course of conduct until after hearing required by law by the agency concerned. In such a case, the court may determine the validity of the rule, as provided in subsection (2) of this

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