Weldon v. Bd. of Licensed Prof'l Counselors & Therapists

• Decision Date: 20 December 2012
• Docket Number: CA A151028,(BLPCT 2009026,SC S060483).
• Citation: 293 P.3d 1023,353 Or. 85
• Parties: Rachel M. WELDON, LPC, Petitioner on Review, v. BOARD OF LICENSED PROFESSIONAL COUNSELORS AND THERAPISTS, Respondent on Review.
• Court: Oregon Supreme Court

353 Or. 85

293 P.3d 1023

Rachel M. WELDON, LPC, Petitioner on Review,

v.BOARD OF LICENSED PROFESSIONAL COUNSELORS AND THERAPISTS, Respondent on Review.

(BLPCT 2009026; CA A151028; SC S060483).

Supreme Court of Oregon, En Banc.

Argued and Submitted Oct. 10, 2012.

Decided Dec. 20, 2012.

On review of an order of the Court of Appeals.^*

Michael B. Mendelson, Portland, argued the cause and filed the brief for petitioner on review.

Denise G. Fjordbeck, Attorney-in-charge, Salem, argued the cause and filed the brief for respondent on review. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

WALTERS, J.

In this case, we decide that ORS 676.210 does not preclude the Court of Appeals from issuing a stay of an agency's order suspending a health care professional's occupational license. We reverse the contrary decision of the Court of Appeals and remand for further proceedings consistent with this opinion.

On January 25, 2012, the Board of Licensed Professional Counselors and Therapists (board) issued a final order suspending petitioner's license for two years and assessing costs against her in the amount of $24,301.91. Petitioner asked the board to stay enforcement of that order pending judicial review. On March 28, 2012, the board issued an amended final order of suspension. Concluding that petitioner had not demonstrated irreparable harm and had failed to show a colorable claim of error, and that substantial public harm would result if it entered a stay, the board also entered a final order denying petitioner's request for a stay. Petitioner sought review by the Court of Appeals. Petitioner filed both a petition for judicial review of the board's order of suspension, pursuant to ORS 183.482(1), and a motion seeking review of the board's order denying her request for stay, pursuant to ORAP 4.30 and ORS 183.482(3).¹ In her motion, petitioner also asked the Court of Appeals to enter an emergency stay to permit her to continue to practice until appellate court proceedings were complete.

The Appellate Commissioner granted petitioner a temporary stay pending the board's response to petitioner's motion. In its response, the board asserted that ORS 676.210 precluded the Court of Appeals from entering a stay. ORS 676.210 provides:

“No person whose license has been revoked or suspended by any board authorized by the statutes of the State of Oregon to issue licenses to practice a health care profession shall continue the practice of this profession after the order or decision of the board suspending or revoking the license of the person has been made. The license shall remain suspended or revoked until a final determination of an appeal from the decision or order of the board has been made by the court.”

The Appellate Commissioner did not analyze that statute to determine whether it prohibited the Court of Appeals from issuing a stay of the board's order suspending petitioner's license. The commissioner accepted the board's understanding of ORS 676.210 but, sua sponte, decided that, by precluding the exercise of the court's inherent authority to grant a stay, the statute violated the separation of powers provision of Article III, section 1, of the Oregon Constitution.² Then, turning to the merits of petitioner's request, the commissioner determined that, although petitioner had made a showing of irreparable injury, she had not demonstrated a colorable claim of error. The commissioner denied petitioner's motion for stay, but granted her alternative request to expedite judicial review and permitted her to file a supersedeas undertaking with respect to the board's assessment of costs.

The board sought reconsideration of the part of the commissioner's order that declared that ORS 676.210 violates the state constitution, but also took the position that the constitutional analysis was unnecessary because the board's order was correct under either ORS 676.210 or ORS 183.482(3). For her part, petitioner sought reconsideration of the commissioner's conclusion that she had not demonstrated a colorable claim of error. The commissioner solicited memoranda on the separation of powers issue and referred the matter to the Chief Judge of the Court of Appeals.

The Court of Appeals granted reconsideration and determined that petitioner had demonstrated a colorable claim of error. The court stated that, “if the court has authority to grant a stay, the court would * * * grant petitioner's motion for stay * * *.” However, the court agreed with the board that, under the court's existing case law, the legislature constitutionally could restrict the powers of the Court of Appeals, citing State v. Moen, 86 Or.App. 87, 91, 738 P.2d 228 (1987) (legislature may limit powers of statutorily created courts). Accordingly, the court denied petitioner's motion for a stay and vacated that part of the Appellate Commissioner's order that had permitted petitioner to file a supersedeas undertaking to stay the board's monetary assessments.

Petitioner turned to this court. She filed a petition for a peremptory writ of mandamus and request for stay of agency enforcement, together with an emergency motion for a stay of the board's order. Petitioner asked this court either to direct the Court of Appeals to issue a stay (as that court indicated it would have done but for Moen ), or to exercise its own inherent judicial power as a constitutionally created court to grant a stay. We treated petitioner's mandamus petition as a petition for review under Oregon Rule of Appellate Procedure (ORAP) 9.05 of the Court of Appeals' order denying her request for stay and entered a stay of the board's order suspending petitioner's license during the pendency of our review.

The parties present the issue of whether the Court of Appeals has authority to grant a stay as one of constitutional magnitude. The parties apparently agree that, in enacting ORS 676.210, the legislature carved out a discrete—area the regulation of health care professionals in which a court has no power to enter a stay of a board's order. The parties assume that, because ORS 676.210 prohibits a health care professional whose license has been suspended from continuing to practice pending judicial review,³ it also necessarily precludes a court from issuing a stay permitting that prohibited conduct. The parties differ over whether that perceived legislative prohibition violates the separation of powers provision of Article III, section 1, of the Oregon Constitution. The board argues that that constitutional provision does not apply to the Court of Appeals because that court was created by the legislature. Furthermore, the board contends, even if that provision applies, ORS 676.210 does not offend it because the legislature did not unduly burden the judicial power by protecting against what it perceived to be the potential for harm to the public in a narrow class of cases.

Because we cannot determine whether ORS 676.210 violates the Oregon Constitution without first ascertaining its effect, we must construe the statute. See State v. Ausmus, 336 Or. 493, 499, 85 P.3d 864 (2003) (so stating); see also State v. Guzek, 322 Or. 245, 264, 906 P.2d 272 (1995) (court considers subconstitutional matters before examining state constitutional issues). For ease of reference, we again set out that statute:

“No person whose license has been revoked or suspended by any board authorized by the statutes of the State of Oregon to issue licenses to practice a health care profession shall continue the practice of this profession after the order or decision of the board suspending or revoking the license of the person has been made. The license shall remain suspended or revoked until a final determination of an appeal from the decision or order of the board has been made by the court.”

We begin by examining its text. State v. Gaines, 346 Or. 160, 171, 206 P.3d 1042 (2009).

The first sentence of ORS 676.210 is directed at the licensee: “No person whose license has been revoked or suspended * * * shall continue the practice of this profession * * *.” The second sentence is not directed at anyone specifically, but declares that the practitioner's license “shall remain suspended or revoked until a final determination of an appeal * * * has been made by the court.” Those provisions do not expressly address, much less limit, judicial authority. However, those provisions do prohibit professionals whose licenses had been suspended or revoked from practicing during the pendency of judicial review of the board decision, and the parties assume that the legislature must have intended to prohibit courts from staying agency orders that would permit continuing practice.

Our first observation about that understanding of ORS 676.210 is how far its logic reaches. If the directive that the practitioner's license “shall remain suspended or revoked” operates to preclude courts from granting a stay, then that same wording by implication also would preclude agencies from doing so. Our second and related observation is that that understanding seems to conflict with a provision of the Oregon Administrative Procedures Act (APA), specifically, ORS 183.482(3), as discussed below.⁴

The APA permits any person adversely affected or aggrieved by an agency order to obtain judicial review of the agency's decision in contested cases. ORS 183.480; ORS 183.482. The APA provides that the filing of a petition for judicial review in a contested case does not automatically stay enforcement of the agency order, but that the agency may issue a stay and that a court may review an agency's denial of a request for stay. ORS 183.482(3)(a), (d). That statute provides:

“(3)(a) The filing of the petition shall not stay enforcement of the agency order, but the agency may do so upon a showing of:

“(A) Irreparable injury to the petitioner; and

“(B) A colorable claim of error in the order.

“(b) When a petitioner makes the...