Gritter v. Adult & Family Services Division

48 P.3d 195, 182 Or. App. 249, 2002 Ore. App. LEXIS 909
CourtCourt of Appeals of Oregon
DecidedJune 12, 2002
Docket2-0101-DE2393; A114316
StatusPublished
Cited by1 cases

This text of 48 P.3d 195 (Gritter v. Adult & Family Services Division) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gritter v. Adult & Family Services Division, 48 P.3d 195, 182 Or. App. 249, 2002 Ore. App. LEXIS 909 (Or. Ct. App. 2002).

Opinion

KISTLER, J.

After petitioner filed her opening brief in this court, respondent Adult and Family Services Division (AFSD) issued a notice stating that it was withdrawing its order pursuant to ORS 183.482(6) “to allow the parties to present additional evidence.” Petitioner objected to AFSD’s action. She reasoned that, if AFSD wanted to present additional evidence, it needed to seek leave of the court to do so pursuant to ORS 183.482(5). We agree and sustain petitioner’s objection.

During their marriage, petitioner Angela Gritter and Gerald Mothershed had one child. After they separated, Gritter applied for and received benefits for their child from AFSD. In the spring of 1998, the Support Enforcement Division (SED) sought to recover some of those benefits from Mothershed. After a hearing, SED found that, because Mothershed (and not Gritter) had custody of the child during the time that Gritter had received benefits from the state, Mothershed did not owe any support payments.

After SED issued its decision, AFSD notified Gritter that it was terminating its child support payments to her. It also notified her that it intended to recover the child support payments that it had already made to her. After a hearing, AFSD issued a final order on February 6, 2001. In its final order, AFSD relied on SED’s order to find that Gritter had not had custody of the child when AFSD provided assistance to her. It followed, AFSD found, that Gritter had received payments that she was not entitled to receive. Gritter asked AFSD to reconsider its order. Among other things, she argued that, because she had not received adequate notice of the SED hearing, AFSD could not base its order on SED’s findings. AFSD denied Glitter’s request for reconsideration.

Gritter petitioned for judicial review of AFSD’s order and filed an opening brief. In her brief she argued, as she had below, that AFSD could not base its order on an SED hearing to which she had had no notice. Before oral argument, AFSD filed a notice pursuant to ORS 183.482(6) stating that it was withdrawing its order “to allow the parties to present additional evidence” on whether Gritter had received notice of the SED hearing. Gritter objected to AFSD’s withdrawing its [252]*252order. She argued that, if AFSD wanted to supplement the evidentiary record, it could do so only if it first satisfied the criteria set out in ORS 183.482(5). It could not withdraw its order pursuant to ORS 183.482(6) to present additional evidence. After Gritter filed her objection and before we ruled on it, AFSD reopened the record and heard additional testimony. Based on the new testimony, it issued an order on reconsideration on February 6, 2002.

The parties’ differing positions derive from two subsections of the same statute. AFSD relies on ORS 183.482(6), which provides that “[a]t any time subsequent to the filing of the petition for review and prior to the date set for hearing the agency may withdraw its order for purposes of reconsideration.” Viewed in isolation, ORS 183.482(6) appears to permit an agency to withdraw its order and reconsider it for any reason. The only limitation stated in the statute is that the agency may withdraw its order only for the purpose of “reconsidering]” it.

Gritter relies on ORS 183.482(5), which sets out a procedure for supplementing the evidentiary record after a petition for judicial review has been filed. Subsection (5) provides, in part:

“If, on review of a contested case, before the date set for hearing, application is made to the court for leave to present additional evidence, and it is shown to the satisfaction of the court that the additional evidence is material and that there were good and substantial reasons for failure to present it in the proceeding before the agency, the court may order that the additional evidence be taken before the agency upon such conditions as the court deems proper.”

ORS 183.482(5). Viewed in isolation, subsection (5) requires anyone who seeks leave to present additional evidence after a petition for review has been filed to show that the evidence is material and that there was a good reason for not presenting it earlier.

The question presented by Gritter’s objection is how those two subsections fit together. Gritter reasons that, when general and specific statutory sections conflict, the specific creates an exception to the general. It follows, she concludes, [253]*253that the specific limitations set out in subsection (5) on presenting additional evidence are an exception to the broad discretion that subsection (6) otherwise grants agencies. In response, AFSD argues that subsection (5) applies only to the parties before an agency, and not to the agency itself. It follows, AFSD reasons, that subsection (5) does not limit the broad grant of authority set out in subsection (6), and that it may withdraw its order for any reason.

If, as AFSD argues, subsection (5) applies only to the parties before an agency and not to the agency itself, Glitter’s objection is easily answered. We accordingly begin with that issue. The first clause in subsection (5) provides: “If * * * application is made to the court for leave to present additional evidence.” Nothing in that clause limits the application of subsection (5) to the parties before the agency. Rather, the legislature’s use of the passive voice implies that the subsection applies to anyone who seeks leave to present additional evidence. AFSD argues, however, that the remainder of the sentence points in a different direction. It notes that anyone who applies to the court for leave to present additional evidence must establish “good and substantial reasons for failure to present it in the proceeding before the agency.” AFSD then reasons:

“The phrase ‘proceeding before the agency’ indicates that the statute is intended to apply only when the party to the ‘proceeding before the agency5 wishes to offer additional evidence. The agency is not a party to a proceeding in which it is the decisionmaker. See ORS 183.310(6) (defining‘party5). Thus, only the party — not the agency itself — is ‘before the agency.’ ”

It follows, AFSD reasons, that subsection (5) applies only to parties and not to the agency.

AFSD reads too much into the phrase “good and substantial reasons for failure to present [evidence] in the proceeding before the agency.” Even if the agency is not a party to the proceeding before it, as AFSD argues, the parties are not the only persons who present evidence in contested case proceedings.

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Related

Gritter v. Adult & Family Services Division
53 P.3d 469 (Court of Appeals of Oregon, 2002)

Cite This Page — Counsel Stack

Bluebook (online)
48 P.3d 195, 182 Or. App. 249, 2002 Ore. App. LEXIS 909, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gritter-v-adult-family-services-division-orctapp-2002.